Appendix — North Carolina Natural Gas Corp. v. McJunkin Corp.

sy

/“APPENDIX |

UNITED STATES COURT. OF APPEALS

FOR THE N NTH CIRCUIT

PARTENWEEDEREI, MS BEgGRANO, and) |

RUDOLPH A. OETKER, Be

ae * Appellants,

vs. cris

)

)

)

GEORGE WEIGEL, ce

- | Appellee. )

' ) No. 17,178

faith ) Feb. 8, 1962

Brapy-HAMILTON. STEVEDORE. COMPANY; ) ieteyer

/ . Appellant, )

vs. : )

)

)

)

PAKTENWEEDEREI, MS BEL GRANO, and

RupoLPH A..OETKER,

ee . Appellees. :

On Appeal from the United States District Court

for the District of Oregon |

‘Before: JERTBERG. KOELSCH and DUNIWAY,

Circuit Judges :

JERTBERG, Circuit Judge:

George’ Weigel, libelant below, | and. appellee here, |

~ hereir. sfter called ‘‘libelant,” was an employ ‘ee of Brady- —

Hamilton Stevedore’ Company, hereinafter called “Steve- -

_dore,” and acting within the course and scope of his.

employment’ when he was struck by a boom of the”

‘vessel BELGRANO, as he was operating a tractor in

reverse motion and pulling with a towline a railroad

car, then loaded with lumber, upon a permanently fixed

- railroad spurline on the dock along shipside for the

18 -

purpose of placing the lumber under. and within reach

of the vessel's loading gear.

Libelant instituted his libel in admiralty, ‘in: rem

_ against the vesstl and in pefsonam against its owner:

‘, and operator, respondents ‘ betow.. and .appellants here,

hereinafter collectively called “respondents.” The re-

-spondents ‘denied liability and impleaded Stev redore as

third-party libelant under: Admiralty Rule 56 in ‘a cause. .°

of indemnity.

_ The question of the aim - of respondents’ against

- Stevedore for indemnity was segregated cfid ‘reserved

until adjudicaiion of libelant’s ‘claim: aga respon-

dents.

Following trial on the segregated - issue -of liability on’

libelant’s claim and the nature and extent of his dam-

ages, the District Court -entered judgment a of —

libelant from which judgment respondents. eppeal.

Following trial on the segregated and reserved issue

of indemnity. the District Court entered judgment to the .

full exterit of libelant’s judgment, in indemnity: against

Stevedore, from which judgment Stevedo:« appeals. —

We wit first- consider respondents’ appeal. The judg-

ment in favor of libelant was based upon the —e

and conclusions of the District Court that

(1) The vessel was unseaworthy in,that her.

topping * ‘lift gear” for the: starboard’ Loom at No.

1 hatch ° malfunctioned and permitted the boom

. to fall upon the libelant because the pawls on the

ratchet in the topping “lift gear” were defective and

inadequate in that they did not drop into each cog

as the béom was hoisted so as to prevent the boom

from falling, and that at the time of the accident

Pi

. : 19 -

ibelant was engaged it performing | a part of the

ship's service. as a longshoreman in the process

of loading and storing her cargo;

(2) The respondents were. negligent in:

‘ (a) Failing to properly inspect the vessel .

and pa articularly the. ratchet and. pawl device

-to the hatch to, determime the defective nature

of same. since a reasonable insnection would

have disclosed 5 sora as of the pawls:

and . « | .

(b) Failing |to provi in the libelant with a

‘safe place to work.

“the ‘District Court fur 1er par that the un-

seawcrthiness of the vessel and the concurring negli-

gence of the respondents wére the proximate causes of

the ‘fallirig of: the boom and jibelant’ s resultant injuries.

. A detailed description of the mechanical-features of

_ the gear which operated the boom, the principles of its

functioning while operating ‘properly, the effects of its.

malfunctioning. and the human and. mechanical factors

which caused the boom to fall, would unduly and un-

necessarily extend this opinion. For details _concerning

such matters, ae yefer the interested: reader to the opin-

ion of the District Court reported at 189 F Supp. Dp. 103

(Apr. 14, 1960). which pinion also constitutes the find-

ings of fact and conc]usions of law of the District Court.

The facts surrounding t socident are stated in the

opinion (p* 107), ‘as follows:

“Immedately prior |to the . commencement of

the operation icading up) to the accident, the ratchet

notches and the pawls were in a-locked position and

the lift. gear’ was stead undér the weight of the

boom. The. work of bringing aboard the Jumber at

No. 1 hatch required. a ti of — boom in

fe¥ at =

zu ts

order to plate: the same in a working postion, and

the winck driver called to a ship longshoreman and

‘asked for ‘a hand’ in attaching the free end of the

pigtail line to the gypsy head. The winch operator

did not see this operation, and the lungshoreman

involved can’ give no satisfactory account of what

he ‘did in the way of fixing the free end of. the, pig- - ri

tail line to the gypsy head. In any event, it was

somehow attached, but evidently not properly. The

winch driver took up the slack in the pigtail line, ’

put strain thereon, and commenced the lifting of

the boom. The winch driver did not hear the ‘clank-

ing of the pawls (dropping of the pewls’ in -the

notches in the ratchet rims). After raising the boom

approximately three-four feet, the driver stopped

the winch, braked it, and started astern to see what

was wrong. Under the weight of the boom, the

pigtail line’ started to slip on the gypsy head and

* the boom lift’ wire rope on the drum of the lift gear

started to unwind. The boom in its fall gathered -

momentum, and the flailing free end of the pigtail

line prevented the winch driver’from manually put-

ting stress upon the same. The boqm, ‘uncontrolled,

fell.to the: starboard side of the vessel across the

‘dock and struck the libelant. From the commence- .

ment of the raising of the boom, the, unwinding

of the drum. and throughout the fall.of the boom,

the.pawls had fajled to fall into the notches by

gravity or otherwise. ie

“On the day before the accident, while in the -

process of topping the ‘boom involved through the

use of the lift gear, the pawls had locked in an up-

right. position and failed to properly function by

falling under gravity into the locking position,

and a longshoreman had used 4 piece of dunnage

to strike and knock the pawls into position.”

- Before considering the. errors urged upon us by the

respondents, we should state that respondents concede

that the finding of fact of the District Court that the

21 iS

- vessel was unseaworthy-im_ that the pdwis were "stuck

. and’ failed. to operate properly, is supported by arhple

_ evidence. Such finding is not challenged on this appeal

by respondents or Stevedore. :

Respondents’ contentions are: () The District Court ©

‘ erred as a matter of law in concluding that libelant was

entitled to the warranty of Unseaworthiness: and ( 2%:

The conclusion of. the District Court that the Tespon-

dents were negligent in the respects above stated is .

without evidentiary support and clearly erroneous. — fae *

dn holding that libelant was engaged _in_-perform orming.

a part of the ship's service and, “therefore, entitled to

the protection afforded seamen, the District Court re-

lied squarely upon the opinion of this Court in Pope &

- Talbot, Inc. v. Cordray, 258 F. 2d 214 (9th Cir. 1958).

In the Cordray case, a longshoreman was injured while

“the ship was at dock and ‘engaged in discharging its

cargo. The shipowner ‘had contracts with two stevedor- -

ing companies in the cargo operation. The contract with

- oné steveddring company covered the operations per-

taining to the discharge of cargo. from the ship's hold

‘to’ the ship’s side at the dock. The contract with the

other stevedoring company covered the operations per-

taining to the moving of cargo from the ship's side to-

place, of rest on the dock. Cordray was an employee of

the second mentioned stevedoring company and was a

foreman of the dock longshoremen. It was one of his

duties to see that the cargo was moved to its. first place.

‘of rest from the ship’s tackle, and it was his duty also

to coordinate the activities of the dock working long-

"shoremen with those of the ship working longshoremen

_ in order. to have terminal employees and equipment

22

available at the end ‘of ship's tackle to keep ‘the cargo.

_ moving. While most of the work of. Cordray was done \ .

upon the dock, the evidence showed that Cordray was |

aboard the vessel at. the time of his injury for the pur-

pose of coordinating the cargo handling / work of. the

dock longshoremen with that of «the longshoremen

. working on the ship. The accident to Cordray happened

-when he..went -on- board ‘the ship fo ascertain whether ~~

“the gang of longshoremen.on the ship were going to go

home or shift to another hatch, so that Cordray could

determine whether or not he would keep his dockside °

longshoremen available to continue work. In the course

of the opinion (pp. 217-18), this Court stated:

“[2] In the instant case the appellee, although

performing most of his work on.the dock in the

_ moving of the ship's cargo-from ship's tackle to its

first place of rest (which was part of the ship's

obligation), was on board the ship when the acci-

dent happened. Under the testimony, he was co- _—

ordinating the unloading of the carzo from thé

ship’s hold to its place of rest on the dock. We hold

that the duty of providing a seaworthy ship and

gear ‘at the time of this accident extended to the

appellee, whether or not appellee was on board

_ ° the ship or on the dock. The test is. what was the

z nature of his work? He was performing a service

. for the ship in the discharge of its cargo. His em-

ployer was under conttact wth the shipowner to”

take the cargo from the shipside and -to put it in a

place of storage, and appellee was engaged in the

performance of this work. The appellee's work was

‘the work of a longsioreman and he was entitled, ©

to seaworthy gear while he was performing his

service.” [Footnotes omitted. ] .

During the trial of that case, counsel for the shipowner

‘3 stipulated, “% * * that it.is part of the obligation of the.

