902, 903: '* * * In the case at bar, we may not apply the familiar rule of admiralty where contributory negligence serves to divide the damages. It is settled that no suit may be brought to recover damages for death in an admiralty court of the United States under general maritime law. Such a right exists solely by statute. The appellant has based her suit upon a statute of Pennsylvania. * * *'
Thus it is clear that libelant's recovery, if any, is under the New Jersey Death Act, N.J.S.A. 2A:31-1.
Incidentally, the respondent and respondent-impleaded both refer to a proceeding instituted by the libelant in the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, Hudson County District, in which the then respondent, El Dorado Oil Works, questioned the jurisdiction of the New Jersey Compensation Bureau, alleging that jurisdiction was under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. 901 et seq. In his decision, Deputy Director Lorenz held that the New Jersey Department of Labor and Industry, Division of Workmen's Compensation, had jurisdiction over the petition seeking compensation for the death of Carl E. Skovgaard, holding 'that, being in the twilight zone, the decedent, not being connected in any way with the operation of the ship, I find comes under the protection of this Division.' (Emphasis supplied.) A compensation award was accordingly made for the payment to the widow, libelant herein, until May 12, 1969, at which time the youngest child of the decedent will reach the age of 18.
The libelant alleges that respondent's negligence consisted of: (1) Allowing the port tank to remain partly open without placing ropes or other barriers around it, (2) inadequate lighting in the shelter deck, (3) placing iron beams in the walking space between the two tanks, (4) leaving oil on the deck, tank lid, beams, and in the walkway between the tanks near on open, unguarded tank.
As to (1), there was no negligence in allowing the tank to remain open as part of the cargo unloading operation. The tank opening was necessary to discharge the oil. See Long v. Silver Line, 2 Cir., 1931, 48 F.2d 15; The Kongosan Maru, 9 Cir., 1923, 292 F. 801, 803, 804; The Louisiana, 5 Cir., 1896, 74 F. 748, 750, 751.
As to (2), on the night of Skovgaard's death there were four permanent deck lights forward and aft of the hatch, and two reflectors with 500 ampere bulbs immediately after the hatch; there were also four regular cargo lights shining directly into No. 3 shelter deck. Additionally, the lighting in the hatch was adequate for two surveyors to make their calculations and for Donohue and Russo to replace the sheared-off air injection nipple.
As to (3), libelant cites only Cooney v. United States, D.C.W.D.Wash. 1946, 74 F.Supp. 26. In that case, hatch boards had been piled or loosely thrown on deck, causing the ship's deck engineer to fall when he stepped on the pile while he was walking along the deck. The court concluded that there had been a negligent piling of the boards. The case does not hold that the mere presence of boards is negligence but only that an improper piling of boards is a negligent condition. Here, there is no proof that the iron beams were unfit to walk upon, aside from the fact that they were covered with oil, which will be discussed. Moreover, the facts are inconsistent with the theory that the presence of the beams caused Skovgaard to fall into the tank. His fall was caused by slipping when he had at least one foot already on the lid.
As to (4), the issue correctly is stated by respondent: Whether during the repair operations it was the vessel's duty to the deceased to clean up the oil spill. Respondent forcefully contends that 'Not a single authority has been cited by proctor for libellant which spells out a duty on the part of the vessel to clean up an oil spill caused by the very parties whose sole duty and function it was to discharge the oil properly, and whose employee it is who is now attempting to recover.' The court agrees. In support of her proposition that it was the vessel's duty to clean up the oil spill, libelant cites Anderson v. Lorentzen, 2 Cir., 1947, 160 F.2d 173; Fodera v. Booth American Shipping Corporation, 2 Cir., 1947, 159 F.2d 795; Santamaria v. Lamport & Holt Line, E. & A. 1938, 119 N.J.L. 467, 196 A. 706; McFall v. Compagnie Maritime Belge, 1952, 304 N.Y. 314, 107 N.E.2d 463. None of those cases and libelant. The negligence of the vessel in the Anderson case was in its failure to warn a longshoreman of the dangerous nature of the cargo. Here, however, the dangerous oil spill was known to Skovgaard. In Fodera, the negligence clearly was that of the shipowner and not, as here, that of the injured party's fellow employees. Santamaria does not hold that a shipowner is liable to a worker for a condition created by his fellow employees. Moreover, under New Jersey law when the employee of an independent contractor enters property at the instance of the owner to correct the precise condition which later causes the employee's injuries, the owner is not liable unless he supervised or controlled the employee. Broecker v. Armstrong Cork Co., E. & A. 1942, 128 N.J.L. 3, 24 A.2d 194. Here, Skovgaard boarded the vessel to help repair the defect and restore to operation the pump which caused the oil spill. The entire repair operation was conducted by El Dorado, and there is no evidence from which to infer that any m/v Tungus personnel supervised or controlled either the discharge of the oil from the tank or the repair of the pump. In McFall, the court held that a longshoreman who is employed by an independent contractor engaged by the owner to load its ship, is an invitee aboard the vessel. 'As such he is entitled to a reasonably safe place to work. The duty of exercising reasonable diligence to provide such a place and warn the longshoremen of hidden dangers devolves upon the owner of the ship. * * *' 304 N.Y. at page 324, 107 N.E.2d at page 468. Here, however, the independent contractor El Dorado was engaged by the owner of the cargo who was not the owner of the ship.
I am not persuaded that the owner of the vessel is under any duty to protect the workmen of the independent contractor, El Dorado Oil Works, engaged by the owners of the cargo of coconut oil, against the dangerous conditions created by the very work for which the independent contractor was hired. Accordingly, the court finds that the respondents are not liable for Skovgaard's unfortunate death and the libel must be dismissed.
The foregoing opinion shall constitute findings of fact and conclusions of law, as required by Rule 52, 28 U.S.C.
An order may be submitted in conformity with the opinion herein expressed.