Universe Tankships v. Pyrate Tank Cleaners

• Decision Date: 10 June 1957
• Citation: 152 F. Supp. 903
• Parties: UNIVERSE TANKSHIPS, Inc., Plaintiff, v. PYRATE TANK CLEANERS, Inc., Defendant.
• Court: U.S. District Court — Southern District of New York

152 F. Supp. 903

UNIVERSE TANKSHIPS, Inc., Plaintiff, v. PYRATE TANK CLEANERS, Inc., Defendant.

United States District Court S. D. New York.

June 10, 1957.

COPYRIGHT MATERIAL OMITTED

Thacher, Proffitt, Prizer, Crawley & Wood, New York City, for plaintiff. John C. Crawley, Edward C. Kalaidjian, John J. Leibell, New York City, of counsel.

Hill, Rivkins, Middleton, Louis & Warburton, New York City, for defendant. Allan B. Lutz, John G. Poles, James E. Kent, New York City, of counsel.

HERLANDS, District Judge.¹

In this action for property damages caused by an explosion aboard a supertanker, all of the crucial issues turn upon questions of credibility. The controlling evidence, for the most part presented in open court, is sharply conflicting.

Mindful of its fact-finding responsibility in this non-jury case, the Court has evaluated the reliability of the witnesses in terms of the inherent persuasiveness of their testimony and their relative credibility. In making such appraisal, the Court has closely considered the demeanor of the witnesses on the stand, their manner of testifying, their frankness or lack of candor, their partisanship or impartiality, and the testimonial effect of any motive or bias.

Plaintiff is the owner of the supertanker Bulkpetrol. Defendant is a professional tank cleaning company. The action seeks to recover damages for injury done to the vessel through an explosion in her No. 4 port wing tank (referred to in this opinion as "the tank"), where defendant's employees were at work. The explosion occurred at about 8:05 p. m. on December 25, 1951.

Commenced as an action at law, based on diversity, the cause was transferred to the admiralty side on plaintiff's motion, made at the beginning of the trial and granted at the close of plaintiff's case, after a motion to dismiss for insufficiency of proof had been argued and denied (3562, 3629-3630). Cf. W. E. Hedger Transp. Corp. v. United Fruit Co., 2 Cir., 1952, 198 F.2d 376, certiorari denied 1952, 344 U.S. 896, 73 S.Ct. 275, 97 L.Ed. 692; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 409, 411, 74 S.Ct. 202, 98 L.Ed. 143; Pioneer Steamship Co. v. Hill, 6 Cir., 1955, 227 F.2d 262, 264; Cannella v. Lykes Bros. S. S. Co., 2 Cir., 1949, 174 F.2d 794, 797.

At all of the material times plaintiff was (and is) the owner and operator of the Bulkpetrol. This steamship is a supertanker. It was built by plaintiff at Norfolk, Virginia and was completed in November 1948. It is classed A 1 (E), Oil Carrier, with the American Bureau of Shipping. The vessel is about 629 feet long over-all; 84 feet in breadth; and approximately 44 feet deep (Exhs. 13, 22, 130; Shorrock, 291-292).

Defendant was and is a professional tank cleaning company. It has been engaged since 1936 in the business of cleaning and gas-freeing petroleum tanks, including both marine and land storage tanks (Kennedy, 206).

The basic factual issues may be spot-lighted by stating the major questions:

(1) The first involves the nature of the legal relationship between plaintiff and defendant before and at the time of the explosion. Plaintiff claims that defendant was an independent contractor and solely responsible for the proper performance of the tank-cleaning and gas-freeing job for which it was engaged. Vigorously disputing plaintiff's claim, defendant asserts it was either an employee of plaintiff or a joint venturer with respect to the tank-cleaning and gas-freeing project. The Court finds that defendant was an independent contractor at all material times.

(2) The second question concerns the cause of the explosion. Plaintiff charges that the explosion was triggered by the exposure of the incandescent filament of an electric light bulb within defendant's defective droplight (Exh. 3), which was suspended by defendant in the tank by means of a cable (Exh. 69). Defendant argues that there is neither proof of the actual cause of the explosion nor of defendant's ownership of Exhibits 3 and 69. Moreover, it is defendant's position that the evidence is so inconclusive and speculative that the Court should find that the explosion might have been the result of any one of a large number of equally possible causes, none of which is attributable to defendant's negligence. The Court finds that plaintiff's contention as to the cause of the explosion is established by a preponderance of the credible evidence.

