The opinion of the court was delivered by: WEINFELD
Libellant, as administratrix of the estate of her late husband, Charles Muratore, sues for damages for his death and also for his conscious pain and suffering following an accident on the SS Samuel Adams, when he fell through an open hatch section of the No. 3 tweendeck to the lower hold.
The respondent, United States of America, was the owner of the vessel, a cargo ship, which was being converted into a troop carrier. It impleaded the Wymo Engineering Corporation, the contractor engaged in the conversion work, as a third party respondent, and in the event of recovery in libellant's favor, seeks judgment against Wymo for the amount of such recovery.
The issues under the pleadings are: (1) Control of the area where the accident occurred; (2) negligence of the respondent; (3) contributory negligence of libellant's decedent; and, in the event libellant is entitled to a decree, then as between the respondent and impleaded-respondent; (4) negligence of the impleaded respondent, and (5) indemnity under the agreement between the respondent and the impleaded-respondent, as well as under the maritime law.
Wymo had been engaged to convert the SS Samuel Adams under a standard Warshiprep contract and commenced work on July 7th, 1945, while the vessel was moored alongside pier 52, Brooklyn, New York.
On the day of, and the day preceding, the accident, Muratore, libellant's decedent, had been employed by Wymo. The accident occurred about 6:00 P.M., Saturday, July 14th, 1945, on the No. 3 tweendeck hatch as Muratore was crossing from the starboard to the port side on the way to his clothes locker.
The square of the hatch was made up of 32 separate hatch covers or units in four rows of eight each, about 4 feet x 2 1/2 feet, with the longer dimension running fore and aft. The forward row was adjacent to an athwartship bulkhead which had been built practically flush with the hatch coaming from deck to ceiling and formed the aft wall of quarters being constructed forward of the No. 3 hatch. Immediately below the center of this forward row was a vertical steel ladder which was the only means of ingress or egress to the lower hold, and access to the ladder was gained by removal of the center hatch board.
The accident happened about ten minutes before quitting time, after Muratore had finished his day's work, which had been performed from a scaffold on the outside of the vessel. He went inside to the No. 3 tweendeck where he returned a tool to a fellow-employee, MacGregor, who was then at the starboard side near the newly constructed quarters, somewhat fore of the no. 3 hatch. Leaving MacGregor, decedent walked aft at an angle and then across the hatch square toward the port side, along the forward row of hatch covers adjacent to the athwartship bulkhead. He fell through an opening caused by the removal of displacement of the center hatch cover of that row, to the lower hold, a distance of about 30 feet, and sustained serious injuries resulting in his death two days later.
Earlier that day, about 11:00 o'clock in the morning, two men, employees of either the contractor or sub-contractors, had hoisted two or three pails of sand from the lower hold to the No. 3 tweendeck through this opening. This required but 10 minutes and there was no other activity that day in the hold and no reason for the hatch cover to remain out of place thereafter without barrier or protection until 6:00 P.M., seven hours later, when decedent fell.
It was a customary practice at the start of the day's work for the riggers, Wymon's men, to remove the No. 3 main deck hatch covers, which gave natural sunlight on the No. 3 tweendeck hatch area. These were replaced at the end of the day, starting at about 20 minutes before quitting time, and usually one or two sections remained open until the last man was out. When Muratore crossed the hatch most of the main deck covers had been replaced and the area was considerably darkened. The only artificial light came from bulbs on the starboard and port side, but these gave insufficient light to the area.
There is some testimony as to the existence of a cluster of lights but this was contradictory and conflicting. The court is satisfied that the only cluster of lights was that leading down the ladder from the tweendeck to the lower hold, which cast light into the hold but not on the tweendeck area where the hatch unit was out of place.
Stanchions, guards and other protective devices, accepted and customarily used, were not placed around either the entire hatch or the immediate area of the displaced hatch unit. Thus, the unguarded opening constituted a dangerous and unsafe condition to those having occasion to use or cross the hatch. The danger was increased at the time Muratore crossed, by the darkness resulting from the replacement of practically all the main deck hatch covers.
The basic question is the duty, if any, of the ship owner to decedent and its responsibility for the unsafe condition. This is bound up with the question of control of the area.
When a ship owner surrenders control of part of his ship to an independent contractor, his duty with respect to the surrendered part extends only up to the time the independent contractor assumes control. The owner is not responsible for an unsafe condition thereafter created by the contractor. Lauro v. United States, 2 Cir., 162 F.2d 32, 34; Lynch v. United States, 2 Cir., 163 F.2d 97, 98; Guerrini v. United States, 2 Cir., 167 F.2d 352, certiorari denied 335 U.S. 843, 69 S. Ct. 65, 93 L. Ed. 393; Grasso v. Lorentzen, 2 Cir., 149 F.2d 127, 129, certiorari denied 326 U.S. 743, 66 S. Ct. 57, 90 L. Ed. 444; Riley v. Agwilines, Inc., 296 N.Y. 402, 73 N.E.2d 718.
However, stating that general proposition does not end, but rather gegins, the inquiry. The question here is whether in fact the respondent did surrender control of the ship to the contractor. A study of the record satisfies the court that it did not.
By the terms of the contract, Wymo undertook to place proper safeguards for the prevention of accidents, to keep sufficient lights where necessary during the prosecution of the work, and to use its best efforts to prevent accidents or injury to persons or property. he contract also contained a clause that 'provision shall be made
The contract also contained a clause that 'provision shall be made so that personnel assigned to duty on the vessel undergoing repairs, completion, alterations or additions shall have access to the vessel at all times, is being understood that such personnel will not interfere with the work or the contractor's workingmen.'
The respondent maintained a crew of officers and men on the ship while she was undergoing the conversion. The court does not regard it of significance that the crew assigned was in compliance with a Coast Guard Regulation. Whether because of voluntary action or in compliance with a Cost Guard Regulation requiring a security watch of its own crew, the fact is that the ship's crew was on 24 hour duty and made regular rounds during the process of conversion. It consisted of a chief mate, night mate, roving guards, roundsman, stationary guards and others engaged in conditioning the life boats and was practically a full deck crew.
The roving guards, working in three eight-hour shifts, generally covered the entire vessel once an hour. So, too, the chief mate and his relief, the night mate, also inspected and toured the ship, but not as often- usually each made the rounds two or three times a day.
The essential purpose of the ship's crew was to protect the vessel against pilferage, sabotage, fire, unauthorized entry, to see that the lines were secure and otherwise enforce rules affecting the safety of the ship.
But the precise nature of their duties with respect to dangerous conditions created by the contractor is in dispute. Specifically as to open and dangerous hatch areas, the respondent urges that by law and custom there was no duty upon the ship owner with respect thereto; the members of the security watch were charged only with the duty of protecting the safety of the ship; that Wymo had and assumed complete and exclusive responsibility for the safety of the men. Bluntly stated, the contention of the respondent is that the sole and only ...