Appendix — Cooper Stevedoring Co. v. Fritz Kopke, Inc.

Supreme Court brief1974

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APPENDIX

In THE

Supreme Court of the United States

Octroser TERM, 1973

No. 73-726

\ Goorer STEvEDoRING CoMPANY,

A

¥ Petitioner

Vv.

Fritz Kopxe Et Au,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

January 7, 1974

Petirion FoR CERTIORARI FILED NovEMBER 2, 1973

CERTIORARI GRANTING JaNuaRY 7, 1974

Y NLT a BORLA

INDEX

PaGE

Docket Entries ..........ccccccccccccsseseecceecesseseeceeessenceeeecseeeseeteceeceeneneenes (il)

Pleadings and Orders in District Court

Plaintiff's. Second Amended Original Complaint ............

Third Party Complaint ...............::scseceeseeseeseceseeeteeeneseeeenes

Pre-Trial Order ..........c..:c-sccssccosssscsccscessscsesscccsncenscnessnsssegeoses

Order of November 30, 1971 .0.0.........::ccscessseseeeseesceseeeeeenee nese 16

Opinion of Court of Appealls .............-.:ssssecessssssssesnenenneneeeneeeees 18

Opinion of Court of Appeals on Rehearing ............-.--.---1-00 22

Testimony ..........cscececscesssesssessesesessssncncncnencssnsensssnscsessssersennsesecncnsess 24

4 5 Pe QOL OA. LGA “~ MA IF PTL OR GAEL REL LMI rarcanyrenre

KET

«69 H-1214

Ableet anes

MEY 26 207

staid bois

(Lear& Il- 20-7)

8-6 ah

JUDGE JOHN V. SINGLETON, JR.

TITLE OF CASE

ATTORNEYS

TROY M. SESSIONS

| Fer Plains {BROCK & WILLIAMS

Warner Brock, 250 )THE-MA

: vs. |

__ FRITZ KOPKE |

vs Te Peeréen’ Di xte-Smith

Re SS SS So ee 'PULBRIGHT, CROOKER & JAWC

COOPER STEVEDCRING (3rd prty) CISEIESEU onk of the Southwest Bic

lHouston, Texas 77002

BASIS OF ACTION:PERSONAL INJURIES - LONGSHOREMAN. SEEKS | usta EB icn'

$50,000.00, INTEREST & COSTS. UNDER RULE 9(h) STE ee

|

pee we Se

a

| eanPrR STEVEMNR THE CO |

JURY TRIAL CLAIMEDBY 3rd PARTY DEF. Vnas @ids. Bien. ee

on MAY 5, 1970 | Texas 77002

1355 PLAINTIFF'S ACCOUNT RECEIVED ! OfSBuURSED i OATE ou Ss T * RECEIVED OISBURSEC

j 3rd Prty Dert. , 1 |

x. E._1OBROCK & WILLIAMS |_ $15.00 / __'_ag.-71 Gooper Stewedar a Ss or

(Lee Og /-/ES ! VFS | Notice of Appeal 5 00 _

Zalaal Lene ipl C&€ 1-179 ee a ee We we

| | N2/x/n - nC )/ 21 a

| j | ;

| | \alzp) QL /-/7 Seer, if a2

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RECEIPTS. REMARKS. ETC.

TO wHom Ove AMOUNT

{

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|

: _

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_ ‘need:

——_—. ‘ i

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-—_—_

63>

H-1214

JUDGE JOHN V: SINGLETON,

_MAY 25, 1970

oars FILINGS— PROCEEDINGS Seetn avers

1969 p _

DE2. 10 COMPLAINT, FILED IN DUPLICATE.

" —™ OST BOND, $250.00, FILED IN DUPLICATE.

_"__"_|sumons WITH COPY DO & COPY OF COMPLAINT ATTACHED, ISSUED & DE-

_"__"_ILIVERED TO U,S.MARSHAL FOR SERVICE.

" 15 \SUMMONS RETURNED & PILED. EXECUTED ON 12/10/69. >»

Bett] Torre "Ss SIRST ALLDSD CRISTUAD SMiPLSING, Filed.

122235-65) Tac SUT ULUNS Isoved.

1-7-70 Both Summons returned and filed. BOTH executed le-c}-097

2727770 | Defts. Answer. filed.

" Cost Bond. filed.

4/6/70 | Deft.'s Motion to implead 3rd party. filed. WD 4/13/70

weenie | Gibson BS Se ee er eorreme F4 s0m '

jand entered.

4-21-70 | THIRE PARTY COMPLAINT (Mid-Gulf Stevedores), filed.

4-21-70 | THIRD PARTY COMPLAINT (Cooper Stevedoring), filed.

4-21-70 | THIRD PARTY SUMMONS (Mid-Gulf Stevedores) ISSUED.

4-21-70 | THIRD pouee susous (Cooper Stevedoring) ISSUED.

s/5/79 | > = Si party vert. itd-sull Stevederee. 5’ %e3

MAY 11 ‘3rd PARTY SUMMONS RETURNED & FILED. EXECUTED ON 4/23/70.

" " DpEF'S. MOTION TO STRIKE JURY DEMAND OF 3rd PARTY DEF., FILED I

" "| DUPLICATE. =

sa] "

. "" BRIEF IN SUPPORT OF DEF'S. MOTION TO STRIKE 3rd PARTY DEF'S.

JURY DEMAND, FILED IN DUPLICAT=.

3rd PARTY SUMMONS RETURNED & FILED. EXECUTED ON COOPER STEV.ON

4/24/70.

5-12-70,

Motion of Cooper Stevedoring Company,Inc. to dismiss for

: want of jurisdiction filed in duplicate

5-12-70

Notice of submission filed in duplicate (M/D 5-18-70)

5-14-70 |

Rffidavit of Ervir S. Cooper ‘Ex. “A” to above rction), filed,

5-15-70

Defendant-third party plaintiffs reply to Cooper Stevedoring

Co.inc.,motion for dismissal,fiied in dup

Affidafit of £E.C.Faerber,filed in dup

Brief in opposition to third-party defendant's motion to dism{

for want of jurisdiction,filed in dup

Defendant-Third Party plaintiff's interrogatories,filed in du

PBS DFA ee

otion of Cooper Stevedoring Co., Inc. to dismiss for want of

urisdiction, DENIED, Defendant's motion to strike third party

~ Hefendant's jury demand, GRANTED. SVSIR.

6-8-70 |Parties notified. rm.

6-15-70 | Answer of third party defendant Cooper Stevedoring Co-iInc., to

interrogatories heretofore propounded by defendant third party ——

plaintiiT tiled in dup P

5-15-19 | Deposition of Troy M.Sessions, filed

9-21-70 | Pretrial id. Frank Harmon was not present for the pretrial,

Attorneys to complete discovery by January 1, 1971 and the

case will be set on the Court's first trial docket in 1971.

JVSIRi rm Parties notified.

_3-24-71 Motion for Physical Examination, filed. /D 3-29-71

rd- _Deft., Cooper Stevedoring Co., Inc., riled.

te Ome = 2 Pan

SOS FA enmnectirurea Anineats kw favan 2

z4-—-1—-

EVAuwrs Us gy VNU G YVANUWHE Whdd SCPLEOCUL Velce-iliadu basey

Pitr., filed. Parties ntfd. by c/c mm

10/14/71 | M a

i i rti i £3 cle. rlo)

i EFORE THE COURT: Witnesses sworn and

the rule invoked. Plaintiff's testimony begins. ;

11-3-71 | (JVS) 2ND DAY OP TRIAL BEFORE THE COURT: Plaintiff's testimon

continues. Plaintiff rests. Defendant's test y s.

Defendant rests. Court finds for plaintiff in the sum of

ccamcenencnerauenail cal less lein of $987.32.

-

11=30=71| (IVS) ORDER; Pltf, recovers $33,679.90 from Defts. Fritz Kopke, Inc,

—~"Tand Alcoa Steamship Co, LESS $937.32 to be paid to Texas Employers

—______Insurance Assn.; Defts, Fritz Kopke, Inc. and Alcoa Steamship Co.

—_—__—__|_recover $19,339.95 from 3rd Party Deft. Cooper Stevedoring Co., Incl;

- -half to 3rd party deft.,

fil es ntfd. by c/c, mm

12-2-71 APPEAL by 3rd Party Deft. Cooper Stevedoring Co., Inc.,

filed, Clerk served copies on other parties. mm

12=8-71 \|Notice of Appeal on behalf of Fritz Konke,Inc., et. al., Defts.,

éri25. {copies neilec ts other Parties.)

ie §& afSiaction o e °

Findings of Pact, filed. M/D 1-10-72 mm

1-5-72 |Cost Bond on Zppeal for Deft FRITz KOPKE,INC., filed.

1=6-72_/ Transcript _of Findings of Pact and Conclusions of Law made by

} J VS on 11-3-71, filed. mm

I-6-72

+

1-13-72 | Defts. Fritz Kopke, Inc.

| their Motion for Ad

2-23-72 |Reporter's Transcript of Proceedings, filed. _

2-23-72 | Record on Appeal consisting of ali ORIGINAL PAPERS, EXHIBITS, ONE |

}—DEPOSITION and Reporter's iranscript maiicd to Ct. of Appeais.

= isi 2 Exhibits #n3 De-ssition returned fre= Et. of Appeals.

-15-73

JUOG*ENT (or Mandate) of Court of tbpeals, rec’d & filed. (Judg=ent |_

jot Dist. Court “AFPIRMEL".) T

i.

4

+ ——— —

e 2 ee tn ee

Vv

C.A. 69-H-1214

DaTE | PROCEEDINGS Pr met

—S=I5=73 Opinion of Court of Appeals rec'd & filed

_ 8-15-73 Opinion of Ct. of Appeals on Rehearing,—rec‘d-& filed

oe a ee Fee —

a ee ree -_

DEPT A SELLE AEST ERTL EAT ee

re ea ee ee

MUPPET EEE EEE EEE

7

In THE

Ocroser Term, 1973

No. 73-726

Cooper Steveporinc Company,

Petitioner

v.

