LOCATION: U.S. District Court for the Southern District of New York
DOCKET NO.: 43
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 358 US 588 (1959)
ARGUED: Oct 23, 1958
DECIDED: Feb 24, 1959
Facts of the case
Media for The Tungus v. Skovgaard
Audio Transcription for Oral Argument - October 23, 1958 in The Tungus v. Skovgaard
Number 43, The Vessel M/V Tungus, etcetera, Petitioners, versus Olga Skovgaard, Administratrix Ad Prosequendum.
Mr. O'Neill --
J. Ward O'Neill:
-- you may proceed.
J. Ward O'Neill:
Mr. Chief Justice and Members of the Court.
Just to outline a fact for this case of death, this action was originally started in the Southern District of New York.
But they're unable to get -- we're unable to join.
The employer of this man is a third party in New York so we had the case removed to New Jersey where it was eventually tried.
The facts giving rise to the action are these.
The Tungus is a dry cargo vessel, but in number three hatch, she has two deep tanks which are used apparently for carrying of oil or for dry cargo.
To that in the Philippine Islands and while there, a cargo of coconut oil was gotten.
And in accordance with the custom of the trade, it was carrying under what's known as a coconut oil contract.
Now, that contract among other things contain these provisions.
The shipper of the oil was to load the cargo, supervised the cargo, and pay for the loading of the cargo.
By the same token, the consignee in this country had the same obligation, namely, to supervise the unloading of the cargo.
Now, when the vessel came to New York -- I might say too that that contract was incorporated in the bill of lading so that became part of the contract of carriage.
When the vessel arrived in New York, she discharged general cargo in Brooklyn.
And while there, she received order to proceed to the El Dorado Oil Plant in Bayonne, New Jersey.
She arrived there about 5 o'clock.
Right after her arrival, the El Dorado people who had received this contract from the owners of the oil not only to discharge it but to store it, have made arrangements for Mr. Skovgaard, the decedent, to examine and prepare an electric pump for the discharge of this oil.
Under his guidance, one of the repairman placed this oil on a pallet or skid and took it down for the string piece on the dock.
After the vessel's arrival, a Mr. Sexton, an El Dorado supervisor, came aboard the vessel, examined the oil, took samples, and not being satisfied that the oil was pure, ordered the discharge to commence.
Now, after the vessel tied up the crew as customary after 5 o'clock were on the shore with the exception of two men and an officer, were always on guard on the vessel to watch the lines on tidal waters.
El Dorado didn't have anybody to run the winches so the two crewman ran the winches.
Before doing that, they went down, that is the El Dorado people, went down in this tank.
It's about nine feet long and about three feet wide.
And they took the lid off that tank and turned it at a 90-degree angle leaving about one-third of the tank open.
They then brought on the electric pump and placed it on the tank lid with the suction part towards this hole.
Now, every part of this pump, the hoses, the air injection lines, every part of it belong to El Dorado.
They supplied electricity from the shore to run the pump, and they had a man there sets just where he wanted the pump placed.