Hurklee Carey (Carey) was employed by Ryan Stevedoring Company, Inc., (Ryan) as a longshoreman at Mobile, Alabama, on May 3, 1969, when he was ordered into the starboard deep tank of the vessel S.S. LOUISE LYKES, owned by the Lykes Brothers Steamship Company, Inc., (Lykes). While working in that tank Carey became unconscious and was taken to a hospital. Carey subsequently brought this action against Lykes on the theory that he had sustained disabling injuries from inhaling carbon monoxide gas present in the tank as a result of the vessel's unseaworthiness. Lykes answered the complaint and filed a third-party action against Ryan contending that Ryan had breached its warranty of workmanlike performance under the doctrine of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corporation, 1956, 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133. Ryan answered by denying that the vessel was unseaworthy and by denying the breach of any warranties to Lykes. The jury found for the plaintiff in the amount of $50,000.00. On the basis of the verdict and special interrogatories submitted to the jury, the district court entered judgment for that amount for Carey against Lykes and in favor of Lykes against Ryan. Lykes has appealed from the lower court's judgment and Ryan has appealed from that court's denial of its motions for judgment n.o.v. or for a new trial. We affirm.

At trial Carey introduced evidence tending to establish the following sequence of events. The gang in which Carey was working was to load mixed military cargo into the deep tanks of the number two hatch aboard the vessel. The men reported to work at approximately 8:00 A.M., May 3, 1969, and began by rigging the booms and by uncovering the hatch. Only the aft halves of the hatch covers at the main deck level were removed. After planking was placed across the bottom of the deep tanks, a gasoline operated forklift machine was lowered into each tank. There was very little natural ventilation to the deep tanks and Ryan provided one small portable blower for each tank. It appears that the air hoses used by Ryan to conduct fresh air into the tanks were inadequate as to size and also were constricted further by being crimped where the hoses crossed the hatch coamings. The blower failed on several occasions during the course of that morning, according to testimony. Carey and several other men in the starboard deep tank became dizzy and nauseous between 10:30 and 11:00. At approximately 10:30 A.M. a test for carbon monoxide concentration was made by Ryan's ship superintendent and it showed a concentration of 200 parts per million (.02%) in the deep tank. Although a regulation of the U. S. Department of Labor1 required the cessation of work when carbon monoxide concentrations exceed 100 parts per million (.01%), work has not halted and no changes were made to the ventilation system.2

Following lunch, at which Carey was sick and dizzy, the gang returned to work at 1:00 P.M. only after extracting a promise from Ryan that additional blowers would be installed to remove gas from the tanks. During the lunch hour the hatch covers were replaced at the main deck level and the hatch remained closed. Before the additional blowers were put in place, another carbon monoxide concentration test was made at 2:30 P.M., revealing 200 parts per million. At approximately 2:45 P.M. Carey passed out and had to be carried off the ship, to be followed by three other men one-quarter hour later. Carey consulted several physicians and was ultimately diagnosed as having interstitial pulmonary fibrosis. This condition, according to Carey's medical evidence, was proximately caused or accelerated by the carbon monoxide intoxication suffered on May 3, 1969.

Before jury challenges were exercised, the trial judge announced that thirty-four veniremen had qualified, that fourteen (two alternates) were to be selected, and that Carey would be entitled to strike ten and Lykes and Ryan would be entitled to strike ten between them. Ryan claims that it was severely prejudiced by this procedure in that its interests were adverse to those of Lykes. We find no merit in Ryan's argument on this point because the procedure employed by the district judge is expressly authorized by Section 1870, Title 28, United States Code.

Ryan next complains that Carey failed to establish that his lung condition was proximately caused by the carbon monoxide poisoning incident of May 3, 1969. There was conflicting expert testimony on this issue at the trial. Applying the standard promulgated by this Court en banc in Boeing Company v. Shipman, 1969, 411 F.2d 365, we conclude that the jury's resolution of this contested issue should not be disturbed on appeal.

Next, Ryan urges that the district court erred in refusing to give a requested instruction on the issue of operational negligence, citing Usner v. Luckenbach Overseas Corp., 1971, 400 U.S. 494, 91 S. Ct. 514, 27 L. Ed. 2d 562. In Usner, the Supreme Court held that where a longshoreman's injuries were not caused by the condition of the ship, her appurtenances, her cargo or her crew but were occasioned by the isolated, personal negligent act of a fellow longshoreman, the shipowner was not liable to the longshoreman on the ground of the vessel's unseaworthiness. The personal, negligent act involved in Usner was a winch operator's improper lowering of a cargo sling. Ryan argues on this appeal that its superintendent's failure to remove the gang from the tank when a reading of 200 parts per million was obtained was equivalent to the operational negligence dealt with in Usner. The Supreme Court's Usner doctrine is not applicable to this case for the reason that the deep tank itself, as a result of an accumulation of carbon monoxide, was an extremely hazardous place in which to work. The hazardous nature of the deep tank was not brought about by the isolated, personal negligent act of a fellow longshoreman but by the failure to provide adequate ventilation over a period of several hours for an area in which a gasoline-powered forklift was being employed. We find this assignment of error to be without merit.

Ryan's final argument on this appeal is to the effect that the jury's verdict was clearly excessive and that a remittitur should be granted. Although Carey was earning relatively small annual sums as a longshoreman in the years prior to his accident, considering Carey's medical expenses and his projected future work life (Carey was a 43-year-old Negro longshoreman untrained for other work, and incapable of other than manual labor at the time of the accident), the jury's verdict as to damages was easily within permissible limits, and should not be upset on appeal.

Lykes has adopted Ryan's appellate contentions, and, in addition, urges reversal based upon the admission of a hypothetical question propounded to a medical witness at trial by counsel for Carey. This additional assignment of error is without merit for the reason that the trial judge sustained Ryan's objections to that question.

In summary, we are of the opinion that the judgments of the trial court should be in all respects affirmed. See James v. Sea-Land Service, Inc., 5 Cir. 1972, 456 F.2d 221, involving injuries from inhaling carbon monoxide to a longshoreman at the same port (Mobile, Alabama), the same stevedore (Ryan), at a time less than a year earlier (June 25, 1968 as opposed to May 3, 1969 here).

Affirmed.