THE SS SAMOVAR
| Decision Date | 24 April 1947 |
| Docket Number | No. 23891-R.,23891-R. |
| Citation | 72 F. Supp. 574 |
| Court | U.S. District Court — Northern District of California |
| Parties | THE S. S. SAMOVAR. |
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Melvin M. Belli, of San Francisco, Cal., for libelant.
Frank J. Hennessy, U. S. Atty., and William E. Licking, Asst. U. S. Atty., both of San Francisco, Cal., for respondent United States.
Thelen, Marrin, Johnson & Bridges and Bruce Walkup, all of San Francisco, Cal., for respondent Permanente Metals Corporation.
Lillick, Geary, Olson & Charles and Edwin L. Gerhardt, all of San Francisco, Cal., for claimant British Ministry of War Transport.
John H. Black and Edward R. Kay, both of San Francisco, Cal., for impleaded respondent Luckenbach S. S. Co., Inc.
Libelant, a longshoreman, filed his libel in rem and personam against the steamship Samovar, the Permanente Metals Corporation, as builder, and the United States of America, as owner, seeking damages for injuries suffered while engaged in stevedoring work aboard the vessel.
A claim to compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., was also filed by libelant, but he has elected, pursuant to § 33 of that Act, 33 U.S.C.A. § 933, to proceed against third persons.
Following issuance of process and seizure of the Samovar, libelant filed his first amended libel in rem and personam alleging in substance that his injuries proximately resulted from negligent construction of the vessel, which caused a "pad eye" welded to the after-end bulkhead of No. 2 hatch to carry away with attached gear and strike the libelant on the head, arm and body.
For a second cause of action libelant alleges that a proximate cause of his injuries was the maintenance and operation of the vessel and its gear in an unseaworthy condition in the particulars just described. A third cause of action charges that libelant's injuries proximately resulted from negligence of the United States as owner in maintaining the Samovar and its gear in an unseaworthy condition.
The British Ministry of War Transport, representing His Majesty's Government in the United Kingdom of Great Britain and Northern Ireland, appeared as claimant of the vessel alleging that "the S. S. Samovar is a steamer owned by the United States Government, and at all times mentioned in the libel was under bareboat charter to His Majesty's Government in the United Kingdom." The British Ministry also denied most of the material allegations of the libel and alleged contributory negligence and assumption of risk on the part of the libelant.
The United States answered denying "that libelant is entitled to sue this respondent under the Suits in Admiralty Act or otherwise or at all."
In response to exceptions filed by the Permanente Metals Corporation, libelant amended the first amended libel upon its face. Permanente thereupon answered and was granted leave to file a petition bringing in the United States as third party respondent pursuant to Admiralty Rule 56, 28 U.S.C.A. following section 723. This petition asserts a claim to indemnity, alleging that in the contract for construction of the Samovar the United States, acting through the Maritime Commission, agreed to reimburse Permanente for all sums the builder might be required to pay by reason of claims such as that asserted by libelant here.
The United States excepted to the Permanente petition urging that inasmuch as a shipbuilding contract is not maritime in character, any claim thereunder is not properly cognizable in admiralty; and further, that the United States has not consented to be sued in this court on claims in excess of $10,000 which arise under contract, 28 U.S.C.A. § 41(20). These exceptions were overruled, and the Government answered praying that the petition be dismissed for want of jurisdiction "under the Suits in Admiralty Act, 1920, the Public Vessels Act, 1925, or otherwise."
Permanente then filed an amendment to its answer to the libel as amended. An amended answer was also filed by the United States, again denying the jurisdiction of this court.
Thereafter the Government filed a petition impleading libelant's employer, Luckenbach Steamship Company, as third party respondent pursuant to Admiralty Rule 56. This petition alleges that at all times mentioned in the libel there was in force a contract between Luckenbach and the United States, acting through the War Shipping Administration, whereby Luckenbach "agreed to furnish and perform the necessary services and labor for loading and stevedoring certain vessels (including the `Samovar') and to indemnify and save harmless the United States against all loss or damage in connection therewith." Luckenbach answered the petition denying negligence and the right of the United States to indemnity or other remedy over against Luckenbach.
