Appendix — Daniel v. Skibs A/S Hilda Knudsen

Appendix.

' OPINION. nt. .

; : te April 28, 1966.

Josepu S. Lorp, III, J. _

On September 29, 1961, the SS ‘Concordia Fonn’’,

carrying a cargo of baled licorice consigned to MacAndrews

& Forbes, was being unloaded at the MacAndrews & Forbes

‘pier in Camden, N. J. The unloading procedure was as

follows: - a : Li Nene

_ Two twenty-two man gangs of ‘longshoremen, employed

by the.stevedoring firm of Murphy Cook Co., brought the

cargo from the hold of the vessel over the side to a landing :

stage. From there, the bales of licorice were loaded on

railroad flat cars which were on tracks on the pier. Each —

bale weighed about 350 pounds and about 200 bales per

hour were discharged from each of the two holds. <As the

. railroad cars, which were owned by MacAndrews & Forbes,

were filled they were pulled on the tracks by an engine, also

owned by MacAndrews & Forbes, to a warehouse situated/

on shore at the end of the pier. ‘The operator of the engine ;

was a MacAndrews & Forbes employe. Thereafter, the .

~ movement of the bales was done by employes of Murphy

Cook under contract with MacAndrews & Forbes.

Upon reaching the warehouse, the bales were unloaded

by fork lift trucks to the floor of the warehouse from where j

they were stacked. In order to raise the bales for stacking

the men in the warehouse used a procedure in which a pulley —

- or block is hung to a rafter by what has been termed a

‘hanger rope.’’ A line fed through the pulley has a set

of tongs attached to one end: while the. other is wound .

around a ‘‘hold and turn motor.’’ Daniel’s job was to hook’

_on the tongs (similar to ice tongs) to the draft and signal

ft -

y os

tie

ee ae A ppendix

the operator of the motor to raise the draft so that other »

_ Murphy men working on the piles of bales could stack them.

Daniel was injured .when the hanger rope broke, causing -

the block to fall and strike Daniel in the chest. The hanger -

rope was owned by MacAndrews & Forbes but it had been

giver to Murphy’s men who spliced the rope for use in this

operation. The block or pulley used was owned. by Murphy

Cook.

Licorice is a perishable commodity, subject to damage ©

‘by rain and it was therefore necessary to have it under

cover. The pier was inadequate to contain the bales as

they were unloaded, and, in addition, there would not have

been enough toom for them in the war ehouse unless they

were stacked.

Murphy Cook had agreed with MacAndrews & Forbes

to supply the longshoremen who worked on the ship and on

the landing stages immediately adjacent to the ship, and

also the men working in the warehouse. As to the former; .

the ship had agreed with MacAndrews & Forbes to make

an allowance against the freight bill for the costs which

MacAndrews & Forbes incurred to Murphy Cook. No such

allowance was made for the men working in the warehouse,

and defendant had nothing to do with that arrangement.

Plaintiff’s suit against the vessel is based solely on an .

asserted breach of the warranty of seaworthiness ‘which

‘plaintiff.claims extends to him. We left it to the jury to

determine whether plaintiff was engaged in unloading the

vessel and hence covered by the warranty. The jury found

for the plaintiff in the amount of $10,000. . Defendant has

moved for judgment notwithstanding the verdict, or in the

alternative, for a new trial. ;

I.

This case presents the problem of whether the already

broad coverage of the warranty of seaworthiness should be

further extended. It can no longer be questioned, of course,

that a longshoreman engaged in the service of the vessel is

a)

‘~ drick Fisser,’’ 358 U. S. 423 (1959). The longshoreman who

. . Shorémen working on deck guiding it or operating the cargo ©

- . problem where a longshoreman, a niember of the same gang

eal teeettta eA oTT e

Appendix i: ; 13

entitled to the benefits of the warranty. .Seas Shipping.Co.,:

Inc. v. Sieracki, 328 U. S. 85. (1946). “However, this broad

statement of the rule is but a starting point for the solution

of particular cases. . Lurking within it are unexplored areas

of liability or non-liability whose borders are difficult of

exact discernment. The best starting place is at the begin-

ning, 7.e., the basis of the warranty of seaworthiness. In

Reed v.. Steamship Yaka, etc., et al., 373 U. S. 410 (1963),

the Court referred to the holding in Sieracki which ex- “

_ tended the warranty to.longshoremen and said at page 413:

tia doing so, we noted particularly the hazards

of marine service, the helplessness ‘Of the men to ward -

' off the perils of unseaworthiness, the harshness of forc-

ing them to shoulder their losses alone, and the broad

range of the ‘humanitarian policy’ of the doctrine of

seaworthiness, which we held not to depend upon any

_ kind of contract. * * ** ;

nN

"