— eiieestc et 23

ho warchouse.” Further, it appears in that

j case’ that ea i the: stevedoring. companies - ‘had the

right’ to use i ship's. unloading gear ana equipment

2 ae i ‘and to go upon, such placés under the shipowner's con-|

trol as -were reasonably neces$ary in -the performance -

a by: the-employices. of ¢ each Stevedoring company of the

| “vork of discharging the cargo frotm-vessel_bold to point

st on. the deck floor-within the dock warehouse.

‘It is clear -under the facts of Cordray that is was

the contractual obligation ‘of. the shipowner to ‘move

the cargzc from the hold of the vessel to a place of rest

on the picr along shipside but,. ‘additionally. to. move

ac cargo to, the dock warehouse. Cordray. was on board

oe chip. w hen injured performing his duty of coordinat-

in* the unloading of the cargo from thefship’s hold to

ies place of .rest on the dock. He wdé assisting in the

unicading cf the ship, which is the type of work tradi-

-Conally ‘performed by seamen. Clearly he was entitled to

the Jiggs afforded seamen @fhe statement in Cord-

ray, “* * © that the duty of providipg a seaworthy ship

and gear at. the time of this accident extended to the

appellee, w Re ether cr not-appelice was on beard the ship

or on the dozk,” (emphasis added) must be read in the -

light of‘ the facts of that case. The Cordray opinion

cannot be constigied to extend to protection of the war-

ranty of seav ‘orthiness to any dock longshoreman whose -

injury’ results from. unseaworthiness of a ship without

regard to the type of work in which he is engaged.

Hence, unlike the facts in C6rdray, the. moving of

the lumber from the dock to the vessel’s loading gear -

-

Prd

rr ae

, Satine . #

was not part of the ship's seryice unless it can be said

that the work of libelant was of the type re

performed by seamen.. -

In the instant case, the test of libelant’s right to the

protection’ of the warranty of seaworthiness is whether

he was engaged in the type of work traditionally ‘done

by seamen. In United Pilots Assn. v. Halecki, 358 U. §.

613, 616-17, the Supreme Court stated:

“The eventful development of the doctrine of

unseaworthiness in this Court js familiar history.

Aithough of dubious ancestry, the doctrine was

born with The Osceola and emerged full-blown 40

years later in Mahnich v. ‘Southern S. S. Co. as an

absolute and’ nondelegable duty which the owner

‘of a vessel. owes to the members of the crew who

man her. The justification for this rigid standard

was: clearly stated in the. Court's opinion in Mah ;

nich: aoe

“He [the pam is subject to the rigorous

discipliné of the sea, and all. the -conditioris

of his service constrain him to accept. without

ae critical examination and without protest, work-

; ing conditions and appliances as commanded _

by his superior officers.” 321 ‘U.S. 96, at 103.

“With the nature of the duty thus defined, it

‘remained for two ‘other decisions of the Couft to

amplify its scope. Seas Shipping Co. v. Sieracki and -

- Pope & Talbot vy. Hawn made clear that the ship-

owner could not.escape liability for unseaworthi-

ness by delegating to others work traditionally done

by members of the crew..Whether their calling be

labeled ‘stevedore. ‘carpenter, or something else.

those whoa did the ‘type of work’ traditionally done

by seamen, and were thus related to the ship in

the same way as seamen ‘who had been,or who

were about to go on a voyage, were entit! led to a

seaworthy ship. See 346 U. S., at 413.”

\ 25 ins ‘

In the Hglecki case, recovery under the doctrine of un-

seaworthiness Was denied upon’ the ground that the

work of the injured workman, who,had gone aboard to

‘clean the generators with carbon tetrachloride was in

no wat the “iype of work” traditionally done by the

ship's crew, and. it was held that to extend liability for

unseaworthiness to the decedent would ‘‘distort the law

of Mahnich,.of Hawn and Sieracki beyond recognition.”

~

_ Tne evidence of. this. case relating to the nature of

libelant's work is not in dispute. ‘The libelant was driv-

ing a tractor on the dock.’ His job was” to push or pull

railroad cats loaded with lumber. up to a point on the

spur track where the lumber could be reached by the

“ship's loading gear. He did fot participate in loading

the lumber onto the vessel or in stowing it. He had noth-

ing to do with ship's tackle nor did his work require’

him to perform any service aboard the ship. His work

was performed solely on the dock and jn-an operation

preliminary to, but separate. from, ‘the work of loading

the lumber onto the vessel. Although libelant’s work

brought him close enough to the vessel tw» be injured

by -the falling boom, liability ariseg~not from the place ~

of injury but. from the nature of ¢he work being per-

formed. | ene a : v?

Was the nature of libelant’s wor} of the . tradi-_

tionally performed by seamen? / e only firmative,

testimony in the record on the subject is uncontradicted

expert testirnony to alo e effect _thatJibelant’s work was

not of the type traditionally pérformed by seamen. In

-our view, the District Court's reliance on Cordray was

_ misplaced.

_ The burden of proof was upon libelant to show that

4

26

" “he was entitled to the protection afforded seamen. In

our view, he failed ‘to do so. In so holding. we.do not

purport to lay down a fixed line of demarcation between

“seamnen’s work” and. “shoreside work.” Our holding

is simply that the’ libelant. failed to meet his burden

of proving that the nature of the work performed by

him was the “type of work” traditionally performed by

seamen, se ,

‘We will now consider. respondent’ s second contention

_ that -the finding and conclusion of the District Court

with respect to. negligence on the part of respondents |

is without. evidentiary support.

The vessel was of German design, newly-built, en-

@ gaged asa freighter, and-appeared clean. The vessel's

starboard boom at het No. 1 hatch was fitted with a

\topping “lift gear’ of German design, semi-automatic

‘ opération, and a permanently affixed appurtenance of

the vessel. The “lift gear” was safe and in nowise ap.

inherently dangerous appurtenance when functioning

properly. The vessel had five hatches, each with at

least two “lift gears.”

_- The vessel: had beén in Wiieiitite B.C. where it

worked’ on October 6th and 7th prior to ‘its arrival at

Portland. The vessel arrived, at Portland on the morn-

ing’ of October 9th. Early that morning, before the

stévedores commenced working, the ship's crew used

the topping “lift gear’ machinery to raise the ‘booms,

including the No. 1 starboard boom, from their cradles

to a raised position so that they would be ready for

the stevedores:

From then ufttil the accident on the following day of

2

27 -

October 10th, ‘the booms remained -raised: Later in the

morning’ of October 9th, while the stcvedores * were

changing the position of. No..1 starboard boom,’ they .

discovered that tlte pawls were stuck, and one: of the

stevedores used’ a board to pry them into place on the

ratchet. This fact was never reported to any of. the

ship's officers or créw, although | known to the steve-

- dores’ hatch boss. There is no evidence that any officer

or member. of the crew was aware of such realfunction-

ing. .The “lift gear’ at No. 1 hatch was used through-

out the rest of the day of October 9th. ‘The accident

occurred on the. morning of October 10th, the circum-

stances ‘of which have been previously detailed.

2 There is rio evidence in the record of. any foreign

_ materials in and about the working elements of the ©

_ ratchets, notches, pawls and the bearing of the pawl

axle, nor physical damage of the Working. parts’ immedi-

ately prior to the accident, .arid the Pistrict. Court so

found. As to the ‘cause of the malfunctioning, the Dis-

trict Court stated, “The law*of physics tells us that it

ofiable to, infer that some abstract and necessarily

patent -binding force or strain. among the workny parts

- prevented a ‘narmal automatic mechanicai action and

function (dropping of the pawls by gravity), and there-

by destreyed the usefulness arid. safety. of*the gear and

rendered the same dangerous. and unsafe.”

-The fact that the vessel was found to be unseaworthy

because the pawls in the “lift gear” were defective and ~

inadequate, does not establish negligence on the part of .

the respondents. The duty to furnish a seaworthy ship .

is absolute and non-delegable. It is a specie of liability ~

without fault.’ Hence, the burden of proof rested with

C3

°

28

‘ p ° -

libelant to establish, by a preponderarice of evidence,

that negligence on the part of respondents was @ prox-

imate cause of libelant’s injuries and damages.

The District Court concluded that respondents were

* negligent in failing to properly irispect. the pawls and

ratchet device to determine the defective nature of. the

same. It was libelant’ s burden to establish that.respon-

dents breached a duty owing to libelant. The District .

Court did not mention the nature of the duty owing by’

‘respondents to Jibelant, but we assume in light of the

Court's finding that the breach consisted of fie failure

‘of respondents to properly inspect the pawl and ratchet

_ device, that the duty owing by respondents was to make -

“a reasonable inspection: to see that the gear and equip-

ment furnished by them operated propertly.

There is no intimation in the written. opinion of the -

District Court that in reaching thé conclusion of negli-

gence, the Court.relied in any way upon ‘the doctrine !

of. res ipsa loquitur, nor does libelant make. any ‘such

contention on’ his appeal. Hence, negligence cannot be

_inferred from the mere happening of the <ccident, nor

_ does the accident éstablish a prima facie case of negli-

gence on the part of the respondents. Nothwithstanding _

proof of the happening of the accident, the full burden

of proof of negligence remained on..the libelant.:

Proof offered by the respondents, -which we do not

detail in this opinion, is of. no help to libelant since all

such proof tended to establish that the vessel's gear

_ and equipment were functioning normally and properiy

whén the stevedores took over the cargo” loading ope- .

rations. Libelant argues that the trial J udge was not ~

required to accept such testimony in view of the happen-

v 29

ing of the accident and the discovery by the stevedores,

shortly after. they commenced their cargo loading ope-

rationis, <of the ‘malfunctioning of the pawl and ratchet

device. 'We agree. However, disbelicf by the Court of

such proof’ does not establish a breach of respondents’

“duty to gnake a reasonable inspection to. see that" the

le gear and- equipment. furnished for the ‘cargo Joading -

was‘ in good condition and. operating * normally. The —

burden of proof was upon the libelant to establish

‘negligence and not upon. respondents: to establish free-

dom. from negligence.

