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May 27, 1959

Joseph YOST, Libelant,
GENERAL ELECTRIC COMPANY and United States of America, Respondents, and O'Brien Bros. Shipyard Corporation, Respondent-Impleaded

The opinion of the court was delivered by: MURPHY

This is a libel for damages for personal injuries suffered aboard the S. S. Bull Run while afloat in navigable waters at the shipyard of O'Brien Bros. in Staten Island, New York. Jurisdiction over the United States, the owner of the vessel, is under the Suits in Admiralty Act (46 U.S.C.A. § 741 et seq.) and General Electric, in admiralty on the theory of a maritime tort. The United States has filed a cross-claim over against O'Brien Bros. and it in turn has a claim over against General Electric.

There is little dispute about the accident or the injuries. Libelant, who was 65 years of age, is a well-built machinist. He was born in Alsace and became a citizen some time in the 1920's, and for many years worked as a machinist in shipyards. The S. S. Bull Run is a T-2 tanker built, according to its log, in 1943. It was purchased by the government from the City Service Oil Company in 1954, deactivated and placed in the moth ball fleet in the James River for two years until October 1956, when it was towed to the Todd Shipyards in Hoboken, New Jersey, where the hull was painted. It was then towed to Staten Island to the shipyards of the impleaded respondent, O'Brien Bros., for general overhauling and reactivating at a cost of $ 250,000. At the time of the accident its boilers were not operating, there was no steam, all power came from the shore, the main generator had to be renewed -- it was a 'dead' ship. The only crew it had was a master and first officer, chief engineer and first assistant, none of whom had signed articles but were on the port payroll of the general agents of the United States. There was no testimony as to what the duties of the master and first officer were but the duties of the chief engineer and his assistant were to inspect the repair work as it progressed. The United States Maritime Commission also had on board a Mr. Brinkley, who held a chief engineer's license, and was its surveyor. It was his job to inspect everything and to make specifications for the work to be done. Pursuant to those specifications the United States entered into a contract with O'Brien, part of which required the turbo generator to be inspected and repaired if necessary. This was to be done by removing the head casing and the rotor under the supervision of General Electric. General Electric was not a party to this contract but it did, pursuant to an oral request of the shipyard, send its expert to advise and was paid for his services.

The United States Maritime surveyor knew that the O'Brien people were going to inspect the generator and also knew that they would probably use the chain hoist in the engine room which was originally installed for just that purpose, nevertheless he made no inspection of it nor of the eye beams on which it travelled other than to casually look at them.

 A day or two before the accident the General Electric expert arrived and under his guidance the machinists and the riggers of O'Brien started the removal of the head casing. This was slow and rather exacting work. After the bolts were removed and the head raised a fraction of an inch by jack screws, it was lifted by the chain hoist and left suspended for about an hour for the purpose of testing the strength and integrity of the hoist. The hoist and eye beam each had a 10-ton capacity with some additional safety factor. The head of the casing weighed between eight and nine tons. Subsequently, the head was removed and by means of a trolley on the overhead eye beam it was suspended on the hoist and moved to a position on the port side of the engine room where it was secured by cables to the overhead. Thereafter the hoist was used to remove the rotor. After inspection the rotor was lowered into position by use of the hoist and then the riggers and the machinists, under the guidance of the General Electric expert, started the process of returning the head casing to a position immediately over the generator and then lowering it into position. This was done first by the installation of guide rods to insure plumb lowering. The O'Brien men secured the head on chocks of heavy timber, thus taking the tension off the hoist.

 In the afternoon of the day of the accident the O'Brien men started to lower the head by first taking a strain on the hoist and removing the wooden chocks, and then lowering it slowly inch by inch into position. This required an exactness so that the multiple inside parts would mesh correctly. The libelant took a position on one side and the General Electric expert on the other with the rigger operating the operating chain at the apex of the triangle formed by the three men. The libelant and the General Electric man necessarily had to look under the head of the casing to see that nothing was fouled and then the head would be lowered another inch or so. When the head was about 25 inches from reaching its opposite part the libelant crouched down and with the aid of a searchlight looked under the head and in doing so rested his hands on the bottom flange. Suddenly the chain failed, the head crashed down pinning his left arm and right hand beneath it. As a result libelant suffered the loss of that part of his left arm two inches below his elbow and four of the middle and distal phalanxes of four fingers of his right hand, the only finger remaining intact being his fourth. Libelant did not contribute in anywise to his accident. He remained in the Staten Island Hospital for just a month and understandably suffered great pain and still suffers from phantom pain. Sometimes he wears a prosthesis on his left arm. He has been unable to pursue any gainful employment since the accident. In the last two years prior to his accident he earned, in 1955, $ 3,800, and in 1956, $ 4,000. The rate of pay was high but he took time off to build his own house and to go to Europe.

