The opinion of the court was delivered by: LEIBELL
The above actions, one in admiralty and the other at law were tried together pursuant to an order of Judge Bright dated February 20, 1947, entered on consent of the parties and a waiver of trial by jury in the civil action.
The admiralty action (Adm. 148-59) was instituted under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., in the Eastern District against the respondent, United States of America, on February 10, 1944, and upon consent of the proctors it was transferred to the Admiralty Division of this Court by an order of Judge Kennedy dated February 14, 1947.
The civil action (Civ. 24-29) was commenced in this Court January 8, 1944, by the filing of a complaint which named only the Luckenbach Steamship Company, Inc. (a Delaware corporation) as a defendant. Jurisdiction was based upon diversity of citizenship. On January 7, 1946 an order was entered permitting the plaintiff to implead certain individuals constituting a partnership, known as McNulty Shipyards, Ltd., as party defendants. After the service of an amended complaint the additional defendants moved for judgment dismissing the complaint for lack of jurisdiction, because the said defendants, the McNultys, and the plaintiffs are citizens of New York. The motion was granted on consent January 24, 1947. Then followed the order consolidating the admiralty action against United States of America and the civil action against Luckenbach Steamship Company, Inc. for trial. The trial came on before me on June 26th.
In both actions Alexander Peterson claims he was injured on February 12, 1943 while employed on board the S.S. Richard Gattling. In his action under the Suits in Admiralty Act he alleges that the respondent was the owner of the S.S. Richard J. Gattling, a merchant vessel, and operated and controlled it. In the civil action he alleges that the Luckenbach Steamship Company, Inc. was the owner or lessee of the vessel and as general agent operated and controlled it. In the admiralty suit he alleges that a certain chain, part of the vessel's equipment, broke while Peterson was aboard the vessel performing work for his employer (J. D. Banks & Co.), a third party, and that as a result of the breaking of the chain it struck him in the head and face, especially his left ear. It is alleged that the chain was unsafe and that respondent, United States of America, had knowledge thereof and failed to warn respondent of the dangers of the situation.
In the amended complaint in the civil action the accident is alleged to have occurred as a result of a defective winch, as well as chain, and the failure to have sufficient cables and clamps aboard to do the work in which plaintiff was engaged. The allegations of the libel were amended to conform to the complaint and the libellant asserted that the vessel was unseaworthy.
The facts developed at the trial may be summarized as follows:
The S.S. Richard Gattling was a liberty ship owned by the United States of America. The government, through the Administrator, War Shipping Administration, had entered into a service agreement with Luckenbach Steamship Company, Inc. to act as the General Agent for certain vessels (Ex. 3). The Gattling came under that agreement, which in its terms was similar to the 'General Agent Service Agreement' discussed in Hust v. Moore-McCormack Lines, Inc., 328 U.S. 707, 66 S. Ct. 1218, 90 L. Ed. 1534. Under the terms of that agreement the United States of America agreed to provide insurance against all insurable risks and to indemnify the General Agent against all claims and demands asserted for injury to persons or property. (Art. 8; art. 16(a)).
On April 1, 1941 the United States Maritime Commission entered into an agreement with McNulty Shipyards Ltd., of Brooklyn, for repairs or alteration of vessels for the Commission (Ex. E). The work was to be done at the shipyard of the contractor or in the vicinity thereof on a cost plus basis. The contract provided:
'Articles VII. All Incidental Services and Facilities to be Provided. The Contractor will, at its own cost and expense, provides all materials, machinery, tools, appliances, heat, light, steam, water, electricity, labor, direction, supervision, and everything of any nature whatsoever which may be necessary for the proper execution and completion of the work according to the true intent and meanings of any specifications, plans or drawings referred to herein, whether expressly required by the terms thereof or reasonably to be inferred therefrom.
'The Contractor shall provide adequate and safe berthing facilities for the vessel while the work herein is being performed.'
'Article X. Use of Equipment by Contractor. In the event that any of the vessel's machinery, equipment and fittings such as winches, pumps, rigging, pipe lines, etc., shall be used by the Contractor in the performance of work, the Contractor shall be responsible for any necessary reconditioning to make good any damage resulting from such use.'
Schedule A, annexed to the contract, provided that the contractor would make 'no charges for use of tools and/or equipment, except when necessary to hire same from outside sources. Hire of such to be charged at cost to contractor'. As to the work of sub-contractors, that was to be charged 'at cost.'
On February 10, 1943 McNulty Shipyards Ltd. gave an order (Ex. F) to J. D. Banks to do 'rigging work as directed' in connection with the setting of certain pill boxes and guns in place aboard the S.S. Richard J. Gattling. The claimant, Alexander Peterson was an employee of J. D. Banks & Co. acting as a signal man for the winch operators. The vessel was at Pier 19, East River. Prior to his employment by Banks & Co., Peterson had been a structural iron worker and rigger for over thirty years. He was 60 years old at the time of the accident.
The vessel was a cargo carrier and was equipped with a number of winches. At some distance from the bow and forward of the mast there were two winches, the No. 2 starboard and the No. 2 port serving two hatches; aft of the mast and forward of the boat deck and bridge was another pair of winches, the No. 3 starboard and the No. 3 port serving two hatches; aft of the boat deck and bridge was another pair of winches, a No. 4 starboard and No. 4 port, serving two hatches. On both sides of the bridge on the boat deck were two places fore and aft for gun emplacements (four places in all). The forward gun emplacement on the starboard side had already been installed. The operation which resulted in the accident involved the setting of a pill box for the aft starboard gun emplacement. When the operation started on the afternoon of February 12, 1943 the pill box was on the main deck near the No. 4 starboard winch. That winch was sued to lift the pill box which weighed 3 to 3 1/2 tons. The fall from the No. 3 starboard winch was brought aft over the boat deck to th shackle of the No. 4 starboard fall but the operation could not be completed because the No. 3 starboard winch could not be operated in low gear, only in high gear, and in high gear it did not have sufficient power for the pull. ...