Petition for Writ of Certiorari — Pisano v. Benny Skou

pee Office-Supreme Court, U.S.

“VURT, if FILED

SEP 7 1965

Supreme Omrrt of the United ei} F. DAVIS, CLERK

October Term, 1964

No 5.42

BENJAMIN PISANO,

Petitioner,

against

S. S. BENNY SKOU, her engines, boiler, tackle, ete., in

rem, and OVE SKOU, D/S OVE SKOU, A/S and D/S

af 1937 A/S,

Respondent,

against

JOHN T. CLARK & SON,

Respondent-Impleaded.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GoLpsTern & STERENFELD,

Counsel for Petitioner,

50 Broadway,

New York, New York 10004.

Auvin P. APFELBERG,

Of Counsel.

Harvey GoLpDsTEIN,

on the Petition.

INDEX

PAGE

Opantons of the Courts Below .......6cccccsccsces 1

PE ced geil oes oe. Pip ORES Aen. MOM 2

GE sadn en duwaerewawwhae ese ecemae 2

NY BNE poy kui cca sancuséewiriwerertue, 2

NS Or ED 6h ooh 50844-4040 R Kane Reset pees 3

Reasons for Granting the Writ ...........3...... 9)

Re eT ee rr erry ee Teer ee free 8

Table of Cases Cited

Aldridge v. States, 265 F’. 2d 554 .................. 4)

Beard v. Ellerman, 289 F., 2d 201, sub nom. Atlantic

i A, Sere hs Ok 6 ho oh ss cea weneedccssia

Brabazon v. Belships, 202 F. 2d 904 ..............

Calmar v. Nacirema, 266 F. 2d 79 ................

Caputo v. United, 311 F. 2d 413 ................

Connolly v. Weyerhaeuser, 236 F. 2d 848, sub nom.

Weyerhaeuser v. Nacirema, 355 U. S. 563 ........ 3

Crumady v. Fisser, 358 U. S. 423 .............. «. 5

DeGioia v. United, 304 F. 2d 421 ................ 6

Ferrante v. Swedish, 331 F. 2d 571 .............. 5, 6

ii

Gutierrez v. Waterman, 373 U.S. 206 .............. 5

Italia v. Orewom, 376 UB. FUG... 2. cc ccce cece 6

Knox v. United, 294 F. 2d 354 ............ce00. 5)

DD Fe A, re Be GE ooo cnc ds ceqensceess 6

Palazzolo v. Pan-Atlantic, 211 F. 2d 277, sub nom.

Ryan v. Pan-Atlantic, 350 U.S. 124 .............. 6

Santomarco v. United States, 277 F. 2d 255 ........ 6

Skovgaard v. Tungus, 252 F. 2d 14, 358 U.S. 588 .... 4)

Smith v. Jugoslavenska, 278 F. 2d 176 ............ 6

APPENDIX:

Opinion of United States District Court for the

Southern District of New York ............ 9

Decree of the United States District Court for

the Southern District of New York .......... 17

Opinion of the United States Court of Appeals ~

for the Second Circuit ..............0ce00. 19

Decree of United States Court of Appeals for

ee I I 6 bso Sb 0n setae sacecunasds 22

Supreme Court of the United States

October Term, 1964

No.

rat

Vv

BENJAMIN Pisano,

Petitioner,

against

S. S. Benny Sxov, her engines, boiler, tackle, etc., in rem,

and Ove Sxou, D/S Ove Sxou, A/S and D/S af 1937 A/S,

Respondent,

against

Joun T. Cuark & Son,

Respondent-Impleaded.

.

Ww

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable Chief Justice and Associate Justices of

the Supreme Court of the United States:

Petitioner prays that a writ of certiorari issue to review

the decree of the United States Court of Appeals for

the Second Circuit, entered in the above entitled matter

on June 7, 1965.

Opinions of the Courts Below

The opinion of the United States District Court for

the Southern District of New York, Honorable Irving Ben

Cooper, in favor of respondent and respondent-impleaded,

reported at 220 F. Supp. 901, is set out in the appendix

to this petition at pages 9-16.

2

The opinion of the United States Court of Appeals for

the Second Circuit, affirming the decree of the District

Court, unreported to date, is set out in the appendix to —

this petition at pages 19-21.

Jurisdiction :

This suit, arising out of a maritime tort, and in the

Admiralty and Maritime jurisdiction, was brought in the

United States District Court for the Southern District of

New York, in Admiralty.

