The opinion of the court was delivered by: BYERS
This libelant seeks recovery for personal injuries suffered by him on October 20, 1950 when he was working as a member of a longshore gang on the respondent's (American-Hawaiian Steamship Company's) ship, the S.S. Mt. Whitney, now known as the S.S. American, while she was lying at Port Newark, New Jersey.
The impleaded respondents are Seaboard Machinery Corp. and The Jarka Corporation, the latter being the stevedore in whose employ the libelant was serving at the time.
At the trial the impleading petition against the Seaboard was withdrawn on the part of the respondent. The cause therefore proceeded against the American-Hawaiian on the theory of negligence, and against the Jarka on the theory of its possible responsibility to indemnify the shipowner, by reason of its own negligence if such should be shown.
The fact of the libelant's injury and the way it happened are not in dispute.
The ship was known as a C-4 and the precise issue of liability has to do with the nature of the hatch beams with which ships of that class were equipped.
There were four decks, called in the testimony, A, B, C and D, the latter being the lower 'tweendeck, at hatch No. 2, the place where libelant was working; the hatch opening measured 28 feet fore and aft and 20 feet athwartships; there were three tiers of hatchboards laid upon hatch beams 9 feet long and about 1 1/2 feet wide, and they were disposed fore and aft, resting on top of the beams.
The forward tier had been removed prior to the accident, which means that there was an open space about 20 feet wide and about 9 feet long through which cargo from the lower hold was being hoisted on 3 1/2-foot pallets capable of carrying about three tons of cargo.
The vertical height of the lower hold was about 11 1/2 feet; the pallets were being raised by a winch operated from a platform about 10 feet high on A Deck, and it is agreed that the winchman standing on that platform and looking down into this hold, would be about 37 1/2 feet above the level of the hatchboards which remained in place.
There is no testimony concerning either the presence or absence of artificial illumination at or above that level, which would aid the vision of the winchman as he looked down.
The libelant had been working in hatch No. 4 but was instructed to go to lower 'tweendeck No. 2, at about 10:30 A.M., and he expected to act as a signalman to direct the operations of the winchman in connection with the raising of pallets from the lower deck; as he moved toward the forward edge of the second tier of boards, two of them on which he was standing tilted forward causing him to fall upon either the lower deck or portions of the cargo which had not yet been removed; he suffered a fracture of the left humerus and possible low back derangement.
Obviously the libelant was not responsible for the tilting of the hatchboards, and the critical question in the case is why that happened. This directs attention to the hatch beams, because the libelant's theory -- somewhat buttressed by the testimony -- is that the offshore end of the beam supporting the forward end of these hatchboards moved forward two or three inches, thereby removing the support of the beam and causing the former to tilt forward, with the results to the libelant which have been stated.
This would seem to be a plausible explanation because if the beam moved forward, the boards would lose transverse support at their forward end, and the libelant could have tripped over the beam in falling, even though it was but slightly out of place.
No one seems to question that this is what happened because the fact of the fall is clearly demonstrated, and the presence in the lower hold of two or three of the hatchboards in a slanting position was observed by the witness Jacobsen immediately after the libelant's fall.
It is therefore found that the hatch beam in question did move at its offshore end sufficiently to disengage the hatchboards which fell, and thereby ...