The opinion of the court was delivered by: ABRUZZO
This is a suit in admiralty with two libellants who bring this action for permanent injuries sustained by them on November 22, 1943, while employed as stevedores on the steamship 'El Oriente' at Pier 64, North River, New York City.
They first went on this ship the previous Saturday and worked from 8 A.M. to 12 Noon. They returned to work on Monday at 8 A.M. and the accident complained of happened shortly thereafter. Upon arrival at their place of work on Monday they were assigned to load hatch #2 on the lower 'tween deck. Before proceeding to the 'tween deck they had to take the iron doors off the topmost hatch #2 on the upper 'tween deck, and at that time it was observed that the hatch covers on hatch #1 were closed. Due to some difficulty at hatch #2 that gang was compelled to lower two skid boards which were put over the place where the hatch covers should have gone but did not fit. The skid boards were then tied. It was necessary in the orderly performance of their work at times to stand on these skid boards were then tied. It was necessary in the orderly performance of their work at times to stand on these skid boards. At about 9:30 A.M. the first draft was lowered and the two libellants and other members of the crew of the inshore gang were waiting their turn to take care of this draft. There was some trouble with the draft because it hit the skid boards when it came down. It was then found that the skid boards had a tendency to slide, and for that reason the men were fearful of standing on them. It was then decided to get some rope in order to pull the drafts in, thus avoiding the danger of standing on the skid boards. Daylight was coming into hatch #2 and, in addition, two clusters of light, one on each corner of the hatch, provided the light by which the men worked. This light penetrated some 15 to 20 feet toward hatch #1.
Badalamenti, one of the libellants, decided to walk toward hatch #1 for the purpose of finding the rope necessary with which to do this work. He fell into hatch #1 which was open, unguarded and unlighted and around which there were no hatch coamings. Scagnelli, the other libellant, missing his co-worker, Badalamenti, proceeded toward hatch #1 and hatch #2 was approximately 50 feet. Before proceeding to hatch #1, Badalamenti searched for rope at hatch #2 but could find none. There was rope on the dock, a long distance from the place where the men were working, but apparently Badalamenti, due to the fact that war work was being done and speed was essential, elected to go toward hatch #1 for the purpose of finding this rope. In walking toward hatch #1 he intended to snap on a chain light which he expected to find near a locker. It is admitted there was no such light. He saw such a chain light near a locker on the upper 'tween deck on Saturday and, therefore, reasoned that there must be a similar locker with a chain light on the lower 'tween deck. It is admitted and conceded that there was a light on the upper 'tween deck as described by the libellant.
Badalamenti walked some 15 to 20 feet, it got darker, he stretched out his hand and kept walking, endeavoring to reach for this light. He took two or three steps after it actually got dark, before he fell into hatch #1. The crew of the ship had not warned the members of this stevedoring gang of this open hatchway. The respondent in its brief seems to dispute the absence of hatch coamings. The proof indicates that neither of these libellants, walking slowly from hatch #2 to hatch #1, before falling into the hatch struck anything resembling a hatch coaming. The respondent produced no proof that there was a hatch coaming at this hatch. I must, therefore, assume there were none.
The facts are: (1) There were no lights around hatch #1; (2) hatch #1 was some 50 feet from hatch #2; (3) there was no guard rail or ropes to protect the opening of hatch #1; (4) there were no hatch coamings around the opening and, therefore, the hatch opening was flush with the floor.
The employer of the libellants, John T. Clark & Son, was working with the owner of the ship under an agreement which is in evidence and marked 'Libellants' Exhibit 2.' There are two clauses in this agreement which the libellants point out are germane to the issue at bar. They read as follows:
'The Administrator shall furnish and maintain in good working order all necessary masts, booms and winches and the necessary steam or power thereof; blocks, ropes for falls, dunnage, and necessary lights on wharves, piers and vessels when lights are required due to darkness; * * *'
'The Stevedore shall, when requested by the Administrator: Handle lines on docking, undocking and shifting; rig and unrig all gear, rigging and equipment necessary for loading or discharging, including loading or discharging heavy lifts when handled by ship's gear; shift lighters within reach of ship's tackle; take off and put on all hatches, strongbacks, hatch beams, hatch boards and tarpaulins; load, shift and lay all dunnage; and do blocking, lashing, building shifting boards, and such other work as is required in the proper loading and stowing of the vessel.'
Upon these facts and these two clauses, the libellants predicate their claim of negligence on the part of the respondent.
