The opinion of the court was delivered by: REEVES
This action is a libel for an alleged tort in admiralty. Such action is authorized perforce the provisions of Sections 741 et seq. and 781 et seq. Title 46 U.S.C.A. and the Federal Claims Tort Act, 1346 Title 28 U.S.C.A.
Early in the morning of February 5, 1951, the libelant sustained an injury by being thrown from the roof of an Army Lighter on Pier 12, Staten Island, New York. The lighter was one used by the army of the respondent, and was moored for the purpose of taking on cargo.
The libelant and three other employees of Pittston Stevedoring Corporation were on the roof of the lighter for the purpose of removing hatch covers so that the cargo might be placed in the hold of the vessel. It was cold, and on the previous day snow had fallen. Because of the low temperature and the precipitation, the hatch covers were frozen and sealed by ice. Each section of the several hatch covers on the lighter had four ropes attached to rings at each corner. The covers were resting on tracks coursing fore and aft of the lighter. The ropes were a part of the appurtenances or equipment and were designed to be used to pull each cover section fore or aft as occasion might require.
A difficulty was experienced in following the usual method of removing a hatch cover, and the libelant called to the aid of himself and associates a 'gantry' crane located on the pier and used for the purpose of loading and unloading cargo. Libelant sought the use of said crane to break the icy seal of a hatch cover so that it might be moved on its track and thus afford an opening for the loading of cargo.
In the process libelant took two of the ropes attached to section and used them as a 'sling' as he termed it, and placed the sling on the hook of the gantry crane. While standing on the hatch cover libelant signaled the operator of the crane to apply a lifting force. The force applied not only broke the icy seal but lifted the hatch cover from its provided tracks. One of the ropes broke, with the result that libelant was thrown from the roof of the lighter to the concrete pier approximately fifteen feet below. He claims a fracture of his right wrist, and a sprain to his back.
Based on these undisputed facts, the libelant instituted this action, and averred:
'* * * that the accident * * * was due to the carelessness, negligence and recklessness of the respondent * * *, or its agents, servants, or officials, and through no negligence contributed thereto on the part of the libelant; in that the sling was defective and the other appurtenances in connection with the lifting apparatus were also defective and out of order.' (Emphasis mine.)
The respondent admitted the jurisdiction of the court and that the lighter designated as 'BC-634' 'was owned and operated by the Army of the United States Government.'
It was admitted, moreover, by the impleaded-respondent, that the libelant was a longshoreman by occupation and was employed at the time by the said impleaded-respondent.
It was further admitted by the impleaded-respondent that the libelant, together with three co-employees, was instructed to board the said lighter 'for the purposes of discharging cargo.' (This should read 'for the purposes of loading cargo.'
The respondent, in its answer, alleged:
'Ninth: That any injury received by libelant at the time and place alleged in the libel was caused by the negligence of the libelant himself, * * *.'
Other defensive averments need not be set up.
As a precaution, the respondent impleaded Pittston Stevedoring Corporation. This was done because of a stevedoring contract with the said corporation effective from July 1, 1950 to June 30, 1951. By this contract the impleaded-respondent assumed liability for ...