Fritz Korxe Er Au.,

Respondents

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PetiTion FoR CERTIORARI FILED NovEMBER 2, 1973

CrertTionakI GRANTED

January 7, 1974

[280] PLAINTIFF’S SECOND AMENDED

ORIGINAL COMPLAINT

(Caption Omitted)

NOW COMES the Plaintiff, Troy M. Sessions, complain-

ing of Defendants, Fritz Kopke and/or Alcoa Steamship

Company, and with leave of Court first had and obtained,

files this his Second Amended Original Complaint, and

would show the Court the following:

L

That at all times hereinafter mentioned the defendant,

Fritz Kopke, was and still is a corporation, having an

office and agent for service with Central Gulf Steamship

Corporation, Houston First Savings Building, Houston,

ge eer ee Pe eT oe ee ee ee

Pn ee eee

OeP TT a ee ee vee

Texas; and an office and agent for service with Furness,

Withy & Company, Ltd., World Trade Building, Houston,

Texas, where they were served with citation in this cause.

That at all times hereinafter mentioned the defendant,

Alcoa Steamship Company, was and still is a corporation,

having an office and agent for service with Dalton Steam-

ship Company, World Trade Building, Houston, Texas,

where they were served with citation in this cause. The

Defendants, Fritz Kopke and/or Alcoa Steamship Com-

pany, have appeared by and through their attorneys of

record and filed their answers herein.

IZ.

That at all times hereinafter mentioned the plaintiff was

and still is a citizen of the State of Texas and resides in

Houston, Texas in the Southern District of Texas.

[281] Ii.

Jurisdiction and venue lies in this Court.

IV.

On or about July 2, 1969, the defendant, Fritz Kopke

and/or Alcoa Steamship Company, owned and/or man-

aged, operated, manned, provisioned, supervised and con-

trolled the “S/S Karina”, and at all times material hereto

such vessel was situated upon the navigable waters of the

United States and in navigation at a dock at the Port of

Houston, Texas, and plaintiff was employed as a longshore-

man in the service of the vessel, performing the services

of a seaman.

¥.

Plaintiff would show that at such time and on such occa-

sion, the area of the “S/S Karina” where plaintiff was

working at the time and on the occasion in question was

ERE TS eS ers eats ea Se ee

iC ee

3

unseaworthy as that term is known in law, which unsea-

worthiness caused his injuries.

WL

Cumulative of the foregoing, but still insisting upon the

same, plaintiff would show that the defendants, Fritz Kopke

and/or Alcoa Steamship Company, their agents, servants

and/or employees, were negligent at the time and on the

occasion in question and such negligence caused or con-

tributed to cause his injuries.

VII.

By reason of the unseaworthiness of the vessel and/or

the negligence of the defendants, their agents, servants

and/or employees, plaintiff has sustained injuries, physical

pain, mental anguish, disability, loss of earnings and has

been caused to incur medical and hospital services, with

resulting expenses, all of which will continue in the future,

and therefore has and will sustain damages in the sum of

$150,000.00.

[282] WHEREFORE, PREMISES CONSIDERED,

plaintiff prays that upon trial hereof he have judgment

against the defendants, jointly and severally, in the sum

of $150,000.00, interest, his costs of Court, and such other

and further relief, special and general, legal and equitable,

to which he may show himself justly entitled.

Brock & Wiru1aMs

By: /s/ Warner F. Brock

Warner F. Brock

250 The Main Building

Houston, Texas 77002

224-6433

Attorneys for Plaintiff

4

[456] THIRD PARTY COMPLAINT

(Caption Omitted)

(Filed April 2, 1970)

TO THE HONORABLE JUDGES OF SAID COURT:

Comes now, Fritz Kopke, one of the Defendants in the

above cause, hereinafter referred to as Defendant-Third

Party Plaintiff, complaining of Cooper Stevedoring Com-

pany, Inc., hereinafter referred to as either the stevedore

or Third Party Deendant, and files this its Third Party

Complaint and would show as follows:

L

Troy M. Sessions, hereinafter referred to as Plaintiff,

has filed an Original Complaint and an Amended Com-

plaint, complaining of Defendant-Third Party Plaintiff, a

copy of said Complaints are attached hereto and marked

“Exhibit A” and “Exhibit B” respectively for all purposes.

IL.

Defendant-Third Party Plaintiff is a business organiza-

tion duly organized and existing under law.

Ii.

Third Party Defendant, Cooper Stevedoring Company,

Inc., is a corporation whose principal office and place of

business is P. O. Box 1566, Milner Building, Mobile, Ala-

bama 36601, [457] and has no registered agent for service

of process within the State of Texas, but who has trans-

acted business within the State of Texas as defined by the

statutes of this State, and by reason of the above men-

tioned activities, and, pursuant to Article 2031 (b), of

Vernon’s Annotated Texas Statutes, appointed the Secre-

tary of State of the State of Texas as its agent for service

eee a

5

of process upon whom service upon the said Third Party

Defendant may be had.

IV.

Plaintiff has alleged in substance in his Complaints that

on or about July 2, 1969, he was injured while working

onboard the SS KARINA, as a longshoreman while in

the employ of Midgulf Stevedores, Inc., as a result of the

negligence of Defendant-Third Party Plaintiff and/or be-

cause of the unseaworthiness of the vessel, for which Plain-

tiff is claiming damages in the sum of FIFTY THOUSAND

AND NO/100 ($50,000.00) DOLLARS. The Original Com-

plaint and Amended Complaint, copies of which are at-

tached hereto as “Exhibit A” and “Exhibit B” are referred

to and incorporated herein for more particular description

of the claim being made by the Plaintiff.

7.

Prior to the date of the alleged accident, a contract

was entered into with the Third Party Defendant, Cooper

Stevedoring Company, Inc., to load cargo aboard the vessel

at Mobile, Alabama, and the said vessel was then made

available to the stevedore so that it could fulfill its obliga-

tions under the contract for the stevedoring work. Third

Party Defendant was contractually obligated to Defendant-

Third Party Plaintiff to perform its work of loading the

cargo aboard the vessel with reasonable care and reasonable

prudence under the circumstances, and to perform the

stevedoring work in a reasonably safe and workmanlike

manner.

[458] VL

Defendant-Third Party Plaintiff alleges that at all times

material hereto the Third Party Defendant was an inde-

a ee EPL PEALE OLN EE SSN CES PAIS I Py

6

pendent contractor and was the employer of all men en-

gaged in loading activities aboard the vessel at Mobile,

Alabama, and that the stevedore was in full control of that

part of the vessel complained of by the Plaintiff during

loading activities, as well as all workmen employed in con-

nection therewith. That said Third Party Defendant had

full custody and control of that part of the vessel and the

employees working there, and had the sole right and author-

ity to control the workmen at Mobile in the work of loading

the vessel, and said Defendant-Third Party Plaintiff had

no control over said work, and at no time were the men

who loaded cargo at Mobile employees of Defendant-Third

Party Plaintiff, nor did the Defendant-Third Party Plain-

tiff have any authority to control or direct the Mobile

longshoremen in the details of the work performed.

Vil.

Defendant-Third Party Plaintiff alleges that if Plaintiff

did in fact sustain injuries proximately caused by any

unseaworthy condition of the vessel, which is not admitted

but expressly denied, then Defendant-Third Party Plaintiff

alleges that such condition resulted from the conduct on

the part of Cooper Stevedoring Company, Inc., through

its agents, servants and employees, acting within the course

and scope of their employment.

VI.

Defendant-Third Party Plaintiff alleges that if the Plain-

tiff sustained any injuries as the result of negligence other

than his own, which is not admitted, but is expressly denied,

then such negligence was the result of conduct on the part

of Cooper Stevedoring Company, Inc., its agents, servants,

or [459] employees, acting in the course and scope of their

employment, and the officers and crew of the vessel were

in no way negligent.

PPE OL ORO LLL IO OS Po ENN ee eS

a

7

IX.

Defendant-Third Party Plaintiff alleges that if the Plain-

tiffs injuries resulted from the unseaworthiness of the

vessel or the negligence of Defendant-Third Party Plain-

tiff, which is not admitted, but is expressly denied, then

such unseaworthiness or negligence was proximately caused

by the failure of Cooper Stevedoring Company, Inc. to

perform its contractual obligations owed Defendant-Third

Party Plaintiff, and by reason thereof Cooper Stevedoring

Company, Ine. is liable to indemnify Defendant-Third

Party Plaintiff for any damages that it may be required to

pay because of the Complaints filed herein by Plaintiff,

including reasonable attorneys’ fees, court costs and dis-

bursements, for all of which it asks recovery against Cooper

Stevedoring Company, Inc.

WHEREFORE, PREMISES CONSIDERED, Defend-

ant-Third Party Plaintiff, Fritz Kopke, prays that citation

issue and be served upon the said Third Party Defendant

in the form and manner required by law, requiring the

Third Party Defendant to appear and answer herein; that

upon a final hearing hereof, Plaintiff take nothing against

it, and that it be awarded judgment over and against Third

Party Defendant for all of its damages, with interest, costs,

disbursements and reasonable attorneys’ fees, and have

such other and further relief to which it may show itself

justly entitled.

Royston, Rayzor & Coox

By /s/ Gus Scum, Jr.

Gus Schill, Jr.

877 San Jacinto Building

Houston, Texas 77002

Attorneys for Defendant-

Third Party Plaintiff,

Fritz Kopke

PES AL LITE SARS IESE PENI: GLO TSR ON TN Bae: Sa a a

I Bi Sat aaah al .

Tipe

8

[290] PRE-TRIAL ORDER

(Caption Omitted)

The above styled and numbered admiralty cause came

on prior to trial for entry of a pre-trial order, and it being

made known to the Court that the parties have agreed on

an order, the following pre-trial order was entered more

than ten (10) days preceding date of trial which is to be

held in Houston, Texas before the Honorable John V.

Singleton, Jr., Judge, on April 6, 1971.

L

There is no jurisdictional questions except that third

party defendant, Cooper Stevedoring Company is asserting

lack of jurisdiction contending it has no agent in this State

and has never done business in this State.

i.

