Roper v. United States, 7818.
| Decision Date | 26 February 1959 |
| Docket Number | No. 7818.,7818. |
| Parties | William J. ROPER, Libellant, v. UNITED STATES of America, Respondent. UNITED STATES of America, Petitioner, v. CONTINENTAL GRAIN COMPANY, Respondent-Impleaded. CONTINENTAL GRAIN COMPANY, Petitioner, v. JOHN W. McGRATH CORPORATION and Arrow Steamship Agency, Incorporated, trading as Atlantic and Gulf Grain Stevedoring Associates, Respondent-Impleaded. |
| Court | U.S. District Court — Eastern District of Virginia |
Sidney H. Kelsey, Norfolk, Va., for libellant.
L. S. Parsons, Jr., U. S. Atty., John M. Hollis, Asst. U. S. Atty., Norfolk, Va., Alan Raywid, Dept. of Justice, Washington, D. C., for United States.
Jack E. Greer, Norfolk, Va., for Continental Grain Co.
Wm. B. Eley, Norfolk, Va., for Atlantic & Gulf Grain Stevedoring Associates.
The crucial question in this case is whether the warranty of seaworthiness, extended to a longshoreman working aboard a vessel while loading or unloading cargo under the doctrine enunciated in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, is applicable where the vessel being unloaded is dead and deactivated, but is being used by the Government for surplus grain storage. The Government contracts with a General Agent for certain services with respect to dead and deactivated vessels and, if the ship is merely used as a part of the grain storage program, the General Agent merely receives custody of the vessel, appoints a riding master, places linemen aboard, arranges for stevedoring services to attend the vessel on arrival at the grain elevator for the purpose of cleaning and preparing for the receipt of grain, provides the cleaning gang, supplies watchmen, mooring lines, fire extinguishers and fire hoses. The General Agent does not assume the responsibility of arranging for stevedoring services to load or unload the grain. Vessels are also assigned to a General Agent for the purpose of deactivation or where it is necessary to send the ships to a yard for repairs. The Maritime Commission requires documented seamen to handle the lines.
Libellant, a longshoreman employed by Atlantic and Gulf Grain Stevedoring Associates, was injured on October 2, 1956, while engaged in discharging grain from a hatch of the S.S. Harry Lane, a vessel owned by the United States. Continental Grain Company had contracted with the Government to unload the vessel and, in turn, had employed Atlantic and Gulf for necessary stevedoring services. The equipment in use at the time in question was owned and maintained by Continental. Attached to the loading pier of the grain elevator leased and maintained by Continental is a marine leg, the mouth of which is lowered into the hold of the vessel by a Continental employee in the control house of the equipment as directed by the stevedores. The motors of the leg run an endless conveyor belt with buckets which scoop up the grain, carrying it to the elevators. After the grain is unloaded to a certain depth, it is necessary to use grain shovels to remove the balance of the grain in the hold and cause it to be placed in the mouth of the leg. The shovels are rigged off each of the four corners of the mouth of the leg and consist of large flat wooden boards, with handles like a plow, and to the front of the shovel is attached a rope which runs to and through a block attached to a padeye at the corner near the mouth of the leg. The rope or line runs up the side of the leg through other blocks to a drum at the top of the leg. The line slacks off when the longshoreman operator walks the plow to the corner of the hold, but, when he is ready to plow the grain to the leg, another longshoreman standing by the leg pulls the clutch rope. The clutch so engaged permits the drum to wind the plow rope and pulls the plow to the mouth of the leg. As the grain is gradually removed from the hold, the block on each corner is moved to the lower padeye (there being two padeyes on each corner), the lower padeye being 12" to 18" from the bottom of the leg, and the other being from 18" to 24" above the lower padeye. A 10" block on the corner of the leg broke due to defective bushings causing too great a play in the wheel; the strap was cut and the block struck libellant who was, at the time, instructing a longshoreman as to the procedure to follow in using the plow or scoop.
