The opinion of the court was delivered by: FOLLMER
This case is presently before the Court on remand from the Court of Appeals, 3 Cir., 202 F.2d 141, with direction that the record of a previous trial should be enlarged by any available pertinent evidence.
From the testimony educed at the first and at the second and enlarging trial, I make the following
1. The respondent corporation, organized under the laws of Canada, operated and controlled the Steamship 'Victoria County' at all times material to this action.
2. During the month of December 1948, while at the Port of Philadelphia, the vessel contracted for the services of Thomas A. Winters Ship Engineering Company, an independent contractor, for a general overhauling including the cleaning of the holds. This operation started while the ship was in dock at Port Richmond, Philadelphia, and was concluded while the ship was at the yard of Sun Shipbuilding and Dry Dock Company near Chester, Pennsylvania. Liebellant was employed by Thomas A. Winters Ship Engineering Company as a laborer to assist in the cleaning work.
3. No written contract was entered into between the ship and the Winters Company.
4. Item No. 42 of the invoice covering all the work done on the ship by Winters Company contained the following,
'42 Cleaning cargo holes Furnish all labor and material necessary to clean all cargo holes by sweeping, wiping, wire-brushing, Scraping and chipping frozen iron ore, and dispose of all excess material. Overtime included . . . 2,894.00'
5. On December 29, 1948, the libellant and a fellow employee identified only as 'Pork Chop' were cleaning the lower No. 4 hold, which was approximately 30 feet from deck to ceiling.
In order to sweep off the beams supporting the deck above them, these men required the use of a ladder to reach the under side of the beams. While standing at the bottom of the hold, they called to other employees of Thomas A. Winters Ship Engineering Company who were working on the main deck to furnish them a ladder. The ladder was lowered to them by the winchman, who was also a fellow employee of the Winters Company.
7. Libellant and his fellow employee extended the ladder, and 'Pork Chop' mounted to the top to clean the beams. The libellant stayed below on the bottom of the hold to steady the ladder. When it was necessary to move the ladder, 'Pork Chop' descended to the bottom of the hold and the two men together shifted the ladder while it was still in an extended position.
8. In order to grasp the ladder firmly to move it, the libellant placed his hands at the sides of the ladder and his left thumb was on one rung of the lower section. While the ladder was being moved, the upper section dropped down and the catch or bracket jammed libellant's left thumb against the rung of the lower section.
9. After the ladder telescoped and jammed libellant's thumb, he fell on the deck of the hold and the ladder fell with him.
10. Libellant at no time, either before or after the accident, inspected the ladder and he made no use of the rope as a means of ...