The opinion of the court was delivered by: NOONAN
The law applicable to the facts in this case as they have been developed upon the trial seems clear. The obligation of seaworthiness which traditionally extended from the ship to its seamen has been extended to longshoremen while working aboard a vessel, even though the latter are employed by an independent stevedoring contractor. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099. The libelant was an employee of an independent contractor working as a longshoreman aboard the ship. As such the shipowner owed the libelant a duty to maintain a seaworthy ship, and to provide a safe place to work. However, when an owner of a vessel surrenders control of any part of his ship to a stevedore in charge of loading or unloading, the owner's duty of seaworthiness as to the part surrendered exists only up to the time the stevedore assumes control. Grasso v. Lorentzen, 2 Cir., 149 F.2d 127.
We then come to a consideration of the facts in this case. After carefully weighing all of the testimony in this case, it is my considered opinion that the libelant has not established by a fair preponderance of the credible evidence either negligence on the part of the shipowner, or that any injuries libelant may have received were occasioned because of an unseaworthy condition on the vessel here involved.
Even if the unseaworthy condition which libelant complains of, did, in fact, exist at the time of the accident at the No. 3 hatch, it appears from the facts adduced at the trial that such a condition was not in existence when the owner surrendered control of that part of the vessel to the stevedores.
In reaching this determination, I have given the greatest consideration to the question of credibility, and as I have indicated I am of the opinion that the libellant has not established his case by a fair preponderance of the credible evidence.
1. The vessel, 'SS John W. Powell' was a Liberty type vessel, and on February 12, 1946 was owned, operated and controlled by the United States of America under a general agency agreement with Cosmopolitan Shipping Company, Inc.
2. On February 12, 1946, the 'SS John W. Powell' was moored starboard side to a pier at the Naval Ammunition Depot, Leonardo, New Jersey.
3. The vessel had arrived at said pier on February 4, 1946, on which date the discharging of the cargo was started.
4. The cargo of boxed ammunition aboard said vessel was discharged by the James Healing Company, stevedores, under a stevedoring contract with the United States Navy.
5. The following is a schedule of the times during which the James Healing Company unloaded such cargo from Hold No. 3 of said vessel:
February 5, 1946 0800-1130
February 6, 1946 0830-1130
February 7, 1946 0830-1200
February 8, 1946 0800-1130
February 9, 1946 0800-1200
February 10, 1946 (Sunday -- no work)
February 11, 1946 0815-1130
February 12, 1946 0800-1130
6. Libelant, Harry J. Greer, was employed by the James Healing Company, as a longshoreman, and had been so employed for three years prior to February 1946.
7. On February 9th and February 12th, 1946, the libelant was employed as a longshoreman by said stevedore company and worked in No. 3 hold as a 'hold man'.
8. The discharging of the 'SS John W. Powell' was performed exclusively by said stevedore company and the officers and crew of the vessel did not participate in the unloading operation. The stevedore company was in control of Hold No. 3 during the entire working period when the cargo was being discharged from said hold.
9. On February 12, 1946, the longshoremen were discharging cargo from No. 3 lower hold.
10. The hatch at No. 3 hold measured about 20' x 20'; the depth to upper deck 37' 4'; depth to 2nd deck 28' 7'; the distance between upper deck ...