OEE SEL ERR te eS

‘Thus, it would appear that Seaginally the warranty

evolved because of the peculiar differences between shore

work and sea work, it being thought that -the hazards in-

volved in the two-were different and hence required differ-.

ent modes of protection. The longshoreman, so long as he

is doing ship’s work, has now become the beneficiary of the

doctrine originally devised for the protection of his sea- .

‘going brothers. | ! 7 5 t

It has been frequently stated that the work of unload. -

ing is ship’s work, traditionally performed by members of

the crew, and that a longshoreman engaged in unloading is _

entitled to the benefit of the warranty. Seas Shipping Co.

v. Steracki, 328 U.S. 85 (1946) ; Crumady v. ‘‘ Joachim Hen-

is working in the hold hooking on to cargo, ‘or the long-

winches pose no real problem. Nor is there any longer a

working aboard the ship, is incidentally on shore doing a

P pipe

t

14 | = Appendix

job that is part of an unbroken sequence of getting the cargo

from ship to shore. - - ay, oe

__ Plaintiff argues that because of the large number of

bales of licorice unloaded per hour in relation to the small

capacity of the pier, the perishable nature of the cargo, the

necessity of removing the cargo to a covered repository, and

- the need to stack the bales in that repository, plaintiff was

participating in the unloading of the ship. We think, how-

ever, that merely to characterize uncritically plaintiff’s .

work as part of.‘‘unloading”’ and therefore to hold that, hé

" must be covered by the warranty misses the boat. To so

hold would be to impose a semantic liability, and the logic

of words must give way to the logic. of reality.’ It is neces-

.Sary to examine what part plaintiff’s work played in the ..

unloading process. In Grumady v. “Joachim Hendrik Fis-

ser’’, 358 U.S. 423 (1959), the Court said, at page 426:

“We held in Seas Shipping Co. v- Sieracki, 328 ,

U. S.. 85, 95, 90-L. ed. 1099, 1106, 66 S. Ct. 872, that °

stevedores, though intermediately employed, are, when

performing ‘the ship’s service,’ entitled to the same

protection against unseaworthiness which members of ° ”

the crew doing the same work would receive. And see _

Pope & Talbot, Inc. v. Hawn, 346 U: S. 406, 98 L. ed.

142, 74S. Ct. 202. The work:of loading and ynloading

"1s historically ‘the work of the ship’s service.’* Seas

Shipping Co. v. Sieracki, supra (328 U. S. at 96).

%* # HDD ‘

It is possible to conceive of an almost limitless variety

of situations-in which a wotker may make some econtribu- -

tion to the discharge. of the vessel, and yet not be consid-

ered as doing the ship’s work. Thus, if the pier.area ad-

jacent to the vessel were inadequate to contain the cargo

and the consignee engaged a trucker to haul it away, the

_ trucker would be contributing to the completion of the un-

loading process. Hovvever, we cannot believe that he would.

be held covered by the se thiness warranty. Again, if ,

the cargo were taken from th¢ hold of the vessel and placed /

/

/

/

/

- Appendix i = 45

in railroad cars, which, in turn were pulled away by a rail-

_ road crew, we think the warranty would not extend to A

railroaders. In Thompson v. Calmar Steamship Corpo ra

tion, 216 F. Supp. 234 (KE: D. Pa. 1963), aff’d 331 F.2d 657

(C. A. 3, 1964), Judge (now Cireuit J udge) Freedman said,

at page 238: | :

_* * * Plaintiff was not a member of ‘a railroad crew

_ which brought a railroad freight car on to the pier. He

was, on the’ contrary? a member of a longshoremen’s

Sang engaged in loading a vessel, and in the course of

doing so it fell to. him to participate in an operation

on land, but one ‘intimately a part of the use of the

ship’s equipment, i.e. to bull winch and the bull line.

o£.s tes om ;

Similarly,’in Hagans v. Ellerman & Bucknall Steam-

ship Company, 318 F.2d 563 (C. A. 3, 1963); plaintiff was a

member of the twenty-two man longshore gang which was °

“‘working the ship,’’ a.e., taking the cargo from the hold.

