The opinion of the court was delivered by: BYERS
The libelant Lyon's cause arises from his fall of 35 feet from the boat deck of a ship on which he was working, to the dock alongside to port, on June 2, 1952; many of the material facts are not in dispute.
He was a ship fitter in the employ of Project Construction Corporation (Project) which was under a general contract with the United States to make major alterations upon the U.S.N.S. General M. B. Stewart (Stewart). The work was done at Pier 45, Brooklyn, New York, and the important question for decision is whether legal responsibility for the unfortunate mishap can be visited upon the respondent which owned and operated the ship.
The contract (No. MST 222) was for a major alteration of the ship to convert into a passenger carrier for the families of overseas service men, from a transport for prisoners of war. The cost of the entire job was upwards of $ 1,500,000 and required 95 working days for completion.
Major alterations were required, including Coast Guard repairs, and safety at sea changes. Among the latter was an increase of from ten to twelve lifeboats, (an equal number on each side) which meant that provision had to be made for six, in the space formerly occupied by five on each side of the boat deck. Order No. 145 embodied the requirements of the relevant specifications. The change was effected by aligning the new stations at an angle to the side of the ship, instead of fore and aft. This necessitated resetting the entire gear involved in the functioning of the davits, and the replacing of the bases of the winches to accommodate the new positions so established. The precise job on which Lyon was working, was setting the outboard base of the No. 4 lifeboat (port) winch to accommodate it to the camber of the deck; to do this he used a six foot crowbar which was nosed under the outboard edge of the base, while resting upon a loose angle iron used as a fulcrum in raising the base to admit of the insertion of wedges to accomplish the leveling.
In performing his task he had to stand in a deck space that was from 12 to 15 inches measured from the edge of the deck. He bore down upon the crowbar, which slipped out of its engagement with the base of the winch; he lost his balance as the result of that slipping, and fell outboard; (he was facing 45 degrees aft as he began his task) he instinctively tried to grasp something, but could not, and thus fell to the pier.
The reason why he could grasp nothing was that the ship's rail at that part of the deck had been removed some fourteen days or so previously, as a necessary step in prosecuting this rearrangement of the lifeboats and their fittings. No effective temporary barrier had been erected to serve in the place of the removed rail, and the question for decision is whether the United States as owner of the ship, can be held to answer for that condition.
It is conceded that if there was a duty to replace the rail by a temporary expedient, such as a rope or cable strung across the opening; or by rigging a staging over-side upon which Lyon could have stood, the duty was that of Project.
The libelant asserts (A) unseaworthiness; or (B) negligence on the part of the respondent for not providing a safe place for him to work.
The testimony yields the following
1. The Stewart was not unseaworthy in respect of any duty which it (i.e., respondent) owed to Lyon.
Lyon was a business invitee in the employ of Project. His occupation was not that of a seaman either in fact, or judicial theory. See Rich v. U.S., 2 Cir., 192 F.2d 858; Berge v. National Bulk Carriers Corp., D.C., 148 F.Supp. 608; 2 Cir., 251 F.2d 717, certiorari denied, 356 U.S. 958, 78 S. Ct. 994, 2 L. Ed. 2d 1066. He was engaged as a rigger in a repair job on a ship that was afloat, but not in operation. Her engines were being overhauled and repaired, and could not function on June 2, 1952, or for many days prior.
To exact from her owner anything that could even by remote suggestion be termed seaworthiness, would be to impute to that expression a meaning which even the most ardent pursuit of underwriting liability would not justify.
It was required of the Government that the slip be a reasonably safe floating marine structure which was in need of the substantial alterations and changes ...