Morrell v. UNITED STATES OF AMERICA

• Decision Date: 16 September 1960
• Docket Number: No. 26834.,26834.
• Citation: 193 F. Supp. 705
• Parties: William MORRELL and Evaristo Valle, Libelants, v. UNITED STATES OF AMERICA et al., Respondents, and Triple "A" Machine Shop, Inc., Respondent-Impleaded.
• Court: U.S. District Court — Northern District of California

193 F. Supp. 705

William MORRELL and Evaristo Valle, Libelants, v. UNITED STATES OF AMERICA et al., Respondents, and Triple "A" Machine Shop, Inc., Respondent-Impleaded.

No. 26834.

United States District Court N. D. California, S. D.

September 16, 1960.

Jay A. Darwin, Kenneth W. Rosenthal, Rex Shoop, San Francisco, Cal., for libelants.

Laurence E. Dayton, U. S. Atty., Keith R. Ferguson, Special Asst. to Atty. Gen., Graydon S. Staring, Atty., Admiralty & Shipping Section, San Francisco, Cal., for the United States.

Bronson, Bronson & McKinnon, John H. Painter, Partridge, O'Connell & Whitney Robert G. Partridge, San Francisco, Cal., for respondent-impleaded.

OLIVER J. CARTER, District Judge.

Libelants seek to recover damages from respondent for injuries received when lifeboat No. 2 of the U.S.N.S. David C. Shanks fell from its davits on April 14, 1953, and struck the dock. At that time libelants were employees of impleaded respondent Triple "A" Machine Shop, Inc., and were in the lifeboat when it fell. The vessel was a United States Navy civil service manned, dependent passenger transport, operated by the Navy's Military Sea Transportation Service, and it was delivered to the custody of the Triple "A" Machine Shop, Inc. at that company's shipyard in San Francisco, California, on March 31, 1953, for voyage repairs and annual inspection, which repairs were to be made by Triple "A" Machine Shop, Inc. under written contract. Under the contract the contractor was to "furnish all necessary material, labor, services, equipment, supplies, power, accessories, facilities as would be necessary for accomplishing the work specified in the job order," and it was "understood that such personnel (civilian and military personnel attached to the vessel) will not interfere with the work or the contractor's workmen," and, further, that "Unless otherwise specifically provided in the job order, all operational practices of the contractor and all workmanship and material, equipment and articles used in the performance of work hereunder shall be in accordance with the rules of the American Bureau of Shipping, the requirements of the U. S. Coast Guard, the rules of the American Institute of Electrical Engineers, and the best commercial marine practices. Standards other than the foregoing shall be specifically set forth in the job order." As to the lifeboats the parties have stipulated that no other standards were set forth in the specifications. There were a number of specifications requiring certain work to be done as required by Coast Guard regulation, or prepared for Coast Guard inspection. A part of the work to be done by the contractor was to remove eight lifeboats from the ship and replace them with and install a like number of reconditioned lifeboats, including lifeboat No. 2, and to properly provision the new lifeboats. The contract required an obligation of the contractor that "while all work is being accomplished in boats the releasing gear and the boats shall be secured by wire straps to prevent accidental dropping or releasing of the boat during repairs."

At 8:00 o'clock a. m. on the morning of the accident libelants were assigned to load provisions into the lifeboat and the boat had been lowered previously by the contractor's employees so that it was hanging by its "falls" over the side of the vessel. The libelants had been loading provisions into the boat for about ten minutes before it fell with libelants and a painter, who entered the boat to paint the Rottmer release gear lever or handle in the boat. At the time the boat was equipped with "spanners" and life lines, or man lines, which were installed and available for use, but not in use. The boat was not secured by wire straps known as "stoppers" or "preventers", although they were available, having been used the day before during tests on the boat, and having been removed sometime before the accident. The evidence is conflicting as to who removed, or how the wire strap "preventers" were removed, and the Court finds that the inference established by the weight of the evidence is that they were removed by employees of the contractor.

The boat was equipped with a Rottmer safety release gear which was designed to hold the boat in the position and condition in which the boat was at the time of use by libelants and the painter. Examination and testing on the day before the accident, and immediately after the accident, showed the Rottmer safety release gear was in good working order and operating properly. After the fall the lever of the Rottmer gear was found in an open or release position. The undisputed evidence shows that the painter entered the boat to paint the handle or lever of the release gear red, and after the fall only the top of the lever in a closed position was painted, and the underneath side in that position was unpainted. The evidence is contested as to what happened, if anything, to the release gear lever while the painter was in the boat. Since the fall occurred shortly after the painter entered the boat with the lever of the safety release gear in a "closed" or "hold" position before the fall, and was found in an "open" or "release" position after the fall, and with the painting of the release lever having been partially completed as indicated, the weight of the evidence proponderates in favor of the inference that the painter tripped or opened the safety release gear, causing the boat to fall, and the Court so finds.

The Court found at the conclusion of the evidence that all of the gear of the vessel with respect to lifeboat No. 2 was in good working order, and fit for the purpose intended, and that the accident occurred because of some human failure, and not from any failure of the gear of the vessel. The Court further finds that the customary safety devices for lifeboats, such as a safety release gear, "spanners", "life" or "man" ropes, and "preventers" or "stoppers" were present, in use, or available for use at the time libelants used the boat.

At the time of the accident on April 14, 1953, the work on the vessel by the contractor was near completion, and the officers and crew were aboard the vessel, although she was still in custody of the contractor for the purpose of making the repairs and doing other work under the...