Kissinger v. United States

• Decision Date: 14 September 1959
• Docket Number: No. 20402.,20402.
• Citation: 176 F. Supp. 828
• Parties: John KISSINGER, Libelant, v. UNITED STATES of America, Respondent-Petitioner (Agmarine Contracting Co., Inc., Respondent-Impleaded, and International Elevating Company, Respondent-Impleaded).
• Court: U.S. District Court — Eastern District of New York

176 F. Supp. 828

John KISSINGER, Libelant, v. UNITED STATES of America, Respondent-Petitioner (Agmarine Contracting Co., Inc., Respondent-Impleaded and International Elevating Company, Respondent-Impleaded).

No. 20402.

United States District Court E. D. New York.

September 14, 1959.

Zimmerman & Zimmerman, New York City, by Bernard K. Zimmerman, New York City, for libelant.

Cornelius W. Wickersham, Jr., U. S. Atty. for Eastern District of New York, Brooklyn, N. Y., by Walter L. Hopkins, Admiralty and Shipping Section, Department of Justice, New York City, for the U. S.

Lawless & Lynch, New York City, by William F. Larkin, New York City, for Agmarine Contracting Co., Inc.

Galli & Locker, New York City, by Patrick J. McCann, New York City, for International Elevating Co.

RAYFIEL, District Judge.

The libelant, an employee of Agmarine Contracting Co., Inc., hereinafter called Agmarine, filed his libel for the recovery of damages from the respondent for injuries which he sustained on August 6, 1953, on board the S.S. Lord Delaware, owned by the respondent. His claim, bottomed on both unseaworthiness and negligence, is that while necessarily walking on and across certain hatchcovers on hatch No. 3 of said vessel for the purpose of returning other hatchcovers to their proper places, one of the boards composing a hatchcover on which he had occasion to step collapsed beneath him because of its rotted and cracked condition, causing him to be precipitated into the hold, as a result of which he sustained his injuries.

The respondent impleaded Agmarine and International Elevating Company, hereinafter called International, claiming the right to indemnification from either or both of them for any recovery had against it.

The Lord Delaware, for some time prior to August 6, 1953, had been part of a reserve fleet kept at Tompkins Cove, in the Hudson River, some 30 miles north of New York City. Specifications for her de-activation had been issued (Respondent's Exh. H), pursuant to which her generators and machinery had been disconnected, her rigging removed, her lifeboats stowed away, and a number of operational parts and various items of equipment transferred. A certificate indicating the completion of such work (Respondent's Exh. I) was issued on April 24, 1952.

The respondent entered into a contract with Agmarine (Libelant's Exh. 3) under the terms of which the latter agreed, among other things, to clean the Lord Delaware, install certain tubing and ventilating equipment, and otherwise render her suitable for the storage of grain. She was then to be loaded and returned to Tompkins Cove, where she was to serve as a floating warehouse for said grain.

At about 3:30 P.M. on July 28, 1953, the Lord Delaware left her anchorage at Tompkins Cove in tow of two tugs, and arrived at Weehawken, New Jersey, at about 8:15 P.M. on that day. On her trip she was in charge of her master, Ole Kjeldsen, an employee of the respondent, and had a riding crew of six men, employees of Agmarine. A ship's log was kept (Libelant's Exh. 2), in which were recorded the customary entries, such as, among others, dates and places of arrival, soundings, temperature and other weather conditions, and times of arrival on and departure from the vessel of various persons.

On August 3rd the cleaning of the vessel, and its preparation for the receipt of the grain, had been completed, and loading commenced. The loading was performed by employees of International, which had been engaged by the respondent for that purpose. The loading of hatch No. 3 commenced at about 1:00 P.M. on August 5th, continued through that working day, and was completed at about 9:00 A.M. on August 6th. The loading was accomplished by passing the grain from its source of supply off the vessel through tubes placed into openings in said hatch created by the removal of some of its hatchcovers, and into the lower hold. Hatch No. 3 was approximately 20' × 20' in dimensions, and was provided with 36 hatchcovers, each approximately 5' 0 3/8 " in length and 2' 3 1/8 " in width. The hatchcovers were laid in four rows of nine each, running athwartships, the long side of each hatchcover, of course, running fore and aft. The hatchcovers in the foremost row, which we shall call the first row, were numbered consecutively from 1 to 9, and those in the second, third and fourth rows were numbered 10 to 18, 19 to 27 and 28 to 36 respectively, the lowest number in each row being at the port end of the row. Each of the hatchcovers was composed of three boards, running lengthwise, held together by a metal strap or band at both ends, and by one or three steel bars— there was some conflict in the testimony as to the number—running through said boards and at right angles thereto.

