On appeal from the Superior Court, Law Division.
McGeehan, Donges and Colie. The opinion of the court was delivered by Colie, J.A.D.
This appeal brings up for review the action of the trial court in dismissing the complaint and entering judgment for the defendant. Grace Lynch, administratrix of the estate of James F. Lynch, deceased, brought suit in the former Supreme Court against the defendant, alleging that it was the agent and operated, managed and controlled the vessel "Ben F. Dixon;" that on August 16, 1944, the vessel was under the management, operation and control of the defendant, its masters, officers and crew, agents, servants and employees; that on that date decedent was lawfully aboard the vessel in the performance of his duties as an employee of Bethlehem Steel Co.; that he stepped on a hatch cover of the vessel and, due to the negligence, carelessness and recklessness of the defendant, was precipitated into the hold and died of the injuries thus received. The negligence is set forth specifically as follows:
"Said accident was caused without any fault on the part of the plaintiff's intestate, wholly and solely by the defective, unsafe and unseaworthy condition of the vessel, and by the fault and negligence of the defendant, its agents, servants and employees, and of the master, officer and crew of the vessel, in the following among other particulars, which will be pointed out at the trial of this action.
"(1) In failing to furnish and provide the plaintiff's intestate with a safe place to perform his work.
"(2) In maintaining short, inadequate and insufficient planks or boards in the hatch cover.
"(3) By maintaining loose, defective, worn, old, rotted and unsafe planks or boards in the hatch cover.
"(4) By covering the hatch with tarpaulin without first properly placing the planks or boards of the hatch cover over the hatch.
"(5) In failing to properly guard the hatch opening or make the passage way secure, and to properly cover up the said hatch.
"(6) In failing to properly illuminate the deck and said vessel.
"(7) In failing to make proper inspection of the hatch covers upon said vessel.
"(8) In failing to warn him of the danger of walking upon said hatch ...