Before Medina and Waterman, Circuit Judges, and Madden, Judge, United States Court of Claims.*fn*
At least since Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143, it has been common practice in this Circuit and elsewhere in diversity cases for an injured shore-based worker who claims he was doing the type of work traditionally done by seamen but who was employed by third parties, such as stevedores and shipyards, to sue the shipowner on the law or civil side of the District Courts, alleging both unseaworthiness of the vessel and negligence as a basis for recovery and demand a jury trial. That is what was done in this case. Cecil Lawlor was employed by Bethlehem Steel Company at its Staten Island shipyard and during her lay-up in the shipyard for annual overhaul was supervising the men engaged in marking up places in the tanks of the tank vessel Mobilfuel where there were leaks and cracks in the bulkheads leading from one tank to another. A series of scaffolds and ladders belonging to Bethlehem had been put in place by the Bethlehem men and the ladder leading from the last scaffold to the bottom of one of the tanks was almost perpendicular, but it was not fastened to the scaffold; and the ladder fell backwards as Lawlor descended it and he was precipitated to the bottom of the tank and seriously injured. At the close of the evidence Judge Conger dismissed the negligence count against the shipowner, Socony-Mobil Oil Company, Inc. but sent the case to the jury on the charge of unseaworthiness and the jury found the vessel unseaworthy; they also found contributory negligence by Lawlor which reduced the recovery, and the net result was a judgment in favor of Lawlor against the shipowner and a recovery over against Bethlehem on a third party claim. Both Socony-Mobil and Bethlehem appeal.
Thus we have for decision the interesting question specifically left open for future consideration by the Supreme Court in United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 1959, 358 U.S. 613, footnote 7 on page 618, 79 S. Ct. 517, on page 520, 3 L. Ed. 2d 541: whether a shipowner can be liable for the unseaworthiness of a vessel "to a shore-based worker who performs labor on a ship which is not ready for a voyage but is out of navigation and docked in a private shipyard for its annual overhaul and repair."
The accident occurred on June 30, 1954. On June 24 the vessel arrived at the Bethlehem shipyard; she left on July 2. She was in dry dock for a few days for the customary repairs to and painting of the bottom, propellers and so on. Then she was moored in navigable waters at Pier 3, where she remained until Lawlor was injured. She had a full crew of officers and men aboard performing seaman's duties but electric power and water were supplied from shore. The work called for by the contract with Bethlehem was the usual large number of miscellaneous items, including the finding of cracks and leaks in the tanks and repairing them. No structural changes in the vessel were to be made, nor did the contract call for anything in the nature of a major or substantial item of change or repair. The total cost of the work was $70,834 and the contract required performance in 14 days.
The scaffolds and ladders were the property of Bethlehem and Bethlehem had control of the particular part of the vessel where the leaks and cracks in the tanks were being located. We think it clear from the evidence that the shipowner was in general control of the vessel. As Bethlehem was in complete charge and control of the scaffolds and ladders, and one of the Bethlehem men had carelessly failed to affix or tie to the scaffold the ladder which toppled over and caused Lawlor's injuries, we think the negligence count of the complaint was properly dismissed. If the recovery against the shipowner for breach of warranty of seaworthiness is sustained Bethlehem is liable on the third party claim over by the shipowner against it.
Recent holdings by the Supreme Court we think leave us no alternative other than to hold, as we do, that Lawlor was engaged in the type of work traditionally done by seamen. The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S. Ct. 503, 3 L. Ed. 2d 524; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143. See also Pinion v. Mississippi Shipping Co., D.C.E.D.La.1957, 156 F.Supp. 652. Chief Officer Bennett testified that at times when the vessel was not in a shipyard for repairs the location and the temporary repair of cracks and leaks in the tank bulkheads were done by him and by members of the crew under his supervision. Equipment, including ladders, was on board and it could be and was used for this purpose.
