The opinion of the court was delivered by: ZAVATT
This is a libel in rem brought by Karl L. Pedersen, who on August 8, 1952 was employed as a rigger by the respondent-impleaded, Todd Shipyards Corporation (hereinafter referred to as Todd). On that date Pedersen was injured as the result of a fall caused by the collapse of a staging erected by Todd in a tank aboard the respondent vessel, S.S. Bulklube, which was owned by the claimant, National Bulk Carriers, Inc. (hereinafter referred to as National).
The status of the Bulklube at the time of the accident was the subject of findings of the accident was the subject of findings Judge Murphy below in Berge v. National Bulk Carriers, Inc., D.C.S.D.N.Y.1957, 148 F.Supp. 608, 609, affirmed 2 Cir., 1958, 251 F.2d 717, certiorari denied 1958, 356 U.S. 958, 78 S. Ct. 994, 2 L. Ed. 2d 1066 (involving an accident aboard the S.S. Bulklube during the course of repairs under consideration in the instant case) and many of the facts as so found are, by stipulation, deemed to be existent in the instant cause. Thus, as found by Judge Murphy:
'National Bulk Carriers, the owner and operator of the tanker S.S. Bulklube, entered into a contract with Todd whereby the latter was to perform certain rather extensive repairs, including renewals of the transverse and longitudinal bulkheads, for a contract price of $ 981,133. The vessel was delivered to Todd on June 22, 1952, and returned to its owner December 19, 1952.'
On August 8, 1952 the Bulklube was tied up alongside a pier in Todd's shipyard. Judge Murphy, continuing:
'By the terms of the contract, the work was to be carried out 'under the supervision of and to the satisfaction of representatives of the U.S. Coast Guard, American Bureau of Shipping and Owner.' In this connection, the vessel's former chief mate was aboard every day from 8 A.M. to 5 P.M. acting as Assistant Repair Supervisor. Sleeping quarters aboard ship were available for his convenience if he chose to use them. He had not signed articles and was paid a weekly salary the same as defendant's other shoreside employees. National Bulk Carriers' Port Engineer also came aboard every day, although he had no regular hours. These men gave no orders but inspected the work as it was completed.'
At the time of the accident, it is stipulated, the vessel was in the control of Todd. All National did while Todd was performing its contract was to inspect the work as various items were completed, the former chief mate assisting the Port Engineer in this regard. Again, Judge Murphy, continuing:
'The contract also called upon Todd to provide all the necessary labor and material required for the completion of the work, and it is conceded that Todd supplied the materials involved in the accident * * *
'There were no provisions in the specifications pertaining to indemnification. The printed terms on Todd's letterhead contain the following language: 'In connection with the accident and/or indemnity and/or insurance clauses, if any, contained in your specifications, relating to liability for personal injuries, please note that we do not agree to same, insofar as they undertake to impose any liability or any obligations to take out or maintain insurance beyond the liabilities or the obligations * * * imposed upon us by law.' The specifications were accepted subject to the above condition.'
The parties agreed that the work which was to be done by Todd upon the vessel included removing some of the decks, burning out partitions and bulkheads which divided the vessel into twenty-three tanks, making new bulkheads and partitions, putting them in place, renewing the longitudinal and deck beams, and reconditioning her engines, boilers, steering gear and a substantial part of her machinery, and that this, as Judge Murphy observed, amounted to a virtual rebuilding of the interior of the vessel. However, the shell of the vessel, those members of the vessel corresponding to the keel, including the keelson, and the external structures of the vessel above the main deck, such as the bridge house, the bridge, and the after structures, were substantially undisturbed.
August 8, 1952, was the fourth day on which the libellant had been employed by Todd as a rigger. During the course of the night of the 8th it became necessary as part of Pedersen's duties that he climb upon a staging in the Number One tank of the Bulklube, and there hold a piece of metal for a welder who was to weld the metal to the wall of the tank so as to from the support for another staging. The staging upon which Pedersen stood was one of a number erected upon the sides of the tank and was located approximately forty to fifty feet from the bottom of the tank. It consisted of a single plank twelve feet long, twelve inches wide, and two inches thick, which rested at either end upon a metal bracket which was welded to the wall of the tank. The normal means of erecting such a staging would have been to reinforce the brackets at the ends of the plank with angle irons running from the inboard and otherwise unsupported ends of the brackets to the wall below the points at which the brackets were welded thereto. There were no angle irons to support the brackets of the staging upon which Pedersen stood. As Pedersen stood on the after end of the plank and the welder stepped upon its forward end the bracket supporting the forward end collapsed, causing the plank to descend at this end. Pedersen was thrown inward and fell to the bottom of the tank.
The parties stipulated that the staging, with all of its parts, was built by employees of Todd other than Pedersen. They agreed further that National had taken no part whatsoever in constructing the staging or any of its component parts, and had no knowledge or notice as to how the staging had been erected, or what its condition was, or that it was an unsafe place for the libellant to work.
At the time of the accident about thirty to forty per cent of the repair work under the contract had been completed. The engines of the tanker had been dismantled and were in the process of being repaired. The vessel could not steam under its own power. In fact, from the time the vessel was in the Todd shipyard, once active work was commenced on her, she was not fit to go to sea until the work was completed. On December 18, 1952 her certificate of seaworthiness was 'renewed' and the Bulklube was found by the American Bureau of Shipping in all respects fit to return to sea in the carriage of cargo. The parties were unable to stipulate and the record is bare as to the status of the certificate of seaworthiness on August 8, 1952. The vessel was returned to National on December 19, 1952, and entered upon the 'further performance' of a charter party which had been in effect when the vessel was delivered to Todd on June 22, 1952. The parties were unable to stipulate whether on August 8, 1952 the charter had been suspended, or whether the rates were so regulated as to permit a prolonged period of lay-up. On December 19, 1952 the vessel sailed from New York to Texas City, Texas, to load a petroleum cargo.
On these facts it is clear that the injuries to Pedersen were caused solely by the negligence of Todd in failing to properly construct the staging upon which Pedersen was required to perform his work. Recognizing the exclusiveness of Todd's liability to secure the payment of compensation under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905, the libellant makes no other claim against his employer as the result of his injuries. Furthermore, giving due recognition to the decision in Berge, supra, the libellant makes no claim ground upon the breach of an alleged warranty of seaworthiness. The cause rests, rather, upon the grounds that (1) National has been derelict in its purported duty to provide the libellant with a safe place to work, and that a fortiori its vessel may be held accountable in a proceeding in rem; and that (2) the vessel is liable to Pedersen as a business guest for the tort of anyone who may have been in lawful possession thereof.
There is no merit to the libellant's first claim. What is spoken of as a shipowner's non-delegable duty to provide a business visitor or invitee with a safe place to work, see Palazzolo v. Pan-Atlantic S.S. Corp., 2 Cir., 1954, 211 F.2d 277, affirmed Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133, where not clearly identical with the shipowner's duty to provide a seaworthy vessel, see Berti v. Compagnie de Navigation Cyprien Fabre, 2 Cir., 1954, 213 F.2d 397, is no more than a requirement that reasonable due care under the circumstances be exercised. That is, where liability has been imposed for failure to furnish a safe place to work, such liability has been grounded upon negligence, see e.g., Fodera v. Booth American Shipping Corp., 2 Cir., 1947, 159 F.2d 795; Vanderlinden v. Lorentzen, 2 ...