The opinion of the court was delivered by: KNOX
In this suit, ten persons, former employees of Constable Hook Shipyard, Inc., of Bayonne, New Jersey, seek to recover damages from the United States for injuries (contact dermatitis) allegedly sustained in June and July, 1955, while doing work in the holds of a deactivated vessel, the John Marshall, owned by the United States, and undergoing repairs and alterations, at the aforesaid shipyard.
As originally begun, the action was founded on the provisions of the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq. In the course of the trial, proctor for libelants stated, 'I don't think (the admiralty) issue is in the case anymore. I do not intend to burden the Court with that problem. * * * We are going to rest on New Jersey State law. * * *'
In libelant's brief, after trial, it is said:
'* * * Libelants predicate liability on the charge that the vessel was not reasonably safe in that the holds of the vessel where they were required to work were covered with a substance which would scale, or flake off and dissolve, as it came in contact with the wet or perspired skin of each libelant. * * * Within a day or two of such contact, various parts of the person of each libelant, including the eyelids, became itchy and inflamed.'
The John Marshall, a Liberty type vessel, was operated by an agent of the United States from 1942 to 1946. In the latter year, the ship was deactivated, and placed in the James River Reserve (Mothball) Fleet. In April, 1952, the ship was transferred to the Hudson River Reserve (Mothball) Fleet. During her deactivation, the vessel's standing rigging and booms were lowered into cradles; the cargo blocks were removed, and stowed in the 'tween decks; the boilers were drained, the main engine was inoperative, and the electrical equipment was covered with a preservative. The John Marshall, in fact, was a 'dead ship', and incapable of navigation. This fact is conceded by libelants.
After the ship became a unit of the Hudson River Reserve Fleet, 819 man hours of labor were expended upon her. This work consisted of rust removal, the storage of tank tops, sweeping, etc. None of the workers, so far as appears, suffered ill effects as a result of his presence aboard the ship.
According to the Superintendent of the Hudson River Reserve Fleet, no metal preservative of any kind was applied to the cargo holds of the dismantled vessel.
On May 22, 1955, the ship was towed to Brewer's Dry Dock on Staten Island, New York, where she was drydocked, and surveyed. This work was under the direction and supervision of John B. Carlson, a marine engineer, licensed for steam and motor vessels of any tonnage. For upwards of ten years, he has been employed by the United States Department of Commerce as a marine surveyor.
Upon completion of Carlson's survey, he specified certain work items that were to be performed aboard the vessel. Constable Hook Shipyard, Inc., was the successful bidder on the work to be done, at a cost of $ 280,186.
Carlson testified that when he inspected the ship at Brewer's dry dock, the holds were exceptionally clean, and were painted white. The paint was 'in fair condition, except for minor peeling.'
While the ship was in dry dock, a pitometer log was installed in her No. 2 hold. This is a speed measuring device that extends through the vessel's hull. In order to effect this installation, it was necessary to burn and weld certain metal portions of the ship. During this operation, from the 9th to the 24th of June, 1955, twenty, or more, men were employed upon the vessel. None of them complained that his physical condition had been adversely affected by reason of his work upon the ship. Nor did Carlson himself suffer any discomfort.
The witness further said that he noticed no accumulation of dust on the floors, ceilings, or beams of the holds. In fact, he stated, '* * * I would say she (the vessel) was exceedingly clean, exceptionally clean, from my experience with ships in lay-up.' He also testified that, from his examination of the vessel's holds, none of them had been treated with a metal preservative.
Nevertheless, he did say that in No. 3 hold, a shield, composed of wooden boards, or planks, had been built over the after bulkhead. The spaces between the boards were sealed with tar or pitch. This structure, Carlson assumed, had been erected to keep heat from the ship's boilers away from grain which, he thought, might have been stowed in that hold.
In the early hours of June 27, 1955, the John Marshall was towed from Brewer's dry dock to the plant of the Constable Hook Shipyard. She was tied up, and placed in the exclusive possession of that company. At about 7:30 A.M., a ...