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CALLEN v. OULU O/Y

April 7, 1989

JOHN CALLEN
v.
OULU O/Y and OY FINNLINES, LTD.



The opinion of the court was delivered by: VAN ANTWERPEN

 FRANKLIN S. VAN ANTWERPEN, UNITED STATES DISTRICT JUDGE

 This non-jury matter is an action by a longshoreman against a shipowner for negligence. A jury trial is precluded because the shipowner is subject to the provisions of the Foreign Sovereign Immunities Act. See 28 U.S.C.A. § 1330 (West Supp. 1988) and 28 U.S.C.A. §§ 1602-1611 (West Supp. 1988). From the non-jury trial on March 13, 1989 through March 15, 1989, we make the following findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a).

 FINDINGS OF FACT

 1. The plaintiff, John Callen, was born on September 22, 1925, and is presently 63 years of age. He completed the eighth grade and, after working as a busboy and in manufacturing, he served in the U. S. Navy from 1943 to 1946 and was honorably discharged. Since his discharge, he has worked as a longshoreman in Philadelphia, Pennsylvania. When his usual work unloading sugar ended in 1982, he began to report to the Longshoremen's Hiring Center under the Walt Whitman Bridge.

 2. The arrangement is such that, as long as a man checks in each day at the hiring center, he is guaranteed a minimum wage which varies from year to year. For October, 1984 to October, 1985, it was $ 24,000 per year and from October, 1985 to October, 1988 it was $ 25,000 per year. There was an increase to $ 25,500 per year for the 1988-1989 period. To qualify for this, a man must be available for work and a longshoreman is docked $ 144 against his yearly amount for each day he does not check in with the center. By 1984, plaintiff got in a pool gang which meant he would continue to report for work, but would occasionally be sent out to fill in for absent workers or when extra longshoremen were needed.

 3. On December 30, 1986, the plaintiff was given a job working on the "Micofsky Gang" at Pier 80. The ship Pokkinen was docked there. The gang was handling rolls of paper and plaintiff was told to work on the No. 3 hatch lid. He entered at about 10:00 a.m. by climbing down steps which were made in the rolls of paper and went to work.

 4. The rolls were being taken off as a draft by a device known as a Jensen rig. The rig is a cage which is placed over several rolls of paper and closed by pulling four lanyards shut. Plaintiff was working as a lanyard man.

 5. Plaintiff was working on the tween deck in the hold in question. There is a stairway leading from the hold, but there is also a back-up ladder cut in the side of the hold. The ladder has recessed rungs in the form of pockets in the side of the hold. When the lid or hatch cover of the tween deck is folded down, it provides a deck or floor covering the lower hold of the ship. When the lid folds up accordion style, it partially covers the recessed ladder. For this reason, the tween deck lid has a similar recessed ladder built into it.

 6. The recessed ladder in the lid has holes which form rungs approximately 40 cm. long by 10 cm. wide by 10 cm. deep. The entire set of holes is also recessed 1 to 1 1/2 cm. from the main lid deck. Before the unloading on the day in question, the gang boss, Joseph Micofsky, inspected the ship and found nothing unsafe in the ship or cargo. Although nothing was said on December 30, 1986, Mr. Micofsky had warned his men about the danger of the holes on prior occasions. On prior occasions, he also noted plates which covered the recessed ladder in the lid. The plaintiff was never warned about the recessed ladder and was unaware of its presence on December 30, 1986.

 7. When the vessel was loaded overseas prior to arriving in Philadelphia, the lower hold was filled and the lower hold deck was covered with 30 cm. by 80 cm. sheets of plywood called walking boards. These boards keep the cargo away from the deck and are spaced about 5 cm. apart to provide drainage. Their placement is supervised by ship's personnel.

 8. Chief Merchant Marine Officer Raimo J. Valimaki explained that the vessel in question, the Pokkinen, has four sister ships. The Pokkinen carries paper to Philadelphia about five or six times a year, and the four sister ships used to do likewise; when cargo is loaded by the stevedoring company, a representative of the paper mill is present, along with ship's officers.

 9. If extra walking boards are on hand, they are put on the tween deck, although none are usually used when rolls of paper are shipped. Instead, heavy cardboard-like paper is put down on the tween deck and lid to protect rolls of paper from the hold deck and moisture and keep them clean.

 10. On December 30, 1986, this heavy paper completely covered the recessed ladder in the lid of the tween deck. Although the cargo usually causes some indentations, there was no written warning of any type on the paper of the voids formed by the steps underneath the paper. Nor was the area roped off. The ship's officers observed the unloading but gave no special warning of the location of the recessed ladder in the lid because they assumed, from past ...


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