The opinion of the court was delivered by: LEIBELL
The libel in this action was filed on October 20, 1949. It set forth two causes of action: (1) that libelant was injured as a result of negligence of the respondent, and is entitled to a judgment for the damages he sustained; and (2) that he is entitled to maintenance until he received the maximum cure for his injuries. At the trial libelant was permitted to amend the first cause of action so as to include a claim that his injuries resulted from the unseaworthiness of the vessel. In its answer respondent pleaded a defense of contributory negligence.
At the trial libelant, Mormino, was the only live witness called by either side. Respondent rested its case after offering in evidence several exhibits, including the deposition of Hans Anderson, Chief Mate of the vessel on which libelant sustained certain injuries on June 29, 1948.
At the time he was hurt Mormino was chief pumpman aboard the S. S. David T. Wilentz, a Liberty tanker, owned and operated by the respondent. He signed on the vessel at Norfolk, Virginia, on May 28, 1948. From Norfolk they proceeded to Texas where a cargo of oil was taken on. From there they proceeded to Port Alfred, Canada (on the Saguenay River), where its oil cargo was discharged. The vessel remained at Port Alfred three days. On June 21, 1948, she left on a return voyage to Houston, Texas.
The log shows that the tanker finished discharging cargo at Port Alfred, Canada, at 3:40 a.m. on June 21, 1948; that the cargo hose was disconnected ten minutes later; and that the tanker left the dock at 4:25 a.m. She passed out of the Saguenay River and entered the St. Lawrence at Tadoussac at 9:30 a.m. on that day. The ship sailed down the St. Lawrence and passed Cape Gaspe at 7:10 a.m. on June 22nd. She proceeded in an easterly direction across the Gulf of St. Lawrence, passed Ingonish -- Cape Breton Island, at 2:14 a.m. on June 23rd and was out in the Atlantic at 6:15 a.m. headed on her trip south along the coast. On that day the Chief Mate, Hans Anderson, drew Mormino's attention to a leaking manifold valve located forward, on the main deck, alongside the No. 2 port deep tank. He told libelant to repack the gland of the valve at his convenience. When Mormino was shown the leak, about a quart of heavy oil had collected on the deck, covering an area about eight inches in diameter. Six days later, on June 29, 1948, Mormino, in an attempt to fix the valve, stepped in the oil which had accumulated there and fell. At that time the amount of oil on the deck had increased to about a gallon and covered an area about two feet square.
The weather was fine and clear all afternoon on June 23rd and the next morning, June 24th. On the afternoon of June 24th there were rain squalls and a rough head sea with the vessel pitching moderately. The following morning, June 25th, the weather was about the same but it cleared in the afternoon. It was fine and clear all of Saturday, June 26th; clear and partly cloudy the next day, the 27th, and on Monday, June 28th. There is an entry in the log -- 9:30 a.m. on Tuesday, June 29th that 'L. Mormino, Ch. Pumpman, fell on oily deck while working on Port Manifold abrasing both arms and back'; and at 10:50 p.m., that the pumpman was lowered safely aboard a Coast Guard vessel. He was taken to a government hospital at Key West, Florida.
Libelant charges that the discharge valve was unseaworthy, in that it leaked soon after the vessel left Port Alfred, and that the vessel was further unseaworthy in that there were no drip pans available to catch the leaking oil, that there were no flanges available to cover the mouth of the valve, and that there was neither sand or sawdust available to cover the oil patch on the deck. Libelant also charges that the defendant was negligent in failing to have the oil removed from the deck, and that this negligence resulted in his injury.
The respondent denies that the vessel was unseaworthy when it left Port Alfred, or that respondent was guilty of any negligence. Respondent contends that it was Mormino's duty as chief pumpman to maintain the valve in good condition, and that his failure to make any effort for six days to fix the leak constituted contributory negligence, of a type sufficient to preclude him from successfully maintaining this action. Respondent also asserts that libelant was hurt while performing a task calculated to eliminate the very condition which caused the injury, and that under those circumstances his injuries are not subject to indemnity. In addition, respondent alleges that Mormino, himself, should have cleaned up the oil and that in failing to do so and in stepping into the oil he was contributorily negligent.
A shipowner has a duty, at the commencement of a voyage, to furnish his employees with a vessel that is seaworthy in itself, and seaworthy as respects its appurtenances and appliances. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760; Cortes v. Baltimore Insular Line, 287 U.S. 367, 370, 53 S. Ct. 173, 77 L. Ed. 368; O'Donnell v. Great Lakes Co., 318 U.S. 36, 40, 63 S. Ct. 488, 87 L. Ed. 596. This is a continuing duty and the vessel and its appliances must be maintained in seaworthy condition throughout the course of the voyage. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561. No proof was introduced on the trial to show that the valve in question was unseaworthy when the vessel left Port Alfred but the fact that the leak developed so soon after leaving port would warrant the conclusion that the valve was defective at that time. The Southwark, 191 U.S. 1, 8, 24 S. Ct. 1, 48 L. Ed. 65. Assuming that the manifold valve on the discharge line was in good condition when the vessel left Texas, something must have happened while the oil cargo was being discharged through this manifold at Port Alfred, because the leak developed soon thereafter. If the unseaworthiness was one proximate cause of the seaman's injury and his own negligence was another proximate cause, he must stand his proper share of the damages he sustained from the injuries. McGhee v. United States, 2 Cir., 165 F.2d 287; Stokes v. United States, 2 Cir., 144 F.2d 82.
It was part of Mormino's duties as the chief pumpman to look after the manifolds. He could have done the job on the afternoon of June 23rd or the next morning, when the weather was fine and clear. As has been indicated the weather was also clear on the afternoon of June 25th and on Saturday, the 26th. He could have done the job on any of those days. In fact there were only two days of the voyage from Port Alfred when the weather was at all rough; on the afternoon of the 24th and on Friday, the 25th. The log contains no entry of strong winds or high seas. Mormino neglected this repair job and permitted gummy oil to accumulate under the manifold from the slow leak in the valve. His other work in the pumproom would not have prevented him from taking enough time out to repack the manifold valve.
There is no controversy in respect to respondent's assertion that it was libelant's duty as chief pumpman to fix the faulty valve. But Mormino was under no duty to clean the oil from the deck while it was accumulating. An employment agreement (Ex. 4) reached by various tanker companies (including Keystone Shipping Co., the agent for the S. S. David T. Wilentz) and the National Maritime Union of America, of which Mormino was a member, provides in Section 71 that --
'Pumpmen's duties shall consist of handling fuel oil, ballast, cargo, and tank cleaning equipment and all work necessary for the maintenance and operation of cargo pumps, auxiliaries, general cargo lines, and all deck machinery. He shall not be required to chip paint, scale paint, polish brass, or do any work that is not considered maintenance of the machinery under his care. However, the pumpman may, at his own discretion, paint the cargo pumps only. He shall not be required to make heavy installations where this work is customarily done by shore gangs. This, however, shall not be construed to apply to renewals and replacements of wornout equipment.'
Section 27 which relates to a maintenance mechanic-second pumpman specifies in part that --
'* * * he shall not be required to chip, scale, paint or do any general cleaning.'
Cleaning oil from the deck would fall under the heading of 'general cleaning'. Although the limits of a chief pumpman's duties are not as explicitly described as are those of a second pumpman, he could not be required to remove oil from the deck. The deposition of the Chief Mate, Anderson, shows it was Anderson's duty to see that the deck crew kept the decks in a safe condition. The deck crew of ten men was under Anderson's command. Anderson admitted that at no time had he ordered any ...