At the opening of the trial the Government moved to dismiss the libel and the impleading petition of Permanente, asserting want of consent of the sovereign to be sued in this court. Thereupon, pursuant to leave of court, libelant again amended the first amended libel upon its face to allege consent of the United States Government to be sued under both the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., and the Public Vessels Act, 46 U.S.C.A. § 781 et seq. Permanente also received leave to amend in like manner its petition impleading the Government.
The British Ministry of War Transport and Permanente were permitted to file separate petitions impleading libelant's employer, and Luckenbach in turn was granted leave to file formal exceptions and answers thereto after the close of the evidence. It was then stipulated that the petitions and answers, and any exceptions thereto, would be deemed to have been filed in advance of the trial and a ruling on the exceptions reserved.
Thus the cause proceeded to trial upon the issues of fact and law raised by (1) the first amended libel, as twice amended upon its face, the answer of the British Ministry, the answer and amendment to answer of Permanente, the amended answer of the United States, and the answer of Luckenbach; (2) the impleading petition of Permanente with amendment, and the answer of the United States and Luckenbach thereto; (3) the impleading petition of the United States and the answer of Luckenbach thereto; and (4) the impleading petitions of the British Ministry and Permanente, and the answers and exceptions of Luckenbach thereto.
The facts, either admitted by the pleadings or established by the evidence, are briefly: The vessel involved is one of many so-called Liberty freighters which the Permanente Metals Corporation constructed for the United States Maritime Commission during World War II. While under construction the ship was known as Hull No. 1713, and was built according to plans and specifications of the Maritime Commission. Both Permanente and the Commission surveyed and inspected the vessel in the course of construction and upon completion.
By July 30, 1943, Hull No. 1713, now christened the S. S. Frank D. Phinney, was completed. On or prior to that date the ship had passed the inspection not only of the builder and the Maritime Commission, but also of the Bureau of Marine Inspection and Navigation of the United States Coast Guard, the American Bureau of Shipping, and the British Ministry of War Transport for whose service she was destined pursuant to charter party arrangements under lend-lease between the United States Government and His Majesty's Government in the United Kingdom.
On July 30, 1943, the Frank D. Phinney was delivered by Permanente, accepted by the Maritime Commission, and delivered at once by the Commission to the War Shipping Administration. The latter agency in turn immediately delivered the vessel to the British Ministry, as bareboat charterer, with fuel, water, stores and equipment on board. The ship was then given "provisional" British registry and her name changed to S. S. Samovar. On the same day she was moved to Oakland, California, and berthed with port side lying into Market Street Pier, preparatory to loading lend-lease cargo for her first voyage.
Loading was commenced on August 4, 1943. The stevedoring service was furnished by the War Shipping Administration under lend-lease agreements, the work being done by impleaded respondent Luckenbach pursuant to a general stevedoring contract entered into on January 1, 1943. The cargo consisted of truck chassis, airplane engines, tires and other material consigned to Egypt and the Middle East for use by the Royal Air Force.
Libelant was one of a crew of long-shoremen employed by Luckenbach to load wooden cases containing truck chassis into No. 2 hold. These cases were approximately 4 feet wide, 6 feet high and 18 feet long, and weighed about 5 tons.
The forward and after bulkheads of lower No. 2 hold were equipped with "pad eyes"—steel rings, 7/8 inch thick with an inside diameter of 5 inches, secured to the bulkhead by means of a 7/8 inch thick steel staple or "U" bolt, each end of which was welded to the face of the bulkhead by a butt-fillet weld. The length of the staple was such, that when welded in place, there was a 7¼ inch space between the surface of the bulkhead and the inside edge at the middle of the bend of the staple.
On each bulkhead there were four such "pad eyes" or "cargo lashing rings", two port and two starboard. One of each pair was placed approximately 5 feet and the other 15 feet above the tank top or bottom of the hold, and about 6 feet in from the ship's side. In lower No. 2 hold the space between the tank top and the underside of the lower deck was approximately 24 feet.
No other fittings or equipment for handling cargo were on the bulkheads. Along the ship's sides the ribs or frames were spaced 30 inches apart, and in lower No. 2 hold four cargo lashing rings were attached to the frames, port and starboard. Large "U" bolts were also...
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