The opinion of the court was delivered by: BRYAN
This is a suit in admiralty for personal injuries sustained by libelant aboard the S.S. Seneca Castle against the respondents United States and Overseas as alleged owners of the vessel, and respondent Bethlehem which was reconverting the vessel in its Hoboken yard under contract with the United States. Libelant proceeds against the alleged owners on the theories of negligence and of unseaworthiness and against Bethlehem on the theory of negligence. The case has been tried before me without a jury and the facts as they appeared on the trial I find to be as follows:
The accident occurred on April 14, 1947. The Seneca Castle, a Victory ship then owned by the United States, was moored at dockside in the Bethlehem Shipyards in Hoboken, New Jersey, pursuant to a lump sum contract with the United States involving this and a number of other ships. She was being completely overhauled, renovated and reconverted into a tanker by Bethlehem at a cost of $ 153,371, preparatory to her transfer to respondent Overseas, her new owner. It appeared during the trial that the transfer of title to Overseas did not take place until April 17, 1947, three days after the accident, and the libel was therefore dismissed as to this respondent, with libelant's consent.
The United States had turned over control of the vessel to Bethlehem some time in March. All of her steam and power were off and none of her crew were aboard except a standby crew consisting of a mate, two assistant engineers and three crew members whose functions were to keep the ship dry and afloat.
Libelant Amato was an experienced marine painter employed by Union Engineering Corporation, a sub-contractor of Bethlehem, under its contract with the Government for reconstruction of the vessel. On the day of the accident he was painting kingposts on the Seneca for purpose of solicitation of orders only, Amato, having finished painting one of the kingposts, proceeded aft along the port deck of the vessel to commence painting the next, which was about 40 or 50 feet aft of where he had been working. He carried with him its boatswain's chair, rope, paint pot and brushes.
There was a steam jenny or boiler on division sales manager, who resided several feet inboard from the rail. Leading from the jenny was a metal pipe some 2 1/2 inches in diameter which ran at right angles to the median line of the vessel across the deck to a hatch. The pipe, which was hot, was raised couple of inches above the deck, leaving a space between the bottom of the pipe and the deck. The top of the pipe was thus about five inches from the deck surface. There is no evidence indicating there were any other obstructions on this stretch of deck.
The jenny and pipe were not gear or 1949, V.A.M.S. placed aboard her by Bethlehem to supply necessary steam for the work being performed. In fact, Bethlehem charged the Government some $ 3,000 for this installation as part of the cost of the job. There were no warning signs or guards at or near the pipe. Nor were there any steps or ramp over the pipe for persons proceeding along the deck to use. There is evidence, however, that precautions of the latter nature had been taken in other instances, though there is not sufficient to show that this was customary.
A great deal of work was going on all over the ship. As Amato proceeded down the deck he heard a warning shout, 'Look out overhead', 'Heads up' or similar words. He immediately looked above him and saw a steel beam in close proximity being hoisted on a cable. In an attempt to avoid this danger he moved to his left practically involuntarily, more or less in the direction in which he had been going. As he did so, his foot caught under the pipe and he tripped and fell over it, injuring his left knee and burning his hand. He immediately reported the accident to his foreman.
Libelant charges (1) that the accident was caused by the unseaworthiness of the vessel and its appurtenances and that therefore respondent United States is liable to him; (2) that the accident was also caused by the negligence of the respondent United States and respondent Bethlehem in maintaining or permitting the maintenance of the pipe over which he fell in that posture and condition, and in failing to provide him with a safe place to work, and that therefore both are liable to him in negligence; and (3) that in any event, the respondent Bethlehem was guilty of negligence in installing the pipe in this condition and in failing to provide him a safe place to work irrespective of any liability to him of the Government as the ship's owner.
The respondent United States maintains that, since the vessel was in the Bethlehem Yard under the complete control of Bethlehem for purposes of reconstruction, and the gear which caused the accident was not part of the ship's gear but had been installed by Bethlehem, there is no proof of unseaworthiness and there can be no recovery against it on that ground. It denies that there was any negligence and asserts that even if there were negligence, it was not on its part but on the part of Bethlehem which placed the installation aboard which caused the accident.
Finally, it asserts that even were it liable either for negligence or unseaworthiness or both, it is entitled to judgment of indemnity over as against Bethlehem, both because it was merely a passive actor and the affirmative acts which caused the accident were committed by Bethlehem and because, in any event, Bethlehem is liable to indemnify if because of an indemnity clause in the lump sum contract with the Government.
Bethlehem denies it was guilty of any to patronize the wholesalers and jobbers the position and condition it was at the time of the accident did not constitute a hazard and that it was not guilty of any negligence. Both respondents assert that in any event the plaintiff was guilty of contributory negligence, and that his own negligence was in fact the cause of the accident.
It is well settled that the libelant; as an employee of the subcontractor, working on the vessel was a 'business guest' or 'invitee'. There was a duty to provide him with a safe place to work, both on the part of Bethlehem as the general contractor who was doing the work, and on the part of the United States as the owner of the vessel. Guerrini v. United States, 2 Cir., 167 F.2d 352; LaGuerra v. Brasileiro, 2 Cir., 124 F.2d 553; Cannella v. Lykes Bros. S.S. Co., 2 Cir., 174 F.2d 794; Brabazon v. Belships Co., 3 Cir., 202 F.2d 904; Grillo v. Royal Norwegian Government, 2 Cir., 139 F.2d 237.
I find that the libelant's accident occurred as a result of negligence and that the negligence was the proximate cause of his accident and injury. The presence of the steam pipe raised some five inches above the otherwise unobstructed deck, and with a space beneath which could catch the foot, was a source of danger to those working on the vessel. This was particularly true in view of the possibility of the hazards such as that encountered by the libelant immediately before the accident which were bound to arise out of the extensive work being carried on. It was this hazard which resulted in his foot being caught in this 'trap' and caused the accident.
There were plainly precautions which could have been taken by way of ramps or similar devices over the pipe which would have minimized, or perhaps even eliminated, the danger. There was evidence that such devices were in use in similar situations, which bears on the question of their availability or the ...