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January 12, 1962

Andrew SMERAGULIO, Libelant,
UNITED STATES of America, Respondent. UNITED STATES of America, Petitioner-Respondent, v. MARINE COMPOSITION PAINT AND SCALING COMPANY, Inc., and Evelyn C. Back, doing business under the trade name and style of Inland Marine Company, Respondents-Impleaded

The opinion of the court was delivered by: ABRUZZO

This proceeding was commenced by libelant to recover damages from the United States of America, respondent, sustained by reason of the alleged unsea-worthiness of the vessel S.S. Francis A. Wardwell and the negligence of said respondent in failing to furnish libelant with a safe place to work. The respondent made an agreement in writing dated September 28, 1955 (Ex. A), with one Evelyn C. Back who transacted business under the firm name and style of Inland Marine Company, with a place of business within the jurisdiction of this Court. That agreement (Ex. A) included among its specifications the removal of all rust and scale from all surfaces in hold No. 5. Inland Marine Company was impleaded in this proceeding. It filed no answer and is in default.

The respondent also impleaded Marine Composition Paint and Scaling Company, Inc., hereinafter referred to as Marine Composition. Marine Composition was the subcontractor of Inland Marine Company. The subcontractor interposed an answer and contested the libelant's claim. Libelant was in the employ of the subcontractor and had been engaged to work aboard the vessel as a scaler-painter.

The issue of liability was the only issue tried by the Court. The trial of the question of damages was reserved, awaiting the Court's decision on the question of liability.

 The S.S. Francis A. Wardwell was a deactivated liberty ship utilized as a granary whose certificate of inspection was forwarded to the United States Coast Guard for surrender on June 2, 1953 (Ex. G), and accepted by the Coast Guard June 4, 1953 (Ex. F). This certificate was requisite for a vessel in navigation.

 On September 27, 1955, the S.S. Francis A. Wardwell was towed from her mooring at Jones Point in the Hudson River, New York, to Pier 41, Brooklyn, New York, for the purpose of discharging grain and to receive a new load of grain prior to her return to the laid-up fleet. She was moored at Pier 41, her cargo was discharged, and the vessel was fumigated. On October 10, 1955, Marine Composition commenced cleaning and scraping the holds of the vessel and also bailing water from hold No. 5 (Log Book, Ex. AA).

 Libelant who had never done this type of work before testified that he had been hired on Pier 41 on October 11, 1955, as a scraper-cleaner and his job was to scrape rust from the sides of the vessel. On the morning of October 11, he worked in hatch No. 4. After lunch he returned to that hatch and, after working there about 10 minutes, was told to report to hatch No. 5. In No. 5 he was directed by a foreman to pick up a scraper and scrape the bulkhead. This order was given in the presence of an employee of the vessel whom libelant described as a man wearing a khaki uniform and a peaked cap. The deck of this hatch was covered with mud and water about three-fourths of an inch deep, and he had to step through this in order to get to the hold. There was a ladder furnished for his use to get into the hatch but there were no other ladders in this hatch which he could use to do his work and, therefore, at the time of the accident he was standing upon the ribs. The ribs were 3 feet apart on which were cleats 1 foot apart. After working for about 20 minutes and while standing on a rib about 5 feet above the deck holding on to a cleat with his left hand and using a 3-foot scraper with his right hand, he lunged at a piece of rust and slipped and fell to the deck, landing on his back, and was injured. He attributed his fall to the slippery condition of his shoes. He was assisted up by his fellow-workers and after resting for awhile he continued working the rest of the afternoon on the deck of the ship. He was then taken to the Emergency Room of Methodist Hospital where he was X-rayed and bandaged or strapped. The following February he was hospitalized at the Maimonides Hospital.

 Libelant's testimony as to the condition of the hold was corroborated by the witness Carrique, a fellow-employee. Carrique testified that he had worked aboard the vessel the day before and asked libelant to apply for work. He worked with libelant in hatch No. 5 and also stood on cleats or pegs which he described as hooks. He could not recall whether there were any ladders in hatch No. 5. He testified that he saw plaintiff fall and he also testified that he saw men in uniform who were wearing caps similar to the type worn by naval officers or seafaring men. Carrique claimed that all the hooks were dirty.

 The witness Anderson qualified as an expert and testified. He was an employee of T. J. Stevenson Company as port engineer and had held a chief engineer's license for approximately 40 years. He was sent to meet the S.S. Francis A. Wardwell at the dock and was there when she arrived. He went aboard the vessel with the vessel's captain, Captain Erskine. He visited the engine room and found that the engines had been drained out and covered with consol oil, a preservative, and could not have been operated. The boilers also contained oil and could not have been operated. The cylinder heads of the generating machinery had been opened and the cylinders had been drained and greased and could not have been operated. The vessel's deck machinery could not operate because it had been drained and blown, and the cylinder heads opened and small wooden wedges inserted. The log book of the vessel (Ex. AA) discloses that it had rained all day on October 7, 1955, partially on October 8, and all day on October 9. On October 10th, the day before the accident, water had leaked into the No. 5 hatch through the 'high hat.' It did not rain on October 11th, the day of the accident. The tarpaulin covering the hatch had blown, allowing water to go into the hatch. The log book also discloses that during her stay at Pier 41 the vessel had a captain and gangway watchman aboard during the hours of 8 a.m. to 4 p.m., from 4 p.m. to midnight a mate and a gangway watchman, and two other men from midnight to 8 a.m.

 The contract (Ex. A) contained many general provisions and specifications. Paragraph 2 reads as follows:

 'Unless otherwise specifically directed, the Contractor shall furnish the necessary labor, material and/or equipment to accomplish items of work in the accompanying specification.'

 Paragraph 4 reads as follows:

 'Contractor while carrying out the foregoing requirements must take care and ample precaution to prevent seepage of moisture from weather elements or any other cause to enter holds; in the event of rain, contractor must cover weather deck hatches accordingly.'

 Portions of the deposition of William P. Lewis taken by the libelant on November 17, 1961, were read into evidence. He had an unlimited master's license for 11 years, had been a stevedore superintendent, a cargo supervisor, and sailed as a chief mate. He had been master aboard two liberty ships which had been part of the storage fleet in the James River laid-up reserve fleet that had been moved to a grain pier in Norfolk, Virginia, by tugs because these vessels were, as he said, 'dead' and could not be steered. They were not grain ships. He had served aboard them for a total of 18 days. He had also been employed in the Port of New York as a stevedore superintendent and served in other capacities. He testified as to what in his opinion were the duties of the master aboard a grain-carrying vessel coming from a storage fleet. He did not have very much experience in working on a deactivated ship. His testimony mainly was to the effect as to what he did on a ship and not what the custom and practice was. In a hypothetical question he was asked the duties of a captain aboard a vessel while an independent contractor was scraping rust off the vessel and cleaning it. The answer was disallowed because the Court felt that he had not had sufficient experience to testify as to the custom and practice in and around the Port of New York and because he had not had sufficient experience with that type ...

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