Palardy v. United States, 121 of 1947.

• Decision Date: 21 January 1952
• Docket Number: No. 121 of 1947.,121 of 1947.
• Citation: 102 F. Supp. 534
• Parties: PALARDY v. UNITED STATES et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

102 F. Supp. 534

PALARDY v. UNITED STATES et al.

No. 121 of 1947.

United States District Court E. D. Pennsylvania.

January 21, 1952.

Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiff.

G. A. Gleeson, U. S. Atty., and Krusen, Evans & Shaw, Philadelphia, Pa., for the United States.

Conlen, LaBrum & Beechwood, of Philadelphia, Pa., for additional respondent.

KALODNER, Circuit Judge.

This is a third party action in admiralty by a longshoreman carpenter employed by a stevedoring company. He is seeking to recover for injuries suffered while shoring up cargo on board the S. S. "Niantic Victory", which he alleges were caused by the negligence of respondents' agents. Libellant originally instituted a civil action against the vessel's general agent, American-Hawaiian Steamship Company. The trial judge in that action directed a verdict in favor of the defendant on two grounds: (a) the general agent could not be held liable for the torts of the vessel's personnel under the rule of Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S.Ct. 1569, 91 L.Ed. 1968; and (b) there was not sufficient evidence of negligence on the part of the ship's personnel to support a verdict for the plaintiff in any event. The Court of Appeals of this Circuit affirmed the judgment of the District Court on the first ground, expressly declining to consider the second. Palardy v. American-Hawaiian Steamship Company, 3 Cir., 1948, 169 F.2d 619. The District Judge then vacated his original judgment, and dismissed the complaint without prejudice to any claim which the plaintiff might have against the United States as owner of the vessel. This libel was then brought in admiralty under the Suits in Admiralty Act, 46 U.S.C.A. § 742 (1920). The United States has impleaded libellant's employer, Luckenbach Steamship Company, under Admiralty Rule 56, 28 U. S.C. The transcript of testimony and all other evidence introduced in the civil action have been made a part of the record in this case by stipulation of all parties, and additional testimony has been taken.

On the basis of the pleadings, testimony and exhibits submitted to me, I make the following

Findings of Fact

1. At all times material hereto, the S. S. "Niantic Victory" was owned by respondent, the United States of America, and operated by the American-Hawaiian Steamship Company under a standard form general agency agreement.

2. At all times material hereto, libellant, a resident of Philadelphia, was employed by the impleaded respondent, Luckenbach Steamship Company. His duties consisted of shoring up cargo which longshoremen, also employed by Luckenbach, had stowed aboard the "Niantic Victory" while it was moored to Pier 84, South, in Philadelphia.

3. In the afternoon of June 20, 1946, libellant was assigned by his employer's carpenter foreman, Claire, to shore up cargo in the lower hold of No. 3 hatch. At that time the hatches were open, and libellant worked in natural light. As the loading operation progressed, the longshoremen covered the hatches above the lower hold, thereby shutting out the natural light overhead. Libellant was then furnished with a cluster light to provide illumination while he worked below deck.

4. The cluster light was an electric light on an extension cord some fifty to sixty feet in length. At one end there was a multiple socket with several electric light bulbs; at the other end the cord was fitted with a plug and screw-on collar. The plug made contact when fitted into an inverted outlet on the main deck; but could not remain in place unless the collar was screwed onto the outlet. However, once screwed on, the plug could not come out until the collar was first unthreaded and removed.

5. At about 6:30 P. M., the light which libellant was using in the lower hold was extinguished. He shouted to the other carpenters working in the shelter deck, two decks above, and was instructed by his foreman to come up from the lower hold to the shelter deck, there to assist them in shoring some linoleum cargo, after which he was to resume his work in the lower hold.

6. Since the main deck hatch had been covered, the men in the shelter deck were also working by the light of a single cluster light. The foreman suspended this light through an opening of approximately 2½ by 4 feet, the space left by the removal of a single hatch board in front of the forward hatch ladder, so that libellant could make his way up from the lower hold to the lower 'tween deck, and thence up to the shelter deck.

