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Mesle v. Kea Steamship Corp.

decided: September 30, 1958.


Author: Mclaughlin

Before MARIS, GOODRICH and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge.

This is an appeal on an in personam libel in admiralty brought against the owner of the ship in which occurred the accident whereby the hurts suffered by libellant resulted. The libel alleged negligence on the part of the shipowner and unseaworthiness of the vessel. The shipowner impleaded libellant's employer.

The Haenn Ship Ceiling and Refitting Corporation had been engaged by the respondent shipowner to effect certain carpentry repairs to the fittings in the S.S. Sunion's No. 5 hold while the vessel was at Philadelphia. In the early afternoon of March 4, 1953, Edward S. Mesle, an employee of Haenn, and a number of his co-workers descended into the lower hold which was outfitted for the bulk carriage of grain. Necessary for assuring the underway stability of the ship so engaged is the erection along the hold's center line of a device known as a shifting board. The function of the shifting board is to reduce the free surface effect resulting from the lateral flow of the grain following each roll of the ship.

The shifting board had been constructed by erecting three double sets of uprights, consisting of 2" by 10" or 2" by 12" planks spaced approximately eight feet apart, between which 2" by 10" boards were nailed horizontally so as to form a bulkhead. This bulkhead was braced athwartships by nine shores on the port side and nine shores on the starboard side. Each of the three sets of uprights thus was braced by three shores on each side. The shores were 4" by 6" timbers. The top one in each tier of three extended down from the 'tween deck hatch coaming to an upright of the shifting board. Approximately 7' below this one the middle shore of the tier extended from the upright downward at an angle to where the outboard end butted against a sweat batten at the inboard face of a frame of the ship. About 7' below this middle shore the lower shore paralleled it from the upright to the same frame. Frames are 30" apart and are about 18" in depth; to their outboard faces the plates forming the skin of the vessel are attached.

The shores were secured in place by trimming the ends so as to butt one against the shifting board upright and the other against the batten at the frame. The ends were secured in place by being snugly framed with wooden cleats made of 2" by 3" pieces of wood several feet in length. On the inboard end the cleats were nailed to the shifting board. On the outboard end they were nailed to sweat battens. These sweat battens were 2" by 6" lengths of dressed lumber running horizontally, fore and aft, up the sides of the hold, about eight to ten inches apart, and held in place by L-shaped metal clips welded to the faces of the frames. The clips were open at the top to permit removal and insertion of the sweat battens. Sweat battens are for the prevention of contact with the plates by packaged cargo of a nature to be harmed by the water which condenses on the plates under certain conditions.

Mesle and his fellow workers were assigned to take out and replace the two middle shores in the port and starboard tiers bracing the after upright of the shifting board, both of the shores having become cracked at roughly the middle.

The men first went to work on the starboard side to remove the damaged shore located there. A line was thrown around the shore and a double turn taken around its middle. Both ends of the line were carried back to a recess in theafter part of the hold above the shaft alley from where the men tugged at the line until the shore broke where it had been cracked. When this happened, the outboard end of the shore fell free to the bottom of the hold; the inboard end hung down from the nails which had toe-nailed it to the shifting board, its weight being insufficent to pull it free.

The men then repaire to the port side where they similarly attempted to break and pull down the damaged shore ther. When it did not give, the men dropped the line, the foreman saying, "It looks like we're going to have to knock off a cleat there, Ed, get up there and knock one off."

Whereupon libellant climbed up the sweat battens at a point just forward of the shore until he was standing on the batten to which the end of the shore was fastened, some twelve feet above the floor of the hold. Turning about so that his heels were hooked on the batten and holding onto a higher batten with his left hand, he wielded a hatchet with his right to split away the cleat along the afterside of the shore. No sooner had the last of the cleat fallen away than the end of the shore unexpectedly slipped off the batten at the point the batten was in contact with the face of the frame, moving down, aft, and enough outboard so as to come between the frames vertically and the battens horizontally. This movement was enough to pull the other end of the shore loose from the shifting board so that it fell to the floor of the hold. The outboard end thus see-sawed upward, levering the batten above out of its clip thereby catapultin Mesle into the air from whence he landed heavily, severely injuring himself.

Inspection of the shore revealed that its ends had not been toe-nailed as was the usual custom. Had it been, the nails would doubtless have held the shore in place until some force was exerted to pull it down. The absence of the toe-nails could not have been discovered so long as the cleats were in place around the ends of the shore. The questions presented to the trial court were whether the ship's personnel, and through them the shipowners, had been negligent in permitting erection of the shore without toe-nailing and whether the shore so erected was unseaworthy.

The trial judge adopted the libellant's proposed findings of fact and conclusions of law, a practice which this court had disapproved on another occasion*fn1 as being an inadeqate compliance with Admiralty Rule 46 1/2, 28 U.S.C.A. We have in mind the edict in McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20 that a judgment in admiralty is not to be set aside unless it is clearly erroneous. And yet where the court has not independently set out its findings we think the reviewing court may more readily be "* * * 'left with a definite and firm conviction that a mistake has been committed.'"*fn2 The Severance, 4 Cir., 1945, 152 F.2d 916.

A duty owed by the shipowner to one in Mesle's position was the exercise of reasonable care in maintaining the premises in a condition safe for business invitees with due regard for the purposes calling for the presence of such invitees. In short the duty was the specific one of providing a reasonably safe place in which to work. The duty is not an absolute one, however. Lake v. Standard Fruit & Steamship Co., 2 Cir., 1950, 185 F.2d 354. Here, the duty would have been met had Mesle or his employer's representative been informed of the absence of toe-nails in the particular shore or had the alleged defect been repaired. But to require repair or warning would initially have required notice imputable to the shipowner. There is no evidence that respondent or its servants had actual notice of the fact that the shore was not toe-nailed nor do we think that respondent can fairly be imposed with constructive notice thereof. The absence of toe-nails was not apparent, as has already been noted, once the cleats were in position. Thus even if the comleted structure had been inspected by ship's personnel as is indeed the custom, the alleged defect would not have been visible upon such inspection. The adequacy of the cleating and the snugness of the shores would have been the subject of such inspection; these are enough for assurance that the shores will perform their function.*fn3 Under these circumstances to hold that the ship was negligent in not acquiring notice of the lack of toe-nails would in effect require supervision by the ship's personnel over the placing of every nail.This is obviously an impractical and unreasonable burden. We conclude that the trial court erred in finding any negligence on the part of respondent.

Having reached this point it is apparent that the judgment, if it is to be affirmed, must rest on the finding of existence of an unseaworthy condition. It suffices simply to note preliminarily that the shipowner's duty, originally owed only to seamen, of maintaining a vessel seaworthy in hull and appurtenances extends to shore-side workers furnishing to the vessels services which in a time of less specialized economic activity were usually rendered by the crew. Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143; Seas Shipping Co. v. ...

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