The opinion of the court was delivered by: CONGER
Libellant sued the United States of America and the American Export Lines, Inc. for personal injuries received on board the S.S. Eugene Hale on November 12, 1944 while libellant was in the employ of Mercantile Ship Repair Co., Inc. Subsequently by stipulation American Export Lines, Inc. was withdrawn as a respondent.
The respondent, United States of America, duly impleaded Mercantile Ship Repair Co., Inc. under the 56th Admiralty Rule of the Supreme Court, 28 U.S.C.A.
The case was tried on the admiralty side of the Court. After the case had been submitted and before a decision had been rendered, respondent made a voluntary settlement with libellant which settlement was approved by this Court as to the reasonableness of the amount at a hearing on August 12, 1947.
At that time Mercantile stated that it could neither approve nor disapprove the settlement because of the pendency of its reorganization proceeding in the United States District Court for the Eastern District of New York.
The only issue left now is for the determination of this Court of the right of respondent to recover in whole or in part from Mercantile on the basis of the evidence adduced at the trial of this action.
In the impleading petition respondent contended that if libellant suffered any damage and was entitled to any recovery against the United States it was by reason of the fault of Mercantile, its agents and employees and because of its failure to perform the obligations resting upon it in the performance of the work it contracted to do.
It was more specifically charged that Mercantile instead of exercising reasonable care in inspecting and avoiding the creation of dangerous conditions improperly used through its employees the appliances afforded them by the respondent and that in doing the work they negligently and carelessly replaced the starboard rail in the vicinity of Nos. 4 and 5 hatches and neglected to take the precaution of inspecting the said starboard rail during the course of the work.
There was no proof on the trial that Mercantile in the course of the work created a dangerous condition, nor that it carelessly replaced the starboard rail at the place of the accident. As a matter of fact, Mercantile at or about No. 4 hatch had nothing to do with repairing the rail or replacing it. It amounts to this, that Mercantile's men in the course of the work were required to be in and about No. 4 hatch and the rail adjacent thereto.
An issue has been raised here as to who had control of the ship. The testimony is not too definite on this point. Mercantile was doing a thorough repair and overhaul job on the ship which, however, was not in dry dock and respondent was in general control of the vessel.
As I see it, the question of control here is not the deciding factor. Whether Mercantile was in complete charge or not is not relevant. It still owed a duty to its employees to use reasonable care and precaution to protect them and furnish them a safe place to work.
After all, the real issue here is whether or not it did this and whether or not it was required under the law to make an inspection of those parts of the ship where its men were working and if so what sort of an inspection was required.
The Eugene Hale, a liberty ship, was being repaired by Mercantile. At the time the Eugene Hale was tied up at Pier 41, Brooklyn.
Libellant was a rigger in the employ of Mercantile.
At the time of the accident, among other things, a strap job was being done on both the port and starboard sides of the ship. We are only concerned with the work being done on the starboard side near No. 4 hatch. At about this locale a scaffolding had been placed outboard along the side of the ship. The consensus of the evidence showed that it was about 4 or 5 feet ...