Before BIGGS, Chief Judge, and GOODRICH and STALEY, Circuit Judges.
Robert J. Crawford and Anthony Lucibello brought separate libels in the court below against the respondents, Pope and Talbot, Inc., and General Engineering Works. Each libellant sought indemnity for injuries caused by the alleged negligence of the respondents and by the unseaworthiness of the vessel the "Russell R. Jones" upon which the libellants were working at the time of their injuries. The "Jones" was under bareboat charter to the respondent Pope and Talbot. The answers of both respondents denied negligence and unseaworthiness and set up the negligence of the libellants as the sole cause of their injuries. The cases were tried together by the court below. During the trial the libels were dismissed as to the respondent General Engineering Works, a welding company employed by Pope and Talbot to repair the vessel's tanks. No appeal was taken from this order. A petition by the respondents to implead Cecelia O. Jeffries, individually and trading as the National Boiler Cleaning Company, as an additional respondent was granted, but this petition was later dismissed on the motion of the impleaded respondent on the ground that at the time of libellants' injuries she was their employer, was subject to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., and was therefore not subject to joinder.
The court below determined that the respondent Pope and Talbot was negligent, that its chartered vessel was unseaworthy and that the libellants were not guilty of contributory negligence. The court therefore awarded damages in the amounts of $8,500 to Crawford and $45,000 to Lucibello. No interest or costs were given. D.C.E.D.Pa.1952, 103 F.Supp. 414, 411. Pope and Talbot appeals from these orders, and from the order of the court below granting the motion to dismiss its petition to implead Cecelia O. Jeffries as an additional respondent.We will treat these appeals, Nos. 10,820 and 10,821, together.
After a comprehensive review of all the testimony we find the facts substantially as they were found by the court below. Insofar as pertinent to our disposition of these appeals, they are as follows:
At the time of the libellants' injuries the respondent Pope and Talbot was operating the Jones under bareboat charter. The ship had engaged the National Boiler Cleaning Company to clean the accumulated rust and dirt from the four deep tanks at the bottom of No. 1 hold, and on the morning of February 10, 1950, the libellants, employees of National came aboard the ship at her pier in Philadelphia to begin this work. The Jones was a Liberty ship.Her deep tanks in No. 1 hold filled the area beneath the deck of the lower hold, two on the port side and two on the starboard. Those tanks nearest the bow were the number ones, port and starboard; those farther aft, the number twos. The tanks were twelve to fifteen feet deep and were separated by steel bulkheads, fore and aft and athwartship. Each tank had an opening above, eight by fourteen feet, around which was a ledge, three inches high and four inches wide, containing bolt holes used in securing the tank covers. Between the ledges of the tank openings there were two walkways about two feet wide which intersected at right angles. At the bottom of each deep tank were coiled steam pipes affixed to the floor of the tank.
The customary procedure in cleaning the deep tanks was to open, clean and recover one tank at a time. Because a tank cover, which weighed about one ton, could not be removed or replaced by hand, it was necessary to open the hatches above the lower hold and to employ a leader from the ship's winch on deck. But loading operations, requiring the use of the winch and the closing of the hatch from the lower hold to the 'tween decks of No. 1 hold, had been scheduled for February 10th and succeeding days. The covers of all four deep tanks were therefore removed by National on the evening of February 9th and stowed, two on each side, in the space between the deep tank openings and the hull. The hatch from the lower hold to the 'tween decks was then closed. While libellants were working in the deep tanks, and up until the time of their injuries, stevedores were loading the 'tween decks area of No. 1 hold, and the winch was unavailable for moving the deep tank covers. The libellants entered and left the lower hold by an escape hatch. Wooden ladders were used in getting in and out of the tanks.
With the 'tween decks hatch closed, it was dark in the lower hold.National therefore procured cluster lights from the ship to illumine the hold and provided its own individual extension lights for use in the deep tanks. These lights drew their current from connections at the mast house on the main deck. Because the number of these connections was limited, National used "spider boards," plugging into a single connection but providing outlets for six to eight individual extensions. The use of these "spider boards," either alone or in conjunction with other electrical apparatus connected at the mast house, caused the mast house fuse or fuses to blow at irregular intervals on February 10th, 11th and 12th; the cluster lights and the individual extensions then went out. National's men stayed still during these periods of darkness until one of their number, stationed at the masthouse, had installed a replacement fuse furnished by the ship's engineer.
Crawford began work on February 10th in the number two starboard deep tank, and Lucibello, in the number two port deep tank. The work on these tanks was completed on February 11th, and they were then wiped down with a kerosene solution. Crawford next moved to the number one port tank and Lucibello to the number one starboard tank. Throughout their period of work there were no guard rails around the tank openings.Libellants used the narrow walkways between the tanks in moving from one tank to another.
