Skibinski v. Waterman Steamship Corporation

• Decision Date: 04 June 1965
• Citation: 242 F. Supp. 290
• Parties: Joseph SKIBINSKI, Plaintiff, v. WATERMAN STEAMSHIP CORPORATION, Defendant and Third-Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

242 F. Supp. 290

Joseph SKIBINSKI, Plaintiff, v. WATERMAN STEAMSHIP CORPORATION, Defendant and Third-Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-Party Defendant.

United States District Court S. D. New York.

June 4, 1965.

COPYRIGHT MATERIAL OMITTED

William A. Blank, Brooklyn, N. Y., for plaintiff.

Burlingham, Hupper & Kennedy, New York City, for defendant and third-party plaintiff; W. M. Kimball, New York City, of counsel.

Alexander, Ash & Schwartz, New York City, for third-party defendant; Joseph A. Cohen, New York City, of counsel.

COOPER, District Judge.

These actions arise out of personal injuries allegedly sustained by plaintiff Joseph Skibinski.

His complaint alleges that on November 24, 1958 while in the employ of a stevedoring company, International Terminal Operating Co. (hereinafter I.T.O.), he was injured aboard the S.S. Madaket, a vessel owned and operated by defendant Waterman Steamship Corp. (hereinafter Waterman). Skibinski further alleges that his injuries, incurred in furtherance of Waterman's business, were due to the unseaworthiness of the vessel, its appliances and parts and the negligence of Waterman, its agents, servants and employees.

Waterman's answer denies negligence and unseaworthiness and asserts by way of affirmative defense that any injuries received by Skibinski were due to (1) his contributory negligence and (2) negligence of persons for whose conduct defendant is not liable.

Waterman impleaded I.T.O. as third-party defendant alleging that if the acts of negligence and improper conditions averred by plaintiff did occur, they were created and permitted to exist by failure of I.T.O. to perform its contractual duties —a breach of I.T.O.'s warranty of workmanlike service. Waterman thus seeks indemnity if held liable in the main action.

I.T.O.'s amended answer denies responsibility for the accident and liability to indemnify Waterman. In addition, it asserts two counterclaims: (1) against plaintiff, on the theory that plaintiff was primarily at fault and should indemnify I.T.O. in the amount, if any, for which it is held accountable to Waterman and (2) against Waterman, on the theory that Waterman was at fault, breached its warranty of seaworthiness and thus should indemnify I.T.O.

Trial commenced before this Court and a jury on December 21, 1964. On December 29, when proof on the main action was completed, all counsel stipulated in open court to waive trial by jury. This Court assumed the responsibility of trier of fact and the jury was dismissed. Further proof, the parties agreed, as to the indemnity claims is to be continued after the Court determines the merits of the main action.

FACTS

A one ton steel ladder struck Joseph Skibinski while he was working in the depths of the hold under Hatch #4 of the S.S. Madaket on November 24, 1958. The injuries which befell him were not the result of an honest mistake in judgment or mere negligence, but rather, as shipowner's counsel conceded and the record overwhelmingly establishes, stupidity —"criminal stupidity" in the use of ship's equipment as put in motion to lower the ladder into the ship's hold for rewelding to the ship's structure (Tr. 36).

The material facts are not in dispute. The S.S. Madaket docked at the National Sugar Refinery Pier, Long Island City, New York on November 19, 1958 to discharge a cargo of bulk sugar. The unloading process called for the use of payloaders to scoop sugar from the wings of the hold at Hatch #4 and deposit it into the middle of the hold where it would then be removed by clam-shell type buckets suspended from a shoreside crane. A stationary steel ladder, affixed to the ship's structure by welded steel brackets, stood vertically from the bottom of the aft end hold under the hatch to almost top deck. Payloaders would be unable to reach the bulk sugar in the wing section behind the ladder. I.T.O. thus sought and obtained ship's permission to temporarily remove the ladder in order to facilitate the unloading operation (Tr. 746).

It was for this purpose that Skibinski came on board the S.S. Madaket on Friday, November 21, 1958. Having received permission to use his welding equipment, he burnt off the ladder and brackets, and they were removed from the hold. Payloaders were brought in, and by the following Monday the sugar was discharged.

At approximately 8:30 a. m. on Monday, November 24, Skibinski returned to the vessel to reaffix the ladder to the ship's structure (Tr. 139). As required, he received from the ship permission to proceed with use of the welding equipment (Tr. 136-8, 140, 528, 534). No sugar was to be discharged from Hatch #4; the sole remaining job in the unloading operations was the lowering and rewelding of the one ton steel ladder (I.T.O. Exhibit I).

