The opinion of the court was delivered by: LEVET
Plaintiff James R. Spearing (hereinafter "Spearing") commenced this action against Manhattan Oil Transportation Corporation (hereinafter "Manhattan") and Hudson Tank Storage Company (hereinafter "Hudson"). Plaintiff's complaint
alleged the following: That on September 10, 1968 Spearing was a seaman aboard Manhattan's barge, the Betty K; that the Betty K was tied up to a pier at Weehauken, N.J., owned by Hudson; that Hudson owned certain oil storage tanks adjacent to its pier; that the Betty K was discharging oil into Hudson's tanks; that plaintiff went ashore to obtain instructions regarding discharge of the oil and to obtain drinking water; that while walking between Hudson's tanks plaintiff was caused to fall by an improper walkway.
A United States Marshal delivered the summons and complaint in hand to the president of the Hudson corporation at Hudson's premises in Weehauken, New Jersey.
Plaintiff's complaint alleged two claims against Manhattan: (1) That Manhattan is liable to plaintiff under the Jones Act, 46 U.S.C.A. § 688 (hereinafter the "Jones Act") for negligence; and (2) that Manhattan is liable to plaintiff under the general maritime law for unseaworthiness of the Betty K.
Manhattan's answer to plaintiff's complaint denied that it was liable and contended that plaintiff's own negligence was the sole proximate cause of his alleged injuries. Manhattan has withdrawn all other affirmative defenses. (9-11)
Manhattan's answer also alleged a cross-claim against then defendant Hudson,
stating various theories of recovery. Fearing that plaintiff failed to properly obtain full in personam jurisdiction over Hudson's person, Manhattan filed a third-party complaint against Hudson on the same day that it answered plaintiff's complaint. A United States Marshal handed the summons and third-party complaint to the president of the Hudson corporation at Hudson's premises in Weehauken, New Jersey.
Manhattan's third party complaint alleged two claims against Hudson: (1) That Hudson is or may be liable to Manhattan for all or part of plaintiff's claims against Manhattan; and (2) that Hudson is liable directly to plaintiff "in accordance with Rule 14(c)" of the Federal Rules of Civil Procedure (hereinafter referred to as "Rule" and by number).
Plaintiff's complaint discloses the following direct claims against Hudson:
(1) That Hudson is jointly liable with Manhattan for the unseaworthy condition allegedly due to the improper walkway;
(2) That Hudson was negligent, proximately causing plaintiff's injuries, and is liable therefor under the Jones Act; and
(3) That Hudson breached an implied warranty of workmanlike service which plaintiff contended makes Hudson directly liable to plaintiff under the general maritime law.
Hudson made timely objections to plaintiff's complaint
and Manhattan's third party complaint
alleging as to both lack of jurisdiction over the person and insufficiency of service of process. For reasons given in the Discussion, Hudson is subject to this court's personal jurisdiction solely in its capacity as a third-party defendant.
After hearing the testimony of the parties, examining the exhibits and the Proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. This court has jurisdiction over the subject matter and parties to this action. (46 U.S.C.A. § 688, 28 U.S.C.A. § 1331.) (See Discussion, pages 11 and 12)
2. Manhattan was incorporated in New York. (PTO-3(a) (i)
) On September 10, 1968 it owned the barge "Betty K." (21, 24; PTO-3(a) (iv)) The Betty K contained ten oil tanks and a cabin. (24, 27, 31, 39) At 8:30 A.M. on September 10, 1968 the Betty K was tied up to Hudson's dock in Weehauken, New Jersey. (33)
3. On September 10, 1968 Manhattan staffed the Betty K with two employees, plaintiff Spearing and George Rengstorff (hereinafter "Rengstorff") who was the senior mate on board the Betty K. (26, 27, 145; PTO-3(a) (iii).
4. Hudson, third-party defendant herein, was incorporated in New Jersey. (PTO-3(a) (ii)) On September 10, 1968 Hudson owned a tank farm in Weehauken, New Jersey near the Hudson River. (191, 273; see Ex. R)
5. On September 10, 1968 Hudson's tank farm at Weehauken, New Jersey consisted of oil storage tanks surrounded in the most part by a 5 1/2 foot wall. (66, 216, 269, 276; see Exs. B and R) The area enclosed by the wall was oblong in shape, approximately 340 feet long and 90 feet wide. (See Ex. R) The length of the enclosed area ran from east to west. (Ex. R) On September 10, 1968 Hudson owned a dock adjacent to the south wall just east of the middle of the south wall. This dock was contiguous with the Hudson River. (Ex. R) At a point twenty feet east of the dock, the south wall was broken down to ground level. (Ex. R)
6. On September 10, 1968 Hudson owned and maintained an office located just north of the north wall at its west corner. (Ex. R.) There were three routes (171) to go from the dock to Hudson's office:
(a) One could cross over the break in the wall. (49, 226-227; Ex. R) Fifteen feet west there was a catwalk on which one could walk. (Ex. R) The catwalk consisted of metal gratings, 30 inches wide, placed end-to-end atop metal bracings. (191-192) The catwalks ran between the tanks through the length of the tank farm to the northwest corner. (Ex. R) From there a stairway over the northwest end of the wall led directly to the office. (Exs. R and C) This route was approximately 330 feet long (Ex. R); or
(b) One could cross the south wall by means of a ladder leaning against it at a point approximately opposite to the west corner of the dock. This led to a second catwalk which joined with the catwalk above described. This route was approximately 290 feet long (Ex. R); or
(c) One could follow a path outside the south and west walls which led from the dock to the office. (Ex. R) The part of this path which bounded the south wall was also known as the "stringpiece." (171-172) This route was 280 feet long and was open and unencumbered on the morning of September 10, 1968. (65, 342; Exs. B, C and R)
7. Spearing's duties aboard the Betty K were (1) to hook up hoses for discharging or loading of oil; (2) to "sweep" the tanks at the end of discharging oil therefrom; and (3) to tie up the barge with the tug or a pier. (25-26) As of September 10, 1968 Spearing had served on board the Betty K or on other barges in the same capacity for nine years. (21-23) I find that Spearing was a ...