7. After libellant had climbed into the shelter deck, he assisted the other carpenters in fencing and shoring up the linoleum, which had been stowed in the wings of the hatch to within three feet of the square of the hatch. The dunnage needed to shore up the cargo was piled on the hatch boards in the square of the hatch. By this time the vessel was almost ready for departure, and it was necessary to work quickly in order to finish the operation before sailing time.

8. After instructing libellant in his duties, his foreman climbed up to the main deck to investigate the cause for the extinguishment of the lower hold light. He found that the plug had been removed from its outlet, which was located at the after end of the hatch on the midship housing. The only persons in the immediate vicinity at the time were members of the ship's crew who were engaged in battening down the hatch. Since the light cord led down into the hold through a space between the pontoon covers, the tarpaulins could not be put on the hatch properly as long as the light was plugged in.

9. A short time later, the light in the shelter deck of No. 3 was extinguished, plunging the deck into total darkness. The carpenters shouted to the men on the main deck, without response, and then libellant said he would fix the light. He proceeded from the starboard side of the hatch where he was working, across the square of the hatch, forward and toward the port side, where the escape hatch ladder was located. In so doing, he fell through the opening in front of the forward hatch ladder (through which he had ascended to the shelter deck), down to the lower 'tween deck, a distance of approximately fifteen feet.

10. Another carpenter, Zuccarelli, then struck a match and made his way up through the escape hatch to the main deck where he found the plug of the shelter deck light lying on the deck, having been removed from its outlet, which was located on the masthead housing at the forward end of the hatch. The cord of this light ran down to the shelter deck through the escape trunk. The only persons Zuccarelli found around the main deck hatch were ship's personnel, still engaged in battening down the hatch.

11. It was the responsibility of Captain Kelly, Assistant Port Superintendent for the general agent, to determine the number of gangs of longshoremen which would be required to load the vessel, and where each particular type of cargo was to be stowed. The work being performed by libellant at the time he fell was under the immediate supervision of the carpenter foreman, who was an employee of Luckenbach.

12. Entries in the deck log of the vessel note that preparations for departure were begun at 6:06 P.M.; that No. 3 hold was "finished and covered" at 6:25 P.M.; that the stevedores who loaded No. 3 went ashore at 6:45 P.M.; that libellant fell at 6:55 P.M.; and that the vessel cleared the pier at 7:59 P.M.

13. The two cluster lights in No. 3 hold were extinguished by members of the ship's crew, who removed the plugs from their outlets on the main deck while in the process of battening down the hatch.

14. The extinguishment of the light in the shelter deck was the proximate cause of the libellant's fall and injuries.

15. By reason of the accident, libellant sustained a severe cerebral concussion (which rendered him unconscious or semiconscious for a period of four days), as well as a fractured skull. In addition, he suffered a separation of the right shoulder joint, an avulsion fracture of the right coracoid process, and two fractured ribs.

16. By reason of the injury to his head, libellant has suffered an appreciable permanent impairment of hearing, taste and smell; and a continuous tinnitus, or humming, in the left ear. He has also suffered frequent headaches, dizziness and fatigue as a result of the fall; but any outbursts of temper, fits of depression, or other so-called "personality changes" that he may have experienced up to the time of trial do not represent organic changes due to the head injury.

17. Libellant was earning an average of $95.00 per week at the time of the accident. He was totally disabled for a period of fourteen weeks.

18. Libellant was employed as a driver-salesman by the Philadelphia Toilet & Laundry Co. for a period of some 18 years prior to the latter part of 1942. He then obtained employment as a longshoreman carpenter because of a slackening in his own occupation and for "patriotic reasons".

19. Libellant returned to work for Luckenbach fourteen weeks after the accident. He left his job voluntarily a week later and in the early part of October returned to his former job with the Philadelphia Toilet & Laundry Co. He continued in that job for about a year, earning an average of $70.00 a week. He then obtained employment with the Fairhill Laundry where he worked for about two and a half years, earning about $60.00 a week. He then went to work for Thomas Martin for about six months, earning $65.00 a week. He left that job to work for Baldwin's Overall Laundry Co., his employer at the time of trial. His earnings at Baldwin's averaged about $67.50 a week.

20. Libellant is forty-six years of age.

21. Libellant received the sum of $325.00 as compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. He also received $439.35 for medical services incurred in his behalf, from the additional respondent.

22. Libellant has not suffered loss of earning capacity as...