Spero v. Steamship The Argodon

• Decision Date: 19 April 1957
• Docket Number: No. 7748.,7748.
• Citation: 150 F. Supp. 1
• Parties: John SPERO, Libellant, v. STEAMSHIP THE ARGODON, her engines, boats, tackle, etc., in rem, and Meadowside Shipping Company, of London, England, a foreign corporation or association, as owners, and A. Lusi, Ltd., of London, England, as operators and agents of said vessel, in personam, Respondents.
• Court: U.S. District Court — Eastern District of Virginia

150 F. Supp. 1

John SPERO, Libellant, v. STEAMSHIP THE ARGODON, her engines, boats, tackle, etc., in rem, and Meadowside Shipping Company, of London, England, a foreign corporation or association, as owners, and A. Lusi, Ltd., of London, England, as operators and agents of said vessel, in personam, Respondents.

No. 7748.

United States District Court E. D. Virginia, Norfolk Division.

April 9, 1957.

As Amended April 19, 1957.

Sidney H. Kelsey, Peter K. Babalas, Norfolk, Va., for petitioner.

Seawell, Johnston, McCoy & Winston, Leon T. Seawell, Jr., Norfolk, Va., for respondents.

HOFFMAN, District Judge.

This action in admiralty, in rem and in personam, involves a claim of libellant as Third Engineer on the S/S Argodon for personal injuries, maintenance, and wages including "waiting time" under 46 U.S.C.A. §§ 596, 597. Libellant was injured on November 7, 1955, while the vessel was in the port of Hampton Roads awaiting the loading of cargo, during which time minor repairs and general maintenance were in progress in the engine room where the accident occurred.

Libellant is a citizen of Greece, having signed on the British vessel at Bremen, Germany, in May, 1955, as Fourth Engineer. When the position of Third Engineer became vacant, libellant was promoted. The vessel had been in Norfolk for approximately six days when libellant was injured.

Exceptions have been filed to the jurisdiction of the Court. It is conceded that, as of the date of the filing of the libel herein on November 30, 1955, wages in the sum of $208.98 were due libellant. Under the authority of the following cases jurisdiction appears to be determined with a certain degree of finality: The Fletero v. Arias, 4 Cir., 206 F.2d 267, 1953 A.M.C. 1390, certiorari denied 346 U.S. 897, 74 S.Ct. 220, 98 L.Ed. 398; The Belgenland, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152; Heredia v. Davies, 4 Cir., 12 F.2d 500; O. & Y. Nuri v. The Johanna, 4 Cir., 210 F.2d 261, 1954 A.M.C. 440; Samad v. The Etivebank, D.C., 134 F. Supp. 530, 1956 A.M.C. 1603.

Under Samad, supra, it emerges that the law of the flag controls the maritime tort, but there has been no effort to prove the British law as, indeed, it is substantially the same as the law of this country. Samad v. The Etivebank, supra.

On the day of his injury libellant had been working in the engine room on the 8 A.M. to 5 P.M. shift. The Second Engineer was relatively new on the job, and libellant, in his capacity as Third Engineer, had been instructed by the Chief Engineer to keep a watch over his immediate superior. Having performed certain duties with respect to the forward generator, libellant, at approximately 3 P.M., proceeded to the opposite side or corner of the engine room where the Second Engineer was working on the ballast pump. His path caused him to go between the main engines and boilers to a platform consisting of steel floorplates located in the vicinity of a Gwyn pump. One of these floorplates, approximately three feet square, had been removed thereby exposing a hole in which certain pipes were located. Approaching the open area in an effort to reach the Second Engineer, libellant slipped on a coating of oil covering the floorplates and fell into the hole. In an effort to minimize his fall, libellant grabbed the removed floorplate which was leaning against the Gwyn pump and pulled it over upon his leg and thigh.