In general, Plaintiff claims that he was working as a long-

shoreman employed by Mid-Gulf Stevedores, Inc. aboard

the SS KARINA, a vessel owned and operated by Fritz

Kopke, Inc. and/or Alcoa Steamship Company, hereinafter

referred to as Defendants- [291] Third Party Plaintiffs, said

vessel being docked in the Port of Houston on July 2, 1969,

which is the date Plaintiff was injured due to the unsea-

worthiness of said vessel and the negligence of the De-

fendants-Third Party Plaintiffs. Plaintiff contends that the

vessel was unseaworthy, and Defendants-Third Party Plain-

tiffs were negligent, in requiring Plaintiff to work-on a

floor of crates which was not solid and which had holes

between the crates. Plaintiff stepped into a hole located

between two such crates and fell injuring his back and

other parts of his body. As a result of the alleged injuries

received, Plaintiff has been treated by Dr. A. C. Madsen,

PEGI PIL IES AEE BB EN sige ete *

es

RECs.

9

Dr. Ed Smith, Dr. T. O. Moore, and Dr. Robert J. Goodall.

Plaintiff is claiming damages in the sum of $50,000.00.

In general Defendants-Third Party Plaintiffs contend

that:

1. That the Defendants, Fritz Kopke, Inc. and/or Alcoa

Steamship Company, were not negligent.

2. That the SS KARINA was not unseaworthy.

3. Alternatively, that the negligence, if any, of the

Defendants and/or the unseaworthiness of the SS

KARINA, if any, did not proximately cause or contribute

to Plaintiffs injuries, if any.

4. That Plaintiffs failure to exercise ordinary care for

his own safety was a sole cause of the accident made the

basis of this suit.

9. That the Plaintiff, Troy M. Sessions, was negligent,

and that such negligence caused or contributed to his

injuries, if any, and that any award for damages, if any,

made to the Plaintiff should be reduced by the percentage

to which his own negligence contributed to his injuries.

6. Alternatively, that Plaintiffs injuries, if any, resulted

from an unavoidable accident.

[292] 7. That Plaintiffs injuries, if any, were proxi-

mately caused by the negligent acts and omissions of the

two Third Party Defendants, their agents, servants, and

employees for whom Defendants-Third Party Plaintiffs

are not responsible, and that as a matter of law, such

negligence on the part of the Third Party Defendants, their

agents, servants, or employees, will entitle the Defendants-

10

Third Party Plaintiffs to recover indemnity from the Third

Party Defendants, for all damages costs, attorneys’ fees

and disbursements incurred by Defendants-Third Party

Plaintiffs.

8. That Plaintiff had pre-existing conditions which

caused and/or contributed to his present disability, and

that the amount of any award made herein to Plaintiff,

if any, should be reduced by the percentage to which such

pre-existing physical conditions caused or contributed to

his present disability, if any.

9. That the Third Party Defendants have breached their

contractual obligations owed to the Defendants-Third Party

Plaintiffs and the SS KARINA and that such breach

entitles the Defendants-Third Party Plaintiffs to recover

full indemnity from the Third Party Defendants, for all

damages, costs, disbursements, attorneys’ fees, etc.

10. That the negligence of the Plaintiff, Troy M. Ses-

sions, was a proximate cause or contributed to cause his

alleged injuries and as a matter of law, such negligence

constitutes a breach of the Third Party Defendant, Mid-

Gulf Stevedores, Inc., of its contractual obligations to

perform its work aboard the SS KARINA with reasonable

care and prudence, and in a reasonably safe manner, and

that such negligence of the Plaintiff, as a matter of law,

entitles the Defendants-Third Party Plaintiffs to recover

indemnity from the said Third Party Defendant.

[293] 11. That Defendants-Third Party Plaintiffs are

entitled to recover indemnity from Third Party Defend-

ants for all damages awarded to Plaintiff, in the event

Defendants-Third Party Plaintiffs are liable to Plaintiff

in any respect and are entitled to further recover indemnity

for all costs, disbursements, attorntys fees and expenses

incurred in connection with the defense of Plaintiff’s claim

11

irrespective of whether any recovery is made by Plaintiff

in this case.

In general, Mid-Gulf Stevedores, Inc. and Cooper Steve-

doring Company, Inc., hereinafter referred to as Third

Party Defendants, contend:

Third Party Defendants say that the negligence of the

Plaintiff was a sole cause, or in the alternative, a cause of

the Plaintiff’s damages, if any. Third Party Defendants

further state that the damages, if any, sustained by the

Plaintiff were the results of an unavoidable accident. Third

Party Defendants deny that they breached any contractual

duties of any character owed to Third Party Plaintiffs, and

urge that if Plaintiff's injuries were caused by any sub-

standard conduct or condition other than his own, that it

was that of Third Party Plaintiffs, and that Third Party

Defendants did not breach any warranty of workmanlike

Service, and that any substandard conduct or condition or

action by Third Party Plaintiffs was of such nature as to

bar recovery of indemnity.

ITI.

STIPULATIONS

1. Itis stipulated and agreed that the SS KARINA was

owned and operated by Fritz Kopke, Ine. and/or Aleoa

Steamship Company at all times material to this lawsuit.

2. It is stipulated and agreed that on July 2, 1969,

Plaintiff was employed by Mid-Gulf Stevedores, Inc. as a

longshoreman and that he was aboard the SS KARINA

at Houston, Texas on J uly 2, 1969, pursuant to the work of

his employer.

[294] 3. Texas Employers Insurance Association, the

compensation carrier for Mid-Gulf Stevedores, Inc. has

paid Plaintiff weekly compensation benefits in the amount

SSP IE an OREN DEO NE IE ORES AACE A rte

12

OF Siccousns and, further said compensation carrier has paid

medical benefits in the amount of @............ , and has a right

to recover by way of subrogation for such compensation and

medical expenses so paid in accordance with the Long-

shoremen’s & Harbor Workers’ Compensation Act from any

monies awarded Plaintiff in this cause of action, if any.

IV.

There are no contested issues of law.

7.

EXHIBITS

Attorneys agree that exhibits may be introduced into

evidence providing opposing counsel are first permitted to

inspect such exhibits and before any tender of the exhibit

is made for identification or introduction. In this regard,

it is stipulated that all hospital records may be admitted

without formal proof of their authenticity. Furthermore,

any x-rays and laboratory tests made in connection with

the examination and treatment of the Plaintiff may be

admitted by any party without formal proof of their

authenticity or by proof of the technician making them.

Also the dock and medical log of the SS KARINA including

their English Translations and the ship’s cargo storage

plan may be admitted by any party without formal proof

as to their authenticity.

A. It is anticipated that the following exhibits will be

introduced by Plaintiff in the trial of this case.

1. Bill of Dr. Robert J. Goodall in the amount of $590.00.

2. Bills of Memorial Baptist Hospital totaling $718.90.

3. Bills of Memorial Radiology Associates totaling

$86.00.

13

[295] 4. Bills of Leidler and Associates (Laboratory

Medicine) totaling $32.00.

5. Bill of M.D. Anesthesia in the amount of $78.00.

6. Hospital records of Memorial Baptist Hospital.

7. Income tax records of Troy M. Sessions for the years

1968 through 1970.

8. Portions of U.S. Coast Guard and Safety & Health

regulations for longshoring and the storage of cargo.

B. It is anticipated that the Defendant may introduce

into evidence the following exhibits:

1. Certain hospital and medical records including lab-

oratory tests, etc.

2. Plan of the hold of the vessel.

3. The Logs of the SS KARINA.

4. Accident reports of the stevedore.

5. Weekly wage records of Plaintiff.

C. Third Party Defendants may offer into evidence the

following :

1. Certain medical and hospital records including lab-

oratory tests, ete,

2. Accident reports of stevedore.

3. Weekly wage record of Plaintiff.

4. Logs of the SS KARINA.

5. Ship’s cargo storage plan of the hold in question.

VI.

WITNESSES

A. The Plaintiff may call as witnesses the following :

The Plaintiff.

=

on a a i ee ee ee

14

. 2. Tom Harper, the foreman for plaintiff who was al-

legedly present.

[296] 3. J. R. Hunt, T. G. Gant and W. H. Freeman, co-

workers allegedly present.

4. Dr. Robert J. Goodall, a local neurosurgeon who has

operated on and most recently seen and treated Plaintiff for

his injuries.

B. The Defendants may call as witnesses the following:

1. Members of the longshore gang and supervisory per-

sonnel of stevedores, as listed.

2. Dr. A. C. Madsen.

3. Dr. Ed Smith.

4. Dr. T. O. Moore.

C. The Third Party Defendants may call as witnesses

the following:

1. Members of the longshore gang and supervisory per-

sonnel of stevedores, as listed.

2. Dr. A. C. Madsen.

3. Dr. Ed Smith.

4. Dr. T. O. Moore.

VIL.

All discovery has been completed. |

viii.

All motions and other ancillary matters have been com-

pleted.

15

IX.

All signed written statements of parties and witnesses

contained in the files of Plaintiff, Defendants-Third Party

Plaintiffs and Third Party Defendants, if any, have been

exchanged and copies of same filed with Court.

X.

This case will be an admiralty case, therefore no jury is

needed.

[297] XI.

Settlement offers have been exhausted.

APPROVED AND ENTRY REQUESTED:

(Signatures Omitted]

lia: oat a LEO E LO LLL OLN EE OEE Si ae ye spam

16

[509] ORDERED

(Caption Omitted)

(Filed November 30, 1971)

BE IT REMEMBERED that on the 2nd day of Novem-

ber, 1971, came on to be heard the above entitled and num-

bered cause, and the parties continued to introduce evidence

until the 3rd day of November, 1971, when all parties

announced in open court that they had rested their cases.