 On the issue of damages, assuming there is liability, it is obvious that libelant was seriously injured without being contributorily negligent and is completely handicapped. Considering his age, his earnings at the time, the prospect of his working life expectancy, the medical bills (which incidentally were paid by the compensation carrier) we find as a fact that his total damages are $ 125,000.

 Whether libelant is entitled to recover the damages he sustained is the principal problem. That this was an industrial accident and that libelant has been compensated by Workmen's Compensation, and his medical bills paid by the insurance company are, under our system of jurisprudence, only incidental economic facts. We are limited in our consideration to the question of whether he has a claim against either of the two respondents and, if so, whether there is any validity to the respective cross-claims over on the theory of indemnity.

 First consideration should be given to the liability, if any, of General Electric under general maritime law. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S. Ct. 406, 3 L. Ed. 2d 550. General Electric neither owned the ship nor any of the gear. It was present at the request of the shipyard company to advise concerning the inspection and repair, if necessary, of one of its products. We accept as a fact the testimony of the employee of General Electric, Mr. Callan, that he gave not directions but only advice and that the men who physically lifted the head of the generator and were in the act of lowering it at the time of the accident were skillful and competent machinists and riggers. The only obligation that General Electric had toward libelant and, incidentally, toward the shipbuilder, O'Brien, was to give competent and expert advice and owed no other duty to libelant other than to refrain from intentionally hurting him. It is sued herein on the theory that it was negligent in not inspecting the hoist and in not advising libelant to be careful. No authority has been called to our attention, nor have we found any to sustain this theory.

 We find as a fact and conclusion of law that it was under no such duty and committed no actionable wrong, and is entitled to a decree dismissing the libel.

 What then is the liability, if any, of the United States. They were the owners of the vessel and it was their gear that was being used. Libelant was aboard as a business invitee to do work on behalf of his employer who was engaged to do a complete overhauling of the entire ship, not alone the engines. The United States is sued on alternate theories of negligence and unseaworthiness.

 If the vessel was unseaworthy because of the failure of the chain hoist or the eye beam from which it was suspended we would be relieved of the problem of deciding whether the United States was negligent since unseaworthiness is a species of liability without fault. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099; Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143.

 Under the undisputed facts here disclosed we hold that the United States as owner of a 'dead' ship was under no duty to provide a seaworthy vessel to those people like libelant who were engaged not in seamen's work but in major repair work undertaken to render the vessel seaworthy and return it to navigation. United New York and New Jersey Sandy Hook Pilots Association v. Halecki, 358 U.S. 613, 79 S. Ct. 517, 3 L. Ed. 2d 541. See footnote 7, at page 618 of 358 U.S., at page 520 of 79 S. Ct. wherein the court did not reach the general proposition presented by the United States as amicus curiae. Berge v. National Bulk Carriers Corp., 2 Cir., 1958, 251 F.2d 717, certiorari denied 356 U.S. 958, 78 S. Ct. 994, 2 L. Ed. 2d 1066; Berryhill v. Pacific Far East Lines, 9 Cir., 1956, 238 F.2d 385, certiorari denied 354 U.S. 938, 77 S. Ct. 1400, 1 L. Ed. 2d 1537; McDaniel v. M/S Lisholt, 2 Cir., 1958, 257 F.2d 538 new trial ordered on other grounds, 1959, 359 U.S. 26, 79 S. Ct. 602, 3 L. Ed. 2d 625; West v. United States, 3 Cir., 1958, 256 F.2d 671, certiorari granted, 1959, 359 U.S. 924, 3 L. Ed. 2d 627.

 Alternately the United States was negligent, libelant argues, because it failed to provide him with a safe place to work. This is just another way of saying that it failed to act as the reasonably prudent ship owner would have acted under like or similar circumstances. Libelant argues that the reasonable and prudent ship owner, knowing that its gear and appliances were to be used in the lifting and replacing of an extremely heavy and awkward piece of equipment, would have made an inspection of some kind which would have disclosed to it the unsafe character of the equipment.

 The facts relative to inspection before and after the accident and the expert opinion relative to the cause of ...

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