Green v. Orion Shipping and Trading Co.

• Decision Date: 21 March 1956
• Docket Number: No. 3728.,3728.
• Citation: 139 F. Supp. 431
• Parties: Ernest E. GREEN v. ORION SHIPPING AND TRADING CO., Inc., Respondent, and Standard Maritime Supply Co., Inc., and The Billings & Spencer Co., Respondents Impleaded.
• Court: U.S. District Court — District of Maryland

139 F. Supp. 431

Ernest E. GREEN v. ORION SHIPPING AND TRADING CO., Inc., Respondent, and Standard Maritime Supply Co., Inc.,

and

The Billings & Spencer Co., Respondents Impleaded.

No. 3728.

United States District Court D. Maryland, Admiralty Division.

March 21, 1956.

Herbert L. Grymes, Baltimore, Md., for libelant.

Ober, Williams, Grimes & Stinson, Baltimore, Md. (Southgate L. Morison and Randall C. Coleman, Jr., Baltimore, Md., of counsel), for respondent.

Jesse Slingluff, Jr., Baltimore, Md., for respondents impleaded.

THOMSEN, Chief Judge.

Libellant, who was first assistant engineer on the supertanker Orion Star on March 3, 1954, has filed a libel in personam against Orion Shipping and Trading Co., Inc., the owner of that vessel, claiming permanent injuries to his left foot and ankle resulting from a fall caused by the breaking of the 1¼" box on a double-end box wrench which he was using on that day. The first cause of action charges unseaworthiness due to the allegedly defective wrench and negligence of respondent in failing to inspect and test the wrench; the second charges negligent failure to supply proper medical attention; the third is for maintenance and cure. Respondent has filed a petition under the 56th Admiralty Rule, 28 U.S.C.A., impleading Standard Maritime Supply Co., Inc., the vendor, and The Billings & Spencer Co., the manufacturer of the wrench, on grounds of breach of warranty and negligence, respectively; and respondent and impleaded respondents contend that a major portion of the permanent disability is due to a second fall, on December 3, 1954, on the Orion Clipper, which they say was not caused by the original injury nor by any negligence on the part of respondent.

The findings of fact and conclusions of law on the issues of seaworthiness, negligence of the ship, of the vendor and of the manufacturer of the wrench, breach of warranty, assumption of risk and contributory negligence will be set out together first; the findings of fact and conclusions of law on the issue of damages, including the propriety of the treatment afforded libellant and the nature, cause and result of the second injury, will follow.

I.

A. Facts — The Accident.

Libellant, a marine engineer, followed the sea until 1936, rising to first assistant engineer. From 1936 to 1950 he worked ashore as a stationary engineer and served four years as chairman of the Maryland State Board of Examining Engineers. In 1950 he resumed seafaring and in October, 1953, signed on as second assistant engineer of the supertanker Orion Star, which was being built and outfitted at the Bethlehem Sparrows Point Shipyard.

The Orion Star was a good ship, but libellant had little respect for her captain and chief engineer. The first assistant was discharged in November, 1953, during the maiden voyage, and libellant became first assistant at that time. The ship made several trips carrying oil from Saudi Arabia to Sasebo, Japan, and on March 3, 1954, was alongside the dock at Ras Tanura, Saudi Arabia, scheduled to sail at 5:00 P.M One or more of the tubes of the starboard boiler economizer had been leaking; shoreside welders had failed to correct the condition; and following a conference between the captain, the chief engineer and libellant, the chief ordered libellant about 10:30 A.M. to blank off the starboard economizer. As first assistant engineer libellant was in charge of the engine room, including all tools, equipment and personnel. He ordered Burns, Mason and Easterling, second assistant engineer, second pumpman, and wiper, respectively, to do the work, and went below himself to lend a hand.

The job involved inserting blanks between the flanges of two connections on the line feeding the economizer, blocking off that line so that water would flow directly to the boiler. A blank is a steel plate perforated with a sufficient number of holes to accommodate the bolts whose function usually is to hold the two flanges tightly together, and whose nuts press the two flanges against the blank after it has been inserted.¹

The economizer sits on top of the boiler, its tubes enclosed by vertical plates which rise to a height of about 7 feet above the top of the boiler. The flanges between which the blanks were to be inserted are located outside one of these vertical plates or walls of the economizer, which rises from the top surface of the boiler about 18 inches from where the upper half of the boiler drum meets the top surface of the boiler. The lower half of the drum is within the boiler itself. The top half of the drum, which is cylindrical in shape, rises about 3 feet above the top surface of the boiler. The two connections into which the blanks were to be inserted are about 5 feet apart diagonally, the lower one being about 4 feet above the top surface of the boiler, and the upper one about 6 feet above the top surface of the boiler and about 3 feet above the top of a large pipe on which libellant sat to do his part of the work.