Thereupon the Court, after considering the pleadings, and

pretrial order, the evidence, and after hearing argument

of counsel, stated that he found for the plaintiff and against

the defendants are entitled to recover in contribution

Co., finding that the plaintiff, Troy M. Sessions, sustained

damages in the total sum of $38,679.90, finding also that

the defendants are entitled to recover in contribution

against Cooper Stevedoring Company, Inc., third-party

defendant, the sum of $19,339.95, and further finding that

Texas Employers Insurance Association, the compensation

carrier for plaintiff’s employer, had paid weekly compensa-

tion benefits in the amount of $626.07 and medical benefits

in the sum of $361.25, or a total of $987.32, and that Texas

Employers Insurance Association is entitled to recover

the sum of $987.32 from the sum of money awarded the

plaintiff, and it is, therefore, accordingly,

ORDERED, ADJUDGED and DECREED that the plain-

tiff, Troy M. Sessions, do have and recover of and from the

[510] defendants, Fritz Kopke, Inc. and Alcoa Steamship

Co., the sum of $38,679.90, and it is, further,

ORDERED, ADJUDGED and DECREED that out of

such sum of money awarded the plaintiff, Texas Employers

Insurance Association is hereby granted a recovery of

$987.32, which sum of money the defendants shall pay

St EY erSegetee:

17

directly to Texas Employers Insurance Association out of

the plaintiff's recovery of $38,679.90, and it is further,

ORDERED, ADJUDGED and DECREED that the de-

fendants, Fritz Kopke, Inc. and Alcoa Steamship Co., are

entitled to contribution against Cooper Stevedoring Com-

pany, Inc., third-party defendant, in the sum of $19,339.95.

It is further ORDERED, ADJUDGED and DECREED

that all costs herein are taxed one-half to the defendants

and one-half to the third-party defendant.

ENTERED and EXECUTED this 30th day of Novem-

ber, 1971.

/s/ Joun V. Sincueton, Jr.

John V. Singleton, Jr.

United States District Judge

APPROVED AS TO FORM:

[Signatures Omitted]

18

EXHIBIT A

In THE

United States Court of Appeals

For Tue Fiera Crircvuir

No. 72-1467

Troy M. Sessions,

Plaintiff-Appellee,

Vv.

Fritz Kopke, Inc., Er At,

Defendants-Third Party

Plaintiffs-Appellees and

Cross Appellants,

Vv.

Cooper STEVEDORING Company, INc.,

Third Party Defendant-

Appellant and Cross Appellee.

AppEats F'rom THE Unrtep States District Court FOR THE

SovuTHERN District or TExas

(June 1, 1973)

Before MORGAN, CLARK and INGRAHAM,

Circuit Judges.

SRA EET OE — —_

19

INGRAHAM, Circuit Judge: The SS KARINA, a ves-

sel owned and operated by Fritz Kopke, Inc., and under

charter to the Alcoa Steamship Company, was loaded with

palletized crated cargo by the employees of Cooper Steve-

doring Company at Mobile, Alabama. The KARINA de-

partted Mobile and arrived at Houston on or about July 2,

1969, where employees of Mid-Gulf Stevedores, Inc., pre-

pared to load sacked cargo.

T'roy Sessions, a longshoreman employed by Mid-Gulf,

was one of the first men to enter the hold of the ship.

The Mid-Gulf employees were required to walk atop the

previously loaded palletized crates in order to store the

cargo they were bringing aboard ship. Sessions stepped

into an opening between two crates which was concealed

by a covering of corrugated paper, and thereby sustained

certain personal injuries.

Sessions brought an action against Fritz Kopke and

the Alcoa Steamship Company (collectively referred to

as the vessel) seeking to recover damages for his injuries.

The vessel in turn sought indemnity against Mid-Gulf and

Cooper. Prior to trial the vessel compromised and settled

its claim against Mid-Gulf, which was then dismissed

from the suit. After a trial to the court, sitting without a

jury, the vessel was found to be unseaworthy and damages

were awarded to the plaintiff in the amount of $38,679.90.

No one appeals from this award. The court found that

Cooper had negligently stowed the cargo it loaded in

Mobile and had thus breached the warranty of workmanlike

performance it owed to the vessel. Denying the vessel’s

claim for a full indemnity, the court awarded the vessel

contribution from Cooper as a joint tort-feasor for 30% of

the damages.

— AE A ION TES PETER OMICS FM 05

20

Cooper appeals. The vessel cross-appeals, contending

that there was no basis for the trial court’s denial of

its claim to full indemnity from Cooper. While our appel-

late review of this case is made somewhat difficult by the

fact that neither the vessel nor Cooper requested that the

trial court make formal findings of fact or conclusions of

law which specifically dealt with the various rights and

liabilities of the parties, nevertheless, we find ample basis

for this holding in the oral decision announced by the judge

at the conclusion of the case. Fairly read, the holding does

make it clear that the court considered the vessel’s con-

duct precluded its full recovery on the indemnity claim

because it failed to fulfill its primary responsibility under

its arrangement with Cooper to assure that some type of

dunnage was placed on top of the cargo. On the record

before us we cannot conclude that this finding was clearly

erroneous.

On its appeal Cooper Stevedoring asserts that the trial

court’s award of contribution in a non-collision maritime

cast is in direct conflict with the Supreme Court’s decisions

in Halcyon Lanes, et al v. Haenn Ship Ceiling & Refitting

Corp., 342 U.S. 282 (1952), and Atlantic Coast Inne R. Co.

v. Erie Lackawanna R. Co., 406 U.S. 340 (1972).

Halcyon, supra, held that there was no right to contribu-

tion between a shipowner and a shoreside contractor who

are joint tort-feasors in a case involving injuries to an

employee of the contractor while engaged in repair work on

a ship. The apparent prohibition against contribution in a

non-collision maritime case has been held inapplicable

where the joint tort feasor against whom contribution is

sought is not immune from tort liability by statute. Horton

& Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131 (5th Cir.,

1970), cert. den. 400 U.S. 993 (1971); Watz v. Zapata

Offshore Company, 431 F.2d 100 (5th Cir., 1970); In re

ELLE PESOS FE OO SE ILS eo ee we BO ORE"

ere. —

21

Seaboard Shipping, 449 F.2d 132 (2nd Cir., 1971), cert. den.

406 U.S. 949 (1972).

In the present case Sessions, in addition to suing the

vessel, could have proceeded directly against Cooper

Stevedoring as Cooper was not his employer and, there-

fore, not shielded by the limited liability of the Long-

shoremen and Harbor Workers Act.

The Supreme Court’s per curiam affirmance of the

Atlantic case, supra, in no way necessitates a reexamination

of our prior holdings. An examination of the district court’s

opinion in that case (reported at 315 F.Supp. 357 [1970])

indicates that the employer against whom contribution was

sought enjoyed statutorily imposed limited liability and,

therefore, would have fallen without our Horton-Watz

exception to the Halcyon rule.

Finding both parties’ additional assertions of error

without merit, we therefore AFFIRM the judgment of

the district court.

AFFIRMED.

SS ALE EE ELON TEENS EEE ET LOND I I PP IO

22

In THE

United States Court of Appeals

For Tue Firrxs Crecuir

No. 72-1467

ON PETITION FOR REHEARING

(August 6, 1973)

Before MORGAN, CLARK and INGRAHAM,

Circuit Judges.

INGRAHAM, Circuit Judge: The court, having received

a petition for rehearing in the above entitled and numbered

cause, modifies its opinion of June 1, 1973, by deleting the

eighth paragraph thereof. In its place the court substitutes

the following paragraph:

The Supreme Court’s per curiam affirmance of the

Atlantic case, supra, does not necessitate a reexamina-

tion of our prior decisions. It is unclear from the dis-

trict court’s opinion, 315 F.Supp. 357 (S.D.N.Y., 1970),

as well as from the Second Circuit’s affirmance thereof,

23

442 F.2d 357 (1971), whether our Horton-Watz excep-

tion to the Halcyon rule was even applicable under the

facts of Atlantic, Moreover, neither court directly ques-

tioned the decision$ in Horton and Watz. In these cir-

cumstances and absent a reference in the Supreme

Court’s short per curiam opinion to these decisions,

we do not read Atlantic as silently overruling Horton

and Watz.

In all other respects the petition for rehearing is DE-

NIED.

24

TESTIMONY

[14] TROY M. SESSIONS,

the Plaintiff, was called as a witness in his own behalf

and, having been first duly sworn, was examined and testi-

fied upon his oath as follows:

DIRECT EXAMINATION

By Mr. Brock:

[15] Q. By Mr. Brock) State your name, please, sir.

A. Troy Marvin Sessions.

[16] Where do you live, Mr. Sessions? A. 9409 Chester-

Q. In Houston? A. Houston, Texas.

Q. How old are you? A. Fifty-four years old.

Q. When did you turn fifty-four? A. April 21st, 1971.

Q. What extent of education have you had? A. High

School education.

Q. Did you finish High School? A. Yes, sir, I finished

High School.

Q. Where did you finish? A. Rusk, Texas.

Q. In what year? A. 1940.

[20] Q. Now, with respect to the types of — strike that.

On what day was it that you got injured, that’s made

the basis of this suit? A. July the 2nd, 1969.

Q. And what ship were you on? A. I was on the

25

“S.S.” — I believe that is pronounced “Karuda.” “Karuda.”

I believe that’s the way it’s pronounced.

Q. The “S.S. Karina”? <A. “Karina,” yes, sir.

Q. All right. And about what time of the day did this

incident occur? A. I'd Say approximately 10:30 or a little

later.

[21] Q. At night? A. Yes, in the morning

Q, 10:30 A.M.? A. A.M, correct.

Q. Ora little later? A. Ora little later.

Q. As I understand, Mr. Sessions, in the routine course

of seeking employment, the thing that you would do would

be to go to the union’s hiring hall in order to try to get a

referral based on your seniority? Is that correct? A.

Correct.

Q. And, as I recall, there is a 7-00 o’clock starting time?

A. That’s correct.

Q. Is that right? And you have to be there, say, an

hour ahead of time to try to get a job at the 7:00 o’clock

starting time? A. That’s right.

Q. Were you there on July 2nd of 69% A. I was.

Q. And did you get a job at the 7:00 o’clock call? <A.

No, sir, I did not.

