THE ETNA, 1.
| Decision Date | 30 January 1942 |
| Docket Number | No. 1.,1. |
| Citation | 43 F. Supp. 303 |
| Parties | THE ETNA. MITCHELL v. THE ETNA et al. |
| Court | U.S. District Court — Western District of Pennsylvania |
Howard M. Long and Raymond Pace Alexander, both of Philadelphia, Pa., for libellant.
John B. Shaw, of Krusen, Evans & Shaw, all of Philadelphia, Pa., for respondents.
This is an action in admiralty to recover damages sustained by libellant, a stevedore, while engaged in unloading a cargo from the Steamship "Etna".
I make the following special
Findings of Fact.
1. On April 15, 1940, the date of the accident, libellant was a stevedore employed by the Jarka Corporation, and was engaged in unloading a cargo of wood pulp from the No. 1 hold of the Steamship "Etna", at Philadelphia, Pennsylvania.
2. The cargo in the forward part of the No. 1 hold was destined for Wilmington, Delaware, and the cargo in the after part was destined for Philadelphia.
3. Libellant was injured when bales of wood pulp in the rearmost tier of the cargo destined for Wilmington collapsed and fell upon him.
4. The collapse of these bales resulted from improper and negligent stowage of the Wilmington cargo when loaded in Sweden.
5. Because of high seas and head-winds encountered by the Steamship "Etna" on her voyage from Sweden to Philadelphia, her master knew, or had reason to know, that the cargo in the No. 1 hold might be insecure and in danger of collapse.
6. There was nothing in the appearance of the rearmost tier of the Wilmington cargo which revealed to libellant its improper stowage and danger of collapse.
7. Libellant was not advised by the master of the Steamship "Etna" of the possible insecurity and danger of collapse of the Wilmington cargo.
8. The accident occurred through no fault of the libellant.
9. Libellant received multiple fractures of the right leg, comminuted fracture of the left leg, and multiple fracture of the pelvis.
10. He remained in bed for about four months, after which he was able to walk only with the assistance of a crutch and a cane.
11. He has permanent limitation of motion in the ankle joints, and can never resume work as a stevedore or do any other heavy work.
12. At the time of the accident he was fifty-four years old and had been employed as a stevedore for thirty-two years.
13. His earnings were approximately $2,400 per year during the four or five years immediately prior to the accident.
14. As a result of the injuries sustained by libellant, he is permanently incapacitated from performing his customary and usual occupation and duties as a stevedore and from doing any other heavy work.
Discussion.
On April 15, 1940, libellant was employed as a stevedore by the Jarka Corporation and was engaged in discharging a cargo of wood pulp from the Swedish Steamship "Etna", one of the respondents. He and several fellow stevedores were assigned to unloading the No. 1 hold. The entire forward part of this hold contained wood pulp destined for Wilmington except for the three top layers which were to be unloaded at Philadelphia, as was also the wood pulp stowed in the after part of this hold. The pulp was stored in bales weighing about 350 pounds each. The method of discharge was for the stevedores to insert into the binding of the bales hooks which were fastened to a tackle which led from a boom located over the No. 1 hatch. Approximately eight bales were hoisted at a time by means of this boom and swung onto the wharf.
Libellant and his fellow stevedores had begun to work at about eight o'clock in the morning of the accident. They had discharged the Philadelphia cargo, which had been on top of the Wilmington cargo, and had discharged in the after part of the hold to a depth of approximately eight bales below the top of the Wilmington cargo. There was no bulkhead between the Wilmington cargo and the Philadelphia cargo, but the rearmost tier of the former was stowed evenly and appeared to serve as a firm and solid bulkhead. At about 2:15 in the afternoon a draft of cargo had just been removed and libellant was about to fasten the hooks in other bales when this rearmost tier of the Wilmington cargo broke from the middle and a number of bales fell on libellant, inflicting the very serious injuries referred to in the findings of fact.
The evidence on behalf of libellant showed that the bales of pulp forward of the rearmost tier of the Wilmington cargo were not at the time of the accident evenly stowed, but appeared to have been thrown in at an angle and contained spaces which permitted them to shift and work back. The evidence also showed that there was little or no dunnage between the bales to hold them firmly in place. I have concluded that as a result thereof some of the forward bales pressed back against the rearmost tier of the Wilmington cargo and dislodged the bales in that tier, causing it to collapse and fall on libellant. This conclusion is further supported by evidence that when the tier collapsed it broke from the middle and then the bales above came toppling down.
Respondents argue that there is no evidence of negligence on the part of the ship or her owners, and that the doctrine of res ipsa loquitur is inapplicable because at the time of the accident they were not in possession or control of the instrumentality. They...
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