What did’ libelant estabjish? He established: ( 1) That

the accident occurred: (2) That it occurred because of

the malfunctioning of the pawl and rachet device: and

(3) That the stevedores. discovered the, malf- inctioning °

of the device shortly after cargo loading operations

cummenced on the day before the accident. From these

facts, libelant contends that the District Court properly

‘inferred that a reasonable inspection by respondents

“would have revealed the cause of the malfunctioning.

The vice of “that argument 4s “the absence from the

record of any ‘testimony establishing, or tending me !

‘establish, the standard of conduct which respondents

were required to meet in discharge of their duty to~—

make a reasonable inspection to see that the gear and

equipment furnished by them operated. properly. There

_ is no testimony in the record of what conduct on’ the

-

rt of operators and owners of vessels of the type or

_similar to the type of “the BELGRANO end similarly

‘equipped, was usual-or customary or required by good

practice or by law or regulation in making inspection

of gear and equipment. Is the, standard of conduct met

oe

wf

:

Oo

eee 30

by a visual inspection. of the gear and equipment? Does

the standard of aonduct require an operatonal test of

the gear and equipment. of a vessel? Does the standard.

i;

dard. of conduct

use of the gear and equipment? The’ reeord leaves us -

‘completely in the dark - ‘in. attempting to nee: answers |

bes these questions. SA.) rahi | Fike ;

7A On’ the record in this case, we are constrained to hold

that the libelant faired to- meet. the burden ‘of proof ©

‘sresting’ upon him of establishing negligence on the part

.of the respondents.

The District Court also concluded that the respon-

dents were ne gligent: in failing to furnish :belant with —

a safe _— t. work. This point is not mentioned in any

of the sev rol briéfs which have been filed. There is no

evidence in the record that the respondentS* furnished or -

‘were in any way obliged to furnisk to libelant the place

to work where he was working. ~The District, Court's,

‘ conclusion of ‘negligence on this point is whoily un-

supported, | .

The judgment and decree, from shies respondents

- appeal is reversed. fe ree a ls

This .dispositic. of the case makes it unnecessary.to

consider the question of ° indemnity since the decree of

indemnity rests upon the judgment and dectee evhich

is reversed by this opinion. The deéree of indemnity is

likewise reversed. ra : :

(Endorsed) Opinion Filed Feb 8, 1962.

nie _ . Frank” H. Schmid, Clerk.

of conduct requ “a constant inspection? Does the stan- |

quire inspection | before and after each ,

-

c

31

- In the United States District Court

j For the District of Oregon

.

_, Civil No. 10027

GEORGE WEIGEL,

Libelant,

V. ..*

MV BELGRANO, her engines, tackle and gear, and

any and all persons claiming any interest therein,

and PARTENWEEDEREI, M. S. BELGRANO,

Owner and. Operator, SEEKONTER LINE, Char-

terer ard or Operator,

_» RUDOLPH A. OETKER,

Respondents.

Clammant,

i

BRADY-HAMILTON STEVEDORE

. COMP ANY, a corporation,

East, J

_ Third- faity Respondent.

OPINION ™

Nature of Cause

This is a libel in “personam and in rem with foreign

attachment | for damages resulting from personal in-

juries ‘sustained by libelant as. a result .of ‘the alleged

.unseaworthiness of the MV Belgrano (vessel *) and

the negligence of the respondents.

The respondents impleaded - Brady-Hamilton Stcve-

dore Company (“‘stevedore”) as third-party-respon- -

nity.

dent under Admirality Rule 56 in a cause. of imdem-

The libelant at the time of the accident involved .

was a longshoreman employee of stevedore then un-

der contract to bring aboard and stow the vessel with

ia

¢

‘\

-32

Y

cargo; including lumber. The question -of the claim of ©

respondents for indemnity from stevedore has been

- segregated and sa at until adjudication of Jibelant’s °

claim:

The segregated issue of liability to libelant’ and

the damage’ has been submitted’ to the Court following -

a iti by the: Court and tie filing of brief.

Pertinent Undisputed Facts.

On or about October. 10, 1958, the.. veeue was lying

adjacent to the dock at Terminal No. 1 on the Wil- |

lamette-River in the Port of Portland, Portland, Ore- . |

gon, and longshoremen employed .by ‘the stevedore

were immediately engaged in movin, (topping) the

- starboard boom at No. 1 hatch in ides to tring aboard

‘lumber cargo from the ‘dock when the boom and its.

‘rigging fell and ‘struck to libelant, who: was working

on the dock as a fellow longshoreman, causing him |

personal injuries. a

‘This Court has admiralty and maritime jurisdiction

of this cause in rem of the vessel and in personam of

the named parties. fn

Court's Findings of Fact As To Liability

"This Court finds that:

Likes 3 was struck with the falling boom ie he

was engaged in his duties as- dockworking longshoreman |

and particularly operating a tractor in reve se motion

and pulling with a tow line a railroad car, tien loaded

_with. some of ‘the lumber cargo, upon a permanently

fixed railroad spur line on the dock along shipside. The

purpose Was to place the lumbér-laden railroad car un- ©

33

-

der and within the reach of vessel's gear so as to load

the lumber upon the vessel.’ (Figure 1.)* —

The falling boom ° struck the libelant without any:

notice or warning to him.

The. vessel was of German design, newly-built:.and

- engaged as a freighter, and she appeared clean..

‘ ‘The vessel's starboard boom at her No. 1 hatch ‘coi

y been and was at the time of the accident fitted, among

. other things, -with .a topping lift winch drum (* ‘lift

gear’) of German design. This. gear was a “permanent-

ly affixed appurtenance. of the vessel. and, unlike the

common American style of chain and shackle fastening

topping gear, was semi- -antomatic in operation.* hal dee

2.) Ae a.

The larger wire rope wound on the left portion of

the drum on the lift gear and extending upwards be-

tween the: words “notches” and “pawl” extends on up-

wards and through a block on the mast, and is made

fast near the top of the boom involved. The lift gear

is stationed. just ‘abaft of. the starboard winch at No. ‘1

hatch.” (Figure 3.)

The smaller ‘steel rope wound ori the vintit portion

~ of the drum has been referred to as “topping lift pen-

nant” and “pigtail line” (“pigtail line’), and the un-

wound portion thereof lies free’ on the deck when not ~

in use. The free end of the pigtall line -is equipped with: »

' Footnotes set out at pages 41-44. oe

* All Figures are printed at close, of this Opinion,

following p.-49, infra.

34

A _ : ; ae)

a “hook,” “dog” or a “pawl’’: (‘ ‘dog’ a (Figure 4.)

“ix adie head” or “gypsy head” (“gypsy head’) on

the winch has.a hole or cutting through its cutside rim.”

‘(Figure 5.) To operate the boom lift gear .the dog is

inserted ‘in. the hole in the tim of the gsypsy head.®

(Figure 6.) This pigtail.line dex with the cuttin; in the |

rim of the gy psy head is also ci German concept and

. design ‘and, wher the deg is properly inserted and lock-.

ed by a twist in the gypsy head cpen'ng,’ (Figure 7.)

“the pigtail line ‘is made fast te ‘the ey psy head and

cannot be separated by direct pull ‘cf the winch un-.

less there is a failure of the metals. When the lift

car’ is cperating normally, the strain of the winch

causes; an unwinding of the ‘pigiail line and caises

_ a reverse winding of the boom ‘topping~.wire rope

.upon the drum and a lifting of the boom. Slack upon

_ the pigtail line’ will cause an unwinding of the topping

‘ wire rope by the weight: of the boom, a lowering there-

of, and a winding of the pigtail line upon the drum. THe

drum of the lift gear has as an integtal part thereof, at

each end, a permanently fixed circular ratchet of pawl

"rim or wheel made of ‘cast metal provided with a scries

of cammed ratchets on which permanently attached

but free rising and falling .pawls ride and rise and drop

into the intervening notches by gravity. These two

pawls are rigidly connected together with an iron bar

and operate on a single axle. When one pawl’is up so

4s the other, and vice versa. When the lift gear in the

boom-lifting operation functions correctly according to

‘intent and design,” the pawls frecly ride and rise ‘upon

| the cammed ratchets and drop automatically by gravity

A

¥g

35 ee

into the notches, thus forming a locking device to pre-

vent the drum from turning back under the weight

of the boom following an intentional slack or an un-

expected failure of the pigtail line. When the gear is

used ‘to lower the boom, it is necessary for a long- .-

F shoreman to manually. hold or otherwise prevent the

pawls frem. falling by gravity into the notches. - The

action of a longshoreman in lowering or- letting the

pawls fall into the. notches will lock the drum and_

prevént the continued lowering of the boom or a fall-

_ ing of the ‘boom uport a sudden parting or failure of

the pigtail‘line. - . -

The intent and design of the Jift gear is an im- .

provement upori the « ’mentioned American gear and

is a safe and is in nowise an inherently dangeorus ap-.

purtenance when functioning properly. There would

be a malfunction of the gear gécording to design and

intent if the pawls did not freely: ride and rise and drop

by gravity or in anywise fail to drop freely by gravity

‘when released from a manual holding.