Q. And the next starting time is what? A. Was 10:00

o’clock — was 8:00 o’clock.

[22] Q. Was 8:00 o’clock? A. Yes.

Q. Were you present for the— <A. I were present at

8:00 o’clock.

Q. And were you able to get a job at the 8:00 o’clock

starting time? A. No, sir, I did not.

Q. Now, then, the next starting time would be 10:00

A.M.? <A. That’s correct.

26

Q. And was it at that hiring time, for the 10:00 A.M.

starting time, that you got this job? <A. Yes, sir, that’s

correct.

Q. What was your gang foreman’s name? A. Tom

Hocker.

Q. Tom Hocker? A. Yes.

Q. What was your walking foreman’s name? A. Van

Johnson, Jr.

Q. Do you recall the approximate size of the gang? A.

Seventeen men.

Q. Do you recall the kind of cargo that was being

handled with reference to whether or not it was considered

general cargo or some other kind of cargo? [23] A.

Well, at the time, it were considered junk cargo, as far as

I know of. Junk cargo.

Q. Among the foremen who is it that makes the specific

work assignments? A. The walking foreman relays the

message to the gang foreman.

Q. And then the gang foreman— A. The gang fore-

man relays the message to the workmen, to the mens.

Q. On this particular occasion, on July 2nd, 1969, on

what part of the ship were you assigned? A. The for-

ward end on No. 2 Hatch. No. 2 Hatch of the ship, we was

assigned to.

Q. Forward end? A. Yes, sir. The forward end of

No. 2 Hatch.

Q. Of the No. 2 Hatch? A. Yes, sir.

Q. All right. Now, let’s go back. I was intending to

inquire whether or not, on July 2nd, ’69, you were assigned

a job as a winchman or a forklift operator, or just what

job did you have? A. I had a hold job, just throwing

the cargo.

Q. What do you mean when you say you had a hold job?

27

A. I was throwing the cargo down in the hold, just unload-

ing it off on pallets so they come in the [24] hold.

Q. In other words, you were performing your work in

the hold of the ship? A. In the hold of the ship, correct.

Q. And what was the name of the stevedore that you

were working fort A. Midgulf Stevedore Company.

Q. I am certain, of course, that you worked for [25]

Midgulf Stevedores on many occasions? <A. JI have.

Q. Had you worked under Mr. Tom Hocker, the gang

foreman, prior to this day? A. Yes, sir, I had.

Q. Had you worked under Mr. Van Johnson, Jr., the

walking foremant <A. I had.

Q. With respect to the men in the hold of the ship, did

you have a working buddy? A. A working buddy?

Q. A working partner. A. Oh, yes, sir.

Q. A working buddy? A. Yes, sir, I had.

Q. And what was his name? A. His name was Guy

Thomas.

Q. When you went to this job on July 2nd, 1969, and

even before you went to the ship, did you know what kind

of cargo was going to be charged or loaded? A. N 0, sir,

I did not.

Q. When you reported at shipside at 10:00 A.M. on

July 2nd, 1969, did the gang go on board the ship? [26]

A. Yes, sir, they went aboard the ship.

Q. And then you were assigned a particular hatch?

A. That’s correct.

Q. As I understand, Mr. Sessions, records are kept not

by members of Local 872, but records are kept by time-

keepers, clerks and checkers, are they not? A. Yes, sir,

they is.

Pi ee . LILI NLL GELLER ESO EG LATE RG ION BG OG

4 . ons os 2

28

Q. And those records indicate the time that you com-

menced work and the time that you stop work? A. That’s

correct.

Q. And those records also indicate the name of the

vessel you were working on and the hatch that you were

working in? A. That’s correct.

Q. When you say you were working in the No. 2 Hatch,

whatever the records show about the hatch you were in

would be accurate, would it not? A. That’s correct. What-

ever the records show, that’s what I was in.

Q. Whatever hatch you were working in. It’s your testi-

mony you were working in the forward end of the hatch?

A. Inthe forward end of the hatch.

Q. Is that correct? [27] A. That’s correct.

Q. Now, when you say the forward end of the hatch,

do you mean by that the bow of the ship, toward the bow of

the ship, or toward the stern? A. Well, I mean up toward

the stern of the ship. That’s the first to the hatch. It’s like

you step off in the hatch and the hatch is numbered from

number 1 and 2, which right at the end of this step, that’s

the forward end of it.

Q. In other words, you were right at the forward end —

A. Yes.

Q. —of the ship? A. That’s correct.

Q. When you got down in that hatch, what did you find?

Was it empty or was there cargo in there? A. It was

empty. The forward end was empty and the after end of

the ship was stowed with crates.

Q. Allright. Was this after end — are you talking about

the after end of the hatch you were working in? A. The

after end of the hatch we was working in.

Q. Allright. A. See, the—I’d say about half of the

hatch, or [28] probably a little more, was took up with

PERLE LG OM BOE ue ny

29

crates already stowed into the hatch and then the — actual-

ly, what I’m calling the after end of it.

Q. All right. Now, the time sheet, as best I can de-

termine, shows that you were working in Hatch No. 1.

A. Uh-hum.

Q. Now, let’s assume that you were working in Hatch

No. 1. You start at the front of the ship. Do the hatches num-

ber 1 through 5 to the back of it, or how do you start num-

bering? A. Well, starting at No. 1, it starts at the for-

ward end. Whichever end you decide to load is the end you

decide to put the cargo in.

Q. I am talking about now, Mr. Sessions, when you

refer to hatch as Hatch No. 1, do they regularly number

Hatch No. 1 as the first hatch at the beginning of the ship

or at the tail end of the ship? A. The first hatch at the

beginning of the ship is considered No. 1 hatch.

Q. All right, N ow, approximately — just in order that

I can visualize it — approximately what area, what width

and what length was covered [29] by Hatch No. 1? A.

You mean by footage? You want me to give it by footage?

Q. Yes, sir. How many feet wide and how many feet

long? <A. It probably was between forty — about forty

foot, I guess, wide.

Q. Allright. A. And might have been about forty-five

long.

Q. Now, of course, you didn’t measure it, did you? <A,

No, sir. I’m just guessing at it.

Q. And were there any decks between the top deck and

the bottom of the ship in Hatch No. 1 where you were

working? A. Any—?

Q. No, no. I didn’t make myself very clear. On the

“Karina” there was a top deck, wasn’t there? <A. No,

sir. It’s just one hold. There was just one deck on the ship.

FRO PLEIN CGE AEE NEALE ILE COLO SEB OT NFR

mae

30

Q. All right. And that was the deck at the top level of

the ship, wasn’t it? A. The lower hold of the ship.

Q. All right. A. The lower hold of the ship was con-

sidered the whole hatch of it, of No. 1 Hatch, if I’m under-

standing [30] you correct.

Q. When you went on board the ship did you go there

by means of a gangplank. A. Yes, sir, by means of a gang-

plank.

Q. When you stepped off the gangplank what did you

step onto? A. The deck of the ship.

Q. You stepped off on the deck of the ship? A. That’s

correct.

Q. All right. Now, were there any decks from that deck

of the ship that you step off onto down to the bottom of |

the hold of the ship? Were there any other decks? A. No,

sir.

Q. A tween deck or anything of that kind? A. No,

sir, there weren’t any other deck other than that.

Q. Now, when you stepped off on the deck of the ship

you walked on that deck to the No.1 Hatch? A. Walked

to the ladder, to a ladder of the ship, and went down the

ladder to the lower hold of the ship, the No. 1 ship— or

No. 1 Hatch.

Q. All right. And you went from the deck down to the

lower hold by means of a ladder? A. That’s correct.

[31] Q. Was this ladder located inside the hatch coam-

ing? A. It was on the end of the hatch.

Q. All right. A. On the end of it, and it was on the

end of it between number — if it was No. 1 Hatch, it was

between No. 1 and No. 2.

Q. And it would be on the after end of the No. 1 Hatch?

A. It was on the after end— the ladder was on the after

end of the hatch.

Q. Allright. A. In other words, when you step down

off’n the ladder, you step down right on top of the crates.

. N

5

}

}

ee —— . iieieneimeiasamaationte A

31

Q. All right. When you climbed or let yourself down

the ladder to the lower hold of the ship, was any portion of

Hatch No. 1 loaded with cargo? <A. Yes, sir, the lower

hold.

Q. Which portion of Hatch No. 1 was loaded with cargo?

A. The lower hold.

Q. Was it the entire lower hold, the forward end or

the after end? A. Just half of the hatch of the lower

hold was loaded. Half of the hatch, I’d say, it was loaded

with cargo.

[32] Q. And what did it appear to.be loaded with? A.

Some type of crated cargo. I do not know what was in it.

Q. Were the crates of one tier or were there several

tiers? A. It was several keys across, across the hatch.

Q. Several keys? A. Yes, sir.

Q. All right. A. It was several keys.

Q. We will get into that in just a minute. I want to just

hand you a photograph which I have just seen today and I

want to,ask you if that appears to be the way and the

manner‘in which the crated cargo appeared? A. No, sir.

That’s not even the crate.

Q. All right. Let me show you, then, another photo-

graph.

MR. HARMON: Could the record show the number

on the back of that photograph, please? It is number —

MR. BROCK: 11.

MR. HARMON: No. 11.

THE COURT: All right. No. 11 was the one that

didn’t —

[33] MR.BROCK: That he said did not appear —

THE COURT: —did not appear to look like the

crates at the time of the accident.

Hee . Ee RLSM MRR OT PER ELIAS RR RSI

32

Q. (By Mr. Brock) Now, Counsel, Mr. Frank Harmon,

who is representing Cooper, has been kind enough to show

me these pictures and I am now handing you a picture that

has been marked 1 on the back side.

Does that appear to be the kind of crated cargo— A.

It doesn’t seem like it was the kind. It didn’t have these

bands on it.

Q. It did not have the bands on it? A. No, sir.

Q. All right. I am going to hand you all of the rest of

the photographs that Mr. Harmon has handed me, and I

want to ask you just to sort through those photographs.

