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January 21, 1952


The opinion of the court was delivered by: KALODNER

This is a third party action in admiralty by a longshoreman carpenter employed by a stevedoring company. He is seeking to recover for injuries suffered while shoring up cargo on board the S.S. 'Niantic Victory', which he alleges were caused by the negligence of respondents' agents. Libellant originally instituted a civil action against the vessel's general agent, American-Hawaiian Steamship Company. The trial judge in that action directed a verdict in favor of the defendant on two grounds: (a) the general agent could not be held liable for the torts of the vessel's personnel under the rule of Caldarola v. Eckert, 1947, 332 U.S. 155, 67 S. Ct. 1569, 91 L. Ed. 1968; and (b) there was not sufficient evidence of negligence on the part of the ship's personnel to support a verdict for the plaintiff in any event. The Court of Appeals of this Circuit affirmed the judgment of the District Court on the first ground, expressly declining to consider the second. Palardy v. American-Hawaiian Steamship Company, 3 Cir., 1948, 169 F.2d 619. The District Judge then vacated his original judgment, and dismissed the complaint without prejudice to any claim which the plaintiff might have against the United States as owner of the vessel. This libel was than brought in admiralty under the Suits in Admiralty Act, 46 U.S.C.A. § 742 (1920). The United States has impleaded libellant's employer, Luckenbach Steamship Company, under Admiralty Rule 56, 28 U.S.C. The transcript of testimony and all other evidence introduced in the civil action have been made a part of the record in this case by stipulation of all parties, and additional testimony has been taken.

On the basis of the pleadings, testimony and exhibits submitted to me, I make the following

 Findings of Fact

 1. At all times material hereto, the S.S. 'Niantic Victory' was owned by respondent, the United States of America, and operated by the American-Hawaiian Steamship Company under a standard form general agency agreement.

 2. At all times material hereto, libelant, a resident of Philadelphia, was employed by the impleaded respondent, Luckenbach Steamship Company. His duties consisted of shoring up cargo which longshoremen, also employed by Luckenbach, had stowed aboard the 'Niantic Victory' while it was moored to Pier 84, South, in Philadelphia.

 3. In the afternoon of June 20, 1946, libellant was assigned by his employer's carpenter foreman, Claire, to shore up cargo in the lower hold of No. 3 hatch. At that time the hatches were open, and libellant worked in natural light. As the loading operation progressed, the longshoremen covered the hatches above the lower hold, thereby shutting out the natural light overhead. Libellant was then furnished with a cluster light to provide illumination while he worked below deck.

 4. The cluster light was an electric light on an extension cord some fifty to sixty feet in length. At one end there was a multiple socket with several electric light bulbs; at the other end the cord was fitted with a plug and screw-on collar. The plug made contact when fitted into an inverted outlet on the main deck; but could not remain in place unless the collar was screwed onto the outlet. However, once screwed on, the plug could not come out until the collar was first unthreaded and removed.

 5. At about 6:30 P.M., the light which libellant was using in the lower hold was extinguished. He shouted to the other carpenters working in the shelter deck, two decks above, and was instructed by his foreman to come up from the lower hold to the shelter deck, there to assist them in shoring some linoleum cargo, after which he was to resume his work in the lower hold.

 6. Since the main deck hatch had been covered, the men in the shelter deck were also working by the light of a single cluster light. The foreman suspended this light through an opening of approximately 2 1/2 by 4 feet, the space left by the removal of a single hatch board in front of the forward hatch ladder, so that libellant could make his way up from the lower hold to the lower 'tween deck, and thence up to the shelter deck.

 7. After libellant had climbed into the shelter deck, he assisted the other carpenters in fencing and shoring up the linoleum, which had been stowed in the wings of the hatch to within three feet of the square of the hatch. The dunnage needed to shore up the cargo was piled on the hatch boards in a square of the hatch. By this time the vessel was almost ready for departure, and it was necessary to work quickly in order to finish the operation before sailing time.

 8. After instructing libellant in his duties, his foreman climbed up to the main deck to investigate the cause for the extinguishment of the lower hold light. He found that the plug had been removed from its outlet, which was located at the after end of the hatch of the midship housing. The only persons in the immediate vicinity at the time were members of the ship's crew who were engaged in battening down the hatch. Since the light cord led down into the hold through a space between the pontoon covers, the tarpaulins could not be put on the hatch properly as long as the light was plugged in.

 9. A short time later, the light in the shelter deck of No. 3 was extinguished, plunging the deck into total darkness. The carpenters shouted to the men on the main deck, without response, and then libellant said he would fix the light. He proceeded from the starboard side of the hatch where he was working, across the square of the hatch, forward and toward the port side, where the escape hatch ladder was located. In so doing, he fell through the opening in front of the forward hatch ladder (through which he had ascended to the shelter deck), down to the lower 'tween deck, a distance of approximately fifteen feet.

 10. Another carpenter, Zuccarelli, then struck a match and made his way up through the escape hatch to the main deck where he found the plug of the shelter deck light lying on the deck, having been removed from its outlet, which was located on the masterhead housing at the forward end of the hatch. The cord of this light ran down to the shelter deck through the escape trunk. The only persons Zuccarelli found around the main deck hatch were ship's personnel, still engaged in battening down the hatch.

 11. It was the responsibility of Captain Kelly, assistant Port Superintendent for the general agent, to determine the number of gangs of longshoremen which would be required to load the vessel, and where each particular type of cargo was to be stowed. The work being performed by libellant at the time he fell was under the ...

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