McMahan v. The Panamolga

Decision Date20 January 1955
Docket NumberNo. 3505.,3505.
Citation127 F. Supp. 659
PartiesWilliam S. McMAHAN and James McMahan, Libelants, v. THE PANAMOLGA, her engines, boilers, etc., and Compania Naviera Dalmatica, S.A., Respondent.
CourtU.S. District Court — District of Maryland


Emile Z. Berman, New York City, and William J. O'Donnell, Baltimore, Md., for libelants.

Ober, Willams, Grimes & Stinson, Baltimore, Md. (Southgate L. Morison and Randall C. Coleman, Jr., Baltimore, Md.), for respondents.

THOMSEN, District Judge.

Libelants, employed by Gulf-Tide Stevedores, Inc., to help load grain on the S.S. Panamolga in Galveston, Texas, were made ill by inhaling fumes of carbon disulfide, which had been used to fumigate the grain which was being loaded. They have filed a libel in rem against the ship and in personam against its owner and operator, claiming permanent injuries, and alleging unseaworthiness, failure to warn, and failure to provide a safe place in which to work. Respondents deny that the ship was unseaworthy, and deny that they violated any other duty which they owed to libelants.

Findings of Fact

The Panamolga is an American Liberty Ship of Panamanian registry owned by Compania Naviera Dalmatica, S. A., a Panamanian corporation. As with other Liberty ships, in the No. 1 (forward) hold there is a 'tween deck below the main or weather deck; below the 'tween deck is the lower hold; the bottom of the lower hold is the ceiling or top of the four deep tanks which lie between the lower hold and the vessel's double bottom. The bottom of the lower hold was referred to by some of the witnesses as the lower 'tween deck. The four deep tanks in the No. 1 hold, two starboard and two port, are separated from each other by bulkheads. We are concerned in this case with the No. 2 (afterport) deep tank in the No. 1 hold, which I will generally refer to as the deep tank. The deep tank measures about 30 ft. by 30 ft., and is 9 ft. deep. There is an 8 ft. by 15 ft. rectangular opening in the top, in the forward starboard corner of the deep tank, which furnishes its only means of ventilation. A ladder runs down from this opening into the deep tank. Liberty ships have no forced ventilation, and I find that very few grain ships touching at Galveston had any forced ventilation in the grain-carrying compartments.

In the latter part of October, 1950, the Panamolga was under voyage charter to the President of India, the owner and shipper of the milo (a grain sorghum) which was to be loaded on the vessel. The Panamolga discharged lumber and general cargo on the east coast in the early part of October, 1950, and sailed in ballast for Galveston. During the voyage the ship's crew, under the supervision of Chief Officer Joseph Ivellio, swept and washed with fresh water all cargo spaces. No chemical was used and no noxious fumes were noticed. The vessel had not been fumigated since 1947, but had a valid rat certificate and extension.

The Panamolga arrived in Galveston on the early morning of October 24, 1950. Grain fittings, called shifting boards, were erected in the lower holds, but not in the deep tanks. The vessel berthed at a pier adjacent to Galveston Wharves Grain Elevator B, from which the grain was to be loaded. The elevator is owned by the City of Galveston.

The capacity of the elevator is about 5,500,000 bushels. It is constructed in a series of bins, each of which is a separate storage unit by itself. There are over 400 bins in the elevator, varying in size from about 5,000 to 32,000 bushels capacity. A standard railway car carries about 1,500 to 1,800 bushels.

When ships are being loaded, grain is carried by conveyor belts from the bottom of a number of separate bins to a higher loading bin, where the grain from the separate bins becomes mixed. A spout carries the grain from the loading bin to a point over the weather deck level of the hold into which it is to be loaded. Feeders, called troughs by one of the witnesses, then carry the grain to the opening of the deep tank or other space to be loaded with grain.

Before grain may be loaded, the deep tanks and other cargo spaces which are to receive it must be passed by an inspector from the Galveston Cotton Exchange and Board of Trade Grain Department (Board of Trade) and by a surveyor from the National Cargo Bureau, Inc., formerly known as the Board of Underwriters of New York (Board of Underwriters). The Board of Underwriters also issues a certificate of loading following a second inspection after the loading is completed. The inspectors of the Board of Trade are licensed and supervised by the United States Department of Agriculture.