The evidence reveals that, while the ship was at Richmond a few days prior to the accident, an oiler deserted. A wiper was then promoted to oiler. In his new capacity the oiler worked on a regular shift as oiler and then served an additional four hours per day as wiper and/or fireman on an overtime basis. On the day in question the oiler worked on an overtime basis from 8:30 A.M. to 11:30 A.M., but his primary assignment was to clean and protect the underneath piping which could only be reached by the removal of the floorplate. This was a duty ordinarily performed by a fireman. Not having completed his work on the pipes, the oiler left the floorplate off, with the hole exposed, intending to return the following morning to finish his duties.

The Chief Engineer concedes that it would have been safe practice for the employee to replace the floorplates upon completion of his work, but insists that, in practice, whole plates of the engine room are left open for days while the vessel is in port. The floorplates weigh only approximately 35 pounds, but are unwieldy and require at least two men to replace because of the fitting.

Although the temporary fireman-oiler did not testify in the case, there is evidence indicating that the Chief Engineer observed him sweeping the floors at approximately 11:30 A.M., just prior to going off duty. Subsequent to that time there was no one in the engine room charged with the responsibilities ordinarily imposed upon a wiper. To what extent any film of oil had been removed from the floorplates is at least dubious. All witnesses testified that the engine room and its floorplates were not as clean as when the vessel is at sea. Several witnesses observed skid marks in an oil spot where libellant had slipped.

While libellant stated that the lighting was "poor" in the engine room, such a finding is not established by a fair preponderance of the evidence. In fact, in the immediate locality of the missing floorplate, there is a light which reasonably illuminates the area. Additionally, libellant could have diverted his path to the extent of avoiding the exposed hole. He had the same knowledge as others with respect to the general condition of the engine room and the film of oil on the platform and floor. He is, therefore, guilty of contributory negligence which will reduce his damages proportionately. Dixon v. United States, 2 Cir., 219 F.2d 10.

Respondents urge that such contributory negligence of libellant is sufficient to bar his right of recovery under the doctrine of Walker v. Lykes Bros. S. S. Co., 2 Cir., 193 F.2d 772. In Boat Dagny, Inc. v. Todd, 1 Cir., 224 F.2d 208, 211, the reasoning in Walker, supra, is rather sharply criticized wherein the court refused to attach different consequences to "the two species of contributory fault". This Circuit has declined to choose which course to pursue as between the First and Second Circuits, but has suggested that Walker would only be applicable in any event to a master of an ocean going vessel. Mason v. Lynch Brothers Company, 4 Cir., 228 F.2d 709. Clearly the doctrine cannot be extended to a Third Engineer not primarily charged with the duty of keeping oily substances from the engine room floor.

The combination of oil on the floorplates and the removed floorplate furnishes sufficient evidence to constitute an unseaworthy condition of the vessel. The fact that no wiper was on duty and the ship was undergoing general maintenance repairs in its engine room is all the more reason why the floorplate should have been replaced when work in this area was abandoned at 11:30 A.M. until the following morning. The presence of oil on the engine room floor would not, standing alone, be sufficient to impose liability for unseaworthiness under the facts of this particular case, but the combination of circumstances leads to the conclusion of liability.

On November 8, 1955, libellant was taken to the United States Public Health Service Hospital at Norfolk, by the Radio Officer of the Argodon, the latter being in charge of making up the wage accounts for all seamen on the vessel. He was discharged on December 5 as fit for light duty for a period of one month, and thereafter fit for duty. In the interim, the present action had been filed on November 30, and his proctor referred him to Dr. John A. Vann, an orthopedic surgeon. Dr. Vann and Dr. George A. Duncan, both of whom are recognized as outstanding in the field of orthopedic surgery, testified with respect to libellant's injuries. His complaints, many of which were subjective in nature, were directed to the lower back region and Dr. Vann's examination on December 7, 1955, revealed that he had definite spasm of the lumbar muscles in his back with some restriction in motion. There was some suspicion of an injury to the lumbar disc, but this initial suspicion is dissuaded by libellant's subsequent activities and Dr. Duncan's later examination. In any event, such is too conjectural to give consideration to in awarding damages. No fair evaluation of any permanent injury, if any, could be made by either physician. The estimated...