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BROWNING v. UNITED STATES

June 6, 1973

Albert L. BROWNING
v.
UNITED STATES of America


Edward R. Becker, District Judge.


The opinion of the court was delivered by: BECKER

Edward R. Becker, District Judge.

 This is a seaman's personal injury case. Jurisdiction is founded upon the law of admiralty modified by the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 and the Public Vessels Act, 46 U.S.C. §§ 781-790. During the trial it was agreed that plaintiff had no claim against the operator of the vessel, Mathiasen's Tanker Industries, Inc. (Mathiasen's), and consequently, Mathiasen's was dismissed as a party defendant with prejudice. *fn1" Because there is no right to a trial by jury in suits against the United States arising under the Public Vessels Act, the case was tried to the Court. This opinion constitutes our findings of fact and conclusions of law under F.R. Civ. P. 52(a).

 I. Liability

 A. Findings of Fact

 Between the early 1960's and March 29, 1970, Albert Browning (plaintiff) served aboard various United States flag merchant vessels in the capacity and job classifications of Chief Electrician, Electrician, Second Pumpman, and Engine Mechanic. On March 14, 1970, he joined the U.S.N.S. MISSION SANTA CRUZ, a public vessel owned by United States of America (defendant), in the capacity of Second Pumpman. On the evening of March 29, 1970, while the ship was in Port Neches, Texas, plaintiff was ordered by one of his superiors aboard the vessel to disassemble and overhaul the main economizer valve atop the port boiler in the fire room, since it and many of the lines that were connected to it were leaking. Pursuant to that order, plaintiff, sometime between 8:00 P.M. and 10:00 P.M. on that evening, commenced the work of removing the main economizer valve from its position on top of the port boiler.

 In order to disassemble the economizer valve, plaintiff was required to position himself with his left foot placed on the edge of the fire room's after catwalk and his right foot placed on the collar of the port boiler itself. Plaintiff was required to position himself in such a manner because there was no catwalk in between the port and starboard boilers (although there was a catwalk both forward and aft of the boilers). The only access route or work area between the port and starboard boilers was a long wooden scaffolding board which extended from the forward catwalk to the after catwalk. This long wooden scaffolding board was not a permanent part of the vessel's structure or appliances but was only a temporary scaffolding or staging that had been rigged by members of the crew prior to the time that plaintiff joined the U.S.N.S. MISSION SANTA CRUZ. The long wooden scaffolding board was rigged in such a manner that the forward portion of the board rested on the solid mesh or lattice-styled steel surface of the forward catwalk. However, the after-end of the long wooden scaffolding board rested only on the inside edge or inside angle iron of the after catwalk, because a three foot square area of the mesh or lattice work steel surface of the after catwalk had been cut out and removed from the precise area where the after-most portion of the long wooden scaffolding board extended to. Therefore, there was nothing but an empty space or open hole beneath the very aftermost portion or overhang of the long wooden scaffolding board in question.

 The long wooden scaffolding board teetered downward at its after-end because it was not properly or adequately secured or lashed, at its forward end, to the forward catwalk. When plaintiff stepped backwards onto the aftermost portion of this long wooden scaffolding board with his right foot to avoid the escaping hot water, he thought and believed (because of previous observations) that the long wooden board was lashed down and safe to stand upon, and had no reason to believe -- at the moment of his accident -- that the board would teeter and cause him to lose his balance.

 Although defendant did not call a single witness in its liability defense, it has argued that the evidence justifies the conclusions that plaintiff should have: (1) insisted on the assistance of an oiler and/or wiper in connection with the task at hand; (2) ascertained for himself whether or not the main economizer line had been shut down; and (3) checked the lashing on the scaffolding plank. To the contrary, we find that: (1) the work that plaintiff was doing at the moment of the accident did not require the services of more than one man; (2) plaintiff, having received the order to perform the work, had the right to assume that the line had been shut down and had no independent duty to inspect the line; and (3) as noted above, plaintiff was reasonable in believing that the plank was secure.

 B. Conclusions of Law

 We first conclude that on March 29, 1970, at the time and place that plaintiff was injured, the U.S.N.S. MISSION SANTA CRUZ was unseaworthy by reason of the presence of the following unsafe and dangerous conditions in the fire room aboard the vessel:

 
(a) A port boiler that was not properly and adequately shut down and turned off and whose lines were not drained, which permitted hot water to escape through the main economizer valve -- on top of the port boiler -- that plaintiff was disassembling and removing;
 
(b) A long wooden scaffolding board that was rigged between the forward catwalk and the after catwalk which was not secured or lashed down in any way in that the lashing had been removed from the forward end of the scaffolding board at the forward catwalk, and whose after end was not supported by any firm or solid surface of any kind but overhung an empty space (the cut out portion of the after catwalk);
 
(c) A three foot square opening or hole in the after catwalk which had been cut out and allowed to remain, thereby providing no support for the very aftermost portion of the long wooden scaffolding board;
 
(d) The absence of any permanent structure, scaffold or other piece of equipment that was reasonably fit for plaintiff to stand or walk upon while performing his assigned function of disassembling and removing the main economizer valve from its position on top of the port boiler.

 We conclude that the port boiler and its main economizer valve, the long wooden scaffolding board, and the after catwalk with a three foot square opening or hole, in the condition that they were at the time and place of plaintiff's accident and injuries, were unseaworthy in that they were not reasonably fit for their intended purpose or use at that time or place. *fn2"

 Secondly, we find that defendant was negligent, through its agents, officers, servants, and employees, and breached its duty to exercise reasonable care to provide plaintiff with a reasonably safe place *fn3" within which to perform his duties by allowing and permitting the ...


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