The opinion of the District Court and decree entered

thereon, dismissing the libel (and the impleading peti-

tion of respondent, Ove Skou), was appealed from by the

petitioner.

The decision of the United States Court of Appeals

for the Second Circuit, affirming the decree of the District

Court, was filed and decree entered thereon on June 7,

1965.

The jurisdiction of the honorable Court is invoked pur-

suant to 28 U. S. C. § 1254(1).

Question Presented

Whether the Court below erred in negating the primary

duty of the shipowner to provide a safe place to work and

the duty of the stevedore to perform the cargo operation

in a workmanlike manner, in view of the failure by the

ship’s officers and the stevedore boss to inspect, detect and

correct the open and obvious hazardous condition of the

preventer rigging, of which they knew or should have

known, thus causing or contributing to the accident and

petitioner’s injuries.

Statutes Invoked

There are no statutes invoked herein.

Statement of Facts

Libelant, Pisano, a longshoreman, was employed by

Clark, respondent-impleaded, a stevedoring firm engaged

by respondent, Ove Skou, the owner of the ‘‘Benny Skou’’,

which was berthed in the North River, New York City.

On July 22, 1960, Pisano was on board the Benny Skou

in charge of a gang of three longshoremen loading cargo

at #5 hatch. In the course of his duties at 1:00 o’clock

the previous afternoon, July 21, 1960, Pisano himself had

improperly rigged the port or inshore cargo boom, which

was being used as the horizontal or burton boom, by failing

to take a half-hitch knot as a safety device in the preventer

wire, on the open deck, used as the main anchor for the

boom. From that time until 5:00 P. M. on the 21st, cargo

was continuously loaded onto the vessel. The work con-

tinued on the 22nd, starting at 8:00 A. M., that day, to

9:00 A. M. when the up-and-down boom was repositioned,

and thereafter.

At about 10:00 A. M. Pisano properly stationed himself

by the hatch to supervise the loading of two tons of ingots.

As the load was lifted aboard, the burton boom swung

sharply inboard out of control. The ingots carried by

the boom were dumped to the deck, knocking a stack of

hatchboards into Pisano and causing him to suffer sub-

stantial injuries.

Testimony was that the shipowner’s Secgnd Mate, its

highest ranking officer aboard the vessel, had the duty to

look after the cargo operation. Other deck officers were

also aboard taking ‘‘care of ship’s interests’’, that cargo

be loaded in safety, that ship’s equipment be -used prop-

erly and to watch the loading operation.

The Mate stated that he was in the vicinity of the hatch

in the afternoon of the 21st but made no inspection of the

preventer rigging, that he did inspect both the up-and-down ©

+

and burton booms when the former was repositioned at

9:00 A. M. on the 22nd.

The stevedore hatch boss, in charge of the work gang,

including Pisano, had the duty to instruct the men and to

supervise the rigging, the use of the booms and the loading

of cargo and had a primary function to see that ‘‘everything

is in good working condition’’, that ‘‘everything is secured

right’’, to supervise the men, to see that the men were

doing their work and to look to their safety, walking around

the deck as part of his duties to observe the rigging work-

ing conditions and ‘‘to see that such operation goes on cor-

rectly and in a safe manner’’.

The hatch boss was on deck the afternoon of the 21st

and the morning of the 22nd and made no comment about

the rigging although he inspected it as he always did.

The District Court’s opinion was that ‘‘the absence of

this knot made the preventer unsuitable for its intended

purpose’’, that... ‘‘The M/S Benny Skou was unsea-

worthy at the time of (petitioner’s) accident, since the

preventer wire was not in a condition reasonably suitable

for its intended use. The unseaworthiness resulting from

the manner in which the preventer was rigged was the sole

proximate cause of the injuries to (petitioner) . . . Since

the vessel was unseaworthy only because of the absence

of the half-hitch, a condition created by Pisano, this court

finds him guilty of 100% contributory negligence’’.

The Court of Appeals affirmed, finding that ‘‘the ship-

owner or his employees had no duty to inspect every knot

in the rigging of every cargo boom aboard ship. At most

a general inspection of conditions on board rather than

minute, continuous supervision of every detail entrusted

to a responsible stevedoring firm was all that was needed

to satisfy the duty of reasonable care under the circum-

stances.”’

