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June 29, 1977

Robert E. OLSEN, Stanley A. Olsen, and Roberta A. Uglem, personal representative of the Estate of Allen D. Uglem, Deceased, Plaintiffs,

The opinion of the court was delivered by: BEEKS

 The critical issue for determination herein is whether defendant Todd Shipyards Corporation ("Todd") occupied the position of owner pro hac vice with respect to Foss Barge No. 202 ("202") on March 9, 1972 when three of its employees working aboard that barge were asphyxiated, one fatally. If so, plaintiffs can maintain this action notwithstanding the provisions of former 33 U.S.C. § 905, *fn1" Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), which generally forbids such actions by shoreside maritime workers against their employers. If not, plaintiffs' action is precluded by the statute and preempted by LHWCA. Todd's true status will appear upon review of the facts and analysis of the applicable law.

 Foss Launch & Tug Company ("Foss"), owner of 202, delivered 202 to Todd's floating dry-dock on March 9, 1972 for routine service, the annual inspection required by law and such repairs as were indicated by the inspection (subject to Foss's later authorization). Foss had already issued to Todd a "purchase requisition" on or about March 7, 1972 which described the work to be done as follows:

Drydock vessel for inspection by ABS and U.S.C.G.
Open all tanks and compts for internal exam. Provide "safe for men" certificate. Provide temp lights. Close up upon completion of inspection. Clean and Paint bottom as directed (owner furnished paint). Accomplish repairs as authorized by owner's representative.

 Todd completed the requested work and restored 202 to Foss on March 10, 1972.

 Plaintiff Robert Olsen, plaintiff Stanley Olsen and Allen Uglem (now deceased and whose personal representative is a nominal plaintiff herein) were Todd employees at the time in question -- pipefitters by trade -- who together comprised a three-man work crew assigned to 202 to inspect her flotation tanks and pump them if required. In undertaking this assignment they were under the exclusive direction of Todd.

 On the evening of March 9, 1972, 202 was out of the water on blocks in Todd's dry-dock. At approximately 7:45 p.m. Stanley Olsen, in the course of his aforementioned inspection duties, entered tank A421f and collapsed due to its oxygen-deficient atmosphere. Robert Olsen and Allen Uglem, who had been working nearby, then entered the tank to effect a rescue. They too collapsed. Allen Uglem did not recover; Robert and Stanley Olsen did, but allegedly suffered injuries during the experience. It is in respect of such death and injuries that this action against Todd was filed as was an earlier separate action against Foss which was dismissed by this Court, such dismissal having now been upheld on appeal. *fn2" A brief reflection upon findings and conclusions made in the earlier case ("Foss Case") will be an aid in understanding the posture of the instant case.

 In the Foss Case the same plaintiffs as are here before the Court sued Foss to recover their respective damages on the theory that Foss owed them the traditional warranty of seaworthiness in respect of 202, which warranty was breached insofar as the atmosphere in tank A421f was unsafe for Todd workmen. After trial, this Court held that Foss had made no warranty respecting the condition of the tank and accordingly denied recovery. The basis of the ruling was that the work order (quoted earlier herein) pursuant to which Todd took possession of 202 effectively disclaimed such warranty. It was Todd's express responsibility to open all tanks aboard 202 for internal inspection and certify them "safe for men." The inescapable implication of the Foss work order was that unsafe conditions may indeed prevail in certain tanks which Todd was to eliminate prior to providing the requested certification. Therefore, Foss clearly did not warrant the safety of the tanks to Todd's workmen.

 In affirming this Court's decision in the Foss Case, the Court of Appeals placed reliance on a United States Supreme Court case, West v. United States,3 and a Second Circuit case, McDaniel v. the M/S LISHOLT,4 citing the latter in particular for the proposition that

there is no warranty that a vessel is seaworthy with respect to the unseaworthy condition which is directly responsible for bringing aboard the persons claiming the benefit of the warranty. *fn5"

 The Appellate Court bolstered its decision to affirm by emphasizing that Foss "had absolutely no control of the vessel" when the casualties occurred. Thus, plaintiffs were unsuccessful in their attempt to fasten liability upon Foss. Undaunted, plaintiffs filed this action in the belief that their remedy must lie instead against their employer, Todd.

 Notwithstanding the unqualified pronouncement of former 33 U.S.C. § 905 *fn6" that an employer's liability for work-related injuries sustained by a covered employee would consist exclusively of the prescribed LHWCA compensation, such legislation has been authoritatively construed to present no bar to an independent action at law by such employee to recover actual damages from his employer in those cases where the latter is the owner or owner pro hac vice of the vessel involved. *fn7" Liability will be imposed in such independent action upon it being established that the vessel's unseaworthy condition proximately caused the injury and that, as aforesaid, the employer was at the time the vessel's owner or standing in the owner's shoes. Thus the threshold question herein, previewed earlier, is whether Todd, while obviously not the owner of 202, was its owner pro hac vice when the casualties occurred.

 Counsel herein cite many relevant cases and propose various formulae to aid in determining Todd's status. Upon review of the cited cases and others, the Court finds most definitive the following description set forth in Guzman v. Pichirilo,8 there referring specifically to a demise charter but no less ...

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