filed as amended september 4 1952 as amended november 3 1952.: August 27, 1952.
Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
McLAUGHLIN, Circuit Judge.
This is a civil action for personal injuries on a maritime claim. It resulted in a jury verdict in favor of the plaintiff with special findings that the vessel was unseaworthy; that both the defendant bare-boat charterer and the third-party defendant employer were negligent; and that the plaintiff was guilty of contributory negligence to the extent of 17 1/2%. Following the disposal of post-trial motions, 99 F.Supp. 226, judgment was entered, 100 F.Supp. 338, in favor of the plaintiff against the defendant in the amount of the verdict less 17 1/2% and in favor of the defendant and against the third-party defendant in the amount of the latter's liability under the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, 33 U.S.C.A. § 901 et seq. In No. 10,630 the defendant charterer appeals and in No. 10,613 the employer is the appellant.
Plaintiff, a ship's carpenter foreman, on November 16, 1947, was employed by the Haenn Ship Ceiling and Refitting Corporation. That morning he and other Haenn employees were making certain minor adjustments to the grain feeders aboard the S.S. John Dickinson then berthed in the Delaware River at Philadelphia. In the late morning and part of the afternoon he was helping prepare No. 4 hold for oats. During the course of the operation he walked forward in the 'tween deck area of that hold around the feeder to the starboard side. Crossing the hatch covers forward of feeder he went through a "manhole" which had been cut out of the center shifting board over the hatch square. On the starboard side he assigned a man to work in the after end and started back toward the port side of the ship. After proceeding through the "manhole" and beyond it two or three steps he paused in order to give a workman instructions on how to properly nail a cleat. As he turned to continue his journey he slipped on some loose grain underfoot, fell through an opening caused by the absence of a hatch board to the hold below and as a result sustained substantial injuries.
There was testimony by a ship cleaner foreman, who had been aboard the ship the day before, to the effect that at that time a "couple" of the hatch boards forward of the feeder were off. He did not know whether they were off on the port or starboard side. A longshoreman hatch foreman aboard the ship the morning of the accident testified that there were two port side hatch covers missing on the 'tween deck by No. 4 feeder. There was testimony indicating that it was through the opening caused by the removal of those hatch covers that the plaintiff Hawn fell.
The absence of the hatch covers over a length of time which could reasonably be construed as sufficient to have put appellant on constructive notice of that fact; testimony that the particular area during the critical period was dark and that the footing there was slippery, all combine to present a situation from which the charterer's negligence could be inferred.
Appellant vigorously disclaims any responsibility for Hawn's safety. Its theory is that both Hawn's employer and the cleaners had been engaged in their work by the time charterer of the vessel, the United States Army; that the appellant gave them no working instructions and that they were independent contractors. Therefore, says appellant, it had no connection with the missing hatch boards or the slippery making grain and grain dust and no duty to furnish artificial illumination.
While the jury might well have found that appellant was free from negligence, we cannot agree that appellant was not accountable for negligence if it had existed. Appellant as bare-boat charterer was for all practical purposes here arising the owner in possession of and poerating the S.S. John Dickinson. Cannella v. Lykes Bros. S.S. Co., 2 Cir., 174 F.2d 794, certiorari denied 338 U.S. 859, 70 S. Ct. 102, 94 L. Ed. 526.Hawn was working for an intermediate employer. That employer, third-party defendant Haenn Corporation, was functioning under its contract with the record owner of the ship. However, there is not the slightest indication that as the ship was temporarily berthed at Philadelphia the appellant had surrendered actual control over it. Under those circumstances appellant was faced with its duty of providing Hawn who was engaged in the ship's service a reasonably safe place to work. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099. Cf. Shields v. United States, 3 Cir., 175 F.2d 743, 744, certiorari denied 338 U.S. 899, 70 S. Ct. 249, 94 L. Ed. 553. There is nothing in the record to indicate that appellant's right as operating owner pro hac vice to control the entire ship, including the No. 4 hold, at the time Hawn was injured was in any way curtailed. There was testimony from which, if accepted, it could be concluded that the No. 4 hold was not a reasonably safe place for a workman engaged as Hawn was and that as a result of that condition he was injured. That question was clearly for the jury. It was properly so submitted by the trial court.
Appellant contends that its warrant of seaworthiness did not extend to Hawn as a ship's carpenter. We think that argument without merit. Hawn was admittedly, as was the fact in Sulovitz v. United States, D.C.E.D.Pa., 64 F.Supp. 637, 640, "* * * actually working in the ship, preparing it to receive a cargo requiring special provision for its storage, and was therefore rendering services necessary in the performance of the ship's business of carrying cargo." The difference between Hawn and the longshoreman in Seas Shipping Co. v. Sieracki, supra, is, at most, one of slight degree. Appellant owed Hawn the duty of a seaworthy ship on which to work.
On the merits of this point appellant argues that there was no evidence of unseaworthiness. The contention is not borne out by the record. The absence of the hatch covers in the 'tween deck where Hawn was supervising his workmen and with the facts justifying an inference of the existence of that situation for such a period as to remove it from the type of transitory conditions exemplified in Cookingham v. United States, 3 Cir., 184 F.2d 213, certiorari denied 340 U.S. 935, 71 S. Ct. 495, 95 L. Ed. 675, was sufficient to allow submission of that question to the jury. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561.
Motion to Withdraw Juror.
Appellant urges that it is entitled to a new trial because of an incident which occurred after the trial below had commenced and counsel had opened. Following that the trial was adjourned in compliance with a request from another judge of the Eastern District that the jury be permitted to attend a conference of the jury panel that afternoon. Later that same day the jury with the balance of the jury panel reported to another courtroom and assisted an inquiry then being conducted by the district court judge who had called the conference as to the conduct of certain persons who had apparently investigated the jury panel prior to its term of service. One of the questions directed to the jurors in that investigation had to do with their opinions of insurance companies and large corporations. There was some publicity about the inquiry in the Philadelphia papers the day after the meeting. On that next day the trial judge queried the jurors in this case whether they thought any particular group had been trying to influence them and whether, under the circumstances, they could render a fair and impartial verdict. Those of the jurors who answered said no to the first question and yes to the second. There was no indication that the impression had been received of an effort being made to influence and member of the jury or that a fair verdict could not be rendered in this issue. The court gave a brief common sense talk to the jurors in which he distinguished between an ordinary legitimate neighborhood inquiry regarding jurors and an attempt to influence them. Obviously convinced that no harm had been ...