The opinion of the court was delivered by: MODARELLI
In October, 1952, at a foreign port, coconut oil was loaded into the two deep tanks of No. 3 shelter deck of the respondent cargo vessel m/v Tungus. On December 5, 1952, at 5:30 p.m., she docked at a Bayonne, New Jersey, pier. The owner of the oil in the port deep tank having arranged with respondent-impleaded, El Dorado Oil Works, to discharge and store the oil, cargo surveyors and El Dorado workers went aboard to prepare for the discharge of the oil from the port tank.
Under the supervision of the El Dorado workers, two of the ship's crew operated winches; they were aided by one officer of the ship; the port deep tank lid was lifted, rotated 90 degrees, and lowered to a position across the top of its coamings so that the after third of the tank was open. The El Dorado workers were satisfied with the position of the tank lid. A pump, owned by El Dorado, was lifted by the ship's winches and lowered into No. 3 shelter deck and placed on top of the port deep tank lid under directions of an El Dorado worker; he also directed the rigging of the suction and discharge hoses. Two hatch beams were lying side by side between the port and starboard deep tank coamings; the beams were used when dry cargo was carried in the tanks. The location of the beams was the normal storage place during the hauling of liquid cargo. The testimony of Wagner, who was employed by El Dorado as a maintenance machinist describes the condition of the pump prior to its use:
'A. I received -- that morning I received orders from my supervisor, Mr. Skovgaard, (his death is the basis of this action) to repair the pump, check it, because the ship is coming in later that day. I went down to where it was, in the mill building below the machine shop, and I went through my routine inspection, re-aligned the gears, and I told Carl (Skovgaard) what else I can do.
'He told me it would be a good idea to go ahead. I put four pins in the legs of the pump to secure it to the base so she don't shift on us. I also put new packing in, in the glands, and new fins inside the pump.
'Q. New what' A. Fins, blades that bring up the oil.
'Q. After you were finished with this inspection and repair of the pump, what did you do? A. I called it to the attention of Mr. Skovgaard. We both went over it. We turned it by hand to make sure it is workable, and everything, and we were both satisfied that she was in good working condition.
'Q. But when you and Carl Skovgaard were finished inspecting the pump, and you were both convinced that it was working properly -- A. Yes, sir.
'Q. -- what did you do with it then, did you put it on the pier to await the arrival of the ship? A. Yes, They took it on that they call a stringpiece, or something, on the side of the pier and put it there.' 542-543.)
At 8:05 p.m., December 5, 1952, El Dorado's workers began to discharge the oil from the tank of the m/v Tungus. Attached to the pump was an air injection nipple, which was not an integral part of the pump but was made by El Dorado workers out of parts in stock and then attached to the pump. The ship's log book entry for December 6 describes the next event, which occurred at 12:15 a.m.:
'The oil stained about 50 paper bags desiccated coconut bound for Boston stowed in the starboard side of the shelter deck.
'The oil ran underneath mahogany lumber which was stowed in the after part of the shelter deck in No. 3. It continued through the shelter deck into No. 4 under bales of rugs which were stowed there. In the lower hold No. 3 are stowed steel plates, scrap brass metal and mahogany lumber.'
As a result of the oil spill, liquid coconut oil covered the entire area surrounding the pumping operation, including the top of both tank lids, the area forward of the tank coamings and between the port and starboard tank coamings. After the pump had been stopped the chief officer of the ship and the cargo surveyors went into the shelter deck to ascertain the exent of the cargo damage. Donohue and Russo, El Dorado employees, then replaced the broken fitting on the pump after 'squeegeeing'
the spilled oil from a working area sufficient to repair the pump. The deceased Skovgaard, a maintenance foreman employed by El Dorado, was called from his home to assist in repairing the pump and restoring it to operation. At 1:25 a.m., he boarded the vessel. Since Donohue and Russo still were working on the disabled pump, he went down into No. 3 shelter deck to assist them. In moving from the foot of the ladder leading down from the main deck to the shelter deck, Skovgaard walked through the area over which the oil had spilled. As he walked aft of the port tank, he stepped on either one or both of the hatch beams; then as he attempted to step onto the top of the tank he slipped on the spilled oil and fell on his death into 8 feet of hot oil contained in the hatch opening of the port tank.
Libelant argues that she has two separate causes of action: One, under the New Jersey Wrongful Death Act, N.J.S.A. 2A:31-1 et seq., for negligence and the other under the general maritime law of unseaworthiness. The question already has been decided. In Levinson v. Deupree, 1953, 345 U.S. 648, 650, 73 S. Ct. 914, 915, 97 L. Ed. 1319, the Court held that 'The maritime law does not allow recovery for wrongful death. The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L. Ed. 358; Butler v. Boston & Savannah Steamship Co., 130 U.S. 527, 555, 9 S. Ct. 612, 618, 32 L. Ed. 1017. In 1920, Congress adopted a Lord Campbell's Act restricted to deaths on the high seas, 41 Stat. 537 et seq., 46 U.S.C. § 761 et seq. * * *.' In Just v. Chambers, 1941, 312 U.S. 383, 388, 389, 61 S. Ct. 687, 692, 85 L. Ed. 903, '* * * this Court, upon an elaborate review of the decisions, concluded that no suit for wrongful death would lie 'in the courts of the United States under the general maritime law'. The Harrisburg, 119 U.S. 199, 213, 7 S. Ct. 140, 146, 30 L. Ed. 358. See, also, The Corsair, 145 U.S. 335, 344, 12 S. Ct. 949, 951, 36 L. Ed. 727. The absence of a federal or state statute giving a right of action was emphasized. But when a State, acting within its province, has created liability for wrongful death, the admiralty will enforce it.' Further, 312 U.S. at page 391, 61 S. Ct. at page 693, the Court said: '* * * The pith of the matter is that the maritime law, as we conceived it, did not permit recovery, (in the case of wrongful death) and in the same sense * * *.' The Court of Appeals for this Circuit also has spoken; in Klingseisen v. Costanzo Transp. Co., 3 ...