The respondent's contention is that these facts are not indicative of negligence on their part and that these unfortunate accidents occurred because of the sole negligence of the libellants.
It is academic that the duty of the ship to the libellants applies to all parts of the ship under its control and is nondelegable. The Spokane, 2 Cir., 294 F. 242, certiorari denied, 264 U.S. 583, 44 S. Ct. 332, 68 L. Ed. 861; The Omsk, 4 Cir., 266 F. 200.
The Wearpool, D.C.S.D. Tex., 28 F.Supp. 886. The facts in this case are as follows: At the time of the injury to the libellant, he had been shoveling grain in the hold of the vessel, but he, with other longshoremen, was directed by the stevedoring company to go, and they did go, to the 'tween deck to shovel into hatch No. 2a some grain which had fallen through the opening onto said deck. The grain on the 'tween deck on the side of the ship where libellant was working having been nearly all disposed of in that manner, libellant noticed that on the 'tween deck on the opposite side of the ship there was considerable grain and only a few longshoremen there to shovel it. He thereupon took his spade and started, in line of duty and in performance of his duties as a longshoreman, to the opposite side of the ship to assist in shoveling the grain on that side, and while on his way fell into the ballast tank or large tank just back of hatch No. 2a, and was severely injured. The claimant contended that 'the sole cause of the injury to the libelant was his own act in walking into a dark place on the ship, when he knew that it was usual and customary for all 'tween deck hatches to be open upon grain ships.' It was found that the act of the libellant was a reasonably prudent one, and the steamship company was found negligent in the following particulars: (1) In having said tank, into which libellant fell, open; (2) in that the 'tween decks and particularly the point where libellant fell were not properly lights; (3) in failing to warn libellant that the top of the tank in question had been removed; (4) in removing the top of the tank; (5) in permitting the tank to remain uncovered; and (6) in not having guards around the open tank. This decision was affirmed by the Circuit Court of Appeals for the Fifth Circuit, 112 F.2d 245.
In Riley v. Agwilines, Inc., Sup. Ct., 56 N.Y.S.2d 221, the facts are as follows: The deceased, a longshoreman, was engaged in removing ballast and cargo from the defendantS ship. He was at work on the upper 'tween deck at hatch #3. Another gang on the 'tween deck had removed the hatch #2 covers and then covered hatch #2 on the main deck and left the ship. There was no guard rail or rope, or coaming, on the 'tween deck of hatch #2. The deceased was seen walking on the 'tween deck from hatch #3 toward hatch #2 for the purpose of leaving the ship to go to the toilet on the dock. The deceased was subsequently found at the bottom of hatch #2. The court held that such an open hatchway at that time and place was dangerous and a condition which a reasonably prudent person would foresee constituted an unreasonable risk of bodily harm to people on the ship.
In The Omsk case, supra, a contractor was making repairs on a ship. The libellant worked for the contractor. The ship agreed to furnish lights for workmen making repairs. It furnished all of the lights asked for by the contractor but was not notified that some of them had temporarily gone out. The ship was acquitted of any negligence with respect to lights because it was given no notice of the failure of the lights and no opportunity to repair them. The court, however, found that the shipbuilding company had nothing to do with the management of the hatches, and it was the duty of the ship's master to see that they were properly guarded, knowing that the employees of the shipbuilding company were working around them both day and night. The hatches were kept open for the preservation of the cargo of cotton, but there were stanchions around the hatches, and a rope near by, which could have been attached to the stanchions, thus making the place entirely safe. No protection of this sort was used. The ship assumed the obligation to keep all parts of the ship under its control reasonably safe for the employees of the shipbuilding company. The ship was held negligent for an injury sustained while falling into this open hatchway.
West India & P.S.S. Co. v. Weibel, 5 Cir., 113 F. 169. A carpenter, employed by a firm hired to make repairs on a ship to fit it for cargo, fell, at night, through a hatchway which was dark and left open, without notification or warning to those who were doing the work. The ship was held liable in negligence for injuries sustained by that workman. The decision held that the owners of a ship are liable for injuries to persons not notified or warned, who are lawfully aboard the ship when the ship fails to take reasonable precautions for the safety of such persons.
In the J. W. Taylor, D.C.E.D.N.Y., 92 F. 192, the court said (page 195):
'The courts take judicial notice of the fact that between-deck hatches are left off in port, and the usual holding is that stevedores working on the ship assume the risk thereof. * * * '
The facts in this case indicate that the coaming was ...