Skovgaard v. The Tungus
Decision Date | 11 June 1956 |
Docket Number | Civ. A. No. 12-55. |
Citation | 141 F. Supp. 653 |
Parties | Olga SKOVGAARD, Administratrix ad Prosequendum of the Estate of Carl E. Skovgaard, deceased, Libelant, v. THE vessel m/v TUNGUS, her boilers, etc., and Den Norske Afrika-og Australielinie Wilhelmsens Dampskibsaktieselskab, et al., Respondents, and El Dorado Oil Works, Respondent-Impleaded. |
Court | U.S. District Court — District of New Jersey |
Baker, Garber & Chazen, Hoboken, N. J., for libelant, by Nathan Baker, Hoboken, N. J.
McAleer, Connell & Corridan, Jersey City, N. J., for respondents. Haight, Gardner, Poor & Havens, New York City, by J. Ward O'Neill, and David P. H. Watson, New York City, of counsel.
Wilbur A. Stevens, Newark, N. J., for respondent-impleaded. Kirlin, Campbell & Keating, New York City, by Joseph M. Cunningham, New York City, of counsel.
In October, 1952, at a foreign port, coconut oil was loaded into the two deep tanks of No. 3 shelter deck of the respondent cargo vessel m/v Tungus. On December 5, 1952, at 5:30 p. m., she docked at a Bayonne, New Jersey, pier. The owner of the oil in the port deep tank having arranged with respondent-impleaded, El Dorado Oil Works, to discharge and store the oil, cargo surveyors and El Dorado workers went aboard to prepare for the discharge of the oil from the port tank.
Under the supervision of the El Dorado workers, two of the ship's crew operated winches; they were aided by one officer of the ship; the port deep tank lid was lifted, rotated 90°, and lowered to a position across the top of its coamings so that the after third of the tank was open. The El Dorado workers were satisfied with the position of the tank lid. A pump, owned by El Dorado, was lifted by the ship's winches and lowered into No. 3 shelter deck and placed on top of the port deep tank lid under directions of an El Dorado worker; he also directed the rigging of the suction and discharge hoses. Two hatch beams were lying side by side between the port and starboard deep tank coamings; the beams were used when dry cargo was carried in the tanks. The location of the beams was the normal storage place during the hauling of liquid cargo. The testimony of Wagner, who was employed by El Dorado as a maintenance machinist describes the condition of the pump prior to its use:
At 8:05 p. m., December 5, 1952, El Dorado's workers began to discharge the oil from the tank of the m/v Tungus. Attached to the pump was an air injection nipple, which was not an integral part of the pump but was made by El Dorado workers out of parts in stock and then attached to the pump. The ship's log book entry for December 6 describes the next event, which occurred at 12:15 a. m.:
As a result of the oil spill, liquid coconut oil covered the entire area surrounding the pumping operation, including the top of both tank lids, the area forward of the tank coamings and between the port and starboard tank coamings. After the pump had been stopped the chief officer of the ship and the cargo surveyors went into the shelter deck to ascertain the exent of the cargo damage. Donohue and Russo, El Dorado employees, then replaced the broken fitting on the pump after "squeegeeing"* the spilled oil from a working area sufficient to repair the pump. The deceased Skovgaard, a maintenance foreman employed by El Dorado, was called from his home to assist in repairing the pump and restoring it to operation. At 1:25 a. m., he boarded the vessel. Since Donohue and Russo still were working on the disabled pump, he went down into No. 3 shelter deck to assist them. In moving from the foot of the ladder leading down from the main deck to the shelter deck, Skovgaard walked through the area over which the oil had spilled. As he walked aft of the port tank, he stepped on either one or both of the hatch beams; then as he attempted to step onto the top of the tank he slipped on the spilled oil and fell to his death into 8 feet of hot oil contained in the hatch opening of the port tank.
Libelant argues that she has two separate causes of action: One, under the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et seq., for negligence and the other under the general maritime law of unseaworthiness. The question already has been decided. In Levinson v. Deupree, 1953, 345 U.S. 648, 650, 73 S.Ct. 914, 915, 97 L.Ed. 1319, the Court held that In Just v. Chambers, 1941, 312 U.S. 383, 388, 389, 61 S.Ct. 687, 692, 85 L.Ed. 903, Further, 312 U.S. at page 391, 61 S.Ct. at page 693, the Court said: "* * * The pith of the matter is that the maritime law, as we conceived it, did not permit recovery, in the case of wrongful death and in the same sense * * *." The Court of Appeals for this Circuit also has spoken; in Klingseisen v. Costanzo Transp. Co., 3 Cir., 1939, 101 F.2d 902, 903: ...
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The Tungus v. Skovgaard
...would not lie, and that the petitioners owed no duty of exercising ordinary care to provide the decedent a safe place to work. 141 F.Supp. 653. The Court of Appeals set aside this decree and remanded the case for further proceedings, a divided en banc court deciding that the New Jersey Wron......
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THE TUNGUS V. SKOVGAARD
...would not lie, and that the petitioners owed no duty of exercising ordinary care to provide the decedent a safe place to work. 141 F.Supp. 653. The Court of Appeals set aside this decree and remanded the case for further proceedings, a divided en banc court deciding that the New Jersey Wron......
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Skovgaard v. The M/V Tungus, 12
...general maritime law, and as to the negligence question, that the vessel owed no duty to the deceased to clean up the oil spill. D.C.N.J.1956, 141 F.Supp. 653. The impleading petition against El Dorado was dismissed; respondent took a precautionary appeal from this It is an established prin......
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