Wujek v. Compania Sud Americana De Vapores, Civ. A. No. 11836.

• Decision Date: 06 January 1964
• Docket Number: Civ. A. No. 11836.
• Citation: 224 F. Supp. 853
• Parties: Theodore WUJEK v. COMPANIA SUD AMERICANA DE VAPORES, Defendant and Third-Party Plaintiff, v. ROBERT C. HERD & COMPANY, Incorporated, Third-Party Defendant.
• Court: U.S. District Court — District of Maryland

224 F. Supp. 853

Theodore WUJEK v. COMPANIA SUD AMERICANA DE VAPORES, Defendant and Third-Party Plaintiff, v. ROBERT C. HERD & COMPANY, Incorporated, Third-Party Defendant.

Civ. A. No. 11836.

United States District Court D. Maryland.

January 6, 1964.

Fred Ginsberg and Eugene V. Chircus, Baltimore, Md., for plaintiff.

David R. Owen, Baltimore, Md. (Semmes, Bowen & Semmes), Baltimore, Md., for third-party defendant.

Herbert F. Murray and Clater W. Smith, Baltimore, Md., for defendant and third-party plaintiff.

R. DORSEY WATKINS, District Judge.

Plaintiff, Theodore Wujek, (plaintiff), a longshoreman employed by Robert C. Herd & Company, Incorporated, Third-Party defendant (Herd), sued Compania Sud Americana De Vapores, defendant and third-party plaintiff (ship) for injuries allegedly sustained on October 13, 1959, while working on the ship, when a hatch board broke under him. The complaint alleged that the board broke because it was defective. More specifically, it was claimed that the board, unknown to plaintiff, had been cracked sometime before the accident and that it broke under his weight.

The trial of the case began on September 12, 1962, but was settled between plaintiff and the ship on that day during the course of the trial. The ship kept open its claim for indemnity against Herd. The ship's claim was based on the theory that, if the board were cracked, Herd either caused this condition, knew of it, or should in the use of reasonable care have known of it, before the accident. Herd denied the charges, or any liability for indemnity.

There was no written indemnity agreement between the ship and Herd.

A pretrial order had been entered providing that the claim of the ship against Herd should first be tried on the issue of liability, and if such were found, the issue of damages should then be tried, following the procedure in Ray v. Compania Naviera Continental, D.Md.1962, 203 F.Supp. 206.

The case between the ship and Herd was tried on November 21, 1963, and the plaintiff, a longshoreman in plaintiff's gang, and an expert witness, a structural engineer, all called by the ship, testified. A deposition of an officer of the ship was also offered by Herd, except certain hearsay statements on the last page, as to which objection was sustained.

It was stipulated that the board on which plaintiff stepped and which broke, had been cracked before the accident; and that the weight of a man, such as the plaintiff, would not have caused the board to break, if it had not then been cracked.

The case was argued at the conclusion of the testimony, but decision was postponed until after the filing of briefs, which have now been received and studied.

The court finds as facts that plaintiff was injured while working on the 'tween deck of No. 1 hatch. This deck consisted of three sections each approximately nineteen and one half feet wide and approximately nine feet, one and one half inches fore and aft. Each "board" is really two boards joined together by three dowel pins, and by steel bands near each end, and measures about sixteen and three-quarter inches across, two and three-quarter inches thick, and about nine feet one and one-half inches long. There are fourteen such boards in each section, or forty-two boards to a hatch, and some four hundred boards for the entire ship. The boards, when in place, are supported on steel cross beams about four and one-half feet apart. The "board" in question broke about one foot from one end. The short piece has not been accounted for. The long piece was offered in evidence. Of the two planks composing it, one showed a splintering type break, and the other a shearing break at a point partially occupied by a knot.

It is not entirely clear whether or not plaintiff had previously removed any of the 'tween deck boards to work in the lower hold. It is clear that plaintiff assisted in replacing some of the 'tween deck boards; that in so doing he followed the usual procedure of working one end with a handle or hook; that he was working fast and not paying much attention to the condition of the boards; that he had no difficulty in fitting any of them into place; that he made no complaint about the condition of any boards, and heard of none; that he does not recall that he or any one noticed any defect; that if in placing boards, he had seen anything wrong he would have called the mate, and if no replacement was furnished, he would use what they had, taking out the bad board¹; sometimes boards are upside down, and have no handles; he normally would not have turned boards over to examine them; he did not see or know anything was wrong; and if he had known the board was bad, he would not have stepped on it.

The testimony also made it clear that the boards were furnished by the ship; and that the ship customarily inspected hatch boards on each voyage, in Chile and in the United States.

Plaintiff also testified that just before his accident a tractor was gently lowered onto the hatch boards in front of him; that he unhooked the tractor and stepped back on the board which broke; that the tractor had not been landed on this board.²

May, a worker in the same gang as plaintiff, was called by the ship. He repeatedly pointed out that the accident had happened some four years before; that he worked on three or four ships a week, and really remembered only that plaintiff fell. He did, however, testify as to some trouble with the hatch boards, mostly that they were too long, although there was complaint³ of some cracked boards. Some were good, some were bad, some were cracked,⁴ some were chipped, the same as on all ships. If a cracked board were found, it would be placed where the men were not working; or a new board would be obtained from the mate; or a good board would be obtained from another part of the ship.

If a board looked good on the top, it was not the practice to turn it over and look underneath. May could not recall if the boards were clean or dirty; a condition highly material as to the visibility of cracks.

The ship's main argument is that Herd had knowledge of complaints about the condition of boards "in the very hold where plaintiff was working", and permitted the work to continue, the accident resulting from a cracked hatch board; and that this constituted a breach of the warranty of workmanlike service; that Herd should have suspended the loading operations. The ship relies on Hugev v. Dampskisaktieselskabet International, D. C.Cal.1959, 170 F.Supp. 601, affirmed 9 Cir.1960, 274 F.2d 875, cert. den. 1960, 363 U.S....