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LUPO v. CONSOLIDATED MARINERS

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


June 14, 1966

James LUPO, Jr., Plaintiff,
v.
CONSOLIDATED MARINERS, INC., Shipenter Lines, Inc., Shipping Enterpriser Inc. and Shipping Enterpriser of New York, Inc., Defendants

The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

 This is a personal injury action arising out of an alleged accident which occurred aboard the "S. S. TADDEI VILLAGE" on August 19, 1963. The complaint alleges negligence under the Jones Act (46 U.S.C. § 688) and the unseaworthiness of the vessel under the General Maritime Law.

 The case was tried before the Court as trier of fact and law. At the behest of both parties the first and only issue tried and to be decided at this juncture is whether the "S. S. TADDEI VILLAGE" was at the time of the alleged accident a vessel in navigation.

 Plaintiff is a resident and citizen of the State of New York, and while defendant is a corporation organized and existing by virtue of the Laws of Delaware, its principal place of business is 19 Rector Street, New York City. Accordingly, there is no diversity of citizenship between the parties. (See 28 U.S.C. § 1332(c) (Supp.1965)).

 Counsel have agreed that if no diversity jurisdiction exists, the case be transferred to the admiralty side of the Court and a determination be made whether the vessel, at the time of the accident, warranted its seaworthiness, and/or whether Lupo (now libelant) would be entitled to the benefits of the Jones Act.

 In approaching a consideration of the issues presented, it must be borne in mind that in order for Lupo to be in a position to assert the causes of action he asserts herein, there must be a concurrence of at least two factors: (1) a vessel in navigation, and (2) a seaman in being. (Kissinger v. United States, 176 F. Supp. 828, 832 (E.D.N.Y.1959)). This is a prerequisite both under the unseaworthiness claim as well as the Jones Act cause of action, (Roper v. United States, 368 U.S. 20, 23-24, 82 S. Ct. 5, 7 L. Ed. 2d 1 (1961)), and if there be no vessel in navigation the claims must fail, irrespective of what type of work the injured party was doing. *fn1"

 As trier of fact on the issue of whether the vessel was in navigation, based on the documentary evidence and testimony presented before me, I find the facts to be as follows:

 1) The "S. S. TADDEI VILLAGE" (hereinafter referred to as "TADDEI" or "vessel") was purchased by Consolidated Mariners, Inc. (hereinafter referred to as "defendant"), at a United States Marshal's sale held pursuant to the order of the United States District Court for the Eastern District of New York on July 30, 1963.

 2) The TADDEI was an American flag C-2 dry cargo vessel, formerly named the "S. S. EMELIA". She was owned and operated by the A. H. Bull Steamship Company until that company went bankrupt.

 3) At the time of purchase the vessel was and had been moored for six months (since December 1962) at Pier 3, Erie Basin, foot of Columbia Street, Brooklyn, New York. For that period of time she was without any crew in an unmanned status, except for some security personnel tending heating devices and refrigeration units.

 4) Defendant took possession of the vessel on August 1, 1963. She was then towed without steam and power by tug to Todd Shipyards, Brooklyn, New York.

 5) Before the vessel was purchased by defendant the Certificate of Inspection of the vessel (at the time still the "S. S. EMELIA") had been revoked by the United States Coast Guard on July 9, 1963. The revocation was based on the need for boiler repairs.

 6) A provisional Coast Guard Certificate of Inspection permitting the vessel to proceed to Baltimore for completion of boiler repairs, but without cargo, and passengers, was not issued until September 3, 1963* after the repairs hereinafter set forth had been made at Todd Shipyards.

 7) It was not until September 5, 1963 that the Coast Guard Certificate of Inspection was returned to the vessel at the port of Baltimore, Maryland.

 8) At the time of purchase there was in existence no Safety Radiotelegraphy Certificate for the TADDEI. This certificate was issued by the Federal Communications Commission on September 4, 1963.

 9) The Certificate of the American Bureau of Shipping, without which the vessel could not sail, was issued on September 4, 1963.

 10) The deratization certificate of the vessel had expired prior to August 1, 1963. A new one was not issued by the United States Public Health Service until September 1963.

 11) Thus, on the dates in question (August 1 and August 19), the vessel did not have any of the documents which are prerequisites for its operation. *fn2"

 12) When the vessel was shifted by tug from Erie Basin to Todd Shipyards on August 1, and until the beginning of September, 1963, there were no ship's articles for the vessel; no master, officer or crew on the vessel; no habitable sleeping quarters, eatable stores, sanitary facilities or linen aboard; no usable charts or maps, and no log book being kept or even opened. *fn3"

 13) The ship's articles were not opened until September 3d or 4th, at which time the Master, Chief Mate, Chief Engineer, and the rest of the members of the crew came on board. *fn3"

 14) Defendant expended approximately $34,000 to put sufficient stores aboard the vessel.

