Sherbin v. SG Embiricos, Ltd.

• Decision Date: 02 January 1962
• Docket Number: Civ. A. No. 2329.
• Citation: 200 F. Supp. 874
• Parties: Leo SHERBIN v. S. G. EMBIRICOS, LTD.
• Court: U.S. District Court — Eastern District of Louisiana

200 F. Supp. 874

Leo SHERBIN v. S. G. EMBIRICOS, LTD.

Civ. A. No. 2329.

United States District Court E. D. Louisiana, Baton Rouge Division.

January 2, 1962.

H. Alva Brumfield and Robert Turner, Baton Rouge, La., for plaintiff, Leo Sherbin.

Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, La., for respondents, S. G. Embiricos, Ltd. and Compania Naviera Resolute, S.A., and for Third Party Complainant, Compania Naviera Resolute, S.A.

Percy & Macmurdo, Edward W. Gray, Baton Rouge, La., for Third Party Defendant, Baton Rouge Marine Contractors, Inc., and for Intervenor, Hartford Acc. & Indemnity Co.

WEST, District Judge.

The plaintiff, Leo Sherbin, is a resident of the State of Louisiana, and at the time of the accident complained of, was in the employ of Baton Rouge Marine Contractors, Inc., a Louisiana stevedoring corporation. The respondent, Compania Naviera Resolute, S.A., is a non-resident, foreign corporation, and is the owner of the ship S/S Dorian. (Plaintiff originally named as respondent S. G. Embiricos, Ltd., but later amended his complaint to name as respondent Compania Naviera Resolute, S.A., the true owner of said vessel.)

The S/S Dorian is an ocean-going vessel, and at the time of the accident sued upon, was docked at the Port of Baton Rouge, Louisiana, for the purpose of taking on a cargo of grain.

The plaintiff alleges that on May 25, 1959, he received a severe crushing injury to his ring finger on his left hand, as a result of his hand being caught "on a motor used on the said vessel". The plaintiff alleges further that "the accident was a result of the unseaworthiness of the S/S Dorian in that the motor on board ship was defective, improperly designed and adjusted and not equipped with safeguards and otherwise unfit for the use for which it was being used, and the neglect, inattention and carelessness of the master, officers, crew, owners and operators of the S/S Dorian". The plaintiff seeks to recover the sum of $100,000 as a result of the injury to his finger and for "other permanent damage to his left hand plus mental damages to his detriment".

Respondent, with leave of Court, filed a third party complaint, making the plaintiff's employer, Baton Rouge Marine Contractors, Inc., a third party defendant, and demanded judgment against said third party defendant "for any sums that may be adjudged against said defendant, Compania Naviera Resolute, S.A., in favor of complainant, Leo Sherbin". A petition of intervention was then filed by Hartford Accident and Indemnity Company, alleging that it had issued to Baton Rouge Marine Contractors, Inc. an insurance policy insuring said company against liability to its employees under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and that as a result of the accident now complained of, it had paid to the plaintiff the sum of $781.16 as benefits to which he claimed to be entitled under the provisions of the said Longshoremen's and Harbor Workers' Compensation Act. Hartford seeks to recover this amount, plus reasonable attorney's fees, in the event plaintiff is successful in his claim against respondent, Compania Naviera Resolute, S.A. Plaintiff originally prayed for a trial by jury, but prior to trial, by agreement of counsel, a jury was waived and the matter was tried to the Court alone.

Evidence adduced upon the trial of this case showed that on May 25, 1959, plaintiff, while in the course of his employment as a longshoreman, and while working as an employee of Baton Rouge Marine Contractors, Inc., a stevedoring company, he was in the process of helping to load grain aboard the S/S Dorian. He was in the lower hold of the ship where the grain was being loaded from an elevator which was located on the dock. The grain came through a spout from the elevator and was directed into a chute attached to the top of a machine known as a "grain trimmer". The grain trimmer was located in the hold, and as the grain went down the chute into the grain trimmer, it hit upon a belt which in turn shoots the grain out of the grain trimmer in whatever direction the grain trimmer is pointed or directed at the time. This is done in order to obtain uniform loading of the ship. If this were not done, the grain would simply pile up in one place and would then have to be leveled off by hand or by some other means.

This grain trimmer is a very heavy piece of equipment, and, as the plaintiff said, "ten men couldn't pick it up". It is eight or ten feet high, and is brought aboard the ship by use of a crane. It is then lowered into the hold by use of a cable attached to the ship's boom, and it is thus kept partially suspended so that it can be turned in different directions by hand during the loading operation. If it becomes embedded in the grain, it is raised by the ship's winch to a position whereby it may be turned in different directions by the men in the hold.

It was when the plaintiff attempted to thus change the position, or direction, of the grain trimmer that this accident occurred. As he grabbed onto the grain trimmer to turn it, his hand slipped through a broken place in the guard covering the revolving fan, thus allowing his hand to come into contact with the revolving fan in the machine, causing a partial amputation of his finger. There is apparently no dispute about the fact that at the time of the accident a piece of the fan guard was missing, leaving a space whereby the plaintiff's finger could slip through it and thus come into contact with the revolving fan. The evidence shows without contradiction that (1) the grain trimmer was owned by the stevedoring company, Baton Rouge Marine Contractors, Inc.; (2) that plaintiff was the employee of Baton Rouge Marine Contractors, Inc., and that at the time of the accident involved, he was performing the duties of his regular occupation as a longshoreman; (3) that a grain trimmer such as was involved in this accident is a piece of equipment not regularly or traditionally found on ships as a regular piece of ship's gear, but that on the contrary, it is always owned by the stevedoring company and is operated by the longshoremen employed by the stevedoring company in the performance of loading operations; (4) that the electricity necessary for the operation of the grain trimmer is secured dockside and not from the ship itself; (5) that at the time of the accident, approximately ten men were engaged in the loading activity, all of whom worked for Baton Rouge Marine Contractors, Inc., and none of whom were members of the ship's crew; (6) that the grain trimmer in question was defective in that the fan guard was broken, leaving an unguarded area large enough for the plaintiff's hand to come into contact with the revolving fan; (7) that all of the loading...