— oo? ——t—a

5

Reasons for Granting the Writ

The decision of the Court below appears to be in con-

flict with decisions of other Courts in Crumady v. Fisser,

358 U. S. 423; Commolly v. Weyerhaeuser, 236 F. 2d 848,

sub nom. Weyerhaeuser v. Nacirema, 355 U. 8. 563; Beard

v. Ellerman, 289 F. 2d 210, sub nom. Atlantic v. Ellerman,

369 U. S. 355; Skovgaard v. Tungus, 252 F. 2d 14, 358

U. S. 588; Gutierrez v. Waterman, 373 U. 8. 206; Ferrante

v. Swedish, 331 F. 2d 571 (3C); Knox v. United, 249 F. 2d

304 (3C); Brabazon v. Belships, 202 F. 2d 904 (3C);

Aldridge v. States, 265 F. 2d 554 (9C), and would seem to

call for review of the entire matter by this Honorable

Court.

The Court below rejected the concept of any duty by

the shipowner to inspect the rigging of the preventer wire

created by the petitioner some twenty-one hours, through

six hours of actual work operation time, before petitioner

was injured.

Further, the Court below rejected the thought that the

stevedore had any responsibility to inspect, detect and

correct any defects in its work performance throughout the

operational period.

The defective condition herein was created by the

petitioner twenty-one hours before the accident, six hours

of actual work time, a period when both the shipowner,

through its officers, and the stevedore should have been

inspecting and supervising the work operation and main-

taining the vessel. The rigging of the preventer wire was

on the open deck, itself open for observation. The testi-

mony of the Mate and of the longshoremen made it perfectly

clear that part of the shipowner’s and stevedore’s duties

was to inspect the rigging, that at times they did and at

times they did not.

6

The preventer wire rigging was of extreme importance

to the entire stevedore operation since upon its proper

completion rested the safety of the entire ship.

As such, the failure of ship’s officers to inspect the

burton boom rigging on the open deck over the extended

period of time or, if there was an inspection, to detect

the improperly rigged preventer can only be characterized

as an irresponsible surrender of duty—an intervening

negligent force subsequent to the petitioner’s misdeed.

That failure to act was the proximate cause of the accident

for which the shipowner should be liable.

The failure of proper inspection of the rigging by the

stevedore boss so as to detect the lack of the half-hitch

was a failure to perform in a workmanlike manner, Palaz-

zolo v. Pan-Atlantic, 211 F. 2d 277, sub nom. Ryan v. Pan-

Atlantic, 350 U. S. 124; Italia v. Oregon, 376 U. S. 315;

Ferrante v. Swedish, supra; Nicroli v. Den, 332 F. 2d 651

(2C); DeGiota v. United, 304 F. 2d 421 (2C); Caputo v.

United, 311 F. 2d 413 (2C); Santomarco v. United States,

277 F. 2d 255 (2C); Smith v. Jugosalvenska, 278 F. 2d 176

(4C); Calmar v. Nacirema, 266 F. 2d 79 (4C), giving rise

to liability upon the shipowner, with indemnification over

from the stevedore.

It would appear that if the petitioner failed to properly

knot the preventer, he has paid for it grievously. The

trial Court laid the entire burden of the ship’s safety

upon him, negating entirely the overwhelming and primary

responsibility of the shipowner to provide a safe place to

work and of the petitioner’s superiors to perform the

carga. operations safely. While the petitioner’s conduct

was deemed sufficient to defeat his cause of action, the

failure of all others over a period of six working hours

and an actual twenty-one hours, was not held even to have

contributed to the existence of the obvious, unseaworthy

and long standing condition at 10:00 A. M. on July 22, 160.

7

The negation of that duty resting upon the shipowner

and upon the stevedore was error in failing to give proper

weight to the duty visited upon the shipowner and upon

the stevedore to inspect, detect and correct what hazardous

condition was known, or should have been known, to ExCSh

While not attempting to establish an iron rule of extent

of inspection necessary to meet the shipowner’s duty to

inspect,, the Courts have discussed that responsibility on

the basis of general supervision and of an open and obvi-

ous defect, when not within the concept of general super-

vision.

The Court below restricted the demand solely to a gen-

eral inspection, thus creating the right of a shipowner to

blind itself to any defect outside its narrow scope of super-

vision when it knew or should have known of the danger

facing the working longshoremen.

