The opinion of the court was delivered by: CLARY
This action was instituted by libellant, Edgar Allen West, against the United States of America to recover damages for injuries sustained aboard the S. S. Mary Austin, a Liberty Ship owned by the respondent, United States of America. The United States impleaded the libellant's employer, Atlantic Port Contractors, Inc. A trial was held before the Court, sitting without a jury, on February 13 and 14, 1956. Proposed Findings of Fact and Conclusions of Law, and briefs in support thereof, having been submitted by all of the parties, the Court makes the following
2. Libellant, Edgar Allen West, also known as Eugene Albert West, was injured on November 21, 1951, while working in the engine room of the S. S. Mary Austin, in the capacity of marine engineer for the Atlantic Port Contractors, Inc. He was 66 years of age at the time of the accident.
3. From on or about November 5, 1951, to December 11, 1951, Atlantic Port Contractors, Inc. (hereinafter called 'Atlantic'), a ship repair corporation, was engaged in the performance of certain repairs on the S. S. Mary Austin, pursuant to a contract between the United States and Atlantic.
4. Sometime after World War II the S. S. Mary Austin, like many of her sister Liberty Ships, was placed in the socalled 'Moth Ball Fleet'; the ship was completely deactivated. As an essential part of the deactivation process all water pipes, boilers and tanks were drained and a special oil preservative was run through the system to prevent it from rusting; thereafter oil preservative was again run through the pipes, boilers and tanks from time to time, and each time the system was completely drained and left empty. When the S. S. Mary Austin was ordered reactivated, Government employees surveyed the vessel and prepared specifications of items requiring reconditioning, repair, or replacement. Bidders also made preliminary inspections and surveys and then submitted bids. On February 5, 1951, Atlantic was awarded the contract to do the necessary work for reactivating the S. S. Mary Austin according to specifications.
5. Under the terms of the repair contract, Atlantic was to completely overhaul the vessel; the specifications included cleaning and repairing all water lines, replacement of all defective or missing plugs and other parts, and the testing of all lines before closing and placing them in active operating condition. The contract provided that the vessel be delivered into the possession of Atlantic, which was to have complete responsibility as to the manner in which the work was to be done during the progress of the work. After completion of repairs and final approval the vessel was to be redelivered to the United States. In order to insure compliance with specifications, the right to inspect all work and material prior to final acceptance was reserved to the United States. The right reserved was a bare right to inspect; all control; and, as above mentioned, responsibility was with Atlantic. Also, by the terms of the contract, Atlantic agreed to provide a safe place to work for its own employees, and, in addition, to indemnify the United States against any liability for personal injuries resulting from 'the fault, negligence, wrongful acts or omissions' of Atlantic.
6. The S. S. Mary Austin was towed to Pier 5, North, Philadelphia, Pennsylvania, on November 5, 1951, where it was delivered to Atlantic in accordance with the terms of the contract. Two days later, on November 7, 1951, the vessel was shifted to Pier 9, North, Philadelphia, where she remained until completion of the repair work; she left Pier 9 on December 11, 1951, under her own power. The record does not establish the exact time that Atlantic started work on the vessel, but, from the record, there can be no doubt that the manner and progress of the repairs were under the complete control of Atlantic from November 5, 1951, to December 11, 1951, when the repair work was completed.
7. The United States Lines Co. assigned one of its marine engineers, Thomas Cameron, as Port Engineer to the S. S. Mary Austin. It was Mr. Cameron's responsibility to see to it that all work in connection with the reactivation was accomplished according to specifications and that a safely operating vessel was redelivered to the United States. His mode of operation was to inspect and test each item of the specifications as it was completed by the contractor. The United States Lines Co. also had six other persons assigned to the vessel: T. G. Karso, Master; A. A. Haus, Chief Officer; Jerome L. Greenberg, Second Officer; Arthur O'Conner, Chief Engineer; Charles Booth, First Engineer, and Jose Salguero, Chief Steward. These men were the officers, as designated, who sailed with the vessel on her first voyage after her reactivation. At the time of the accident, however, and at all times during the repairs, they had not signed Articles; they were merely on the United States Lines Co. weekly payroll. These six men performed some of the duties of a regular crew, but they did not have control of the repair work, the manner in which it was performed, or the rate at which it progressed, and they did not have control of the ship in the ordinarily accepted context. Their chief function was to assist Mr. Cameron in inspecting the various items of work as completed and to help him discharge his duties efficiently. They were under Mr. Cameron's jurisdiction and had no independent right to grant approval of any job other than that which they derived through him. All had specific instructions not to interfere with the work or manner of work of Atlantic's employees. They were to do no more than carry out routine inspections and watch the work as it progressed. If they saw a man performing a task in an unsatisfactory manner they were not to and actually did not correct the situation themselves but rather reported their complaints to Atlantic supervisors, who in turn had the situation corrected. The record establishes to the satisfaction of the Court that Mr. Cameron and all his subordinates conformed to this practice.
