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Read v. United States. United States Maritime Commission

decided: February 4, 1953.

READ
v.
UNITED STATES. UNITED STATES MARITIME COMMISSION V. WILLIAMS ET AL. APPEAL OF VASSILOPOULUS ET AL.



Author: Kalodner

Before MARIS, KALODNER and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

Libellant brought an action in admiralty against the United States, owner of the vessel SS Langdon Cheves, for personal injuries sustained in the course of his employment on board the ship while he was an employee of a subcontractor. He alleged that the shipowner was negligent and that the vessel was unseaworthy.

The United States, under Admiralty Rule 56, 28 U.S.C., joined the Pioneer Engineering Company ("Pioneer") with whom it had a contract for repairs and alterations. The United States also joined as additional respondent South Philadelphia Boiler Cleaning Company ("South Philadelphia"), the subcontractor of the general contractor. South Philadelphia was the employer of the libellant here, George Read.

The facts, as found by the District Court, were substantially as follows:

Pioneer entered into a contract with the United States by which it was to "* * * furnish all necessary material, labor, equipment, power, accessories, facilities * * * necessary for accomplishing the work * * *" and "* * * place proper safeguards for the prevention of accidents and * * * put up and keep at night suitable and sufficient lights where necessary during the prosecution of the work." The contract also provided that Pioneer was to "indemnify and save harmless" the United States from all suits to which it might be subjected "arising or growing out of the fault or negligence" of Pioneer or its subcontractor.*fn1

The United States, owner and operator of the SS Langdon Cheves, a Liberty type merchant vessel, desired to transform her into a troop carrying vessel. Pursuant to the provisions of the contract, it notified the contractor to make the necessary repairs and alterations on the vessel.

One of the many items of repair was the conversion of four deep tanks, which had formerly carried salt water ballast, into fresh water tanks. The subcontractor was assigned to perform the conversion. The work was to begin on May 23, 1944, and the United States requested that it be done before 6:00 a.m. on May 28, 1944. The four deep tanks were directly beneath the No. 1 hold - the floor of the hold, which was approximately thirty feet below the level of the main deck, forming the ceilings for the tanks. The tanks were known as the numbers 1 and 2 starboard deep tanks and the numbers 1 and 2 port deep tanks. The two tanks nearest to bow were the number ones, and the two adjacent to them the number twos. Two walkways, forty inches wide and intersecting each other at right angles, separated the tanks from each other. A vertical steel ladder was located along the inner edge of each tank.

On May 23, 1944, the libellant was working on board the vessel. He started work at 8:00 a.m. This was the first time he had ever worked aboard a Liberty type merchant vessel. While libellant was working on the main deck during the day, other employees of South Philadelphia had removed the covers of the four deep tanks in the No. 1 hold. After supper, the libellant returned with other workmen to work overtime in the deep tanks, never having been below before nor having any acquaintanceship with the location of the deep tanks. It had begun to rain, and the hatches were covered with tarpaulins, cutting off the natural light. Upon going to work it was discovered that there was but one cluster light in the hold, consisting of a metal reflector and four bulb sockets attached to an extension cord forty-five feet long, and before the libellant and the other employees descended into the No. 1 hold, the foreman ordered libellant to obtain additional cluster lights from the officer in Charge of the vessel, but the libellant was informed by the relief mate that none were available. The libellant went to work stripping lumber from the side of No. 2 port deep tank. The portable cluster light hung face down in the tank and provided sufficient illumination inside the tank, but very little on the outside except the indirect light coming from the tank opening, as there was no light of the deck immediately above the tanks.

At 11 p.m. the libellant received permission from the foreman to leave the tank. He ascended the ladder and reached the walkway between the No. 2 tanks where he was unable to see anything about him because his eyes had not yet accommodated themselves to the darkness in the hold, and after he had taken a number of steps to the bow of the vessel, he fell into the No. 1 port deep tank, suffering severe injuries.

The District Court concluded that the United States was at all times in control of the vessel; that it owed a duty to libellant to provide him with a reasonably safe place to work, which duty could not be delegated or contracted away; that after having been given notice in which to act within a reasonable time the United States was negligent in that it failed to provide sufficient lighting facilities in the No. 1 hold of the vessel; and that failing to provide sufficient lighting facilities, it was also negligent either in failing to provide safeguards around the open deep tanks, or to warn the libellant that the deep tanks were uncovered. The Court concluded that the subcontractor was negligent in failing to warn libellant of the layout of No. 1 hold and that the covers of the tanks were removed. It found that the bellant was negligent, and that negligence of the United States, the subcontractor, and the libellant were concurrent proximate causes of the accident, and that 50% of the libellant's damages were attributable to his own negligence. It found that Pioneer breached its contractual duty to the United States to provide suitable lighting facilities and proper safeguards around the tanks. The Court therefore held that the libellant was entitled to recover $16,215.68 damages from the United States; the United States was entitled to recover from the subcontractor that amount which the subcontractor would have been required to pay the libellant under the Longshoremen's Compensation Act, 33 U.S.C.A. ยง 901 et seq., had he elected to receive compensation under the Act; and that the United States was entitled to recover the difference between $16,215.68 and the amount the subcontractor would pay it, from Pioneer, according to Pioneer's liability under the contract.

From this decree the United States appeals, contending it is not liable to Read, and if it is, it is entitled to indemnity from the contractor by operation of law and not merely on the basis of their contract.*fn2 Read contends that there is no basis for the finding that he was contributorily negligent, and even if there is, there is no basis for finding that his negligence was a 50% contributing cause of his damages. South Philadelphia, the subcontractor, appeals, contending that there is no right of contribution against it.

Preliminarily, it must be kept in mind that an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the district court; that the findings of the latter when supported by competent evidence are entitled to great weight and that such findings should, therefore, not be set aside on appeal except upon a showing that they are clearly wrong. Crist v. United States War Shipping Administration, 3 Cir., 1947, 163 F.2d 145, 146. We have reviewed the record and we find that all the pertinent findings of fact of the District Court are supported by it.*fn3

It may be noted that the District Court's finding that there was only one cluster light in the No. 1 hold and that it afforded very little illumination outside the tank was supported by the testimony of Read, Georgio, Coffield and two other fellow workmen, Gazetos and Clayton.While Roach, defendant's witness, testified that visibility was good, his testimony was impeached by a prior written statement made shortly after the accident that visibility was very poor. Georgio testified that he went down to the No. 1 hold to obtain ...


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