None of the hatchcovers in rows 2 and 3, numbered from 10 to 27, inclusive, had been removed for the grain-loading operation, the tubes having been inserted for that purpose in the openings created by the removal of the hatchcovers in rows 1 and 4. During the loading a small amount of the grain or grain dust leaked or was blown onto the deck in the vicinity of hatch No. 3, where the hatchcovers from rows 1 and 4 had been placed, and an even smaller amount fell upon some of the hatchcovers in rows 2 and 3.

When the loading had been completed the libelant and two other employees of Agmarine, Pepitone and Corbett, were instructed by the master, Ole Kjeldsen, to go into the hold and cover the grain with the 'tweendeck hatchcovers, in order to secure it against shifting, and then to return to the main deck and close hatch No. 3. All of this work was done at the direction, and some of it under the supervision of Kjeldsen, as was provided in the aforementioned agreement (Libelant's Exh. 3), the pertinent part of item No. 14 of which reads as follows:

"Grain covering and battening of hatches (after loading)

"(a) Upon completion of loading the contractor is to secure the grain cargo by spreading the 'tween deck hatchcovers on top of the grain. * * * These covers shall be laid in a fore and aft position, under the direction of the Master." (Emphasis added.)

"(b) Contractor to re-install hatch beams (if necessary), hatch boards, covers and three (3) tarpaulins, under the direction of the Master after the loading of cargo has been completed. * * *" (Emphasis added.)

As hereinabove stated, the hatchcovers composing rows 2 and 3 were intact, not having been removed in the loading operation, and the libelant, together with Pepitone and Corbett, proceeded to install the hatchcovers in the aftermost (Nos. 28 to 36, inclusive) and foremost (Nos. 1 to 9, inclusive) rows.

The hatchcovers in rows 1 and 4, which had been removed to permit the loading of the grain, had been placed, as aforesaid, on the deck alongside hatch No. 3, on both its port and starboard sides. The replacing of the hatchcovers was accomplished in this manner. Two of the men would hold a hatchcover, one at each end, rest it on the coaming, and then set it between the hatchbeams and slide it into its proper place. Because of their limited reach they were able, from their position on the deck, to install only three hatchcovers, beginning at each end of the row, thus leaving the three center spaces open. They were unable to push the six hatchcovers thus installed farther toward the center because some of them were warped or their metal straps or bands broken, or because the hatch beams were bent in certain places. In order to install the remaining hatchcovers it was therefore necessary for two of Agmarine's men to work on top of the hatch. The third man would slide a hatchcover onto the coaming—it was too heavy to be lifted by one man—a second man would drag it to the opening into which it was to be installed, and the third would join him in sliding it and then setting it into its proper place. It was sometimes necessary for all three to co-operate in setting a hatchcover into place. It was in that fashion that the hatchcovers in the aftermost or fourth row were restored to their proper places.

The three then continued with the installation of the hatchcovers in the foremost row, following the same procedure they had used in the fourth row. Two or three hatchcovers were installed in their places at each end of the row, and then Pepitone and the libelant mounted the top of the hatch while Corbett remained on deck close to the hatch. They continued their operation until only two hatchcovers (Nos. 5 and 6) remained to be installed. Corbett placed a hatchcover on the coaming alongside of No. 27, at which point the libelant took it, placed it under his left arm, and dragged it in a diagonal direction forward and toward the center of the foremost row to a position about where Pepitone was standing. It was his intention to install it in space No. 6. As he stepped upon hatchcover No. 16, which lay in his course, it gave way beneath him, causing him to be precipitated into the hold, and to sustain his resultant injuries.

The respondent denies its liability to the libelant, contending

(1) that no warranty of seaworthiness of the Lord Delaware extended to the libelant,

(2) that it did not neglect any duty which it owed him,

(3) that the libelant was guilty of contributory negligence, and, further,

(4) that if it (the respondent) should be held liable to him it is entitled to indemnification from either or both of the respondents-impleaded. Those points will be considered in that order.

The respondent argues that the Lord Delaware had been de-activated, was no longer in commerce and navigation, and to all intents and purposes was a dead ship, to be used exclusively as a floating warehouse for the storage of grain. It claims, therefore, that no warranty of seaworthiness extends to the libelant. In support of its position it cites the case of Hawn v. American S.S. Co., 2 Cir., 107 F.2d 999. Hawn brought an action under the Jones Act, 46 U.S.C.A. § 688, to recover damages for...