On October 24, 1950, an inspector from the Board of Trade came on board the vessel and inspected and passed all holds. On October 25, 1950, a surveyor from the Board of Underwriters inspected all holds and deep tanks. He passed all holds as ready to load grain except No. 3, in which the grain fittings had not been completed. He returned early the following morning and passed No. 3 hold. The superintendent of Gulf-Tide Stevedores, Inc., (Stevedore), the employer of the two libelants, inspected the vessel prior to loading. One or more of the vessel's officers were present when these inspections were made.

On October 25, about 7 P.M., Stevedore's employees came aboard the ship and ran grain from 7:20 P.M. to 9:25 P.M., during which period 168,000 bushels were loaded into holds 1, 2, 4 and 5. The No. 2 deep tank in the No. 1 hold was filled to a point where the apex of the pyramid of grain was at or a little above the level of the top of the deep tank.

The loading of the grain is the stevedore's responsibility. In effect, the ship is turned over to the stevedore for that purpose. The stevedore foreman, called a walking foreman, moves about from ship to shore but is usually to be found on the weather deck. A spout man, employed by the stevedore, moves the spout from place to place as needed and starts and stops the flow of grain from the loading bin of the elevator through the spout.

Samplers, employed by the Board of Trade, take samples of the grain flowing out of the spout every 8,000 bushels. The samples are caught in a device known as a pelican, and are sent at once to a laboratory located in the elevator, where they are tested for grade by the Board of Trade inspector. Any offensive odor would affect the grade and, if present in any unusal degree, should be, and I find as a fact would have been, discovered by the Board of Trade inspector.

The first officer of the ship is usually the officer on duty during loading, and I find as a fact that he was present on the evening of October 25 while grain was being run, and on the morning of October 26 until after libelants became sick. It is customary for such officer to sample grain as it flows from the spout by taking occasional handfuls to see whether it is wet or hot. I find that the first officer took a few such handfuls on the evening of October 25, that he did not find it hot or wet, and that he did not notice any unusual odor, although it is doubtful whether the presence of dangerous quantities of carbon disulfide in the grain would be noticeable from such an examination.

Between 9:30 and 10:00 P. M. on October 25, Stevedore's employees knocked off work, put hatch covers on the No. 1 hold at the weather deck level and left the ship. There is no evidence that anyone noticed anything unusual about the grain which was loaded that evening.

Early on the morning of October 26 libelants, who had been working as longshoremen for some months, went to the waterfront for the shape-up. A walking foreman, who works for a number of stevedoring companies, picked up libelants' cards to assist in the loading of the Panamolga as employees of Gulf-Tide Stevedores, Inc. Over 100 longshoremen went aboard at about 8:00 A. M. Libelants' gang of 10 men, under a gang pusher, was directed to trim the grain in the No. 2 deep tank in the No. 1 hold. Trimming grain involves leveling off the pile of grain and distributing it evenly into the corner of the deep tank or other cargo space so that it cannot later shift and endanger the ship, and so that the space may be more completely filled. To accomplish this task, it is necessary for the trimmers, with shovels, to go into the hold or deep tank, and standing or kneeling on top of the grain, usually in very close quarters, to pull or shovel it past them from the center to the sides of the compartment. Stevedore's employees removed the No. 1 hatch cover, and libelants and the other members of their gang went down to the lower hold and "scooted" down the pile of grain feet first into the deep tank, moving such grain as was necessary to make openings large enough for them to get in. The pusher remained on the lower hold, which formed the ceiling of the deep tank. Libelants and the other members of their gang entered the deep tank a little after 8:00 A. M. and immediately started trimming and pulling the grain with their shovels to level off the pyramid and distribute the grain equally. I find as a fact that the men worked in the deep tank for approximately 15 minutes before any of them noticed an unusual odor or became sick. Then one man after another noticed an offensive smell, something like rotten eggs, and became nauseated. Their eyes, mouths and skin burned; they were dizzy and numb and their heads ached. After a couple of the men had become sick, the whole crowd tried to leave the deep tank as fast as possible, but found their exit blocked by grain which was pouring into the deep tank through the opening at the top. It took them several minutes to attract the attention of the pusher on the deck above by hammering on the under part of the deck, to have the flow of grain stopped, and then they had to distribute the grain so that they could climb up the ladder and out of the deep tank. All of the men were able to climb out. Several men were violently...

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