212 F. Supp. 160 | E.D. La. | 1962
Libelant claims damages for injuries growing out of an accident which occurred on June 1, 1958, at approximately 3:30 a. m., when he was injured in a fall on a barge, the SC & NO 1515, owned by respondent Sioux City and New Orleans Barge Line. At the time the barge was located at the wet dock of Avondale Marine Ways, Inc. for repairs by it.
Under the terms of a written contract between Avondale and National Corporation Service, Inc., libelant, an employee of the latter corporation, was assigned as a uniformed armed guard to work at the ship-repair plant of Avondale. In the early morning hours libelant, having been given a written receipt to be signed by the captain of the tug Point Landing No.
The case is based upon a maritime tort in asserted negligence of Avondale in not providing a safe place for libelant to walk while performing his duties as a guard assigned by the National Corporation Service, Inc. to the ship-repair yard, for permitting the hatch cover to remain open and doing nothing to make it safe for libelant, and in failing to warn him of the dangers of the open hatch. Respondent Sioux City and New Orleans Barge Line, Inc. is sued because of the claimed unseaworthiness of the barge with its defective hatch cover. Respondent Point Landing, Inc. is sued on the ground that when its tug made fast to the barge, then unseaworthy, the barge was under its custody and control at the time libelant was injured. Also because of alleged negligence in that it is contended that the tug was undermanned at the time of the accident, and had there been sufficient members of the crew present a reasonable inspection of the barge would have shown its unseaworthiness and libelant would not have been injured.
We see no merit in the libel against Point Landing, Inc., owners of the tug. The barge was not in tow of Point Landing’s tug at the time of the accident because the barge’s bow lines had not yet been cast off the dock and she was not under the control or power of the tug.
As to the owner of the barge, Sioux City and New Orleans Barge Line, Inc., the sole question to be determined is whether or not this respondent was deficient in any duty owed to libelant, a land-based worker. There is no doubt that the barge was unseaworthy; this was the reason for its being at the Avon-dale wet dock, that is, for the removal of the condition which caused it to become unseaworthy — -the defective hatch cover which would not fully close. It would be manifestly unfair to penalize a shipowner for performing his duty in taking the necessary steps to make his ship seaworthy.
There is considerable conflict in the testimony on the issue of negligence of Avondale. But we are convinced from all of the testimony that though the wet dock was well lighted the particular place where the accident occurred due to the open No. 1 cover was in a shadow; that no warning signs or lights of any kind indicated this treacherous hazard and the failure to provide a safe place for libel-ant, under the circumstances, was negligence.
We do not believe the testimony that it was not among libelant’s duties to walk over the barge to the tug to obtain the written receipt for the barge despite evidence that all of the guards were instructed not to walk on floating equipment. The evidence is clear that libel-ant was to obtain the release in whatever manner it was practical to do so. Upon his return to the wet dock, having originally negotiated his way around the catwalk which had no handrail, libelant apparently believed walking the top of the covers was the safest way to return. The tug played a spotlight on his back which threw a shadow ahead of him and apparently prevented his seeing the open hatch.
Libelant’s relationship to Avondale was that of an invitee. “It is generally held that one who is on premises in the performance of his duty occupies the status of an invitee or business visitor with respect to the degree of care owed him by the owner or person in charge.” 65 C.J.S. Negligence § 43(4). Generally, the degree of care owed an invitee is that of ordinary and reasonable care commensurate with particular circumstances involved, and he who breaches such duty is answerable to the invitee for damages sustained as a result thereof.
Nevertheless, we believe that had libelant looked carefully he would have seen the open, dangerous condition of the hatch and might have averted the accident. The accidental injury occurred, therefore, through the concurrent negligence of two proximate causes, the one being that of Avondale in failing to provide a safe place for libelant to perform his duties, in not giving warning of the dangerous condition, and in its failure to close the hatch cover; the second in libelant’s failure to keep an alert lookout as he walked and in stepping into the open hatch as he did. The evidence shows that an employee of Avon-dale erroneously called for moving of the barge by the Point Landing tug at the time of the accident. The barge was not to be removed until the work was completed and the hatch cover repaired and closed. But through a misunderstanding one of Avondale’s employees called Point Landing for removal of the barge apparently believing the repairs had been completed. The evidence shows that the barge was returned several days later and the towing charges for taking the barge away and returning it were paid by Avondale because of its error. Since the accident occurred through the concurrent and equal negligence of Avon-dale and libelant, libelant is guilty of contributory negligence to the extent of 50 per cent. The maritime doctrine of comparative negligence is applicable here and will be so applied. Cenac Towing Co. v. Richmond, 265 F.2d 466, 5 Cir. (1959).
Libelant received severe injuries as a result of his fall. He was immediately taken to the hospital where a splenectomy and exteriorization of the cecum was performed on June 4, 1958. Thereafter, on June 20, a resection of the terminal ileum and proximal half of the right colon was performed, with end-to-end anastomosis to replace the previously exteriorized cecum. A Meckel’s diverticulum was also resected. Post-operative bleeding immediately set in which required a third operation during which time libelant had a cardiac arrest which lasted for 2 minutes and 40 seconds before his heartbeat was restored. Cerebral anoxia followed which resulted in cerebral atrophy with a moderate mental defect, a slight speech defect and periarticular pains. Libelant was in the hospital in numerous operations for more than seventy days, his condition was critical and he was not expected to live. He received numerous fractures of the ribs and lacerations as well. There is no doubt that he was most severely injured. Under the circumstances, in view of his 50 per cent contributory negligence, we believe a fair award, after reducing it for his negligence, is the sum of $25,000.
Judgment will be entered accordingly.
. Curd v. United States, 118 F.Supp. 921, E.D.La. (1954).
. McDaniel v. The M/S Lisholt, 282 F.2d 816, 2 Cir. (1960), cert. den. 365 U.S. 814, 81 S.Ct. 694, 5 L.Ed.2d 692. See also West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959); Filipek v. Moore-McCormack Lines, 258 F.2d 734, 2 Cir. (1958), cert. den. 359 U.S. 927, 79 S.Ct. 605, 3 L.Ed.2d 629.
. McDaniel v. The M/S Lisholt, supra.
. United New York & New Jersey Sandy Hook Pilots Ass’n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).
. Roper v. United States, 368 U.S. 20, 82 S.Ct. 5, 7 L.Ed.2d 1. See also the numerous cases reported in 84 A.L.R.2d 620 et seq.
. Campbell v. All State Insurance Company, 112 So.2d 143, La.App., 1 Cir. (1959).
. Mahfouz v. United Brotherhood of Carpenters, etc., 117 So.2d 295, La.App., 2 Cir. (1959).