Again, it fell to plaintiff to participate in an operation on .

_land,—pushing the trucks into which the cargo had been

loaded from the ship to a covered portion of the pier. Plain-

tiff was held covered by the warranty. .In Spann v. Lau-

ritzen, 344 F, 2d 204 (C. A. 3, 1965), cert. denied, 15 L. Ed.

2d 348 (1965), a ‘cargo of nitrate was being unloaded. It

was taken from. the hold and dumped into a shore-side

hopper. Plaintiff again was a member of the unloading -

. ¢rew and his job was to operate the hopper. He was in-

jured as a result of a defective handle. Recovery for un-

Seaworthiness:was permitted. a

Running throughout the cases? permitting recover'y for

land-suffered injuries are common themes: "

(1963) ; Hagans v. Ellerman & Bucknall Steamship Company, 318

F. 2d 563 (C. A: 3, 1963) ; Thompson v. Calmar Steamship Com- °

pany, 331 F. 2d 657 (C. A, 3, 1964) ; Huff v. Matson Navigation

Company, 338 F. 2d 205 (C. A. 9, 1964) ; Spann v. Lauritzen, 344

F. 2d 204 (€. A. 3, 1965) ; Litwinowicz v. W eyerhauser Steamship —

Company, 179 F, Supp..812 (E. D. Pa., | |

6. a Appendix °

; (1) The plaintiff was a member of the actual unload- |

ing gang whose duties, as a part of the work that his gang °

was doing, incidentally took him ashore. Here, however,

plaintiff was not a member of the longshore gang. It is

true that the test of coverage is status, not situs. : Di Salvo

v. Cunard: Steamship Co., Ltd., 171 F. Supp. 813.(S. D.

N. Y., 1959). Plaintiff’s status. here is no different. from

that of any shore based worker handling what was at one

time ship’s cargo. “He is one and the same as the railroader

referred to in Thompson as distinguishable from the mem-

. bers of the longshore gang. \ .

(2) ‘The sequence of movement was unbroken: by’ any

act of the consignee. Here, however, the cargo had left the

hands of the ship and of those to whom ‘the: ship -had ‘dele-

gated\its work of unloading, the longshoremen. The lico-

rice had become the responsibility of the consignee. Calcot,

Ltd. v. Isbrandtsen Company, 318 F. 2d 669 (C. A. 1, 1963)...

The bales of licorice were taken from the hold, were placed

' -on flat cars owned by the consignee, pulled by an engine -

owned by the\consignee and operated by the consignee’s

employe.. Wheh they arrived at the warehouse, they were

unloaded by.employes of Murphy Cook through an agree-

“Inent between Murphy Cook and the consignee.. In Spamn,

. the situation was far different. The operatign of removing

the nitrate from the hold, dumping it into the hopper and .

thence ‘into the trucks was a continued, uninterrupted se-

quence. The consignee in no way participated. So, tod, in’

' Hagans there was no intervention of the consignee between

| _ the departure of the bags of ‘sand from the hold and their

arrival in the warehouse.

These differences, we think, are critical.- While plain-

tiff’s work may have eontributed to the unloading process

in a philosophical sense, it was not unloading in the sense

that it was a part of the ship’s. work. .We are aware that

the recent trend of decisions in this Circuit and in the Su-

preme Court has been to widen the ambit of seaaverthiness

coverage. However, there has to be.an end somewhere of

Appendix : 17

the unloading process in the sense of liability-imposing

ship’s work. ‘Clearly the maritime jurisdiction extended

to the act of reaching into the vessel and removing cargo.

Such removal, having a beginning, had to have an end.”?

Spann v. Lauritzen, 344 F. 2d 204, 206 (C. A. 3, 1965). The

plain implication of Spann is that the unloading ended at

the hopper, including the emptying of the hopper so that its:

part in the unloading process could continue. Whether or

not the driver of the truck that recéived the nitrate would

be covered, plaintiff’s work here was even further removed. -

| We think the removal, or unloading, ended ‘with the de-

livery of the cargo to the consignee. - an !

‘There are other’reasons for our conclusion.