The creation of an ulitimate responsibility for the safety

of the vessel upon the individual longshoreman can only

lead to the destruction of the primary and non-delegable

duty resting upon the shipowner and the stevedore to

provide safety to those working aboard the vessel, aiding

in the furtherance of ship’s business.

As such, this Honorable Court should now reject any

concept that would further the failure to inspect, detect

and correct obvious and open defects and which would

throw the cost of industrial injury upon those least able

to afford that burden.

8

CONCLUSION

Yi ‘A writ of certiorari should be granted in accord-

ance with the prayer of this petition.

Dated: September 3, 1965.

Respectfully submitted,

GotpstEIn & STERENFELD,

Counsel for Petitioner,

50 Broadway,

New York, New York 10004.

Auvin P. APFELBERG,

of Counsel.

Harvey GOoLpDsTEIN,

on the Petition.

APPENDIX

Opinion of United States District Court for the

Southern District of New York

This is an action for personal injuries sustained by li-

belant, a longshoreman, aboard respondent’s vessel. Juris-

diction is based upon the general maritime law of the

United States. The trial was held before the court, sitting

without a jury.’

Libelant was injured on July 22, 1960 aboard the M/S

Benny Skou, a vessel owned, operated and controlled by

the respondent, Ove Skou, etc. (hereinafter Ove Skou).

At that time, libelant was employed by the respondent-

impleaded, John T. Clark & Son, and was lawfully aboard

the vessel performing ship’s services.

Upon arrival of the M/S Benny Skou, in New York

City, she berthed south of Pier 51, North River, port side

to pier, with her bow facing in toward the shore.

On the afternoon of July 21, 1960, libelant and his fellow

employees spotted the booms for the #5 hatch. These

booms, which were located forward of the hatch, were

rigged with a married fall, i.e., the lines from each of the

winches were shackled together and then linked to a com-

mon cargo hook. The starboard, or offshore boom, was

positioned over the hatch and was being used as the up-

and-down boom. The port, or inshore boom, was posi-

tioned over the pier and was being used as the burton boom.

The longshoremen, after positioning the booms, secured

them by means of various guy lines and preventer wires.

A schooner guy, running between the heads of the two

booms, was secured and a guy line was run from the head

of the burton boom forward to a padeye on the deck. This

1 At the outset of the trial libelant moved to discontinue as “

against Anchor Line, Ltd., and upon consent of all parties, the libel,

and all other claims, made by and against Anchor Line, were dis-

missed and Anchor Line was eliminated from the case.

10

guy line was composed of manila rope approximately 214”

in circumference. The preventer wire, 6x19, was of the

same circumference. The manner in which the preventer

wire was rigged is one of the main disputes.

Approximately four months prior to the accident, the

M/S Benny Skou was docked in New York City and similar

cargo operations were performed. At that time, the pre-

venter wire for the burton boom at the #5 hatch had been

run from the head of the boom to the bottom horn of a

vertical cleat, and then figure-eighted around the cleat to

secure it—apparently the procedure followed theretofore.

However, on that occasion, the bottom horn of the cleat

snapped off and the preventer loosened. Whereupon the

hatch boss, one Willie Cremona, instructed the longshore-

men (among whom was the libelant herein) to rerig the

preventer by putting it through a swinging-link ring bolt

on the deck, then running it through the eye of a turn-

buckle on the mast stay (approximately 3-4 aft), back

through the swinging-link, then through the eye on the

stay for a second time and hack through the swinging-

link for a third time. The longshoremen were told to put

a half-hitch in the preventer wire and tie off the free end

with a piece of manila yarn. The purpose of the half-

hitch was to stop the preventer from running when stress

was applied. The end of the wire was tied off to keep the

half-hitch from becoming undone.

Between the time that the horn of the cleat snapped off

and the time of libelant’s accident, the M/S Benny Skou

called at New York three or four times. The broken cleat

was never repaired and the preventer wire continued to

be rigged in the manner described above.

On July 21, 1960, the booms were positioned and the

preventer wire rigged in a manner generally as just de-

scribed and more particularly discussed below. The follow-

ing morning, when the longshoremen returned to work the

booms were in the same position. The loading of general

cargo began with libelant acting as gangwayman.

11

At 9 A.M. on July 22, 1960, libelant went on his hour

relief, Engel, one of libelant’s co-workers, took over as

gangwayman. During this time, the loading of general

cargo was completed and two aluminum ingots (weighing

a total of 114-2 tons) were placed on a pallet for loading.

