Noel v. Isbrandtsen Company
| Decision Date | 09 March 1961 |
| Docket Number | No. 8150.,8150. |
| Citation | 287 F.2d 783 |
| Parties | Jesse NOEL, Appellant, v. ISBRANDTSEN COMPANY, Incorporated, a corporation, and United States of America, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Henry E. Howell, Jr., Norfolk, Va. (Howell, Anninos & Daugherty, Norfolk, Va., on the brief), for appellant.
John W. Winston, Norfolk, Va. (Joseph S. Bambacus, U. S. Atty., Richmond, Va., on the brief), for appellees.
Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.
A marine surveyor who sustained injuries in a fall while engaged in an inspection of the steamship William Bevan, owned by the United States and under bare-boat charter to Isbrandtsen Company, filed a three-pronged libel in admiralty. The libellant, Jesse Noel, described his action as one in personam against the United States and Isbrandtsen upon the familiar grounds, first, unseaworthiness of the vessel, and second, negligence of the respondents. His third cause of action was a libel in rem against the vessel upon a novel theory of the ship's liability for personal injury, apart from her unseaworthiness or the negligence of any person. The contention, in short, is that the vessel is not only security for the owner's or charterer's liability, but that she is a separate entity capable of committing torts for which she may be held accountable. This appeal is from the order dismissing the libel.
In September, 1956, when the United States Government as owner made the bare-boat charter to Isbrandtsen, the steamship was part of the James River Reserve Fleet, a "moth ball" fleet of vessels out of commission. The charter was to have a duration of one year, and the William Bevan was to carry coal from ports on the East Coast of the United States to markets in Europe. It was stipulated that Isbrandtsen should put the vessel in operating condition and then, at the expiration of the year, after repairing any damage which might occur during the charter period, Isbrandtsen should prepare her for lay up. Pursuant to these terms, Isbrandtsen had a New York shipyard perform the necessary work of restoring the ship to operating condition. She then entered the coal trade and made eight trans-Atlantic crossings from Hampton Roads, Virginia, with cargos of coal.
Isbrandtsen notified the United States of its intention to terminate the charter in September, 1957, and directed the master of the vessel to deliver her to the Newport News Shipbuilding and Drydock Company at Newport News, Virginia, to be there prepared for return to the idle fleet in the James River. Jesse Noel was engaged by the charterer to represent it in an off-hire survey to determine what repairs were needed to restore the ship to the condition it was in at the commencement of the charter and to inspect all work to be done by employees of Newport News Shipbuilding Company to make the vessel's condition conform with the Maritime Commission requirements for return to the idle fleet.
Upon the vessel's arrival in Newport News on August 26, 1957, Noel and a representative of the Maritime Commission boarded her and started the off-hire survey. On the day of the ship's arrival her engines were shut down and thereafter no steam power or electricity was available aboard. Also, the articles were terminated and the vast majority of the crew was dismissed. Only the captain, chief engineer, chief mate, first assistant mate, steward and one or two others remained aboard. The employment of the remaining members of the crew was on a day-to-day basis only, to take inventory of equipment and tools and to separate Maritime Commission gear from Isbrandtsen gear. They neither ate nor slept on the vessel, and as each finished his part in the inventorying process he departed.
On September 5, 1957, Noel, still engaged in his survey, entered into No. 2 'tween deck to inspect the cleaning work which had been done there. Standing on the deck, he was unable to determine whether an overhead beam had been properly cleaned, and in order to make a visual inspection Noel started to climb the battens on the port side of the No. 2 'tween deck. Not all the battens were in place, but he climbed until his feet were on the top batten then in position. For balance, he reached for a higher batten clip near the top of the 'tween deck. As he took hold with one hand — there being no batten in the clip — the clip broke in half and Noel fell to the deck, sustaining the injury complained of.
The case was tried without a jury and the District Judge made two findings which he considered dispositive of the case. He found that there was no showing of negligence as to either defendant; he also found that at the time of the accident the William Bevan was a "dead ship" which had been withdrawn from navigation, and that in such circumstances no obligation of seaworthiness is imposed by law. The opinion of the District Court contains no reference to the in rem claim asserted against the ship, apparently because the District Judge considered that there could be no liability on the part of the ship when neither the owner nor the bare-boat charterer was negligent and the warranty of seaworthiness was not applicable.
The claimed negligence was that the batten clip, made of cylindrical steel 3/8" in diameter, was inadequate and that a larger sized clip should have been used. There was conflicting testimony as to this, and the District Judge apparently accepted that of the defendant's witnesses. The actual cause of Noel's fall was, however, a defect at the angle of the L-shaped clip, which yielded under his weight. The finding of the court was that the defect had been painted over; it was not shown when. Perhaps the condition had existed since the ship's construction. In any event there was the court's finding, based upon testimony, that even the closest inspection would probably not have disclosed the defect. Under these circumstances it was determined that neither respondent could be held negligent. We perceive no error in this finding and conclusion.
The defense here to the action for unseaworthiness is that in the circumstances the warranty is not applicable. From West v. United States, 1959, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161, we learn that in determining this question we are to look to the status of the vessel at the time of the accident. In West the vessel had been taken from the "moth ball" fleet to the shipyard for major overhaul in preparation for return to service; it had not yet been readied to resume service. In the present case the vessel had actually been withdrawn from service and delivered to the shipyard to prepare her for return to the "moth ball" fleet,1 and she was no longer available to perform ship's service. In both cases the vessel was out of navigation when the injury happened. The William Bevan was a "dead ship" because she was no longer in service. The changes made in her at the shipyard are merely evidence under the particular circumstances that her sailing career had been effectually terminated. In this sense she was "dead." A body is not less dead in the interval between expiration and interment, while it is still in the hands of the embalmer.
In the recent case of Roper v. United States, 4 Cir., 1960, 282 F.2d 413, a longshoreman on a vessel...
To continue reading
Request your trial
-
Lupo v. Consolidated Mariners, Inc.
...aff'd, 277 F.2d 264, 265-266 (2d Cir.), cert. denied, 364 U. S. 827, 81 S.Ct. 65, 5 L.Ed.2d 55 (1960); Noel v. Isbrandtsen Co., 287 F.2d 783, 784 (4th Cir.), cert. denied, 366 U.S. 975, 81 S.Ct. 1944, 6 L.Ed.2d 1264 (1961); Yost v. General Elec. Co., supra, 173 F. Supp. at 632 (S.D.N.Y.1959......
-
Hill v. Diamond
...Ferry Co., 342 U.S. 187, 72 S.Ct. 216, 96 L.Ed. 205; Union Carbide Corporation v. Goett, 4 Cir., 256 F.2d 449. 6 Noel v. Isbrandtsen Company, Inc., 4 Cir., 287 F.2d 783. 7 West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161; Frankel v. Bethlehem-Fairfield Shipyard, Inc., 4 Cir.......
-
Colonna's Shipyard v. U.S.A.F. Gen. Hoyt S. Vand.
...finding that ships "withdrawn from navigation" are "dead ships" no longer carries the weight it once had. See, e.g., Noel v. Isbrandtsen Co., 287 F.2d 783 (4th Cir. 1961). Exploring the post-Stewart legal landscape, the parties do not cite, and this Court is not aware of, any cases endeavor......
-
Tebbs v. Baker-Whiteley Towing Co.
...or her owner, and Tebbs does not claim the benefit of any such warranty. Liability must rest upon negligence. Noel v. Isbrandtsen Company, 287 F.2d 783 (4 Cir., 1961). Tebbs invokes the well-established principle that when a vessel moored to a dock is struck by a moving vessel, there is a p......