 15) The vessel did not generate during the period set forth in finding 12, supra, any heat, light or power and had no operable water facilities. All these utilities were supplied from ashore.

 16) The vessel first generated her own steam on September 2d or 3d, 1963, and consequently until that time the rudder, cargo ventilators and pumps, which depend on steam power, were inoperable.

 17) As a result of the vessel's not having been moved or used (a) for a six-month period, her decks, holds and quarters were in a state of disarray with debris strewn over the ship, and vermin, rats and mice in her holds and compartments and, indeed, infesting the entire vessel.

 18) The cleaning and maintenance work which was occasioned by the extended period that the TADDEI lay at Erie Basin was performed by the Hercules Maintenance Company at a cost of approximately $7,445, and by individuals (such as Lupo) who were hired through the Seafarers' International Union (hereinafter referred to as "SIU").

 19) The disarray existing aboard the vessel is indicated by the extent and nature of the work performed by the Hercules people as set forth in defendant's Exhibit D. Suffice it to say that by reason of the filth, debris, dunnage, oil, corrosion, stagnant water, rats and mice, and other miscellaneous conditions, the maintenance work was not the type done during an "annual" overhaul.

 20) There were six to eight men of the Hercules Company working aboard the vessel under the direct supervision and immediate control of a Hercules foreman. The work was checked by Anthony Sablic, an officer of defendant corporation. Sablic outlined the work that had to be done and checked that which had been completed. (b)

 21) On the first day there were approximately eight men aboard the TADDEI, doing cleaning and maintenance work, who were hired from the Union Hall, Lupo among them. They had no foreman and were directly supervised by Sablic. (c)

 22) These men were paid union scale, as was one Jonathan Held, who was doing the same type of work but was not hired from nor a member of the SIU.

 23) The "union" men were free to come and go as they pleased and were not subject to any "ship's" discipline, and, indeed, of the eight men who came the first day, only four returned thereafter. *fn4"

 24) If Lupo worked on Saturdays he did not receive overtime pay nor were any SIU pension benefits paid by defendant as is required by the SIU contract and as would have been the case if Lupo were a member of the crew. (d)

 25) None of these men was hired by defendant with the intent of remaining aboard as part of the crew when and if the vessel sailed, and indeed none did so remain.

 26) Lupo neither ate nor slept on the TADDEI. The quarters on the vessel were not habitable, and were unsanitary and unclean, and consequently no one ate or slept on the vessel. Indeed, there were no sanitary facilities in operation and all water was pumped from ashore.

 27) The repair and reconditioning of the vessel's machinery was done by Todd Shipyards Corp. There were some 25 to 30 Todd employees on the vessel under the direction and control of a Todd supervisor. These men did the necessary work, the cost of which was $61,033 (after adjustment from $80,000).

 28) The vessel, while at Todd, was dry-docked for two days, some of her bottom valves renewed and overhauled, and repairs done to her rudder and rudder parts before being refloated in navigable waters and moored to the Todd dock.

 Pursuant to the "Certificate" revocation, work was required to be performed on the boilers and the propulsion machinery of the vessel. The extent of the work is indicated on pages 4-7 of the Todd bill, which is a part of defendant's Exhibit D. In addition, the No. 1 main condensate pump had to be dismantled and completely overhauled. The bill above referred to and Sablic's testimony indicate the items that had to be replaced, overhauled or renewed and other labor performed. While concededly many of the items taken in vacuo may not have constituted a "major" repair, this is far from determinative. It is the need for repair to all these items, occurring at the same time, taken in the context of a vessel laid up and inert for six months without any of the necessary certification (and indeed the Coast Guard Certificate having been revoked because of the need for boiler repairs) which makes the repairs so significant and which causes me to believe that this vessel was at the times in question not a vessel in navigation. *fn5"

 29) Similar considerations exist with respect to the repairs required on the navigational instruments set forth in Exhibit D or the repairs to the Hagen Board, radio equipment, smoke detection equipment, refrigeration units, etc. Again it is these repairs having to be made at the same time as those in finding 28, taken in the context of a vessel immobile for over six months, which is of importance.

 30) The condition and status of the vessel did not appreciably change as of the date of the alleged accident on August 19, 1963.

 31) Though Lupo may have been in part performing work traditionally done by a seaman (as much as were the Hercules men) he was working not on a vessel which had come in and was preparing to go out, or on a vessel that had undergone an annual overhaul, but rather a vessel that had not been plying the waters for over six months and was not then a vessel in navigation. If anything, she was a vessel which had to be and was being prepared so that she could go into navigation.

 CONCLUSIONS OF LAW

 1. The TADDEI did not warrant her seaworthiness to anyone working aboard the vessel on August 19, 1963, as she was not a vessel in navigation.

 2. The libelant is not entitled to the benefits of the Jones Act (46 U.S.C. § 688), one of the requirements of which is a vessel in navigation.

 Settle order on notice in conformity herewith.

 So ordered.


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