The draft was hooked up and raised slightly to check the

load.?

At this point, at approximately 10 A.M., Pisano returned

to his duties, and Engel, after ascertaining that everything

was satisfactory, ordered the draft lowered to the dock,

and returned to his duties as winchman. Libelant then

assumed the duties of gangwayman and supervised thé

loading of the ingots. As the draft began to come athwart-

ships, Pisano stationed himself at the after end, port side

of the hatch, in order to direct operations. At that point,

he was standing between the coaming of the hatch and the

hatch board covers stacked on the inshore side. _

Suddenly, a rumbling, tearing noise was heard, the

burton boom swung laterally towards the hatch, and.the °

draft fell against the hatchboards hurling them upon libel-

ant. Pisano sustained comminuted fractures of the left tibia

and fibula, was removed from the vessel by stretcher and

taken to the hospital by ambulance.

After the accident, it was seen that the rope guy had

parted approximately 30’ above the deck and the preventer

wire- was slack, indicating that it must have run, since

there was no break in it.

The overwhelming weight of the credible testimony es-

‘tablished that rigging the preventer wire by running it

through the swinging-link three times, interspersed with

two turns through the eye in the mast stay, followed by a

half-hitch and a lashing off of the end of the wire (this

method will hereafter be referred to as the non-cleat

method) was as satisfactory a method of rigging as figure-

eighting the preventer around the cleat. The total evidence

2 Maximum stress is not placed upon the lines and booms by this

small lifting.

12

revealed that the non-cleat method was a safe and suitable

method for securing the preventer wire. In point of fact,

during the calls in New York between the time the cleat

broke and the accident to libelant, the preventer wire was

rigged in the non-cleat method without mishap.

Since the proper rigging of the preventer wire in the non-

cleat method was satisfactory for the purposes intended,

the fact that the cleat was broken has no bearing on this

case. A broken cleat would render a vessel unseaworthy

insofar as procedures involving the employment of the

cleat are concerned. In the instant case, however, a per-

fectly suitable alternative method of rigging had been

adopted. Thus, though the broken cleat might make the

vessel unseaworthy, such unseaworthiness was clearly not

the proximate cause of libelant’s accident. Only if no other

safe method of rigging the preventer was available could

the condition of the cleat be considered a proximate cause

of libelant’s accident.

The proper rigging of the preventer in the non-cleat

method required that a half-hitch be placed in it after all

the turns had been taken. As already pointed out, the pur-

pose of the half-hitch was to keep the preventer from run-

ning when stress was applied to it.

This particular half-hitch is a vital element in the case.

Further discussion of it makes necessary a few remarks

about the respective functions of the guy line and the pre-

venter wire. The guy line was used initially to position the

boom. It was then secured to aid in keeping the boom in

position. In order to accomplish this, the tension on it and

the preventer wire, were equalized. However, the preventer

wire was the most important line to maintain the position

- of the boom and keep it from swinging laterally. As such,

it was designed to ‘bear most of the strain, and therefore

must be taut. The -hitch was put in it to stop the

preventer from running when a strain is placed on it.

At the trial, Pisand.was not questioned as to how the

preventer wire was rigged the day before his accident or

who rigged it. But during the two examinations before

13

trial (Libelant’s Exhibits 14 & 15) he stated in effect that

- he rigged the preventer and tied it off by lashing the end

without tying a half-hitch in the wire. .

The Second Mate of the M/S Benny Skou, Nielsen,

stated that he looked at the preventer after the accident,

and saw the end still lashed off (though part of the manila

yarn had been cut). However, he found no half-hitch

present in the wire.

This court finds that libelant, himself, rigged the pre-

venter, and in the course of doing so unfortunately failed

to put in a half-hitch. The absence of this knot made the

preventer unsuitable for its intended purpose because when -

strain was applied, the preventer began to run and a greater

stress was placed upon the guy line. This increased strain,

which the guy line was not meant to bear, caused it to

break. When this happened, the boom swung laterally across

the ship, and the draft of ingots struck the hatch boards,

resulting in libelant’s injuries.

From the total evidence, this is the most plausible ex-

planation of the cause of the accident. The various theories

advanced by libelant as to the causes of the accident are

not sustained by the facts. The evidence to support them

falls far short of sustaining the libelant’s burden of proof,

both quantitatively and qualitatively.