It is also settled law that the unseaworthiness doctrine may be applicable and the shipowner become liable even though the article that was defective or defectively put together was the property of the stevedore or shipyard that employed the shore-based worker who was injured. Alaska Steamship Co. v. Petterson, 1954, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798. See Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 100, 66 S. Ct. 872, 880, 90 L. Ed. 1099. Moreover, while the scope of the doctrine was first extended to a longshoreman in Seas Shipping Co. v. Sieracki, supra, and he was engaged in the work of loading or unloading the vessel, the theory was that he was "doing a seaman's work and incurring a seaman's hazards." There is nothing talismanic about the phrase "loading and unloading"; the unseaworthiness doctrine has been applied to shore-based workers not directly engaged in loading and unloading, such as the carpenter doing some repair work in Pope & Talbot, Inc. v. Hawn, supra. The fact that Hawn was repairing something connected with the loading apparatus was a mere coincidence. The point was that he was a carpenter performing ship's service. The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S. Ct. 503, 3 L. Ed. 2d 524; Torres v. The Kastor, 2 Cir., 1955, 227 F.2d 664; Mesle v. Kea Steamship Corporation, 3 Cir., 1958, 260 F.2d 747.
In the cases involving many types of shore-based workers these workers were clearly entitled to benefits under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., but it was held nevertheless that such workers might recover against the shipowner, who was not their employer, where the shipowner was negligent or there had been a breach of warranty of seaworthiness. And in the case of unseaworthiness it was quite immaterial whether or not the shipowner was at fault.
Thus the critical question in this case is whether or not the fact that the Mobilfuel was moored in navigable waters at the pier of the shipyard during her annual overhaul gives her a status such that there is no warranty of seaworthiness and no duty to Lawlor to maintain the vessel and her equipment in a seaworthy condition.
Before we attempt to ascertain the underlying principle controlling the case and discuss the pertinent authorities, we think one or two observations will simplify the problem. Thus we cannot see that the case would differ materially as a matter of basic reasoning if the injured man had been one of the crew of the vessel instead of an employee of Bethlehem. If Lawlor was doing the work traditionally done by seamen, as we have already found to be the case, he is in the same position as a member of the crew. Moreover, we do not think resort to a mere phrase such as "out of navigation" gets us very far. Surely a vessel that has hit one of the submerged logs or other floating obstructions that plague our large harbors and has damaged her propellers so that she has to be towed to a shipyard for a day or two for repairs before continuing her voyage cannot fairly be said to have so changed her status as to eliminate any duty to the officers and crew on board to maintain the vessel and her equipment in a seaworthy condition until the repairs have been completed. Such a vessel is unable to move under her own power, she is still in navigable waters, and would seem to be no more "out of navigation" at the pier of a shipyard than she would be if moored to one of the municipal piers, awaiting tugs to move her to a place where the repairs to her propellers could be promptly made. Thus, if being "out of navigation" is a material factor, everything depends upon what we mean by "out of navigation" in the context of the doctrine of unseaworthiness. If we were pressed to decide whether the Mobilfuel was "out of navigation" in navigable waters moored at the Bethlehem pier, we would say she was not "out of navigation."
The most recent decision by the Supreme Court on this subject is West v. United States, 1959, 361 U.S. 118, 80 S. Ct. 189, 192, 4 L. Ed. 2d 161. There the Mary Austin was removed from the "moth ball fleet" at Norfolk, Virginia, and turned over to a contractor for "a complete overhaul," so that she could be reactivated and put in condition for sea duty. It was held that an employee of the contractor could not recover for unseaworthiness as there was no duty on the part of the shipowner to maintain the vessel in a seaworthy condition. Six of the shipowner's men, a captain, chief mate, second mate, chief engineer, assistant engineer and steward were on board, but solely for the purpose of inspecting the progress of the work. The control of the entire vessel was at all times relevant to the issues in the case in the contractor. She was about as unseaworthy as a vessel can be and still remain afloat*fn1 and she was turned over to the contractor "for the sole purpose of making her seaworthy."
As said by Mr. Justice Clark:
"It would appear that the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous ...