Shelton v. Seas Shipping Co.

• Citation: 75 F. Supp. 195
• Decision Date: 11 September 1947
• Docket Number: No. 3175.,3175.
• Parties: SHELTON v. SEAS SHIPPING CO., Inc., et al.
• Court: U.S. District Court — Western District of Pennsylvania

75 F. Supp. 195

SHELTON v. SEAS SHIPPING CO., Inc., et al.

No. 3175.

District Court, E. D. Pennsylvania.

September 11, 1947.

COPYRIGHT MATERIAL OMITTED

Milford J. Meyer, Robert M. Bernstein and Herbert E. Millen, all of Philadelphia, Pa., for plaintiff.

Krusen, Evans & Shaw, Thomas E. Byrne and Rowland C. Evans, all of Philadelphia, Pa., for defendants.

Evans, Bayard & Frick, John B. H. Carter and Benjamin O. Frick, all of Philadelphia. Pa., for third-party defendant.

GANEY, District Judge.

This civil action was brought by a longshoreman under the general maritime law for damages for personal injuries sustained by him while he was employed on a vessel.

From the evidence presented to it, the court makes the following

Findings of Fact.

1. The original plaintiff was Patrick Shelton, a longshoreman and a citizen of the State of Pennsylvania.

2. Laura Shelton, executrix of the estate of Patrick Shelton, has been substituted as plaintiff in this action.

3. The defendant is Seas Shipping Company, Inc., a corporation organized and existing under the laws of the State of New York, which brought Jarka Corporation, an independent stevedoring concern, upon the record as a third-party defendant.

4. On December 23, 1942, and prior thereto, the Steamship Robin Tuxford, owned and operated by the defendant, was moored at Pier 84 South, in the Delaware River, navigable waters, at Philadelphia, within the territorial limits of the Eastern District of Pennsylvania.

5. The No. 1 hatch of the Robin Tuxford was 20 feet long and 24 feet wide. The hatch covers, which weighed 8,000 pounds, consisted of two sections (a fore and aft section) of approximately equal dimensions and weight. The two sections of the hatch cover were hinged together; the fore section, in turn, being hinged to the fore upper edge of the hatch coaming. Two operations, with the aid of the ship's lifting gear, were necessary to open the hatch. The first required the aft section of the cover to be lifted or swung bowward through an angle of 180 degrees until it rested or folded on the fore section of the hatch cover. The second operation required the two sections, in turn, to be lifted or swung through an angle of approximately 100 degrees until they rested against a stanchion.

6. The ship's lifting gear which worked the No. 1 hatch was situated aft the hatch. The star-board boom was between 55 and 60 feet in length and pivoted from a 10 foot high platform or rail approximately 11 feet aft the hatch. The topping lift of this boom ran from the peak of the boom to the tip of the 35 foot foremast or king-post, which was amidships and also approximately 11 feet aft the hatch. The topping lift fall or cable descended from the top of the foremast to a block near the boom platform and thence to the topping lift winch aft of the foremast. The up and down or midship fall or cable ran from the electric starboard winch (which occupied part of the space between the No. 1 hatch and the boom platform, and had no connection with the lifting or lowering of the boom), lead upward to a block near the heel of the boom, ran along the under side of the boom through a fair-lead two-thirds up the boom, reeved a second block attached to the peak of the boom, and then dropped vertically to the ship's deck. The lever which controlled the starboard winch was immediately aft the hatch.

7. The midship fall or cable was a 6 by 19 best plough steel hemp cushioned cable, three-quarters of an inch in diameter. On December 23, 1942, this fall had a minimum breaking tensile strength of 46,000 pounds and a safe working load capacity of approximately five tons.

8. The defendant employed Jarka Corporation, Patrick Shelton's employer, as an independent contractor to load the Robin Tuxford.

9. On December 23, 1942, and prior thereto, the employees of Jarka Corporation were in sole control of the booms, winches, cables and other lifting gear situated at the No. 1 hatch of the Robin Tuxford. None of this lifting gear was supplied by Jarka Corporation or its employees.

10. On the morning of December 23, 1942, the first operation to be performed by the stevedores on the ship was the removal of the No. 1 hatch covers, which had been removed and replaced by them on the previous day, with the lifting gear in question. The peak of the starboard boom, which was used to raise the covers of the No. 1 hatch, was approximately 45 feet above the level of the deck, and extended to a line approximately one foot aft the fore edge of the hatch, and so for the purpose to which it was put, the boom was in an improper position, as the boom should have been lowered, so that its peak would have extended beyond the fore edge of the hatch. It was the hatch-tender's duty to change or order the change of the position of the booms in any case when there was need for it.