As to the rope guy line, there was no evidence that it

broke before the preventer ran. The expert testimony was

all-to the effect that the guy line was not meant to withstand

the total stress of the boom while a draft of cargo was

being burtoned thwartships.* The testimony further re-

vealed that the running of the preventer put an abnormal

strain on the guy line causing it to break.

Nor is there any evidence that the guy line was defective.

Even assuming, arguendo, that the guy broke first because of

some internal defective conditions, the preventer wire could

8 The greatest strain on the rig, booms, lines and preventer occurs

while the “Cafg6"was moved laterally, rather than when the draft was

merely raised or lowered.

14

have withstood the additional strain if it had been rigged

properly in the non-cleat method. But, without a half-hitch

in it, the wire would have run with the extra strain on it.

The boom would then have moved laterally due to the

absence of the half-hitch.

There has been testimony that the preventer wire was

in a rusted, kinky and bent condition; that the longshoremen

were unable to straighten the wire with their hands as

they secured it; that because of this they were unable to

secure the preventer properly and that there was some slack

in it. The evidence on these points is insufficient and conse-

quently unconvincing.

Libelant’s theory apparently is that the guy line broke

because of a defective condition; that the release in ten-

sion allowed the burton boom to swing; that the boom was

able to swing because of the slack in the preventer and that

once having taken up the slack, the one-ton boom continued

to move laterally and the presence of the half-hitch would

not have been able to stop it.

The proof does not support this theory. Inference piled

upon inference can not substitute for tangible evidence.

In addition to the unsatisfactory testimony as to kinks

and rust, Engels stated that he especially noticed this condi-

tion in the last 10 feet of the wire. Yet libelant himself

testified that when he rigged the preventer there was about

10 feet of wire left after it was lashed. Thus, the very

portion of the wire which was identified as being most kinky,

would have no affect on the accident. Slack resulting from

kinks, bends and rust would only play a part if it were in

that portion of the preventer leading from the head of the

burton boom to the swinging-link, or in that part of the

preventer wound through the swinging-link and the eye on

the turnbuckle stay. This court finds that the preventer

wire was not in such a kinky, rusted or bent condition as

to produce slack in the wire or to have any other causal

relation to the accident.

We should mention two changes in the loading operation

just before the accident. |

15

First: The weight of cargo being loaded was almost

doubled. On the afternoon of July 21 and the early morning

of July 22, 1960 the longshoremen were loading general

cargo which weighed approximately 1 ton. At the time of

the accident, the first draft of aluminum ingots was being

loaded. The weight of this draft was approximately 114-2

tons. Though within the safe working load for the booms,

it greatly increased the strain on the preventer wire.

Second: Between 9 A.M. and 10 A.M. on July 22 (prior

to loading the ingots), the offshore up-and-down boom had

been repositioned by lowering its head in order to reach

the after end of the number 5 hatch. The expert testimony

indicated that the effect of this was also to increase the

strain on the preventer wire and guy line for the burton

boom.

The combination of these two factors caused the pre-

venter to start running. The undue strain placed on the

guy, line caused it to break, and the boom to swing laterally.

Libelant maintains that there is no testimony that the

reco: PR by him on July 21 was still in existence at the

time of\the accident. This is inaccurate. The overwhelm-

ing weight of testimony (principally from libelant’s own

witnesses) is that the booms were not repositioned or re-

rigged when the longshoremen returned to work on July

22. Actually, during the work that morning, only the up-

and-down boom was moved.

Libelant’s claim that the demonstration model of the

non-cleat method (Respondent’s Exhibits D, D, and D2)

was deceptive in without merit. This model was not in-

troduced to show the tensile strength of the wire but merely

to demonstrate to the court the proper manner by which

the preventer should be rigged when the non-cleat method

is used.

Respondent’s contention that libelant was guilty of con-

tributory negligence because of the place in which he was

standing at the time of ‘he accident is likewise without

merit. Under the circumstances, libelant was in a safe

16

place to properly perform his work. Nor is there evidence

that the hatchboards were improperly stacked or placed on

the deck.

In brief summation then, this court finds that it was safe

and proper to rig the preventer wire by the non-cleat meth-

od. But the rigging in the instant case was inadequate since

there was no half-hitch. The absence of this knot allowed

the preventer to run for it was unable to withstand the

stress it was meant to absorb. The M/S Benny Skou was

unseaworthy at the time of libelant’s accident, since the pre-

venter wire was not in a condition reasonably suitable for

its intended use. The unseaworthiness, resulting from the

manner in which the preventer was rigged, was the sole

proximate cause of the injuries to libelant.