(3) The third question is whether defendant had reasonable ground to believe that it would be extraordinarily hazardous to risk the exposure of a burning electric bulb filament in the tank by the use of its droplight (Exh. 3) on the evening of December 25, 1951, under the conditions and circumstances then prevailing in that tank. Plaintiff claims (and defendant denies) that defendant had reasonable ground to foresee the danger of exposing a burning electric bulb filament in the tank. The Court finds that plaintiff's claim is clearly sustained by the weight of the reliable evidence.

(4) The fourth question is whether defendant took ordinary care with respect to its equipment, methods and personnel, to prevent the exposure of the burning filament in the explosive, gaseous atmosphere of the tank. The Court finds that defendant was negligent in the respects indicated; and that such negligence was the proximate cause of the explosion.

(5) The final question is raised by the defense contentions that, in any event, plaintiff is barred from recovery because (a) plaintiff was guilty of statutory fault in violating an applicable Coast Guard regulation, (b) plaintiff was contributorily negligent, and (c) plaintiff assumed the risk of the explosion. The Court rejects all of these defenses as without merit in point of fact and law.

Two over-all groups of findings and conclusions may be summarized as follows:

I.

Defendant provided a defective droplight (Exh. 3) in the tank. This droplight was used by two of defendant's muckers, Ohlsen and Hofstetter, who were negligently permitted by defendant to work in that gassy tank at a time when the tank had not been properly tested for its toxic and explosive gas content.

The disturbance of the droplight by Ohlsen (as he fell while in the tank) and by Israelson, another of defendant's employees (who, while stationed at the hatch opening to the tank, was simultaneously pulling on the cable in order to raise the droplight) were added links in the chain of causation. Ohlsen's and Israelson's acts, operating singly or conjointly, resulted in a moving blow of the defective Pyrex glass bowl on defendant's droplight against one of the nearby steel structures located inside the tank.

This impact cracked or smashed the glass bowl and the lighted electric bulb within the bowl. As a result, the incandescent filament was exposed to the explosive gases in the tank. Instantly, there was an explosion.

Ohlsen had slipped and fallen because he was made dizzy by the toxic gases in the tank. Defendant should not have permitted Ohlsen to enter the tank before it had been properly gas-tested. Ohlsen's fall was facilitated by the slippery, oily surface on which he was walking. These events and conditions were reasonably foreseeable by defendant. The consequences of these happenings could have been avoided if defendant had not used a defective droplight.

Thus, the explosion was the proximate result of defendant's failure to use that measure of care with respect to its personnel, equipment and methods of work which a person of ordinary prudence would have exercised as necessary and appropriate under the circumstances prevailing on December 25, 1951 in No. 4 port wing tank.

II.

Plaintiff's witnesses, both lay and expert, were impressively reliable and persuasive. Their testimony established all of the material elements of plaintiff's case. The Horvitz, Stewart and Phillips expert testimony, in particular, was clear and convincing.

On the other hand, defendant's major lay witnesses — Allen, Kennedy, Lane and Lamanna — gave testimony which, to the extent that it differed with that adduced by plaintiff's witnesses, was unreliable. Such defense testimony appeared quite clearly to the Court to have been custom-tailored to meet the exigencies of defendant's case. The Court has substantially discounted such testimony.

Defendant's two witnesses who were called as electrical experts revealed a lack of qualification and expertise. They were but poorly disguised advocates for defendant. Their testimony in this case lends clinical support to the criticism of "expert evidence" voiced by Professor Morgan and to the remedial recommendations contained in the Model Code of Evidence drafted by the American Law Institute. American Law Institute, Model Code of Evidence (1942) pp. 34-36, 198-216. Cf. 43 A.B.A. Journal (Feb. 1957), Explosion Damage Cases: Insurance Procedure and Expert Witnesses, 135, at 137.

We turn now to the detailed findings and conclusions.

On December 21, 1951, the Bulkpetrol arrived at Marcus Hook with a cargo of Kuwait crude oil. This cargo was discharged at the Hog Island dock of the Gulf Oil Corporation (Philadelphia) between 9:20 p. m. on December 21, 1951 and 6:40 p. m. on December 22, 1951 (Deck Log, Exh. 22; Bird, 1347).

About a week or ten days prior to December 21, 1951, at the solicitation of defendant, plaintiff engaged defendant, as an independent contractor, to clean and gas-free the vessel and prepare her for a periodic overhauling at the Bethlehem Baltimore shipyard (212; 1344-1345). The contract was oral. It was entered into in New York (4285-4286), between Kennedy, defendant's secretary and business solicitor (211-212, 778-780, and Walling, plaintiff's marine superintendent (4282). It was agreed that defendant would provide the necessary labor, materials, equipment and supervision (Kennedy, 212, 780; Walling, 4289, 4312), and that the work would be done on a cost-plus basis (Kennedy, 792; Walling, 4286; Exh. 11).

Pursuant to the contract, in the...