8. The libellant was injured at about 11 A.M. on the morning of November 21, 1951, while he was working inside the low pressure cylinder of the main engine. He was kneeling on his right knee when a one inch pipe plug struck his left knee. At the time libellant believed that the plug, which weighed about a quarter of a pound, had been dropped by one of his fellow workers while working above him in the engine room and, although he now denies it, the Court believes that at the time he accused a number of persons of having dropped the plug. The record fails to establish that any group or individual was working above libellant at the time. Although the plug was not produced at the time of trial and the explanation of its absence is not satisfactory (libellant merely claimed he could not find it), the record leaves no doubt that a plug did strike the libellant's left knee and that (1) it either fell from one of the pipes or tanks above the low pressure cylinder in which libellant was working, or (2) was dropped by an Atlantic workman. The presence of a small quantity of water on the engine room floor immediately after the accident would indicate the probability of the first conjecture.
9. The libellant was helped out of the engine room, off the vessel and onto the deck. He was then taken to Dr. L. J. Farmakis who aspirated 20 cc of fluid from the prepatellar bursa, wrapped the knee with an elastic bandage and arranged for X-rays. The X-rays were taken at Jefferson Hospital on November 24, 1951 and proved negative for fracture. Dr. Farmakis again saw and treated libellant on November 23, 26, 27, 28, 30 and December 3, when he referred him to Dr. Theodore E. Orr at the Travelers Insurance Company Clinic. Dr. Orr saw and treated the libellant a total of 13 times from December 4, 1951, to July 21, 1952. In addition, all during this period of time the libellant visited Travelers' Clinic an average of three times a week for physiotherapy treatments. On July 21, at the time of libellant's last visit to the clinic, Dr. Orr was of the opinion that further physical therapy treatments would not bring about any further improvements and discharged the libellant as ready to return to work.
11. At the time of his discharge by Dr. Orr in July, 1952, libellant had a free, nonpainful range of motion from 180 degrees, in a straight line, to 80 degrees. There was no swelling, no evidence of crepitation, nor was there evidence of instability of the knee. Libellant complained of pain when he used his leg but this Dr. Orr attributed to atrophy of the quadriceps muscle, which condition resulted from nonuse of the leg and which would be corrected after the libellant again started to use his leg. While libellant now has a slight narrowing of the joint space in the knee, the cause lies in his advanced age rather than trauma. The Court is satisfied that whatever discomfort libellant may have suffered after July, 1952, it was of no greater degree than that which he suffered before his injury on November 21, 1951. Libellant claimed at trial that he had never had any trouble with his leg prior to the time the plug struck his knee. The number of witnesses who testified that they had seen him limping for some time prior to the accident, that libellant had complained about the trouble he was having with his knee, and the fact that he was specifically given the job of working in the low pressure cylinder so that he would not have to climb convinces the Court that a painful knee condition existed prior to the time of the accident. Whatever discomfort libellant suffered after July, 1952, was due to the pre-existing conditions and not the accident.
12. Soon after he was discharged as capable of resuming work, libellant, in August, 1952, received a medical examination prior to starting work for Todd Shipyards. Said examination revealed no knee condition whatsoever and libellant, being otherwise fit, immediately started work as a boilermaker at Todd's. His job included climbing ladders and scaffolds and there was no indication of any trouble with his knee; the record establishes that libellant carried a normal working load and performed his work in a normal and entirely satisfactory manner. Libellant worked regularly at Todd Shipyards until he was injured in a fall from a scaffold. From July to November, 1953, libellant worked as an inspector of freight elevator doors for Guilbert Company. Although he was discharged from Guilbert's his employment was not terminated because of any physical condition. This subsequent work record clearly ...