Look at each one of them and tell me if any of these

appear to be the same kind of crates that were already in

the ship, and if they are, fine, and if they are not, well,

just tell us. A. One looks more like the crate.

[34] Q. All right. Let’s look on the back and be sure.

Now, that has 10 on the back of it, doesn’t it? A. Yes, sir.

Q. And that appears to be more like the crate involved?

A. Yes.

Q. Is that correct, sir? A. That’s correct.

THE COURT: When you're talking about crates

involved, are you talking about the crates that they

were loading or the crates that were on the deck?

THE WITNESS: The crates that were —

THE COURT: On the deck on which he was stand-

ing? Is that what you’re talking about?

MR. BROCK: Right, correct, where he was work-

ing.

THE COURT: On the floor —

MR. BROCK —of—

THE COURT: —or on the deck, itself, there were

crates?

33

MR. BROCK: On the floor — [35] your Honor, I

am going to clarify it.

Let’s assume that this semi-square is the floor of

the hatch and the bottom of it, and this is the hatch

opening with the ladder here on the aft end; that

when he crawled down the ladder and got down to

this decking representing the bottom or the lower hold

of the ship, that there was on the aft end crates of

cargo that were already there which he did not par-

ticipate in loading and which no one else in Houston

participated in loading.

And I think Mr. Harmon will agree at this point

that whatever crates were in the hold of the ship at

Hatch No. 1, they had been loaded there in Mobile,

Alabama, by Cooper.

MR. HARMON: On that, as I say, I can’t say be-

cause we don’t know what was here when the ship got

here. The facts are the Cooper Stevedoring Company

did load certain cargo on this ship in No. 1 and No. 2

and some other hatches, in Mobile, Alabama, and we

[36] are in a position to prove the kind of crates that

we loaded aboard.

THE COURT: Okay. Let me see No. 10.

Q. (By Mr. Brock) In any event, of the photographs

of crates that you examined, the one that has a 10 on the

back of it, that I showed you a moment ago, more resem-

bles the crates that were already in, that had been loaded

some place else in Hatch No. 1? Is that correct, sir? <A.

That’s correct.

Q. Now, I want you to tell me, by just keeping your

witness chair, because I am not going to ask but one or

two questions, you tell me where to draw the line with

34

respect to forward, the aft, the port and the starboard

side, as to where the crates were when you went down the

ladder to go to work. A. Right in the center there where

you got your ladder at.

Q. Right— A. Yes, sir. We call that the after end of

No. 1 Hatch — or No. 2 Hatch.

Q. Did the cargo go all the way across to the starboard

side? [37] A. All the way across.

Q. Did it go all the way across to the port side? A.

Yes, sir, it did.

Q. Now, was there cargo from the point where I have

drawn the arrow, started it, cargo all the way from here to

here in Hatch No. 1% A. In Hatch No. 1, that’s correct.

Q. Now, don’t let me—I want to find out what the

facts are. A. All right. That’s correct.

Q. All right. A. See, now, it was all the way from

one —

Q. There was cargo from here— A. That’s correct.

Q.—over to here? A. That’s correct.

Q. And this was what yoyu ywould call loaded with

crated cargo? A. That’s correct.

Q. Was there any cargo on the starboard side of the

hatch, the port side of the hatch, forward of this or on the

forward end of the hatch floor? A. Not when we arrived

there.

Q. This was all ready for some type of cargo? A.

Vacant space, yes, sir. All that was vacant space.

[38] Q. All right, sid. Now, I asked a moment ago, and

I want to go back to it, and particularly after looking at the

crates, assuming this is the floor, were the crates stacked

just on the deck flooring or were the crates stacked on top

of one another? A. Just on the dock flooring.

Q. So there would be crates like that? A. That’s

correct. |

LALLA LIER GEN

35

Q. One tier of crates? A, That’s correct. One wing

tip to the other wing tip.

Q. All right. A. But, now, when you say one key,

it might have been several keys, but it wasn’t but one key

across, is what I’m speaking of. But as far as the length

of it, it could have been four or five keys or more across

half of the hatch, consuming the whole hatch, half of the

hatch.

Q. Now, Mr. Sessions, you used the term, key, I have

noticed, a great deal. A. Yes.

Q. Now, explain to the Court what you’re talking about

when you refer to a key. A. Well, that means — what

we term as the key is [39] like if, say, if you’re going to put

a sack or a box down here, you just put — as you put one,

you put one box, you put two, two, three, and they call that,

key. One box high, two box high or three box high. Well,

you say one key high or two keys high or three keys high.

That’s the term we use.

Q. Now, if you just have it one crate high all the way

across, that would be one key? A. One key, that’s correct.

Q. If you came along and put another crate on top of

that— A. It would be two keys high.

Q. Then you would call it two keys? A. That’s cor-

rect.

Q. Was it one key, two keys, three keys, or four keys

hight A. It was just one key high.

Q. That’s what I wanted to be sure that I understand,

your terminology in the longshoring business.

So far as you know, did you go on board the ship at or

about 10:00 A.M. on July 2nd, 1969 A. About 10:00

A.M.

Q. All right. [40] A. We went aboard the ship

maybe, say, about — it might have been ten or fifteen

minutes prior to 10:00 o’clock, but we didn’t start to work

36

till about 10:00 A.M. We may have arrived at the ship

maybe ten or fifteen minutes earlier.

Q. What kind of cargo were you men assigned to load?

A. Bag cargo. Some type of bagging cargo that was in a

paper bag.

Q. All right. A. I was told it was some type of corn

starch or something.

Q. In other words, you were loading paper bags which

you were told was corn starch? A. Yes.

Q. How much did each paper bag weigh? A. Well, I

really don’t know. I didn’t pay attention to the weight, but

just to feel of the weight, if I had to make a guess at it,

I’d say around eighty pounds up to a hundred. I don’t

know. I’m just making a guess at it. I didnt look at the

exact weight.

Q. When the bagged cargo was hoisted from the dock

into Hatch No. 1, was it brought in on a pallet? A. Yes,

sir, it was.

Q. How many men in the hold of the ship would unload

[41] each pallet? A. Four men on each side, There was

eight men, total.

Q. In other words, there would be eight men unloading

one pallet? A. No. Four mens on one pallet.

Q. And four men on another pallet? A. On another

pallet.

Q. As soon as, or within a reasonable time after, you

got down to your work area, I assume the winch operator

and the flagman and the hook-on men started charging the

ship with this bagged cargo? A. Yes, sir, they did.

Q. And I gather that as this cargo was charged, it

would be put down into the square of the hatch, put down

in here some place? A. That’s correct, but it were put

in on the forward end of the hatch there.

Q. Put on the forward end of the hatch? A. Yes, sir.

37

THE COURT: Were you bringing on two pallets

at a time or were you unloading two pallets at a time,

or what?

[42] THE WITNESS: Yes, sir. We was unloading

two pallets at a time, but one would be inshore of the

ship and one would be offshore of the ship.

Q. (By Mr. Brock) In other words, you had two winches,

an inshore and an offshore winch? Is that correct, sir? <A.

No. We just had one winch driver. He’d bring us a load,

bring the inshore crew a load, and set it down. Then he’d

go back and bring the offshore crew, and by the time he

got back with the inshore load, well, they’d have our load

unloaded.

So, see, that way they kept the loading going, that way.

Q. Which side were you working on? A. I were work-

ing inshore.

Q. In other words, that would be on this side? A.

Well, that would be on the left side of the ship. That would

be the left side.

Q. Is in. All right. If this is the forward end— A.

Yes, sir.

Q. — Then that would be the inshore side? A. That

is correct.

Q. And in the process of the four of you men discharg-

ing [43] the bagged cargo, do you work in pairs? A. Yes,

sir, we works in pairs.

Q. And your partner’s name was? A. Guy Thomas.

Q. Guy Thomas? A. Thomas.

Q. All right. Now, explain to me whether or not you

had unloaded a sufficient number of bags of corn starch

to fill this area? A. Yes, sir. We had unloaded a sufficient

amount almost to complete that area.

Q. And how high had you gotten with the bagged cargo?

A. Bringing it to the height of the crate.

38

Q. Like this little sketch down here indicating a crate —

A. Yes.

Q. — You had brought the bags of corn starch up to

the top— <A. Yes.

Q. — Equal to the top of the crates? A. That’s cor-

rect.

Q. Now, before you put any cargo in this area did you

put down any paper to cover the open flooring? [44] A.

Yes, sir. We put down some brown paper to cover that

flooring on the forward end of the hatch.

Q. After you got the cargo completed at the forward

end of the hatch and you had brought it up to the level

of the crates, what was the next job that you had to do?

A. Well, the next job we had to do was to put some cargo

on in the wing of the ship, bring the wing of the ship out.

Q. All right. Now, just tell me, without moving from

the witness chair, where is the wing. of the ship? Is this it?

A. No, Sir.

Q. Is this it? A. No, sir. All the way over to your

white line.

Q. All the way here? A. That’s correct.

Q. And to the other side. That’s what is considered the

wings of the ship? A. In other words, out this way.

That’s correct.

Q. That would be the wing? A. That’s right.

Q. To get it up even with the crates? A. Well, see,

the crates, we just went right on top [45] of the crates

with that particular cargo. We just put down some brown

paper right on top of the crates and started to stacking

that cargo right in the wing, bringing it out to the center

of the hatch.

Q. Are you talking about here, now? A. Yes.

Q. All right. Now, I specifically want to ask you —

THE COURT: Do you put the cargo on top of the

crates, the bags on top of the crates? Is that what

he’s saying?

39

THE WITNESS: Yes.

MR. BROCK: We haven’t gotten to that, but this is

what they ultimately did.

Q. (By Mr. Brock) You put brown paper on the floor?

A. On the floor, that’s correct.

Q. And you did that on the wing of the hatch? A.

That’s correct.

Q. And then, after putting the brown paper out, you

then put the bagged cargo? A. We put the brown paper

right in the wing of the ship, started in the wing of the

ship. See, we’d left the hatch of th ship open. Didn’t put

no [46] paper in the hatch of the ship.