The evidence is insufficient to convict libellant of any contributory negligence. The defect in the block admittedly could not be ascertained from a visual inspection. As the equipment was owned and maintained by Continental, it manifestly was not incumbent upon the United States, Atlantic and Gulf, or the longshoremen, to take each block apart in order to ascertain whether it had been subjected to unusual wear. The responsibility for such inspection, if any, rested upon Continental, who occasionally used the marine leg and its blocks for the purpose of unloading barges and bay boats without the assistance of the expert stevedore. For reasons stated herein, we do not reach the determination of Continental's liability as a respondent impleaded. The Court finds, however, that the United States, Atlantic and Gulf, and the libellant were guilty of no negligence contributing to the accident.
The S.S. Harry Lane became a member of the James River Reserve Fleet, commonly referred to as the "moth ball fleet", in December, 1945. She was immediately deactivated which included, among others, the removal of perishables, inflammables, and nautical instruments. Her pipes and machinery were drained and her rudder, tail shaft, and propeller were firmly secured to prevent turning. Admittedly it would have required a major overhaul to reactivate the vessel, but the evidence discloses that some few vessels have been restored to service. There are approximately 360 vessels in the James River Fleet and none are certificated or licensed to operate as a vessel in navigation.
With the surplus of grain in this country, storage facilities were at a premium. The Commodity Credit Corporation entered into a contract with Continental to provide for the handling and servicing of this grain. In June 1954, the S.S. Harry Lane was loaded with grain, the grain was removed at the time of libellant's accident in 1956, and the vessel was thereafter returned to the "dead fleet".
The evidence discloses that the S.S. Harry Lane was placed under assignment to a General Agent on September 14, 1956, and withdrawn from the dead fleet for the purpose of discharging its cargo of 227,000 bushels of grain. When the grain is discharged from the vessel, it is graded and a warehouse receipt is issued to Commodity Credit Corporation.1 It is then co-mingled with other grain of like class or grade. When the grain is loaded out of the elevator for the account of Commodity Credit, the receipts are cancelled in order of age. Daily records are maintained by the elevator showing the stock or inventory of grain, by quality, held for the benefit of the Government. On occasions Continental purchases grain on hand from Commodity Credit, but generally Continental acts only as warehouseman holding the grain for eventual purposes of sale by Commodity Credit. Infrequently, the grain is sometimes taken from one of the vessels of the dead fleet for turning, screening, blowing and aerating and, after such conditioning process, is reloaded on the vessel. As to the S.S. Harry Lane on the occasion in question, it is clear that the grain was taken to the elevator for the purpose of sale. It was, in that sense, a commercial venture.
Relying upon Petterson v. Alaska Steamship Co., 9 Cir., 205 F.2d 478, affirmed sub nom. Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798; and Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, libellant suggests that the shipowner is liable for unseaworthiness even though the breaking block was brought aboard the vessel by Continental as a part of its equipment and used by the stevedore. The United States insists that, under Petterson, the warranty of seaworthiness applies only to equipment commonly found as a part of the gear of the vessel and the stevedore, and not to a marine leg attached to the pier which is suspended over and partially lowered into the hold of the vessel. The more recent case of Berryhill v. Pacific Far East Line, Inc., 9 Cir., 238 F.2d 385, certiorari denied 354 U.S. 938, 77 S.Ct. 1400, 1 L.Ed.2d 1537, involved a claim for damages caused by a defective grinding wheel brought aboard the vessel by a machinist working for the shipyard. The Ninth Circuit, having previously ruled in favor of the injured party in Petterson, endeavored to distinguish the authorities and held that, since the repairs had nothing to do with loading or unloading the ship, the warranty of seaworthiness should not be extended beyond Petterson, Sieracki, and Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. In the instant case, libellant was unquestionably injured during unloading operations by the defective condition of equipment not found aboard ship during navigation, but frequently used in the process of loading or unloading grain vessels. Cf. Fredericks v. American Export Lines, 2 Cir., 227 F.2d 450, 454. While it is doubtful that the seaworthiness doctrine should be extended to include the marine leg, we find it unnecessary to determine this question and will assume, for the purpose of further discussion, that the shipowner warranted the seaworthiness of the marine leg if the vessel could be construed as being in navigation.
When the S.S. Harry Lane was removed from the "dead fleet" to be towed to the grain elevator, it was in charge of a licensed master. The vessel had no power and was without such equipment as blocks, booms, etc. The master was employed by the General Agent, American Foreign Steamship Corporation, and was on call for the handling of grain ships. The Maritime...
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