(1) As pointed out above, the basis for the develop-

ment of the warranty was to protect against maritime

hazards those persons exposed .to such hazards who. are

unable to protect themselves from the perils involved.”

' The plaintiff here was completely shore-based. His work.

' Was ashore.and he had-no contact, remote or otherwise,

with the ship.: There is no more need for the development

“of a protective shield or those in plaintiff’s then occupa-

tion than there is fot those engaged in any other industrial

- occupation. Plaintiff was subject to no particular mari-

time hazard, nor indeed, to“@ny- hazard that the ordinary

warehouse worker a encounter. |

(2) The basis’for the extension of the warranty .to

longshoremen seems to be that the vessel owner cannot’

escape-liability by hiring others to do its work and that

it is immaterial that the owner seeks to have its work done

by ‘a more modern division of labor. ‘*Historically the

work of loading and unloading is the work of the ship’s

service, performed: until recent times by. members of the

_ crew *** *. That the owner? seeks to have it done with

the advantages of more modérn divisions of labor does not

minimize the.worker’s ‘hazard and should not nullify his

2. Emphasis in this paragraph ours.

ya

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BD eatin sitar Gieb ice yoy ene nw ns

‘*

- 18 d os Appendia.

rd

7 pare a ”” “ Séas Shipping Co., Inc. v. ' Sieracki, 328 U. S..

85, 96 (1946). ‘‘Not the owner’s consent to liability, but |

"his consent té performance of the service defines its 7

Houndary.’’ Jbid.. The liability ‘‘extends to those who -

render it with Ais consent or by his thers who sp Ibid.,

at page 95. ‘‘If the owner engages others who su ply the: —

“equipment necessary for stevedoring operations

e must

‘still answer to the longshor emen if the gear proves to‘be

unseaworthy.’’ Huff v. Matson Navigation ee 338

F.2d 204 (C. A. 9, 1964).

> ‘Phe most significant differenée hetween thes case and

all that have gone before it; so far as our ‘research reveals,

is that here the owner did not engage-either the stevedore

or its: employes. to do the work being performed by plain-

~ “tiff, although it did, in effect, engage-those ‘actually working

-. the, ship. The consignee, with the ship’s agreement, ‘en-

eaged Murphy Cook to. provide a twenty-two man gang to

bring the cargo from the vessel’s hold to the pier. How-

ever, defendant made an allowance against the freight bill

- for the .cost of this longshore labor. On the other hand, ©

the consigneg arranged directly with Murphy Céok for the

labor in plaintiff’s gang. The ship made no allowance for

this cost and had nothing whatsover to do with the arrange-

'ment.. The scope of the owner’s liability cannot be con-

_- stricted by delegation of its work but here. there was no

delegation. of the. ship’s work by the ship; the delegation,

if any; was’ by MacAndrews & Forbes. “The owner did

' “not*seek to. have this work done by others; the owner did

not-seek. the advantages of more modern divisions of .

__ labor; the owner did not engage others; plaintiff was not

employed ‘by the: owner’s consent or arrangement. Cer-

tainly, to extend the warranty to those with whom the

~ owner had no connection w ‘hatsoever would be at. least un-

preeedented, and we think unwarranted,

da ees . ; v I.

. pore v. Louritese. 344. F. 24.204 (C. A. 3, 1965),

‘the court directed its attention first to’ the determination

Appendix ) es 4g

of whether or not plaintiff was engaged in the service of |

’ the vessel, concluded that he was, and was.therefore en-

titled to the warranty of seaworthiness. It then became

peneenary to consider whether he was injured bya defect ~

in an ‘“‘appurtenance’’ of: the ship, for unseaworthiness

only applies to the ship and its appurtenances. The court

coxielided that the hopper‘was an appurtenance because

“it was an essential part of the unloading process.’’ Ibid.,

page 209. It seems to us that we do. not here need to

reach the second i inquiry. Having determined that plain-

tiff was not in the service of the vessel, it follows that he

_ was not covered by the warranty of seaworthiness. In

-this posture, even if-the i injury-causing instrumentality was

an appurtenance, there would be no liability absent a

negligent. breach of. duty. In short, the character of the .

rope as an appurtenance i is moot.

Defendants’ motion for judgment will be gxanted.

ORDER::

Aa Now, April 28, 1966, it is iii that the de-

fendants’ motion for judgment n.o.v. be and it -hereby is

- granted.

By THE COURT

“a