Immediately prior to the commencement. of the

operation leading up to thie accident, the ratchet notches

and the pawls were in a locked: position and the lift

gear was steady under the weight of the boom. The

work of bringing aboard the lumber at- No. 1 hatch

required a topping of the boom in order to place the

same in a working position, and the winch driyer called

to a ship longshoreman and asked for ‘‘a hand” in

attaching the free end of the pigtail line to the gypsy

: head. The winch operator did not see this operation,

a,

36

. = el *-

. A =

/ ; %

e Ps 4 . °

- and’ the longshoremian involved can give no satisfactory

account of what he did in the way of fixing-the free

rend of the pigtail line to the.gypsy head. In any event,

it--was somehow attached, but evidently not properly. |

: The- winch ‘driver took up the slack in the pigtail line, °

put strain «thereon, and. commenced the. lifting of the

boom. The winch driver did not hear the “clanking”

of the pawls (dropping of the pawls in the notches -

in the ratchet rims). After raising. thé boom -approxi-

mately three-four feet, the drivér stopped the winch, .

braked it, and started astern to see what was wreng.

Under the weight of the boom, the pigtail line started

to slip~on the gypsy head and the boom lift wire rope

on the drum of the lift gear started to unwind. The

~ “boom in its fall gathered: momentum, and the flailing .

free end of the pigtail line prevented the- winch driver

from manually putting stress upon the same. The boom,

pncontrolled, fell to the starboard side ‘of the vessel

across the dock and struck the libelant. From the com-

‘mencement of the raising of the boom, the ‘unwinding -

of the drum, and throughout the fall of the bdom, the

pawls had failed to fall into the notches bad gravity or

otherwise.* .

On the day. béfore the accident, while in the process

of topping the boom involved through ‘the use of the lift

gear, the pawls had locked in an upright position and

failed to properly function by falling under gravity into

the’ locking position, and a longshoreman had used a ©

piece of dunnage to strike and knock the pawls into

vaste

, @ . —

yo =A

Court’s Conelusians of Law As To. Unseaworthiness

and Negligence

That there was a malfunction in the interit and

design and of the lift gear durime the operation of’ the

lifting of the boom in that the pawls failed to freely

. ride the’ cammed ratchets, and drop freely into the

notches is. self- evident. Otherwise. there would’ have |

been a maximum drop of the boom to the’ extent of

some seven inches or a ieievuction of the locking device

of notch and pawl, which there was not. Therefore, the

Court concludes:

—() That the said- vessel _was unseaworthy in that:

“3. That (pawls) on the ratchet in the, topping

lift gear was (were) defective and inadequate: in

that it (they) did not drop into each cog as the

- boom was hoisted | so as to prevent the boom from

re falling.’ 7

(2) That the respondents and the chitinase were —

negligent in:

“4. Failing to Lee inspect said vessel and

particularly the said ratchet and (pawl) device

to said hatch to determine the defective nature of

_same * * * ” (Reasonable inspection would have

‘ disclosed the malfunctioning of the pawls, known

to the longshoreman — the day before.)

“4, Failing to provide — libelant. with | a safe

place to work * * *"

43). That ' said unseaworthiness of the vessel and

concurring negligence of the respondents and claim-

ant were the proximvte cause of the falling of the

boom'® and libelant’s resulting injuries.

' ~ 38 . . .

Courts’ Cgnclusions As To Liability To Libelant

_The Court concludes that the libelant at the time

of the accident was engaged in performing’ a -part of ;

the’ ship's service as a longshoreman in the process of

loading cand _Stowing her: cargo. Particularly he was

engaged in moving or bringing this lumber cargo from

its last place of rest following handling by other's to a

position on the dock shipside in order to be reached

by the ship's gear and tackle. In the language of Circuit

Judge wrung of the Ninth Circuit:

“The ASpellee’s (libelant’ s) work was the work

of. a longshoreman and he was entitled to seaworthy

gear while he was performing his services.” Pope ©

. & Talbot, Inc v. Cordray, 258 F.2d 214 (CA )

1958).

And, this “duty of providing a seaworthy ship and gear :

at the time of this accident extended to the ( libelant),

whether or not (libelant) was on bonee fie ship or on

the dock.” |

That in the Cordray case the appellee was a fore-

man of dock longshoremen and he had the duty of

coordinating the activities of ‘the dock- working * long-

shoremen: in the unloading of the vessel. Surely there

can be na distifction between a (1) (Cordray) dock-

working longshoreman moving cargo from the reach

of the ship's tackle “‘to its first place of rest” on shdre

(258 F.2d 214, 215) during the discharge of cargo: and

(2) (instant case)’ a dock-working longshoreman bring-

| ing cargo from its last place of rest otr shore’ within

the reach of the ship's tackle during the loading

of cargo. Both dock-working longshoremen stand in a_

r 39

like degree of ‘relationship to the fellow ship-working

_longshoremen. Reason ‘dictates they- respectively are -

engaged in the work’ of the service and business of thc

vessel, which is the ultimate test:’’ Roe

_ Therefore; the’ vessel is liable to the libelant for

her unseaworthiness, which -concurred with the negli-

gence .of the respondents and claimant in causing li-

. belant’s injuries.

Court's Findings of Fact and Conclusions of. Law As

s To Libelant’s Injuries and Damages

The Court finds that: «*

The libelant at the , time of the accident was’ an

able-bodied man of 58 years, physically able to per-

fotm the regular and normal duties required of him

.in his position of a tractor-driving dock-working long-

shoreman: ates! .

+ As a result of being struck by the boom, libelant

suffered nervous shock, physical and mental / ‘pain and ©

. suffering. a brain concussion and a_ skull fracture,

causing complete unconsciousness of several hours’

duration, broken hip, a memory loss of » temporary .

duration, severe lacerations and «contusions, a severe

tearing, twisting and wrenching of the muscles, tendons,

‘ligaments and soft tissuesof his Jimbs ‘and body. and,

soft tissues of his head. As a result ‘of said injuries the

Fé libelant was temporarily totally disable and impaired

from performing any work or labor from the date of -

the accident until the month of June-July, 1959, at.

which time his medical doctor advised him to return

og

—s

‘ 40

to work, or for a yeasonably ascertained period of nine

_. calendar months. Thereafter, until the date of trial;on

February 23, 19M), or for a period reasonably determin-

‘able ‘as seven and one-third calendar months, libel-

ant was partially totally disabled from performfng

any work for gain. Some of said injuries have caused

a permanent partial loss of the body functions in the-

region of thé neck and shoulders and have permanently.

but partially impaired libelant’s ability to work im his

prior occupation. The libelant has no education or oc-

‘cupational training which would enable him to engage

in work other than that in the allied field of a long-

' shoreman. |i alate

The libelant’s.wages from and after the date of.

the accident until the time of trial could have been -

reasonably expected to average the sum of $573.39 —

per calendar month. The libelant has, since the date

of the accident until the date of trial, on account of

his injuries, incurred reasonable and necessary doc-

tor, hospital and _medical expenses in the amount of

$1, 032. 55. :

‘ Therefore; the Jlibelant is entitled to recover as lost

wages during this period of total and partial disability

to work, the sum of $7.675.00, and is further entitled

to recover the sum of $1,032.55 thedical expenses, and

as general damages the sum of $32,500.00.

Proctor for the libelant is requested to submit ap-

| propriate form of decree and judgment, adopting as

a part thereof and as the Court's findings of fact. arid

conclusions of law the foregoing.

Dated April 14, 1960.

a

FIGURE 2 FIGURE 3 FIGURE 4

- FIGURE 1

FIGURE 5

4l

Footnotes

1. Respondents’ Exhibit 54 (16). +

2. Attached to respondents’ interrogatories to ship's

carpenter, Thomas Thomasen, on file. herein. .

3. Responderits’ Exhibit 54 (1).

4. Respondents) Exhibit 67(a).

5. Third-Party’s Exhibit 100¢c). |

6. Respondents’ Exhibit 54(6). —

“4

..7. Respondents’ Exhibit 54(8). GF es

'8. There is no evidence in the record of ‘any for-

eign materials in ‘and. about the working elements of

the s«atclfets~- notches, _Pawle and the bearing of the

* pawl, axie, nor physical damage of the working parts

immediately prior to the .accident. The law of physics —

tells us that it is reasonable tc’infer that some abstract |

and necessarily patent binding force or strain among

the working parts prevented a normal ‘automatic action

: and function (dropping of the pawls by gravity) and

thereby destroyed the usefulness and safety of-the gear

- and rendered the same dangerous and unsafe.

See Hagans vs. Farrell Lines, 237. F.2d 477

: — 3, 1956). where \the malfunction of an automatic

brake (otherwise a safe device) on a winch failed to

hold a load and permit da “drift” and some five or

more feet of cable to ae. the winch. drum, causing

an injury to a ship- -working longshoreman. The winch

was held to be defective anid rendered the vessel un-

seaworthy. 1 ., K

See pee ‘Cromedy-” v. The J. H. “Fisser, "358 us.