However, libelant himself was the person who rigged the

preventer and failed to put a half-hitch in it. Pisano’s

failure to do this made him guilty of contributory negli-

gence. Since the vessel was unseaworthy only because of

the absence of the half-hitch, a condition created by Pisano,

this court finds him guilty of 100% contributory negligence.

Accordingly, judgment shall be entered for respondent,

Ove Skou, against libelant. The third-party action and all

claims arising therefrom are dismissed.

This opinion shall constitute the court’s findings of fact

and conclusions of law.

So ORDERED:

Irvine Ben Cooper,

United States District Judge.

New York, N. Y.

August 2, 1963

17

Decree of the United States District Court for the

Southern District of New York

This suit having come on for trial before the Honorable

Irving Ben Cooper, U.S.D.J., on May 20, 21, 22, 23, 24,

27 and 28, 1963, and Alvin I. Apfelberg, Esq., having ap-

peared as proctor for libelant, Messrs. Haight, Gardner,

Poor & Havens, David P. H. Watson and Robert K. Marzik

of counsel, having appeared as proctors for respondent Ove

Skou, et al., and Messrs. Alexander, Ash & Schwartz, Joseph

Arthur Cohen, of counsel, having appeared as proctors for

respondent-impleaded, and the Court, having at the close of

the trial on May 28, 1963, reserved decision and having

asked for the submission of post-trial memoranda, and

procters for the respective parties having thereafter sub-

mitted said memoranda, and the Court, after due delibera-

tion, having handed down its memorandum opinion, dated

August 2, 1963, and filed in the Office of the Clerk of the

United States District Court for the Southern District of

New York on that same date, in which the Court held that

judgment was to be entered for respondent Ove Skoun, et

al., as against libelant, and that the third-party actions

and all claims arising therefrom were to be dismissed, it is

now

ADJUDGED AND DECREED, that the libel of Benjamin Pisano,

libelant, against respondent Ove Skou, D/S Ove Skou A/S

& D/S of 1937 A/S be and the same hereby is dismissed

with prejudice and with costs to be taxed by the Clerk

of this Court, and it is further

ADJUDGED AND DECREED, that the impleading petition of

respondent-petitioner, Ove Skou, D/S Ove Skou A/S &

D/S of 1937 A/S against John T. Clark & Son be and the

same hereby is dismissed as moot with costs to be taxed

by the Clerk of this Court, and it is further

18

ADJUDGED AND DECREED, that the counter-claim of John T.

Clark & Son, respondent-impleaded, against respondent-

petitioner Ove Skou, D/S Ove Skou A/S & D/S of 1937

A/S be and the same hereby is dismissed as moot, and it is

further

ADJUDGED AND DECREED, that the counter-claim of re-

spondent-impleaded, John T. Clark & Son, against li-

belant, Benjamin Pisano, be and the same hereby is dis-

missed as moot.

Dated: New York, N. Y., August 16, 1963.

Irvine Ben Cooper,

o. 8. BD. d.

19

Opinion of the United States Court of Appeals for ~

the Second Circuit

Before:

Moorsz, Kaurman and Hays,

Circuit Judges.

Appeal by the libellant Benjamin Pisano from a decree

of the District Court for the Southern District of New York,

Irving Ben Cooper, J., sitting without a jury, 220 F. Supp.

901 (1963), dismissing a libel against the S. S. ‘‘Benny

Skou’’ in rem and her owner, Ove Skou, dismissing as moot

the impleading petition of respondent-petitioner Skou

against John T. Clark & Son, respondent-impleaded, and

dismissing as moot counterclaims of John T. Clark & Son

against Skou and Pisano. Cross-appeal by respondent-

impleaded.

Harvey Goupsterx, New York, New York (Alvin P.

Apfelberg, New York, New York, of counsel, Gold-

stein & Sterenfeld, New York, New York, on the

brief), for Libellant-Appellagt.

Davi P. H. Watson, New York, New York (Haight,

Gardner, Poor & Havens, New York, N. Y., of coun-

sel), for Respondent-Petitioner-Appellee.

