No. 162, Docket 20457.
February 3, 1947.
Appeal from the District Court of the United States for the Southern District of New York.
Libel by Francisco Fodera against Booth American Shipping Corporation and Atlantic Basin Iron Works to recover damages sustained by libelant, a longshoreman, while engaged in stowing cargo. From a decree for libelant, 66 F. Supp. 319, respondent Booth American Shipping Corporation appeals and libelant cross-appeals to have award increased.
The trial judge in his opinion said [ 66 F. Supp. 319, 320]: "This is a suit in the admiralty to recover damages sustained by libellant, a longshoreman in the employ of a stevedoring corporation, while engaged in stowing cargo on the S.S. Empire Lancer. Recovery is sought against Booth, the owner of the vessel, and against Atlantic, an independent contractor, which had reinstalled, at the instance of Booth, a thermometer pipe aboard the vessel. The findings of fact set forth the details of the events which led to libellant's injuries. * * * Two findings of fact * * * are each separately sufficient basis for the liability of Booth as owner of the vessel. The thermometer pipe, about 30 feet long and 2½ inches in diameter, was so located in the hold of the vessel that heavy cargoes, when stowed into the hold, were likely to move in close proximity to the pipe, with the consequent danger of striking and dislodging it. Safe practice required that a thermometer pipe so located be enclosed in a box or framework. Such was the testimony of the expert for the libellant as well as of the chief engineer of the respondent Booth. The failure to take that precaution rendered the vessel unseaworthy (see, Edmond Weil, Inc., v. American West African Line., 2 Cir., 1945, 147 F.2d 363, 365, 366) and that unseaworthiness was the proximate cause of the libellant's injuries. The obligation of seaworthiness which traditionally extended from the ship to its seamen has been extended to longshoremen injured while working aboard a vessel even though the latter are employed by an independent stevedoring contractor. Seas Shipping Co., Inc., v. Sieracki, 66 S.Ct. 872. Where there is a failure in the discharge of the obligation of seaworthiness, liability follows regardless of negligence. The second ground of liability is the negligence of the owner. Libellant, an employee of an independent contractor, doing work for the owner of the vessel, occupied the status of an invitee aboard the ship. As such he was entitled to a reasonably safe place to work. The duty to provide such a place devolved upon the owner of the vessel. For the breach of such a duty liability attaches * * * In the instant case the owner did breach its duty. The breach consisted of the owner's negligence in permitting the thermometer pipe to remain unboxed in a location in which it was exposed to the danger of collision with the heavy cargoes that were being stowed in the vessel. The owner's liability was not avoided by the fact that there was a concurrent duty upon the libellant's employer to furnish him a safe place to work. La Guerra v. Brasileiro, 2 Cir., 1942, 124 F.2d 553, 555 certiorari denied 315 U.S. 824, 62 S.Ct. 918, 86 L.Ed. 1220; Porello v. United States, 2 Cir., 1946, 153 F.2d 605, 608. The defense of contributory negligence fails for lack of evidence to sustain it. Similarly, the defense of assumption of risk must fail for lack of merit. Clearly, the libellant did not assume the risk of respondent's negligence or of the unseaworthiness of the vessel. Moreover, if liability is founded upon unseaworthiness the defense must fail as a matter of law. It is to be presumed that, if the obligation of seaworthiness has been extended to longshoremen, it has been extended in all its respects; and, since the defense of assumption of risk would fail in an action by a seaman, the defense must likewise fail in an action by a longshoreman to whom the remedy has now been extended. Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 428, 429, 59 S.Ct. 262, 83 L.Ed. 265.
"There was testimony that the mate had instructed the longshoremen to keep clear of the pipe. The evidence is persuasive, however, that the intention of the instruction and its understanding by those who received the instruction were that the thermometer pipe be kept free from contact with cargo as it was stowed in order to permit the circulation of air through its perforations. It was not designed to, nor did it in fact accomplish, the transmission of a warning to the longshoremen that contact with the thermometer pipe was dangerous and likely to result in injury."
The judge's Findings of Fact and Conclusions of Law read as follows:"Findings of Fact.
"1. On July 26, 1943, libellant was a longshoreman in the employ of Mersey and Hudson Wharfage Co., stevedores, and was engaged in stowing steel rails in hatch #2 of the S.S. Empire Lancer, at pier 33, Brooklyn, New York.
"2. On that day from 9.00 A.M. to 3.30 P.M., respondent Atlantic, at the instance of respondent Booth, the owner of the vessel, reinstalled a thermometer pipe in hatch #2.