42 -

_ 423 (Mr. Justice Douglas, 1959), pp. 425, 426:

“The safe working load of the boom and ‘cargo

runner and .topping-lift handling the load at the

time of the accident was three tons, each. This

, equipment, which was part of the unloading and —

loading gear of . the vessel, was in good condition.

The winch, which served the boom, had a ‘cut off

device or circuit breaker. (An automatic device to

prohibit reverse action.) It was set to shut off the

current on the application of a load of about six

tons. which was twice the safe working load of the

unloading gear. The circuit breaker operated per- .

fectly. cutting off current at thé point of stress for

which it was set. It had been set to operate at a load

slightly more. than twice the safe working load

of the unloading gear (malfeasance) by employees .

of the ship before the winch was turned over to

petitioner's fellow employees. for operation.”.

pee “The work of loading and unloading «is histori-

7 cally ‘the work of the ship's service.” * * *

“This protection against unseaworthiness imposes

a duty which the owner of .the vessel cannot dele- .

gate. * * * Unseaworthiness extends not only to the

vessel but to the crew * * * and to appliances that -

are appurtenant to the’ship. * * * And as to appli-

~ ances the duty of the shipowner does not end with

supplying them: he must keep. them in. order. * * *

The shipowner is not relieved of these responsibili-

ties ‘by turning control of the loading or unloading om

of the ship over to a stevedoring company. * * *

_We need not go so far to sustain the District Court

here. For there is ample evidence to support the

finding that these stevedores did no more than bring-

into play the unseaworthy condition of the vessel.

The winch—an appurtenance of the vessel—was not

inherently defective as was the rope in the Mahnich

_case. But it was adjusted (neglected and permitted

to become’ inoperable—non- -feasance) by those act-

ing for the vessel owner in a way that made it un-

safe and dangeorus for the ‘work at hand. While the -

43

big pees

rigging would take only three tons of stress, the cut-*

off of the winch—its safety deviee—was set at twice

that limit) This was rigging that went with the

vessel and was: safe for use within known limits. -

Yet those limits were disregarded by the vessel

- owner when the winch was adjusted. The case is

no different in principle from loading or unlcading ,

_* eargo with cable or rope lacking ‘the test strength

for the weight of the freight to be’ moved. In that

case the cable or rope, in this case the winch, makes

the vessel pro tanto unseaworthy.” 358 US., at pp.

- 427-8... ae ree ee 3 Ae

“10. Assuming the. fastening devices of the free end

‘of the pigtail and in the _gypsyhead were defective or

that they were improperly, united by. the longshoreman,

such condition was not the cause of the falling of the.

boom. It is true that if these jocking devices had func-

tioned properly the pigtail line could not Have become

free and slipped upon the gypsy head. It.appears from

the evidence that there -was sufficient friction by the

winding of the pigtail line upon the gypsy head to raise

the boom some. three or more feet and it was only wher,

the wirich was braked that the weight of the beom over-

came the friction of the pigtail line upon the gypsy -

head. Had the notch and pawl devices on the lifting

gear functioned properly, the winch would have been

stopped and braked, more friction. would have been

created by the winding of the pigtail line® upon the

gypsy head, and there could not have been the over-

ming stress of the weight of the boom upon the pig-

‘tail line. A proper functioning of the locking. device on .

the gYPsy head would in all probability have stopped

or prevented the fall: however, any improper function-

44

ing of the locking ‘device was not the cause of stopping a

the operation of the winch and the following sequence.

of events directly resulting in thé loss.

Respondents: can build no avenue of escape from the

language of Titus v. The SS Santorini, 152 F.Supp. 63.

affirmed 258 F.2d 352. There a preventer wire and guy.

rope for a starboard boom parted under the weight of

' a sling load as it came up and aboard. Following the

trial. and after a study of “‘the complete record and all

of the evidence presented”. (152 F.Supp. 64), my able |

colleague from Idaho; sitting. on this bench, could find

no causation for the parting of the otherwise ample

wire and rope which was attributable to and rendered

the vessel unseaworthy.

' “3, 4] As has been stated the ‘burden rests on

the libelant to prove the allegations’ of unseaworthi-

ness, and where there is nothing shown to the con-

trary, it may be presumed that was the case merely

because the accident happened wi¥le the gear was

being used in the usual ‘and customary manner

However, here the presumption is overcome with

evidence to the contrary, making it necessary that ~~

there be some further affirmative showing on the

part of the libelant that the unseaworthiness alleged

' existed. There is no such showing here.” 153 F.

Supp. 65.

The trial court

“# + * was expressing an abiding belief that ap-

pellant had not proved what caused the breaking

other than that it had been shown that ‘the force

exerted on it was greater ‘than its on

strength.”’ * 258 F.2d; p. 354.

“The trial court on the facts here had the Priv-

ilege of beirig honestly puzzled as to causation.

45

Without a conviction that the accident happened.

because of a definité condition for which the appel-

Jee was to blame, it had no daty to find for the

injuredestevedore.”” 258 F.2d, p. 356.

’

Titus might have saved the vessel“had some negli-

_ gent act of the longshoreman in handling the locking |

devices of the pigtail line. dog and gypsy head been the

proximate cause of the failure of the gear.

“This court is not conyineed that the instantan-

eoys acts of a fellow longshofeman rendering the

equipment unseaworthy and injury to the: long- -

shoremen are chargeable to ship as unseaworthi-

ness.” 258 F.2d, p. 354.

Referring to Grillea v. United ‘States, 232 F.2d,

919, 922. | oe "

11. “- * * * Historically the work of joading and

unloading. is the work of the ship's service, per-

formed until recent times by members of the crew.

[328 U. S. at page 96, 66 S.Ct. at page 878.] * * *

That the owner seeks to have it done with the, ad-

vantages of more modern divisions of labor, does

not minimize the worker's hazard and should not.

nullify his protection. [328 U.S. at page 96, 66

S.Ct. at page 878.] * * *

“*Accordingly we think * * * that the liability

arises as am incident, not merely of the seamen’s

contract, but of performing a ship’s service with the

owner's consent.’"328 U.S. at page 97, 66 S.Ct. at

_ page 878.”" si

“Pope & Talbot, Inc. v. Cordray, 258 F.2d 214, at

p. 216. — a PA

| -[ Endorsed]: Filed April 14, 1960. .

a

?

‘ 46

e

[Title of District Court and Cause. ]

‘ - 7 OPINION errs ray

East, J.

Libelant was “awarded hereitr a decree of damages’.

against the Respondents and Claimant (Petitioners) in ..

compensation for personal injuries received while work-

ing as a® dock-working longshoreman employee . ‘of

Brady - Hamilton Stevedore Company (Stevedore),

‘third-party resporident herein, then erigaged in loading

and stowing the M V Belgrano (Vessel) with lumber

cargo and in’ all respects performing the stevedoring .

wérk on dock and on board the Vessel pursuant. to a

stevedore contract with the representatives of Vessel.

With the view of placing ultimate liability, if any:

. at the doorstep of Stévedore, the Petitioners interpleaded .

the Stevedore, petitioning for indemnity and repara-.

tions for all loss that they might sustain by reason of

Libelant’s claims. The Petitioners contend, inter alia:

ie ‘

"2. As contracting stevedore, impleaded respond-

ent. owed: the implied contractual obligation to per: .’

form the stevedoring work in a safe and proper

manner. — ie ;

“6. If (Petitioners) herein should be held liable

in this’ case to libelant. then (Petitioners) fave

a right to recover. over against impleaded (Steve-

-. . dore) for full and complete indemnity because of

-* gaid {Stevedore’s failure to perform its stevedore

contract in.a safe and proper manner * * *:"

’

and machinery of the vessel were

rthy condition. and the accident

in failing

‘and par-

the topping

was caused by negligence of (Stevedore

- to properly use said gear and machine

_ ticularly in failing to properly secur

. lift pennant (pigtail line) to the wi

“5. If the gear and machinery of the vessel were

unseaworthy: at the time of the accident, which

(Petitioners) deny. then said 4unseaworthiness was

either created by the negligence of (Stevedore).

or was ‘brought into. play’ by (Stevedore’s) .1m-

proper use of said gear and machinery or by (Steve-

dore’s) negligence in using said vear and machinery

after knowiedge of its condition.” —

c.

“6. * * * and (Petitioners) are entitled to Te-

‘ cover from and against (Stevedore) for all damages

that may be awarded herein and for costs and ex-

penses, including such reasonable attorney's fees as

may be incurred .by (Petitioners) in .defending

against the libel.” .

‘The issue of indemnity was segregated. and reserved

awaiting adjudication of Libelant's claims against Peti-

tioners.. | e's

In connection with the segregated issue of Libelant’s

claim, tthe Court: concluded’ that the Vessel was unsta-

worthy in that her topping “lift gear’ for the starboard .

‘\ boom et No. ‘| hatch malfunctioned and permitted the

boom to fall upon the Libelant, and more particularly:

mee “(1) *#**. tel

“3. That (pawls) on the ratchet in the topping.

lift gear was (were) defective and inadequate in.

that it (they) did not drop into each cog as the.

- boom was hoisted so as to prevent the boom from -

falling.” ¥/eot :

" Footnotes set out at pages 54-55.

EOE a aM

“(2), That (Petitioners) were negligent in:

—— Failing to properly inspect said vessel and

particularly ‘the ‘said ratchet and (pawl) device

to said hatch to determine the defective nature of

same * * * (Reasonable inspection-would have dis-

closed the malfunctioning of the pawls, known to

the longshoreman the day before.)