Q. Right here? A. That’s correct.

Q. Allright. A. We left that part open. We just put

our brown paper running along upside of the ship and

brought it — brought the work out to the center of the hatch

to us.

Q. And when you bring it out to this point here on

either side, would that be called the center of the hatch?

A. That would be called the center of the hatch.

Q. All right. So, ultimately, you had the entire floor

forward and aft, port wing and starboard wing, where

you had the thing fairly level? A. Fairly level.

Q. With bagged cargo and crated cargo? A. That’s

correct.

Q. Now, after you had the bagged cargo up to the same

level as the crated cargo, then what were you getting

ready to do? A. Bringing the wing out to the centers,

as I stated. At the point when I stepped in this hole, throw-

ing this cargo going to the wing part of his ship, see, I was

working inshore.

[47] Q. All right. A. Well, now, while stepping with

cargo, coming to the wing of the ship, making a step back-

a EGOS

OLLI REGO DEE BLES Lg EE LN, Goat PIS

40

wards and forward. is when I stepped in the hole of the

ship with this cargo in my arm.

Q. All right. A. And so the wing of the ship hadn’t

been brought out to the center of the hatch at that time. It

was still open, but we was bringing it out.

Q. All right. A. In other words, we was bringing to

many foot up the wing, then we would come out to the

center of the hatch.

Q. Now, in the process— A. And that’s the point

where —

Q. Inthe process of completing the inshore wing of that

hatch, this is the time when you got hurt? A. That’s

correct.

Q. And what was it that— where were you walking

when you got hurt? A. On the middle of the hatch to the

wing of the ship.

Q. What were you walking on top of? A. Crates.

[48] Q. And on top of these crates where you walked

and stepped through, was there any kind of covering or

paper or anything else like that? A. There was white

paper on top of these crates. Looked like corrugated white-

looking paper, big, old, white, thick-looking paper was

lying on top of these crates.

Q. Was that paper there at the time that you went in

the ship to go to work. A. Yes, sir. It was there at the

time we went into the ship.

Q. And when you were walking on top of these crates,

which leg and which foot was it that went in between the

crates? A. My right leg.

Q. Did your right foot and right leg go between crates

or did your foot and your weight break through the crates?

A. It went between crates.

Q. And when your right foot and leg went between the

crates, were you carrying anything? A. A sack. I was

carrying a bag of cargo.

41

Q. Were you carrying it in c@njunction with your

partner, Mr. Thomas? A. No, sir. I was packing it by

myself.

[49] Q. You were carrying that one by yourself? <A.

Yes, sir.

Q. And how far, with respect to the bottom of your foot

to your knee, did your leg go through that hole between the

two crates? A. Down to my knees.

Q. Down to yourknee? A. Yes,

Q. And in the process of stepping in that hole, carrying

this bag of starch, what happened to you? A. Well, in

the process of stepping in the hole, as I was about to swing

and throw the bag at the same time, it swung and pulled

my back.

Q. When you went down into Hatch No. 1 did you

notice then, or did you notice after your foot went through,

that the crated cargo had not been secured? A. Yes, sir.

We noticed it right away when I got into the ship.

Q. In other words, when you went into the hatch you

saw at that time that this crated cargo in the aft end of

this hatch had not been secured? A. Yes, sir.

od e o

[51] (By Mr. Brock) Mr. Sessions, have you, since 1957,

ever worked crated cargo? A. Yes, sir, I have.

Q. And have you worked crated cargo on few occasions,

several occasions or many occasions? A. On many occa-

sions?

Q. Is a lot of the cargo that goes through the Port of

Houston crated cargo? A. Yes, sir.

Q. Have you observed in those instances that cargo,

crated cargo, is secured? A. Yes, sir, I have noticed it’s

secured.

Q. On the occasions that you have noticed or observed it,

was the crated cargo secured? A. Well, in many cases

it is secured —I notice it being secured by banding gear.

es = eng, A * m= eon

An PR 8 Ne REO“ CNS 6 et pe tert ~Pree GR £9 f

42

Q. Banding gear. All right, sir. A. I’ve also noticed

it being secured by dunnage [52] or timber. I’ve noticed

it being secured by timber.

Q. All right, sir. A. And I also have noticed it being

secured by chain gear and cables.

Q. All right. A. I have noticed it being secured with

cables.

Q. All right. Now, let me take each one of those. Was

there any dunnage securing this crated cargo? A. No,

sir, it was not.

Q. So far as you know, were therre— A. No, sir, it

was not.

Q. — Banding gears, securing this cargo? A. No, sir.

Q. And were there any chains being used to secure the

eargo?t A. No, sir, it was not.

Q. Any cables used to secure the cargo? <A. No ,sir,

it was not.

Q. Now, Mr. Sessions, I want to ask you, also, have

you worked in connection with crated cargo? <A. Yes,

sir, I have worked with crated cargo.

Q. Where it was not secured? A. Yes, sir. I have

worked where it wasn’t secured.

Q. In other words, there have been occasions when it

[53] came through that it wasn’t secured? A. That’s

correct.

Q. All right. To whom did you report the fact that you

had stepped through this space between the crates? A.

The walking foreman, Van Johnson, Jr.

[83] Q. (By Mr. Brock) Did anybody other than your-

self witness your stepping through this, between these

crates, to your knowledge? <A. Yes, sir.

Q. Who witnessed it? [84] A. Thomas,

Q. That’s your working buddy,Guy Thomas? A. Yes,

sir.

43

Q. Anyone else? A. Well, the other two men that was

working with me, they saw it.

Q.. Do you know what their names are? A. I didn’t

know them by name, but I only knew them by face. But

now I know them by names.

Q. All right. A. One of them was named Grant. J.

Grant, Jr., I believe is his name.

Q. All right. And the other one? A. And they had

one named Jefferson.

Q. Was the gang foreman down in the hatch where you

men were working at the time? A. Not at the time we

was working.

Q. Was the walking foreman in the hatch at the time?

A. No, sir, he was not.

Q. Can you tell me on this occasion when you went to

work on the “Karina” whether or not the walking foreman

or the superintendent had been into the hatch where this

work was to be performed? A. If they had, I didn’t see

them.

Q. In other words, you have no knowledge? [85] A.

No knowledge of it.

Q. Is it routine or is it customary for a stevedore’s

representative to go into the hatches where the Longshore-

men are to work to see what the working conditions are?

A. Well, it’s their custom to do that, but —

Q. Normally— A. Normally, it’s our custom to do

that and most times —

Q. Who normally does that for the stevedore, if you

know? A. The walking foreman mostly go down and

make a report to the superintendent. Sometimes we has two

walking foremen. You go down and make a report to the

other walking foreman, what kind of space he got down

in the hatch, and all of that.

Q. Now, with respect to the two walking foremen, as I

understand it, you would have a black walking foreman

RIFLE LOE FDO LOL GE

ee

44

who would be working over in your end of the ship? Is that

correct? A. That’s correct.

Q. And if white longshoremen were working the other

end of the ship, there would be a white walking foreman?

A. That’s correct. . \

[86] Q. Well, what period of — strike that,

MR. BROCK: Your Honor, I believe that’s all I

ean think of now. I’m sure I’ve forgotten something,

but I’d have to come back.

THE COURT: All right. Mr. Smith.

CROSS EXAMINATION

By Mr. Smith:

7 . *

[92] As I understand your testimony, you went down

the ladder that morning and walked across the crates

to the forward end of the hatch when you first went in?

A. Yes, sir, that’s right.

Q. And your gang proceeded to load these paper bags

in the forward end of the hatch until you got up to even

with the crates that were already there? A. To the after

end of the hatch.

[93] Q. Well, up to where— A. You said the forward

end.

Q. —up to where the crates were located. A. We

started where the crates wasn’t loaded on the floor, where

the crates was not loaded.

Q. Up here and moved back? The crates were back here?

as? Te.

Q. Isn’t that what you testified? A. We started up

there and moved down, down to the crates.

Q. All right. Did you have any trouble, when you walked

across the crates, going to the forward end of the hatch

45

when you first went down there? A. Have any trouble?

Q. I mean—yes. Did you step — hole? A. No,

I stepped in no hole.

Q. Did the crates look level and up next to each other

like they should be? <A. Well, they —to my knowledge,

they did.

Q. When you first went in there that morning, the crates

that were already there, did it look like a good, tight level

stow? <A. It looked like it was, but once you could look

the crates over, there were cracks in them. In [94] some

of the crates there were cracks in them.

Q. Just where the crates were up next to each other?

A. They was up as tight as they could be at the time.

Looked like they had shifted or either wasn’t stowed real

tight, one.

Q. All right. But did you make any complaints? Did

you make any complaints to the gang foreman or the walk-

ing foreman about there being any problems with the way

the crates were stowed when. the gang first went in there?

A. No, sir.

Q. All right. It’s not unusual to see cracks between

crates like this in this type of stow, is it? A. Well, no,

sir. It’s not unusual to see a crack.

Q. It’s just sometimes physically impossible to get one

crate to fit exactly snug up against the next one? A.

Sometimes it is.

Q. But you weren’t concerned when you first went down

there about there being any hazardous condition about

the way these crates were stacked, were you? A. No, sir.

Q. You had plenty of light to see, didn’t you? A. Yes,

sir. ,

[95] Q. All right. Now, I gather everything was going

smoothly up until the time you stepped in this hole? A.

Yes.

46

Q. You had no problems up to that time? A. That’s

correct.

Q. And if I understand your testimony, you were carry-

ing a sack, walking across the top of the crates, going

back into the wing, when you stepped on a piece of paper?

A. Yes, sir, when I stepped on a piece of paper.

Q. Now, this piece of paper, as I understand it, was

covering the hole that your foot went down into? A.

That’s correct.

‘Q. You didn’t see the hole there before you stepped on

it, did you? A. No, sir.

Q. All right. Is the reason you didn’t see it was because

it was covered by this piece of paper? A. That’s correct.

Q. All right. As I understand your testimony, this piece

of paper was already there on top of the cargo when you

went to work that morning? A. To my knowledge, it was.