Some time during the afternoon of February 12th the ship ran steam through the pipes at the bottom of the number two tanks. This caused the kerosene to vaporize and create acrid fumes. National's employees, working in the number one tanks, were unaware of this condition. At about 7 P.M., when National's men stopped work for dinner, Crawford was one of the first to leave his deep tank. As he reached the top of the wooden ladder to the lower hold, he found that the cluster lights illuminating the lower hold had gone out although the extension lights inside the tank were still burning. The kerosene fumes irritated his eyes. Crawford called for an extension light, but receiving no answer, he edged away from the ladder into the darkness to avoid being bumped by men ascending the ladder behind him. His toe struck the ledge of the number two port tank, and Crawford pitched forward into that tank, landing unconscious on the steam pipes at the bottom.
Word of the accident was passed above, and the stevedores loading the 'tween decks area removed part of the hatch cover to lower a metal basket attached to a leader from the ship's winch. Meanwhile, Lucibello had emerged from his deep tank and was assisting, by the light of an extension bulb secured from one of the tanks, in lifting Crawford from where he had fallen and placing him on the walkway between the port and starboard tanks. Someone called to Lucibello to watch out for the basket being lowered for Crawford. At about the same time all the lights went out. Lucibello took an instinctive step sidewise or backwards and fell into the same tank from which Crawford had just been taken. Both men sustained serious injuries requiring extended hospital care. There is no dispute that the injuries of which libellants complain were caused by their falls into the deep tank; nor are the damages awarded challenged as excessive.
The first ground upon which the libellants seek to establish the respondent's liability is that the Jones was unseaworthy, and that this unseaworthiness caused the libellants' injuries. As in every case of alleged unseaworthiness, we must determine what showing is required to prove unseaworthiness and in whose favor the doctrine applies. The basic elements of the doctrine are now well settled. Ever since The Osceola, 1903, 189 U.S. 158, 23 S. Ct. 483, 487, 47 L. Ed. 760, it has been the law that "the vessel and her owner are * * * liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship." The disjunctive used above must be regarded as introducing a further explanation of the nature of unseaworthiness, for several of the cases to which The Osceola referred involved "not providing proper appliances, so that the case was one * * * of unseaworthiness." See also Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 100, 64 S. Ct. 455, 88 L. Ed. 561. The Supreme Court in Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 94-95, 66 S. Ct. 872, 877, 90 L. Ed. 1099, stated that unseaworthiness describes "a species of liability without fault, * * * neither limited by conceptions of negligence nor contractual in character. * * * It is a form of absolute duty owing to all within the range of its humanitarian manitarian policy." The Sieracki case broadened the range of this policy to include stevedores engaged in loading a vessel. The Supreme Court reasoned that the performance of ship's work from which arise the same risks borne by seamen entitles stevedores to the seaman's historic protection under the doctrine of unseaworthiness.
The court below predicated unseaworthiness upon the inadequacy of the ship's lighting system, an inadequacy known to the ship over a period of forty-eight hours before the accidents and brought home to the ship's engineer.*fn1 Unseaworthiness of the Jones therefore is not excusable within the doctrine of Cookingham v. United States, 3 Cir., 1950, 184 F.2d 213.
The lighting system was defective. The court below found (Finding of Fact No. "10"): "The electrical current for all lights was supplied by the ship. The marine connections for lights for both the No. 1 and No. 2 holds are located at the masthouse * * * four outlets are provided for each of the two holds, two each on the port and two each on the starboard. Each cluster light used must be connected to one of these outlets. The fuse box is also located in this masthouse." The record in the instant case is somewhat insufficient in that it does not show adequately by diagram or otherwise the electrical connections between the masthouse fuse box and the outlet plugs in the masthouse or the fuse set-ups. It is to be noted that in the testimony references are made to replacing both a fuse (singular) and fuses (plural) when the cluster lights and the extension lights from the spiderboards went out simultaneously, as they did from time to time. But when the accident happened, as we have stated, the cluster lights had gone out although the extension lights inside the tank were still burning. It is clear that the cluster lights and the spiderboards were on different lines attached to separate plugs in the masthouse. It is conceivable, in view of the almost immediate going out of all of the lights in the hold, that there was some electrical phenomenon of "feed-back" through fusion of metal in the fuse box itself. We are not inclined to indulge in speculation as to electrical theory whereby some lights remained on and others went out at the time of the accident. It should be observed that the fuse or fuses had been blowing out from time to time on the preceding Friday and Saturday ...