11. At about 8:00 o'clock, with Patrick Shelton controlling the starboard winch, the first operation of the opening of the No. 1 hatch was performed without the boom being moved. During the process of the second operation, the hatch covers were lifted to almost a vertical position. Shelton apparently believing that the covers had gone beyond the vertical position and that they would continue to swing toward the bow of the ship and rest against the stanchions, overhauled the winch, which caused the fall to slacken. The covers, instead of falling toward the stanchions began to fall toward the hatch.

While the covers were in the process of falling, Shelton reversed the winch. When the slack in the cable had been taken up by the winch and the falling edge of the hatch covers, the cable parted at a point along its vertical portion, 5 to 10 feet below the peak of the boom.

12. The hatch covers fell to the coaming, and the remaining portion of the cable, not attached to the covers, unreeved the block at the peak of the boom, coiled around the fair-lead and pulled it from the boom.

13. The fair-lead, in falling to the deck, struck Patrick Shelton on the head, fractured his skull and rendered him unconscious. He was immediately removed from the vessel and taken to Mt. Sinai Hospital.

14. The cause of the parting of the cable was due to the sudden inordinate tension or excessive stress placed upon it by the falling covers, and not to progressive failure of the cable.

15. The lifting gear at the No. 1 hatch of the Robin Tuxford, at the time Patrick Shelton was injured, was seaworthy.

16. On June 24, 1943, Patrick Shelton died as the result of injuries sustained by him on December 23, 1942.

17. Prior to his death, Patrick Shelton elected to recover from the third person who he determined was liable in damages for the injuries sustained by him, and brought this action on May 24, 1943.

18. On July 15, 1943, Laura Shelton, executrix of the estate of Patrick Shelton, deceased, was substituted as plaintiff in this action.

19. In October of 1943, the defendant brought Jarka Corporation upon the record as a third-party defendant.

20. On December 21, 1945, three years less two days after the cause of action arose, the substituted plaintiff filed a motion for leave to amend the complaint to include (a) an assertion of unseaworthiness of the S. S. Robin Tuxford as an additional cause for recovery, and (b) a claim for the loss of support by the deceased's widow and minor child who were alleged to have been dependent upon him prior to this death. Leave was granted¹ by the court, and the amended complaint was filed on January 29, 1944.

21. The defendant did not amend its third-party complaint.

22. At the trial, the plaintiff, relying entirely upon the theory of unseaworthiness of the vessel and its equipment, not only failed to offer evidence of, but specifically abandoned, negligence as a basis for recovery. The plaintiff also relinquished the claim for the loss of support under the amended complaint.

Conclusions of Law.

1. This court has jurisdiction of the parties and of the subject matter of this action.

2. Laura Shelton has been duly appointed executrix of the estate of Patrick Shelton, deceased, and she has been properly substituted as plaintiff in this action.

3. The amendment to the complaint related back to the date the original complaint was filed since it did not state a new cause of action.

4. The injuries which caused the death of the decedent were sustained by him while he was performing a maritime service on navigable waters within the territorial limits of the State of Pennsylvania.

5. The plaintiff, having failed to prove that the vessel or its appliances were unseaworthy, is not entitled to recover from the defendant.

6. The third-party plaintiff is not entitled to recover from the third-party defendant.

7. The defendant and the third-party defendant are entitled to judgment against their respective plaintiffs.

Discussion.

Both the original and the amended complaints claimed the benefits of the Jones Act.² Recovery under this Act may be had only by a "seaman" from his employer. In this case, the defendant was not the employer of the decedent. Hence the benefits of the Jones Act may not be invoked in this action. Kwasizur v. Dawnic S. S. Co., D.C., E.D.Pa., 25 F.Supp. 327; The New Brooklyn, D.C.Mass., 37 F.Supp. 955; Eggleston v. Republic Steel Corporation, D.C., W.D.N.Y., 47 F.Supp. 658. But even assuming that the relationship of employer and employee did exist, it would seem that the plaintiff's position is inconsistent for she has abandoned all claims based on negligence, which is the gist of an action brought under the Jones Act. Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082; De Zon v. American President Lines, 9 Cir., 129 F.2d 404, 409, affirmed 318 U.S. 660, 63 S.Ct. 814, 87 L. Ed. 1065.

Even though a common-law remedy is not sought in this action, since there is diversity of citizenship between the parties and the amount in controversy exceeds the statutory amount, it is clear that this court has...