"3. Hatch #2 was approximately 50 feet wide, 30 feet high and, together with hatch #3, 70 feet long.
"4. The thermometer pipe was located in the center of the port aft wing of the hatch, about 8 or 10 feet from the skin of the ship and about 8 feet from the hatch opening. It extended from the floor of the hatch to the upper deck.
"5. The pipe was 2½ inches in diameter, perforated so as to permit the circulation of air, and was composed of two sections held together by a coupling. The lower section extended about 8 to 10 feet from the floor and the upper section was about 20 feet from the coupling to the deck overhead. The upper section did not go through the upper deck nor was it fastened thereto but fitted over a pipe which extended down from the upper deck for a distance of about a foot. The overlap was 6 to 8 inches. The lower section did not go through the lower deck but was set into a recess in a wooden plank fastened to the deck. The hatch was sufficiently illuminated.
"6. The steel rails were being loaded in hatch #2 in drafts weighing about two tons each. The drafts were lowered by the ship's gear on bridles, onto rollers, over which they were easily moved to various parts of the hold. The rollers consisted of ordinary 3 inch pipe which moved over the surface of the cargo already stowed.
"7. Prior to the injury the longshoremen were told by the ship's mate `to keep clear of the pipe.'
"8. At about 11.45 P.M. on July 26, 1943, a draft was lowered onto two rollers and as the draft was moving aft over the surface of the stowed cargo into the port side of the hatch its forward end struck the thermometer pipe and knocked the upper section of the pipe loose. The pipe fell, struck the libellant and injured him.
"9. At the time of the injury and just preceding it the libellant was engaged, together with three other longshoremen, in moving the draft, the libellant being stationed at the rear of the draft.
"10. No fault of the libellant contributed to the injury.
"11. The construction of the thermometer pipe and the mode of its assembly were such that a blow would cause the pipe to `spring,' thus releasing it from its upper deck contact and permitting it to fall down. The pipe was so located that cargo, while being stowed and moved into position, necessarily came into close proximity thereto.
"12. Safe practice required that the thermometer pipe be enclosed in a wooden box, both for the protection of the pipe and of those who were in its vicinity.
"13. Libellant, as a result of the blow inflicted by the pipe, suffered a fracture of the right clavicle and laceration of the left elbow, requiring him to be hospitalized for eight days and to have his right shoulder in a cast for forty days.
"14. Libellant has a 25% deficiency in grip in his right hand as compared to his left. His hearing in the right ear is defective and he is exposed to headaches.
"15. At the time of injury he was 51 years old and had been a longshoreman for thirty years. He has had no prior accidents and had been enjoying good health prior to the injury complained of. His life expectancy, based upon the mortality tables, is twenty years.
"16. His earnings immediately prior to the injuries complained of, were approximately $60 to $65 a week."Conclusions of Law.
"1. The proximate causes of libellant's injury were the unseaworthiness of the S.S. Empire Lancer in that the thermometer pipe, located in an area where it was likely to come into contact with moving cargo, was not boxed, and the negligence of respondent Booth in failing to exercise reasonable diligence to furnish libellant with a reasonably safe place to work.
"2. Libellant was free from contributory negligence.
"3. Libellant's injuries did not arise out of any risk, danger or hazard which was open, obvious and well known to libellant, nor did libellant assume any such risk, danger or hazard.
"4. Respondent Atlantic was free of negligence. The libel as against it is dismissed.
"5. Libellant is entitled to recover against respondent Booth $4,616.20."
Respondent, Booth American, appeals; libellant cross-appeals, asking that award to him be increased to $11,850.
Samuel Spevack, of Brooklyn, N.Y. (Harry Teichner and Emanuel Spanier, both of Brooklyn, N.Y., of counsel) for libellant.
Kirlin, Campbell, Hickox Keating, of New York City (Raymond Parmer and Vernon Sims Jones, both of New York City, of counsel) for respondent-appellant.
Before AUGUSTUS N. HAND, CHASE, and FRANK, Circuit Judges.
We have here another instance of an attempt on appeal to have us, as to the facts, retry a case which has been tried on oral evidence in the court below. Perhaps some day soon the admiralty bar will become convinced that such attempts are fruitless.
There is ample evidence to support the trial judge's findings, including the finding that "safe practice required that the pipe be enclosed in a wooden box, both for the protection of the pipe and of those who were in its vicinity." Accordingly, his legal conclusions are correct. Seas Shipping Co., Inc., v. Sieracki, April 22, 1946, 66 S.Ct. 872. We are not persuaded that, on the evidence, the award to libellant should be increased.