Three of the ship's officers were on duty at that particular time (Tr. 534-5). Their responsibilities consisted in part of checking to see that the stevedores removed the cargo without damage to the vessel (Tr. 517, 548, 558-9). One officer testified that he always closely observed longshoremen engaged in operating the ship's winches (Tr. 558).

After setting up the welding equipment, Skibinski went down into the hold to replace the brackets he had removed three days earlier (Tr. 209-212). At about 9:20 a. m. he finished welding the brackets and told (in what manner was not clearly established) a ship's mate that he should have the ladder sent down (Tr. 212-213).¹ The ladder had been hoisted to the main deck and laid between hatches four and five.

Topside, members of a four man deck gang employed by I.T.O., Perez, Scamporino and Vacante, were waiting at Hatch #4 to lower the ladder (Tr. 242). Not more than ten minutes before the time of the accident, which occurred between 10:00 a. m. and 10:30 a. m., they received orders to lower the ladder and immediately began the necessary preparations (Tr. 301, 550).

The first problem, reduced to its simplest terms, was the part of the hatch opening through which the ladder would be lowered. The ladder was to be replaced at the aft end of the hatch. Beams which support the hatch's cover, however, had earlier been rolled back to the fore and aft ends. The space between the beam farthest aft and the aft end of the hatch made it impractical, in the judgment of stevedore's deck men, to lower the ladder at that point. Rather, they agreed on a "plan" of action (Tr. 305-09; 320). It consisted of: (1) lowering the ladder through the open middle section of the hatch; (2) laying it down flat on the bottom of the hold; (3) uncoupling the fastening mechanism by which it was lowered; (4) retrieving the fall; (5) lowering the fall again through the opening between the beams and the aft end of the hatch; (6) recoupling the fastening mechanism; (7) dragging the ladder to the aft end of the hold and lifting it into position (Tr. 244-5, 248-9, 252, 286, 361-4, 371, 403).

The second step in the preparations was to ready the fastening mechanism. The longshoremen found attached to the ship's winch located at Hatch #4 two married falls, two shackles, and an open-mouth or "S" shaped cargo hook. They unmarried the falls, uncoupled and placed aside the shackles and attached the cargo hook to a single fall. So attached, the hook and fall were brought over to the ladder. Without any locking or steadying device, the open hook was placed under the top rung of the ladder (Tr. 253-8), after which Scamporino, acting as winchman, raised the ladder and swung it into position over the center of Hatch #4. With Perez (alias "Speedy" and "Petey") acting as his signalman,² Scamporino proceeded to lower the ladder (Tr. 316-7, 319-20, 322, 398, 400-02, 412). The use of the open mouth cargo hook for this purpose, conceded by Waterman to be tantamount to "criminal stupidity," created a danger to all those working in the hold below (Tr. 38-9, 276-8, 324-5, 405, 678-9).

Although counsel stipulated that the open mouth cargo hook was neither defective nor broken (Tr. 62), without a locking device, it was patently unsuitable for the purpose to which it was put.

At a point when Scamporino could no longer see the bottom of the ladder, which was then but two or three feet from the floor of the hold, he was given a signal by Perez to "come back," a stevedore term meaning "lower away" (Tr. 400-03, 406-7, 412). The ladder thereupon became disengaged from the open cargo hook, dropped against the wall of the shaft tunnel running fore and aft in the hold, and rebounded against Skibinski who was in the wings, bending over his tools in preparation for his task³ (Tr. 87, 93, 214-217).

The use of the open mouth cargo hook and the falling ladder were proximate causes of plaintiff's injury. (Tr. 38-9, 671-2).

LAW

Warranty of Seaworthiness

The threshold question before this Court is whether plaintiff is entitled to the warranty of seaworthiness. Contrary to the contentions of Waterman and I.T.O., we find that he is.

I.T.O. in particular places great weight on United New York & New Jersey Sandy Hook Pilot's Assn. v. Halecki, 1959, 358 U.S. 613, 79 S.Ct. 517, 3 L. Ed.2d 541. It argues that Skibinski was aboard the S.S. Madaket to do a welding job requiring special equipment and a special license and, as in Halecki, was injured while performing work not traditionally done by seamen. As we see it, Halecki is inapposite to the case at bar.

In holding Halecki not entitled to the seaworthiness warranty, the Supreme Court did not find the use of specialized equipment by specially licensed workers the controlling factor. Rather, the Supreme Court pointed to a variety of circumstances undercutting the historic doctrine's applicability. For example, the work was so specialized that the repair yard had to subcontract the job to an electrical firm. Moreover, the work could be done only when the ship was "dead," with its generators dismantled and at a time when all members of the crew were off the ship. 358 U.S. 617-618...