“5. Failing to provide (the) libelant) with a safe

place to ‘ork holy 4

_ The‘ segregated and reserved issue of Petitioners’

claim for indemnity from Stevedore is now ripe for

' packaging. . ah ; oe

As will be later pointed out, the circle of judicial

legislation is now complete except for trimming the —

loose ‘ends of the knot and making it shipshape. The

‘longshoreman who was deprived of a cause of action to -

_ recover damages for personal injuries caused: through -

. the negligént act of his s_ employing stevedore by the .

Longshoremen’s and Harbor Workers’ Compensation

Act of 1927, 33. U.S.C.A. §901, et seq., has now for all

practical purposes regained this comfort. °

The first ‘stage of this metamorphosis commenced

by clothing the longshoreman (seaman: pro hac . vice)

‘with the mantle of protection agajnst unseaworthiness

of the Vessel in whose aa ‘he worked, all .to the

despair of. the shipowner.’

The second stage was the bringing a the employer-

stevedore to accountability for causing the unseaworthy

condition through the now out-of-favor theory of active

negligence of stevedore versus passive =: of the

—— | e

; 49 -

Then the third stage. where a’ stevedore is. now

ultimately liable to make reparations for loss resulting

- from its breach of a pre-existing continuing contractual

duty, namely, the failure. while performing its stevedore

contract to meet its contractual warranty to. handle the

eargo and use the ship's gear incidental thereto with

reasonable safety in light of expertise in the field. This

is so even though the ship's gear may have been mal-

functioning and therefore unseaworthy when taken over

by a stevedore. Smith: v. Jugosalvenska Linijska Plo-

videa, 278 F.2d 176, at p. 180 (4 Cir. April, 1966),

citing Crumady v. Joachim -Hendrik, Fisser, 358 US.

423:(1959). © ae

Will the cycle be. eventually completed with a

fourth-stage judicial sanction of an action by the ‘in-

jured longshoreman-directly against_his defaulting em-

ployer- -stevedore, on the premise that the lohgshoreman

was engaged in ship's service and was a person who in

the reasonable contemplation of the parties. to the war-

ranty, might be expected to be injured through failures

- caused’ by the Stevedore’s breach of warranty to handle:

_cargo and \use ship's’ gear incidental thereto with rea-

__ Sonable safety ?* _

In view of the ultimate holding to follow, it is not

necessary ‘to _deal- with Petitioner's contentions (B,

above) of a breach of Stevedore’s warranty by. reason

~ of negligent use of the Vessel’s gear (pigtail line dog ©

and gypsy. head” locking devices} by a longshoreman-

employee: of Stevedore. which: in turn Rens into play”

the defective and unseaworthy “lift gear” was under

-the teachings of Crumady. Te

. ; .

~ wife

50

In passing, we might say there is strong “suspicion .

of such negligence,” but suspicion in and of itself is not

as yet circumstantial evidence of negligence. .

The tenable basis of Petitioners’ claim for indemni-

fication is simply the alleged breach by Stevedore of '

the contractual ‘implied in-fact warranty in its stevedor-

‘ing contract to perform its contract with reasonable .

safety. f ;

For the duties of the Stevedore to thé Petitioners

in the performance of its stevedoring contract, we find

that: *

\ “[I|n Weyerhaeuser S.S. Co. y. Nacirema Oper-

. \ ating Co., 1958, 355 U.S. 563,567, 78 S.Ct. 438, 441,

* 2 L.Ed. 2d 491, the Supreme Court, after stating

that the stevedore’s contractual obligation to per-

- form his work with reasonable safety. related not

only to handling of cargo, but also to the use of

. ‘equipment incidental thereto, said: ** * * Tf j in that

regard respondent rendered a- ‘substandard per- -

formance which led to foreseeable liability of peti-

tioner, the latter was entitled to indemnity absent.

conduct on its part. sufficient preclude recovery.

' * * * While a standard to b applied to ‘conduct:

‘-* * * sufficient to preclude recovery’ has not been

_ created, it has been decided that the mere furnishing

of defective equipment by the ship*to the stévedore .

does nct bar recovery .over under the contract.

Crumady v. The Joachim Hendrik Fisser, supra:

Calmar S.S. Corp. v. Nacirema Operating Co., 4

-Cir., 1959, 266 F.2d 79: American Export Lines, .

Inc. v. Revel, 4. Cir., 1959, 266 F.2d 82.” [Emphasis.

supplied.]. ~

ee oe |

“Although, the contractual obiigation of Stevedores

in this case arises ae implication -by the con-

a

contract was binding ‘Restaterpent, Contracts 83 5

‘ (1932). As is Stated in Ryan StevedoringyCo. v.

Pan-Atlantic SS. Corp.. 1956, 350 US. 12. 133,

76 S.Ct. 232, 237, 100 L_.Ed. 133: :

—,o » This obligation i is not a quasi- -contiictual ay

obligation implied .in law or arising out of a

non-contractual relationship. It is of the es-

sence of petitioner's stevedoring contract. It

is petitioner $ warranty of workmanlike service

that is comparabie. to a manufacturer's war-

ranty of the soundriess “of its manufactured

zee _ products. Pca .

a we * & & Fae :

‘* &* * The shipowner's action is riot changed

. “from one for a breach of contract to one for\a

Z simply because recovery may turn upon

| the standard of the _performance of petitioner's

A stevedoring service. . Smith v. Jugosalvenska

Linijska Payee, supra.

. The full acceptance’ by the Supreme Court of the

United States in ‘Crumady of the rationale of the fore-

going contractual- duty theory rather than the active -

versus passive negligence theory of Stevedore’s liability

for indemriity was anticipated and forecast by District °

Judge William C. Mathes in Hugev v. Dampskisaktie- .

selskabet International, 170 F. Supp. 601-(SD Cal. 1959),

eo. later adopted as the settled sule for the Ninth Circuit

in Metfopolitan Steved -e Company v. Dampskisaktie--

. gelskabet International, 274 F2d 875 (Jan., 1960); (af-

firmal of Hugev.)

The correlative contractual duty of Petitioners (ship-

owner) under, the stevedoring ¢ontract is clearly set

@ forth in Hugev in the following language:

“(ij '* > : o¢

“(2) to give the _stevedoring contractor reason-

‘|

able warning, of ‘the’ existence of any latent or.

hidden danger which has not been remedied. and is -

-not usually’ «countered of reasonably to be ex-

pected, by an expert and experienced stevedoring -

-company-,in the performance of the stevédoring | 3.

work aboard the ship, if the shipowner actyally, :

knows, of, in’ the exercise of ordinary care under

the circumstances, should know of the existence of

- such danger, and the danger is one which the ship-

owner ‘should ‘reasonably expect a stevédoring con-

‘ tractor: to encounter in the performagge of the ~

- stevedoring contract.” [Citing numerous cases, pp.

ed 610-11.) 5 eae Ue at ae

‘It is now settled that-to have merely ode over a

: and given to the -use ‘of Stevedore the malfunctioning

and unseaworthy “lift: -gear’’ was not.in and of itself a AGF

breach of Petitioners’ contractual: -duty. Crur ady, supra.

This allowakice, or maritime- license, of conduct between

shipowner and stevedore is predicated upon these policy.

considerations | discussed by Hugev: | anos

. “(a) the possibility, or even probability, of un-

-seaworthiness after. long voyages, and

»(b) .the expertise of the stevedoring company

and tue ee. ' Metropolitan Pp. 876.

- We learn * Hugev ‘that there mist be something

more on the part%of the shipowner, something in the

way of a want of reasonable care, towards Stevedore.

This Court has found that in. failing to discover by

reasonable inspection the unseaworthy “lift gear,” the

- Petitioners were negligent towards Libelant and that

such negligence was one of the .concurrent proximate ‘© |

causes of Libelant’s injuries. ® Assuming that such negli- |

gence “of the Petitioners towards Libelant would also

constitute a breach of - ‘their implied in- fact _ duty in

!

53

favor of Steved ee to use reasonable, care in “discovering 7

latent defects ‘in the “lift: gear, " wevertneioen such: neg-~

lect can be of no avail -or solace to the Stevedore: the

reason being that- we also find that the Stevédore,

through a longshoreman and a hatch boss, had actual

knowledge of. the malfunctioning. and uriseaworthy con-.

dition of the “lift gear’. prior to the accident. ” This”

actual knowledge by Stevedore, even though independ-

ently obtained, intervenes and washes out any non-.

_ feasance “of. Petitioners in performing their implied in-~

“ fact contractual duty | to Stevedore. The’ Petitioners

| owed no duty to restrain the Stevedore from acting or .

using gear in the face of: disregard of a known defect or ©

\ danger. This is exactly what the Stevedore did when it

used with full knowledge of its condition the malfunc-

tioning lift: gear in connection with ° and incidental to

the handling of the ship’ s Cargo pursuant to its contract.

_ The inevitable failure: of the gear and resulting injuries:

to persons in ship's service was most probable and rea-

sonably foreseeable ‘by an. expert stevedore. This fore-

going. conduct of Stevedoie does not carry to and falls

short of meeting the - requirement that the Stevedore

_use gear nécessary and ‘incidental, to the working of the

ship's cargo with reasonable, safety as tésted by steve-

dore expertise... as

From the facts ee in the opinion upon the segre-

gated issue of Petitioners’ liability to. Libeiant and this

opinion, this Court concludes. that Petitioners ‘were not

_ . short in performing their ‘obligations to Stevedore under .

the stevedoring contract and that" ‘Stevedore, while en-

gaged i in ‘its stevedorinig contract to load. and stow cargo,

34

breached its implied in-fact contractual. obligation to

_use the ship's gear, in preparation and incidental to the

h« dling. of cargo, with stevedore expertise and with

_ reasonable safety to persons engaged:-in ship's service,

and that such breach -by the Stevedore was a proximate

‘cause of the falling of the boom. and resulting injuries

to Libélant. This “Court further concludes that the Peti-.

