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WESTERMAN v. UNITED STATES

July 28, 1983

John WESTERMAN, Plaintiff,
v.
UNITED STATES of America and Todd Shipyards, Inc., Defendants.



The opinion of the court was delivered by: BRAMWELL

DECISION AND ORDER

BRAMWELL, District Judge.

 Plaintiff, John Westerman, was employed as a rigger by Banks Rigging Corp. (Banks). He was injured when he slipped and fell on grease while carrying out his assigned duties aboard the U.S.S. Marius (MARIUS). Defendant, United States of America (United States), is the owner of the vessel; it contracted with defendant, Todd Shipyards Corp. (Todd), to perform repair work on board the MARIUS and Todd, in turn, subcontracted certain items of this work to Banks. Banks' insurer awarded Westerman $16,191.76 in settlement of his claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) 33 U.S.C. §§ 901-950 (1976). On March 17 and 18, 1983, this Court entertained Westerman's third party negligence suit against both the United States and Todd. In accordance with Rule 52(a) of the Federal Rules of Civil Procedure, the issue of defendants' liability will be resolved through Findings of Fact and Conclusions of Law as follows:

 FINDINGS OF FACT

 1. The MARIUS is a public vessel owned by the United States.

 2. At the time of plaintiff's injury, the MARIUS carried a utility boat and a life boat on board. These boats were secured by devices known as gravity davits (davits). (93) *fn1"

 3. In a stored position, each boat was suspended on wires between two davits. The davits were secured by a locking bar and a preventer wire which ran from a horizontal beam above the deck to the track. (Pl.Ex. 1, 48-49) *fn2"

 4. In order to release one of the boats, the locking bar and preventer wire had to be removed. When this was accomplished, the davits would slide down a track and swing the boat out over the side of the vessel where it could be lowered into the water. (48-49)

 5. In order to return the boat to an upright position, an electric winch was used to pull the davits back up the track. The winch tugged on a wire which was threaded through pulleys called "sheaves". The sheaves were located near the top of the davits. The wire, sheaves and track were customarily lubricated with grease. (85)

 6. In June 1979, the United States, through the Military Sealift Command, an agency within the Department of the Navy, entered into a contract with Todd whereby repair and maintenance was to be performed by Todd on the MARIUS. (Pl.Ex. 3, 89-90)

 7. The contract between the United States and Todd consisted of a Master Repair Contract (Pl.Ex. 2); a Job Order (Pl.Ex. 3); and contract specifications. (Pl.Ex. 4, 5, and 6)

 8. In accordance with the terms of the Master Repair Contract, Todd was required to do the following:

 a) Use reasonable care to prevent accidents aboard the vessel. [Pl.Ex. 2, cl. 10(a)]

 b) "keep the site of the work on the vessel free from accumulation of waste material and rubbish caused by his employee or the work, and at the completion of the work . . . remove all rubbish from and about the site of the work and . . . leave the work in its immediate vicinity "broom clean", unless more exactly specified in the job order." [Pl.Ex. 2, cl. 5(i)]

 c) "furnish all necessary material, labor, services, equipment, . . . and such other things . . . as are necessary for accomplishing the work specified in the job order . . ." [Pl.Ex. 2, cl 4(d)]

 9. In accordance with the terms of the Master Repair Contract, the United States retained the right to inspect the work performed by Todd in order to determine whether it was completed in compliance with contract specifications. [Pl.Ex. 2, cl. 5(c)] The United States Navy crew aboard the MARIUS, however, did not supervise the manner of performance of the repair work contracted to Todd. (105-6)

 10. The job order issued pursuant to the Master Repair Contract between the United States and Todd required Todd to perform the following work on the davits:

 a. Item No. 24 of the contract required Todd to disassemble, inspect and reasemble and replace work parts in the davit sheaves.The sheaves were to be lubricated with grease during reassembly. (Pl.Ex. 4)

 b. Item No. 105 of the contract required Todd to perform a suspension test of the davit mechanism.The test consisted of the operation of the davit mechanism with a specified amount of weight placed in the boat. (Pl.Ex. 4)

 11. Todd, however, subcontracted the work specified in items No. 24 and 105 to plaintiff's employer, Banks. (Def. Todd Ex. A&B) *fn3"

 12. The subcontract between Todd and Banks consisted of two purchase orders and a statement of general safety rules applicable to Banks.(Def. Todd Ex. A, B, C, D & E)

 13.The purchase order prepared by Todd subcontracting the work specified in item 24 to Banks was issued on July 5, 1979. A similar purchase order subcontracting the work specified in item 105 to Banks was issued on July 18, 1979. [114, 117, 119, 119(a)]

 14. Each purchase order issued by Todd to Banks required Banks to furnish all necessary materials, equipment and labor to accomplish the work specified in the purchase order. (Def. Todd Ex. A & B, 120-21)

 15. The rules statement issued by Todd to Banks additionally required Banks to assume responsibility for the "housekeeping" or the cleanliness of the job site. (Def. Todd Ex. E, 122, 129-130)

 16. Todd, like the United States, retained the right to inspect the work performed by Banks in order to determine whether it was completed in compliance with the subcontract. (Pl.Ex. 4, 25-25) And like the United States, Todd did not actively supervise or instruct Banks in the manner of performance of the work specified in the subcontract. (123) Todd, however, did "keep an eye on" the work performed by Banks as it progressed. (127)

 17. The repair work and rebuilding of the sheaves specified in item 24 of the contract between the United States and Todd was performed by Banks pursuant to its subcontract with Todd. The work included the regreasing of the sheaves located at the top of the davits. (Def. Todd Ex. A)

 18. According to both trade custom and the terms of the subcontract, the sheave work specified in item 24 was to have been performed prior to the boat suspension test specified in item 105 [100, 119-19(a)]. The plaintiff, however, submitted documents indicating that both jobs were completed by Banks on the date of plaintiff's injury, August 8, 1979. Defendant Todd, on the other hand, submitted evidence indicating that both jobs were completed on August 7, 1979. (Def. Todd Ex. C & D) The latter date is manifestly inaccurate, as the suspension test signed off as completed on August 7, 1979 was not even commenced until the following date, August 8, 1979. (7) The court cannot credit either set of documents as dispositive of the date on which the sheave repair work was completed. Thus, the evidence does not clearly establish the completion date, or the fact that the sheave work was completed prior to the commencement of the suspension test.

 19. Both the United States and Todd inspected the sheave repair work specified in item 24. However, the discrepancy described above also precludes establishment of a definite date for either inspection. Although the purchase order for work specified item 24 is stamped by the port engineer, an employee of the United States, as satisfactorily completed on August 7, 1979, this evidence cannot be accepted as credible. (Def. Todd Ex. C) The purchase order for work specified in item 105 is likewise stamped as satisfactorily completed on August 7, ...


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