JosepH ArtHur Conen, New York, New York, (Alex-

ander, Ash & Schwartz, Sidney A. Schwartz, New

York, New York, of counsel), for Respondent-Im-

pleaded-Appellee. ¥

Moorg, Circuit Judge:

Libellant, Benjamin Pisano, appeals from a decree dis-

missing his action for personal injuries against the SS.

Benny Skou, im rem and Ove Skou, the shipowner.

Pisano,was employed by Clark, a stevedoring firm en-

gaged by Ove Skou, the owner of the ‘‘Benny Skou,’’ which

20

was berthed at Pier 51, North River. On July 22, 1960,

Pisano was on board the Benny Skou in charge of a gang

of three longshoremen loading cargo at #5 hatch. In the

course of his duties, Pisano himself rigged the port or

inshore cargo boom which was being used as the horizontal

or burton boom. At about 10:00 A.M. Pisano properly sta-

tioned himself by the hatch to supervise the loading of

two tons of ingots. As the load was lifted aboard, the

burton boom swung sharply inboard out of control. The

ingots carried by the boom were dumped to the deck, knock-

ing a stack of hatchboards into Pisano and causing him to

suffer substantial injuries.

The District Court dismissed Pisano’s libel and the in-

demnification claims, which depended on the disposition of

the libel, on the ground that Pisano’s injury was due en-

tirely to his own carelessness in failing to take a half-hitch

as a safety device in a preventer wire used as the main

anchor for the burton boom.

Pisano argues that he presented sufficient evidence to

show that the accident was caused by some other fault in

the rigging of the boom or at least that the absence of a

half-hitch in the preventer wire was not the cause of the

~ accident. The record reveals that Pisano presented no con-

crete proof of the cause of the accident. Pisano himself

testified on examination before trial that he had, in fact,

carried out his duty to rig the burton boom but had not

taken a half-hitch in the preventer. An investigation after

the accident established that the preventer had run free

and there was ample expert testimony to establish that the

preventer would not have come loose under the strain of a

two-ton load if a half-hitch had been taken. In this context,

the trial court’s conclusion that Pisano was ‘‘guilty of

100% contributory negligence,’’ 220 F. Supp. at 905, was

reasonable and must be affirmed because not shown to be

clearly erroneous. Gruja v. United States Lines Co., 337 F.

2d 375 (2d Cir. 1964).

Pisano also argues that the trial court erred in denying

him any recovery since the shipowner had a duty to pro-

21

vide safe working conditions aboard ship. However, the

court’s conclusion that ‘‘the unseaworthiness [of the

‘‘Benny Skou’’], resulting from the manner in which the

preventer was rigged, was the sole proximate cause of the

injuries to libelant,’’ 220 F. Supp. at 905 (emphasis sup-

plied), indicates that the court considered the shipowner’s

possible liability and resolved the issues against Pisano.

The District Court would have had to strain to find negli-

gence in this case since the shipowner or his employees had

no duty to inspect every knot in the rigging of every cargo

boom aboard ship. At most a general inspection of condi-

tions on board rather than minute, continuous supervision

of every detail entrusted to a responsible stevedoring firm

was all that was needed to satisfy the duty of reasonable

care under the circumstances. And, even if the shipowner

must share in the abstract any liability for breach of the

seaworthiness warranty with the impleaded respondent

Clark, Seas Shipping Co. v. Sieracki, 328 U. S. 85, 89-100

(1946), it is clear that compliance with the warranty does

not require an accident-free vessel. Mitchell v. Trawler

Racer, Inc., 362 U. S. 539 (1960).

Affirmed.

22

Decree of United States Court of Appeals

for the Second Circuit

UNITED STATES COURT OF APPEALS

For tHe Seconp Crrcuir

At a Stated Term of the United States Court of

Appeals, in and for the Second Circuit, held

at the United States Courthouse in the City

of New York, on the seventh day of June, one

thousand nine hundred and sixty-five.

Present: mot

Hon. Leonarp P. Moore,

Hon. Irvine R. Kavurmay,

Hon. Pavut R. Hays,

Circuit Judges.

[Same Trre]

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the South-

ern District of New York, and was argued by counsel.

On ConsmDERATION WHEREOF, it is now hereby ordered,

adjudged, and decreed that the decree of said District Court

be and it hereby is affirmed with costs to respondent appel-

lee SS Benny Skou, etc., and to respondent impleaded ap-

pellee John T. Clark & Son.

A. Dante, Fusaro

Clerk