‘tioners are entitled to reparation from the Stevedore to

the: full extent ofits loss, expense and damage on ac-

count of, Libelant’s judgment aforesaid. Hugev,. at p.

612. ; . <i 3 : oa j e

In the event that the parties can stipulate : as ‘to the

aggregate. amount of Petitioners’ _ reparations, proctor, j

for the Petitioners may .submit proposed decree and

judgment order adopting the mentioned opinions of this

Court as findings of fact and conclusions of law of this

Court (FRCP 52. (a)) upen which to predicate a judg: .

ment in favor of Petitioners and, against Stevedore for

. the amount of stipulated reparations.

In the event .of a failure of such stipulation, the

Court “will, upon application of Petitioners, hear and

determine the Petitioners’ contentions as to. amounts of

reparations. +"

‘Dated Rainiat 3,.1960.

+ :

> Og "Footnotes

1. Court’s opinion upon the segregated issue vk Peti-

tioners’ liability to Libelant, entered April 14, 1960. °

’ A. M. C., Fed. Supp.

“There. would seem to be no inapeet of judicial

legislation in the mere permission of suits by long-

be P

|

ee ee ere .

shoremen .and harDof workers’ against iownbes

,.or other third parties..Such suits are ——"

by the Longshoremen‘ s Act. 33 U.S.C. 933. °

“However, criticism: can validly ‘be dyected. at

the extension of the doctrine ¢of unseaworthiness

to longshoremen whose en{ployers are wholly at

fault, permitting recovery from the vessel. Seas

Shipping Co., Inc. v. Sieracki, 328 U.S. 80° (1946).”

Excerpt from an address by’ Edward C. Holden.

Ir., Esq.. of New Yofk City, to the Federal Bar

Association Convention, Washington, D. c, Sep-.

tember 206, 1957.

“The manifest injustice to shipowners leads

to a permissio@ of recovery by the innocent. ship-

owner from the employer of longshoremen, making

recovery from the employer by the employgf by in-

direction, possible in some instance. in plain contra-.

, vention of the Longshoremen’s Act, as‘ was decreed 2

in the Palazzolo case,

“Ryan Co. v) i Atlantic Corp,, 350 U.S. 124

(1956). Black, J., dissenting, ‘at 141, stated: ‘Lia-

bility is thus imposed because of the- negligence .

of the: employer's other employees. This the act

« forbids: Whether called “common Jaw indemnity,”

i “contribution, ’ “subrogation,” or any other name,

the result is, precisely the same, The employer has

to pay more ‘on account of” an injury to his em*

ployee than Congress said he shgu'd.’

ae “Accordingly it must be conceded that the letter

and spirit of the Federal Longshoremen’ s and Har--

bor Workers’ Compensation Act receives scant at-

tention from the courts.’ Excerpt from Mr. Hold- |

en's address. ry fe

- 4. It has Been said that a stevedore’s warranty of

‘workmanlike service’ is comparable to a manufacturer's

warranty of the. fitness of its ncatechine’ products.

Ryan Stevedoring Co. ¥. Pan- Atlantic SS Co., 350

. 56 ee 3 . | | F

US. 124. Generally, see. Prosser on Torts (2 Ed. 1955)

§ 84. : ae ees a

In DiVello v. Gardner Machine Co:, 102 NE2d ‘289 ~

- (Ohio 1951), a manufacturer’s warranty for the: fitness

- of, its product (grinding wheel which exploded) was

extended to the injured employee of. the purchaser of.

. the product, although not in privity of contract of

_purchasé, but being a “workman of the vendee who Was

injured. in its ordinary use because of latent defects.”

For a like holding, see Peterson v. Lamb Rubber Co.

343 P.2d 261 (Cal. Ap. 1959).

Also see Henningsen v. Bloomfield Motors, Inc., 161

A.2d 69, 99-100 (Sup.Ct. NJ, 5-9-60), wherein the Court

says: ee . aes

“In the present matter, the basic contractual re- .

lationship is between ‘Claus Henningsen, Chrysler,

-. and Bloomfield Motors, Inc. The precise issye pre-

' . gented is whether Mrs: Henningsen, who-is not a

; . party to their respective warranties [driver of

defective car] may claim under them. In our judg-

merit, the principles of those cases and the sup-

porting texts are just as proximately applicable to

her situation. We are convinced that the cause of

justice in this area of the law can be served only

by pork il that she is such-a person who, in

the reasonable contemplation of the parties to the _

warranty-might be expected to become a’ user of

the automobile. Accordingly, her lack .of privity

does not stand inthe way of prosecution of the in-—

jury suit against the defendant Chrysler.

“By a parity of reasoning, it is our opinion that

an implied warranty of merchantability chargeable

to either an automobile manufacturer ‘or a dealer .

extends to the purchaser of the ¢ar, members of

his family, aid to other persons occupying or using

it with his consent. It would be wholly opposed to

renlity to say: that use by such persons,is not ‘within

the anticipationsyf parties to such a warranty of

reasonable suitability of an automobile for ordinary

highway operation. Those persons must be. con-

sidered within the distributive chain.

j

“Harper and James sugg¢st that this remedy

ought ,to run to members of ‘the public, bystanders,

defective: automobile. 2 Harper & James, The Law

of Torts, 1956 Ed.. p. 1572."

{

|, Compare Gottsdanker, a_minor, v. Cutter: Labora-

tories, et al.: Phipps, a minor, v. Cutter. Laboratories

(consolidated cases Nos. 18413 and 18414,. District Court

of Appeals, First Appellate District, Division Two, State

of California), ‘enteréd July 12, 1960, wherejn it was.

held that the defendant manufacturer of Salk vaccine

which “contained live virus of poliomyelitis” were held

_ liable for causing the resulting : diseases in each of ‘the

‘plaintiffs when inoculated by’ physicians with the vac-

_ cine secured red through peer: suppliers for_the doc: ~_

for example who are in: thé/ path of harm from a °

tors.

*

Is it not logical to further suggest that. since the

_ Stevedare’s war@pnty to perform his work with, reason-

able \safety runs to the protection of the Vessel, that it

also and necessarily runs to the protection of persons.

working in the ordinary coursé in her service as “sea-.

men pro hac vice”? 7 . ) re

5. “The winch driver called to a ship longshore-

man and asked for ‘a hand’ in attaching the free

end of the pigtail line to the gypsy Head. The winch

- operator did not see this operation, and the Jong-

shoreman involved can give no satisfactory account

of what he did in the way of- fixing the free end ~

“@

58

of the pigtail line to the gypsy head. In any event,

it was somehow attached, but evidently no® P- Ne

erly.” ’ Excerpt from prior opinion.

‘6.:“We held in Calmar v. Nacirema, decided to-

day, 1959 AM.C. 1083, F.(2d)__, that a find-

ing of negligence in supplying such equipment is

not determinative of the shipowner’s right to in-

_ demnity. His action is in contract and recovery,

depends upon whether his conduct has been such.

‘as to bar enforcement of the contract, and ‘not

whether he has been found negligent in regard to |

the longshoremen. Weyerhaeuser S.S. Co. vs. Naci- ©

rema Co., 355 U.S. 563, 1958 A.M.C. 501.” Cited

in American Export Lines v. Revel, 266 F.2d 82

(4 Cir. 1959); 1959 A.M.C. 1073, 1081. -

7. “On the day before the accident, while in the

process of topping the boom involved through the~ ;

". use of the lift gear, the pawls had locked in an

upright position’ and failed to properly function

‘by falling under ‘gravity into a locking position,

and a longshoreman had used a’ piece of dunnage to

strike and knock the pawls irito position.” Excerpt

from prior opinion.

[Endorsed]: Filea August 3, 1960.

BRIE F OF RE SPONDE N TS

IN OPP OSIT. (ON T oO

‘PETIT ON FOR

| GERTIORART

a

CLERK

In the Supreme Court —

uf ie Huited States -

No. 3.0/ , OCTOBER TERM, 1968: 'y

4 .

GEORGE WEIGEL, . a :

; A " Petitionér,

‘ .v. . z

PARTENWEEDEREI, MS BELGRANO ;

and RUDOLPH A. ‘OETKER,

Respondents,

BRIEF OF RESPONDENTS PARTENWEEDERE! ET AL -

IN OPPOSITION TO THE

, -¢ PETITION FOR WRIT OF CERTIORARI

Erskine B. Woop

os *Céunsel for Respondents,

; _ ,1310 Yeon Building, .

, Portland 4, Oregon.

———

eTEVENS-NESs LAW PUB. CO.. PORTLAND. ORE. : . 6-42

‘seamen employees, has been ext

Sd the Supreme Court

GEORGE WEI

Petitioner, .