Each of the bolts holding the flanges together called for two 1¼" nuts. The men took with them a double-end box wrench, with a 1¼" box at one end and a 15/16" box at the other, a 1¼" open-end wrench, and a hammer with which to drive the blanks between the flanges and to strike the handle of the open-end wrench in the last phase of tightening the nuts. Burns and Easterling worked together on the lower connection, libellant and Mason on the upper, passing the tools back and forth. Mason loosened the nuts, removed the bolts, inserted the blanks, replaced the bolts and tightened the lower nuts, using the open-end wrench. Libellant then began to tighten the nuts over the top flange of the upper connection, and was going over them a second time with the double-end box wrench, putting some strain on them. A box wrench is a tool customarily used for that purpose. He could not tighten those upper nuts by standing on the top of the boiler in the 18-inch strip between the economizer and the drum, because the flange would have been above his head. He therefore sat on a large pipe, about 2 or 3 feet below the flange, and braced his right foot on the top of the drum. While he was sitting in that position, pulling with both hands on the shaft of the double-end box wrench, the wrench broke obliquely across the 1¼" box which was grasping the nut; libellant fell backwards, his left foot caught between two pipes, and he hung by that foot until he was released by his fellow workers. He shouted "Look at this", or words to that effect, before dropping the wrench, which slid off the offset of the boiler and fell 30 feet to the steel deck below.

The space in which libellant was working was a thicket of pipes, with a grating about 18 inches above the top flange; but the position which libellant assumed was not as cramped as would appear from photograph No. 14, since the man in that photograph, one of respondent's advocates, is 6' 4" tall, while libellant is only 5' 7" tall. The suggestion of respondent's advocate that libellant should have set up a horse on the 18-inch strip of level surface on top of the boiler, run boards from the horse to the top of the drum and worked standing on the boards, was not practical. The horse would have to be built by the ship's carpenter on overtime, which could only be ordered by the chief engineer; and this was a rush job to get the ship ready to sail that afternoon. Moreover, standing on any staging which could have been set up in that location would have been at least as dangerous as the position which libellant actually assumed. Libellant was not performing the work in a negligent manner nor using an improper tool at the time of the injury.

B. Facts — The Wrench.

The wrench was a double-end box wrench, 18½" long, with a 15" shaft between the boxes, one of which fitted a 1¼" nut and the other a 15/16" nut. It was manufactured by Billings & Spencer Co., one of the respondents impleaded, which produces nearly 500,000 wrenches of different types per month. The method of manufacture and the various inspections and tests made in the process were described by the assistant superintendent of that company and discussed by a metallurgist. I find that reasonable care was used in the manufacture of the wrench; and although it is not impossible that the wrench was defective when it left the hands of the manufacturer, it is highly improbable, and there is no evidence of any defect at that time.

The wrench was sold and delivered by the manufacturer to Standard Maritime Supply in November, 1953, and a few days later was sold by that company to respondent, and delivered through the shipyard to the ship, along with many other wrenches. Libellant had the box of wrenches unpacked; they were checked by him, the third assistant engineer and the junior third. Neither libellant nor anyone else employed by respondent inspected or tested the wrenches at the time they were delivered. No such inspection or testing is customary or would be practical. Libellant placed one complete set of wrenches on a tool board in the machine shop, and stored the spares in boxes in the storeroom, from which he would issue wrenches for replacement if and when needed.

Box wrenches are of relatively light construction and should not be struck by a hammer at any time. Such hammering might cause a slight fracture, not visible in ordinary use, which would greatly weaken the wrench and make it likely to break. There were no striking wrenches aboard the Orion Star, i. e., wrenches specially designed to be struck with a hammer, but there were open-end wrenches of all sizes on the tool board, including one 1¼" open-end wrench, and it was and is customary for engine room personnel to strike the handles of open-end wrenches when loosening or tightening nuts.

The wrench used by libellant at the time of the accident was offered in evidence. It was sent by the captain of the Orion Star to the United States in July, 1954, but there was no...