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ROTHER v. INTERSTATE & OCEAN TRANSP. CO.

May 24, 1982

Charles A. ROTHER
v.
INTERSTATE AND OCEAN TRANSPORT COMPANY



The opinion of the court was delivered by: SHAPIRO

I. FINDINGS OF FACT

 A. LIABILITY

 1. On September 5, 1975, United States Steel Corporation ("USS") employed Charles A. Rother ("Rother") as a fuel utility man at its Fairless Hills works.

 2. It was part of Rother's job as a fuels utility man for him to meet barges discharging fuel oil at the pier and to connect the discharging hose from the barge to the intake valve on the USS pier.

 3. Rother had performed the work of connecting fuel lines to discharge cargo for at least one year prior to the date of this accident.

 4. USS was the purchaser of fuel oil delivered to the Fairless Hills works on September 5, 1975 by Interstate and Ocean Transport Company ("Interstate") Barge # 37 ("Barge # 37" or "the Barge").

 5. On September 5, 1975, Interstate operated, managed, possessed and controlled Barge # 37 under a bare boat charter.

 6. On September 5, 1975, Interstate was the employer of John Franceschi as a tankerman aboard Barge # 37.

 7. On September 5, 1975, Rother was assigned to hook up a hose from Barge # 37 to a valve on the USS pier so that fuel could flow through the hose and be discharged from the Barge.

 8. The dispatcher's log for USS on September 4, 1975 states that Barge # 37 would be arriving with low sulphur fuel oil the next day at 12:00 noon.

 10. The dispatcher's log for USS on September 5, 1975 states that Rother was notified that Barge # 37 was in at 12:45 p.m.

 11. On September 5, 1975, Rother arrived at the discharge point on the USS pier at approximately 1:00 p.m. Rother arrived at the discharge point by a truck which had a two-way radio available for his use.

 12. The deck of the Barge was approximately six feet below the level of the pier at the time Rother arrived.

 13. The captain of Barge # 37 discharged the tug boats at least one hour before Rother appeared at the dock. The Barge, once moored, could not be moved without the assistance of the tugboats.

 14. Rother did not have any authority to order that the tug boats return in order to reposition the Barge.

 15. The captain of Barge # 37 had sole discretion whether and when to discharge the tug boats.

 16. The Barge will rise approximately 13 feet during discharge and there is a 4 to 5 foot change in tide. The Barge must be positioned so that excessive strain on the hose will not damage equipment or cause oil spills; Rother did not have any authority to tell the captain of the Barge where to dock it.

 17. The captain of the Barge has sole discretion as to where to dock the Barge.

 18. It was the responsibility of the captain of Barge # 37 to put the Barge at the dock so that the cargo hose would safely reach the valve on the pier.

 19. The intake valve is five feet from the water; a metal platform with a railing extends out over the water; and the railing is not removable.

 20. The platform and railing had been built to protect USS employees from falling into the water when connecting the discharge hose to the intake valve.

 21. Because of the rail, barge discharge hoses had to be placed at a five-foot opening in the rail in order to reach the intake valve.

 22. The rail at the discharge point and the closeness of the discharge point to the water made moving the discharge hose to the intake valve difficult. For this reason, shore side personnel frequently had to move the hose across the railing to connect it to the intake valve.

 23. The captain of Barge # 37 had been at the USS dock on several occasions before and was aware of the physical surroundings.

 24. Defendants knew that it was difficult to connect the Barge hose at the USS pier.

 25. The captain of Barge # 37 knew that the railing had to be cleared in order to connect the ship hose to the pier valve.

 26. The captain of Barge # 37 knew that at USS the hose was moved to the valve by one man.

 27. The captain of Barge # 37 knew Rother and had unloaded oil with him before.

 28. The hose utilized to discharge oil is moved from the barge to the discharge point through the use of a boom.

 29. On September 5, 1975, tankerman John Franceschi operated the boom on Barge # 37 and swung the hose onto the pier.

 30. As this operation was being performed, the hose came to rest on the pier next to the protective railing which had been installed by USS around the intake valve and metal platform.

 31. After the hose came to rest on the pier, Mr. Franceschi and Barge # 37 played no further role in the movement of the hose to the intake valve.

 32. Rother remained on the property of the USS facility in the area of the discharge point; Mr. Franceschi, remained on Barge # 37.

 33. At no time did Rother request Mr. Franceschi to move the Barge or recall the tugs so that the Barge could be moved into a different position.

 34. At no time did Rother request Mr. Franceschi to aid him in moving the hose.

 35. Mr. Franceschi had no duty to help Rother move the hose on the property of USS.

 36. There was present, at the time of this incident, another employee of USS, who was not requested to assist Rother by Rother or anyone else.

 37. Despite the fact that Rother had driven to the pier in a truck with a two-way radio, which he was authorized to use, he did not contact the dispatcher or his foreman requesting assistance either in ...


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