United States v. Waterman Steamship Corp.

• Decision Date: 30 June 1951
• Docket Number: No. 13390.,13390.
• Citation: 190 F.2d 499
• Parties: UNITED STATES v. WATERMAN STEAMSHIP CORP. et al.
• Court: U.S. Court of Appeals — Fifth Circuit

190 F.2d 499 (1951)

UNITED STATES v. WATERMAN STEAMSHIP CORP. et al.

No. 13390.

United States Court of Appeals, Fifth Circuit.

June 30, 1951.

Wm. Dewitt Reams, and Percy C. Fountain, U. S. Atty., both of Mobile, Ala., for appellant.

T. K. Jackson, Jr., Mobile, Ala., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

BORAH, Circuit Judge.

James Bradford, an employee of Waterman Steamship Corporation, was fatally injured in the course of his employment on board the vessel Thomas Nuttall by the alleged negligence of a third party wrongdoer, the United States of America. His widow and minor children claimed and accepted an award of compensation under the Longshoremen's and Harbor Workers' Compensation Act, March 4, 1927, c. 509, 44 Stat. 1424, 33 U.S.C.A. 901 et seq., which directed the employer and American Mutual Liability Insurance Company, the employer's insurance carrier, to pay compensation to Bradford's widow and minor children, and the expenses attendant upon the burial of the deceased. Pursuant to the award, American Mutual Liability Insurance Company assumed the payment of the compensation awarded.

The present suit in admiralty¹ was brought by Waterman Steamship Corporation, American Mutual Liability Insurance Company, and the administrator of Bradford's estate, against the United States of America as owner of the vessel Thomas Nuttall, and Alcoa Steamship Company, Inc., general agent for the vessel, to recover damages for the alleged wrongful death.

The libel, as amended, alleges that on April 16, 1947, one James Bradford, while acting within the scope of his employment, went down into the crank pit of the vessel Thomas Nuttall and while there an agent, servant, or employee of respondents negligently and without warning or notice, started the ship's engine, thereby causing the crank web to strike Bradford and inflict upon him injuries causing his death. Respondents, for answer, denied the charge of negligence and set up by way of affirmative defense that Bradford and Waterman were guilty of negligence which proximately contributed to the injury.

The case came on for trial and the court below found that the United States was guilty of negligence "which proximately resulted in the death of Bradford" and that neither Bradford nor his employer was guilty of negligence. Liability was based on a finding that the first assistant engineer was negligent in re-starting the engine without a warning or prior inspection of the crank pits. In its final decree, the court granted respondents' motion to dismiss the libel as to Alcoa Steamship Company and awarded to libellants the sum of $9,000 as damages, together with all costs. From this decree the United States appeals.

Insisting that the judgment may not stand, appellant assigns twenty-five specifications of error. We think, however, that the decisive question here is whether the evidence adduced justifies the conclusion that the first assistant engineer knew or should have known that one of the clean-up men might be in one of the crank pits and therefore was under a duty to inspect the pits or give a warning before restarting the engine. This requires an examination of the facts.

In March, 1947, the Nuttall was taken out of the laid-up fleet and delivered to Waterman for the purpose of re-outfitting her for sea. When this work was completed arrangements were made between the owner and Waterman to hold a dock trial on April 16, 1947, for the purpose of testing the main engines and various auxiliary equipment in the engine room to ascertain if the repairs had been carried out in a satisfactory manner. On the morning of that day the Nuttall was moored alongside a pier in the Mobile River and at about 8:00 A.M. the vessel's engineers came aboard and went down into the engine room and started preparing to warm up the ship's triple expansion reciprocating steam engine.

A steam engine of the type here involved must be gradually warmed up until it reaches a temperature sufficiently high so that when steam is admitted to the cylinders it does not condense into water. This is accomplished by first starting the various auxiliary equipment. A small amount of steam is then admitted to the cylinders, which moves the pistons a short distance, and then by reversing the engines the pistons are moved in the opposite direction. In this manner the engine is rocked back and forth and the crank webs travel from one side of the crank pits to the other and back again in arcs which grow gradually larger until the engine is finally warm enough to make a complete revolution. The Nuttall has three crank pits, which are only large enough to accommodate the crank webs with a six inch clearance when they are rotating. When the web is straight down there is about three feet of clear space in the pit on either side of the web and when the web is on one side, there is about three feet of clearance on the other side. The low pressure crank pit in which Bradford was injured extends three feet below the engine room floor plates but together with the surrounding solid metal safety guard and hand rail makes a pit which measures about six feet deep, four feet fore and aft, and six to eight feet athwartship.

When the ship's engineers entered the engine room on the morning of the day in question, there were several employees of Waterman present, including a clean-up crew consisting of a labor foreman and four other colored laborers, including Bradford. The members of this crew had been instructed by their foreman to clean up the engine room, which covered any and every part thereof. However, the instructions did not specifically mention the crank pits, which had been cleaned a day or two before, and the ship's engineers were not advised in respect to these general instructions. It further appears that it was customary for Waterman to have a clean-up crew in the...