+ j e

PARTENWEEDEREL MS BELGRANO

and nip eajn A. OETKER, -

| Reisontliste,

2" ~ ; , : é

. “\ BRIEF-OF RESPONDENTS PARTENWEEDERE! ET AL

IN OPPOSITION TO THE

PETITION FOR WRIT OF CERTIORARI t"

&

¢

REASONS WHY PETITION SHOUED NOT BE GRANTED

This case is of obvious importance to the individual

” parties involved. But it is not of great importance to any

* large class of workets. | }

The warranty” of seaworthiness - imposing liability

without fault, historically owed by a shipowner to its

to those workers

who, under modern conditignS, are not crew members,

Sacee rec Oi

tion ef law is involved here. The case merely ‘involves

e BO « . pone

but nevertheless perform the y

n and about ships

+. which was ‘traditionally done by the seamen, themselves..

The warranty does not extend to every ‘land» worker

who may come near a ship, regardless’ ‘of the nature of |

his work.

§

“This Court: in United New Vork and nm. J. Pilots

Assn. v. Halecki, 358 US. 613, 3 L. ed. 2d. 541 (1959),

defined. the class of workers to whom the warranty

extends. Regardless of the label on the job, “those. who

. did the ‘type of work’ traditionally done by seamen,

arid were thus related to the ship in the same way as

seamen ‘who had been or who were about to go on a

voyage,’ were erititled-to a a ais ship.”

_ The Court of Appeals applied | that, test. Opinion

Ct.. -Appeals, Appx. Pet. for Cert., p. 24-25). No ques-

the narrow question whether the particular job being

performed by petitioner met this test.

1. The Case is not Important to any Large Class’ of 7

Workers.

‘As vieion above, this case involves only the narrow

; question whether the particular. job being performed |

by — was “the type of work traditionally | done

by seamen,” so as to entitle him to the. warranty of

seaworthiness. “ | ;

, %

The ‘cutding principle of law has already sii estab:

lished. The great majority of. workers fall clearly” into

one . class or, another. Clearly, the longsh oremen who

- actually load and stow cargo are performing seamen Ss

©

fo FE Gna

s°

— es

work. ' Just as clearly, the taxi sinbeie who brings a pas-

= senger to the pier, or the truck driver who brings cargo

to’ the dock, are not performing seamen’s work. Only

in a-small number’ of cases will there be a serious issue

whether ‘the worker's job i is of the type to entitle him to.

the warranty,

_ This Court, having established the principles of ‘law,

can hardly be expected to review the factual details. of

every category of waterfront job to determine whether

that —s job meets the test of “traditional work ~ -

of the crew.’ sc ee

2. Petitioner's Fears of Confusion wai Administrative

Difficulties are Unfounded. :

Sipe a _Petitioger asserts that the Court of Appeals deci-

‘sion will -give_rise to battles of experts, confusion, and:

administrative difficulties—in. determining who is entitled

to the warranty. Such fears are wholly unfounded. oh

_ All that dine Court of Appeals held” was that peti-

= es tioner had not sustained his burden of proving that he

-‘was doing work such as togentitle him to the warranty.

The. pleadings raiged this issug¢ (Pre- Trial Order VI .

(2), R. 8). Thus, the normal burden of proof -was upon

petitioner as libelant. There was no dispute as to the .

nature. of his work. It is described by the Court of Ap-

' peals:

“The libelant was driving a’ tractor on the dock.

. ' “Historically the work of tohding and unloading is the work

'. of the ship’s service, performed until recent times by members of

the ¢rew.” Seas Shipping Co. v. Sieracki, 328 U.S. 85 at p. 96,

° 90 L. ed. 1099 wie 1107.

-

ss)

% -

“hg

> es

fe

His job ‘was to push or pulk-railroad cars loaded |

with lumber up to a point -om the spur track

‘where the lumber could ‘be reached by the ship’s

. loading gear. He did not participate in loading the

lumber onto the vessel or in stowing it. He- had

nothing to do with ship’s' tackle nor did his work

require him to perform any service aboard the ship.

His work was performed solely,on the dock and in’

an operation preliminary to, but separate from, the

work of loading the lumber onto the vessel. Al- -

though libelant’s work brought him close enough to —

the vessel to be injured by the falling boom, lia-

bility arises not from the place of injury but from

the nature of the work being performed. ;

“Was the nature of libelant’s work of the type

traditionally performed by seamen? The only af-

firmative testimony in‘ the. record on the subject is

uncontradicted expert testimony to the effect that

libelant’s work was not of the type, traditionally |

performed .by seamen.” (Op. Ct. Appeals, Appx.

Pet. for Cert., .p. 25)> sg is

The. only evidence in the case was that this type: ‘of

work has traditionally been done by teamsters, not °

seamen, Before the tractor, horses or mules were used .

to bring lumber cargo near enough to the ship. to ‘be

reached by its gear. Seamen were nevér employed as

drivers of teams of horses or mules (R. 473; 487-488,

495).

~

In the vast majority of ‘casés, this issue is not raised,

The plaintiff’ s work either falls clearly within, or clearly

without, “the test of “work traditionaliy cone by the

_crew.’ ’ In those few cases ‘where this issue is involved,

it is no more difficult to resolve than many other

factual issues. “8 Shae . ees.

C

~—

5 °

‘3. Court of Appeals Decision is not in Conflict with any

Decision of this Court, or Courts of Appeal.

As shown “shove, the Court ‘of ‘Appeals decision fol-

lows and - correctly applies the principles established.

by this Court. in United New York and N. J. Pilots

Assn. V. Halecki, 358 US. 613, 3 L. ed. 24 541..

The Conk. of Appeals decision in no’ way pee

with the various Court of Appeals cases holding that a

longshoreman engaged in loading and unloading the

vessel, but working on the dock, is entitled to the war-

ranty. Admittedly, it is not the place where the man ts

‘working that controls:—it is the type of work he was

‘doing. Even ‘members of the crew perform some tasks

‘on the dock, such as handling vessel's lines, rigging gang-

way, painting ship's side, and of couise they are entitled

to. the warranty. So are longshoremen who are engaged:

in loading or unloading the cargo, ‘as for example when

%

they are on the dock fastening the cargo gear to the.

cargo: Conversely, the warranty does not apply to werk .

- aboard the vessel if the type’ of work was not the tra-

dittonal work of seamen. That is the Halecki case.

» THe Court of: Appeals edecision is not based upon.

petitioner ‘being on o dock. The Opinion expressly _

states that “liability arises not from the place of injury

but from the nature of the work being performed.”

(Op. Ct. Appeals, Appx. .Pet. for Cert., p. 25).

_ Obviously, petitioner’s designation as a. “longshore-

‘ man” is not significant. It is’ not the label, but the type

of work that controls. United New York and N. J.

Pilots v.-Halecki. 7

ee ae ° 6

4, The Asserted Conflict with Salem v. ‘Uz S. Lines Does

not Exist. —

On the issue of negligence, petitioner asserts that the

Court of Aippeals decision conflicts with this Court's °

decision in Salem v. U. S. Lines, — US. ae, 61, 28. 34

313 (May, 1962). It. does not. _

The Salem case held that expert testimony from a

naval architect was not required to enable a jury to

decide, “upon Rher testimony and photographs ‘concern-

ing a simple physical structure, whether hand. railings .

should have been provided. . x

The present | ease is different.

First, it is an admiralty case. We have no ' problergp

of the Court invading the province of the jury. Under

M¢Allister v. United States, the Court of Appeals may —

reverse the judgment of the District Court if it is

“elearly erroneous.” It is clearly erroneous when “al-

‘though there is evidence to.support it, the reviewing -

cour, on the entire evidence is left with the definite

and firm conviction that a mistake has been commit-

ted.” McAllister v. United States, 348 US. 19, 99

L. ed..20.

Second, this case involves the asserted duty of in-

spection. And there. was simply no evidence that an ,

inspection ‘could ‘or should have been made which

would répeal the defect. ~ . : js

* The defect in the lift’ gear could not have been

discovered by visual inspection or examination. It was

apparently latent (Op. Ct. Appeals, Appx. Pet: for

Cert., p. 27). (Op. Dist. Ct., note 8, oe Pet. for Cert.,

p. bee

; | \ . Jd

Thus, whatever the. defect was, it cotild only be dis-

. covered by actual operation of using the lift gear to

raise or lower the boom. There were ten such sets of

‘gear, all in use by the stevedores. The lift gear had

worked properly when used at the last loading port,

a few days before,: but -was found stuck during actual

operation when used by the longshoremen the day

before the accident. There was no ¢\ dence whatever |

‘that the ship's officers or crew were aware of the defect.

And there-was no evidence whatever that thefship’s

officers or crew could or should have made an opetating

test of all ten lift gears every twenty-four hours.

The District Court's conclusion of a negligent fail-

ure to inspect was supported by no evidencé, and was

a non-sequitur. based only upon the finding that the-

gear was unseaworthy, * The Court of Appeals correctly

reversed this clearly erroneous coriclusioni of the District.

Court. 4 mi : hs Fadl “Gea

cy -

¥

—

fl : CONCLUSION

ia

For the foregoing reasons, it is respectflly sub-

mitted that the ‘petition for writ-of certiorari: should be

denied. BS , is =

*

SAOe _ ERSKINE B. ‘Woan,

Counsel for Respondents,

_ Partenweederei, MS Belgrano

* and Rudolph A. Oetker.

2 See the District Court Opinion “That there was a malfunction

. of the lift gear . . . is self-evident . . . Therefore, the Court °

_ concludes: °

“Q) That the. respondents and the’ claimant were ‘negligent. .

_ 4 Obviously, the conclusion of negligence does not necessarily follow

frorn the finding of uneepuerenness. (Op. Dist. Ct.. 7 Pet.

for Cert. p. 37).