Q. Was it a separate texture and kind of paper than

[96] the separation paper that you testified that the men

put down? A. Yes, sir. This paper was white. We was

putting down brown paper.

Q. Did you call this butcher paper on your deposition?

A. No. The lawyer who was having the deposition called

it butcher paper.

Q. But it was a different kind of paper? A. Yes, sir.

It was a different type of paper. I told him it was corru-

gated paper.

Q. But there’s no doubt in your mind that no member of

your longshore gang put that piece of paper over the hole?

MR. HARMON: Your Honor, I'll object to that.

I don’t think he can know whether some other member

of the gang put it there.

/) \ THE COURT: Well, I don’t know whether he

= knows or not. Go ahead. I'll overrule that objection.

Did he answer the question?

penance eens a r sepmenen i

47

Q. (By Mr. Smith) Did you understand the question?

A. No, sir, I didn’t quite get your question. Will you re-

phrase it?

[97] Q. Well, you testified that Houston longshoremen

were putting down some brown paper. A. That’s correct.

Q. And the paper that you stepped on was white? A.

That’s correct.

Q. Did you see any of the other Houston longshoremen

that morning that were working in the hold with you

bring in a piece of paper like this and put it over on top

of the boxes where you stepped in this hole? A. No, sir,

I didn’t see no more.

Q. All right, sir. Did it appear to you that this piece

of paper was on top of the boxes when you went is the hold?

A. Yes, sir. It was on top of the boxes when I went in the

hold.

Q. All right. As I understand it, the only reason you

didn’t see this hole, this space between the crates, was

because this paper covered it up? <A. That’s correct.

Q. And as I understand, you had no indication or you

had no reason to think that there was a hole under there?

A\ No, sir, I did not.

- Did the cargo or.the crates’ general appearance [98]

look safe and satisfactory? A. Yes, sir.

/ Q. And you didn’t make any complaints about the condi-

tion of the crates that morning before you stepped in there,

did you? A. No, sir.

Q. And neither did any of the other longshoremen that

were working with you, did they? A. Not to my know-

ledge.

Q. As a general practice, do the longshoremen put down

separation paper or do seamen? Just generally. A. Long-

shoremen, just generally.

a s e s

LN EGR IOW VEL LILODE ELE 2 OLE TS

EE ES MGA MEAG LD GPM LOEB OG Oo * POD LIT

48

[102] Q. What was the name of the gang foreman again?

A. Van— Tom Hocker.

Q. Hocker? A. Yes.

Q. He’s a double gold star plus, isn’t he? A. I don’t

know about all the plus, but he’s. a double gold star.

[103] Q. Well, he’s been down there about fifty years,

has he not? A. Yes. He’s been down there quite awhile.

I don’t know how long exactly, but he’s been down there

quite awhile.

Q. Would you say he is an experienced gang foreman?

A. Yes, sir, he is.

Q. You have worked with him on many other occasions?

A. I have.

Q. Do you know whether or not that Mr. Hocker came

in and looked in the hatch that morning when you all started

to work to see if everything was all right? A. Yes, sir,

he did.

Q. All right. He’s a gang foreman. That’s part of his

job? <A. That’s correct.

Q. And he did come down and look? A. He came to

the hatch and looked.

Q. All right. Nobody complained about any problems?

A. No, nobody complained about any problems.

. Q _Because they didn’t see any problems to complain

about, did they? A. I don’t say they didn’t see them,

but at the time we was working in the after end of the

ship there [104] wasn’t any problems to see.

Q. But there is no doubt in your mind that Mr. Hocker

is a capable, experienced gang foreman that you have

worked for on many occasions in the past? <A. Yes, sir.

Q. Have you worked for him since this accident? A.

Yes, sir.

Q. Would the same go for the walking foreman, Mr.

Van Johnson, Jr.? A. Yes, sir.

49

Q. And you're not telling Judge Singleton, are you,

that it’s a walking foreman’s job to go dowm and inspect

every hatch before the longshoremen go in, are you? A.

No. I didn’t say it was the walking foreman’s job.

Q. All right. Now, they showed you a bunch of pictures

of different kinds of crates and you picked out one picture

that looked kind of like the erate in question.

My question is, did all the crates that you saw down there

the day you got hurt look to be about the same? A. Yes,

sir. They looked to be about the same. They was all about

uniform crates. It looked to be [105] uniform at that time.

Q. Yes. A. It might have been some a little lower, a

little higher. I didn’t take a measure, you know, and mea-

sure them to see, but they looked to be.

Q. So there wasn’t some little bitty ones and some great

big ones. They were all about the same size and looked

about the same? A. They looked to be.

MR. SMITH: I pass the witness, your Honor.

THE COURT: All right, Mr. Smith. Mr. Harmon.

CROSS EMAMINATION

By Mr. Harmon:

Q. Mr. Sessions, from your experience on the water-

front, you have generally observed, haven’t you, that when

you are in a gang that goes to work ina hatch, that ordinar-

ily your gang foreman will look down in the hatch to see

what the working conditions are before he sends the gang

down there, isn’t that right? A. That’s correct.

Q. Because the longshore rules make it the responsibil-

ity [106] of the gang foreman to check over working condi-

tions and be sure that the crew and work were safe; other-

wise, he’s not supposed to send them down there, is that

right? A. Well, I don’t say he’s not supposed to send

z ~ Ip ap ares

‘ ee ERE IIS BENE GY IT INTE EE OES LES A

vee

50

them down there, but I say usually his duties is to check to

see that things is in order. They usually spot check it and

see.

Q. All right. Now, these crates, did you happen to notice

that these crates were actually palletized cargo; that is,

that there were pallet boards underneath the crates? A.

No, there wasn’t no pallet boards underneath. You speaking

about what a fingerlift might be able —

Q. Yes. Right. A. No, sir. It was not that type.

Q. It was not that type? A. No, sir.

Q. In all fairness to you, Mr. Sessions, we’ve got a

number of records here from the company who shipped

them which indicates that they were palletized and that’s

the reason I asked you the question. A. They was not. I’m

sorry to tell you, but they was [107] not palletized.

Q. So you’re positive that the type of crates that were

in there, which you were walking across the top of, were

not palletized cargo? A. I’m positive of that.

Q. Are you equally positive, Mr. Sessions, that the type

of crate that you were on — incidentally, you can tell that

these crates that I’ll show you here, that are marked on the

back here as No: 5, you can tell that that is a palletized

crate, can you not? You see the pallet boards underneath

there? A. Yes, sir, I see it under.

Q. You can see the pallet boards underneath the one

that’s marked No. 3? <A. Yes, sir.

Q. Can you also see them underneath what’s marked

No. 1?

THE COURT: I can’t hear you, Mr. Sessions.

A. I say, this one is mighty flat. You can’t tell too much

about whether its got skids on it or not.

Q. (By Mr. Harmon) All right. Now, what about this

one, marked No. 6? Can you see the fact that it’s [108]

got skids under it? <A. Yes, it’s got skids under it.

51

Q. All right, sir. Now, Mr. Sessions, these photographs

here, which are marked 1 and 6 and 3 and 5, you notice that

each one of these has got this corrugated brown — in other

words, that’s brown corrugated cardboard paper on top of

that, is it not? A. That’s what it looks like. I can’t really

tell.

Q. All right. Now, as I understand it, your crew and

you, yourself, did go and lay separation paper on the deck

of the open part of the deck of the vessel before you put

the bags — grits, or whatever it was that was in the bags

that you were loading? A. On the floor.

Q. On the floor of the ship? A. That’s correct.

Q. Now, after you had floored off the deck of a vessel

and got it up to about even with the height of the crates,

did you all start laying some separation paper on top of

the crates before you started putting the bags of cargo on

them? A. No, sir. We started unloading the bags on the

floor, flooring them off, putting them down, [109] the

bags on top of bags, just flooring them off.

Q. Well, no. You may not understand my question. I’m

saying, before your accident happened you did get around

to start to put some bags on top of the crates, did you not?

A. No, sir, not before we started to putting cargo in this

end up here where the crates is not in. You see,.up here

where the open hatch is, well, there’s no crates there.

That’s where we didn’t put no paper,

_Q. Allright. A. We puta paper up there where there

was nothing but a wooden floor.

Q. (Indicating)? A. No, down here to it. In that area.

That’s right.

Q. Now, is this area down here, this is where the crates

were, wasn’t it? A. The crates is up there where you

see that —

Q. Well, I think perhaps you’ve become confused or

maybe I didn’t understand you. A. Where your crates

DE a ORE GPO OT ETRE OOO ERE OE IEE SI

52

is is up there where the center of the little dotted mark is.

Q. Here? A. Yes, sir. That’s where we put the paper

down there. Now, that’s the forward end of the ship, [110]

and then the after end of the ship is where the crates were.

Q. All right. That’s here all the way out to the sides

of the ship? A. That’s correct.

Q. The crates went all the way across, as I understand

it? A. That’s right.

Q. All right. Now, isn’t it correct that at some time

before your accident happened you and some of the other

men in your gang had gone and laid some pipe on top of

some of the crates before you started loading bags there?

A. No, sir.

Q. Well, now, Mr. Sessions, of course, I was not present

when your deposition was given, but do you remember

that you gave a deposition where there was a court reporter

present like this young lady? A. Yes, sir.

Q. And the lawyers who represented the steamship

company— A. Yes, sir.

Q. —in Mr. Williams’ office asked you some questions?

fidli- A. 6 Fen, ae

Q. This was back in, I think, April of 1970. And you

were asked some questions by a lawyer named Schill. A.

Yes, sir.

Q. And this was on page 36 of your deposition. Have

you had a chance to read this deposition over, incidentally,

Mr. Sessions, before youcame here? A. I glanced over it.

Q. All right. Well, in your deposition, Mr. Sessions,

on page 36, you were asked some questions and one spe-

cifically that was asked of you, the question was this:

“And then when you got to the top of the crates, that is

when you put the paper over the crates? Is that right?

And you answered “Yes, that’s correct.”

Then you were asked the question, and this is on top of

van OS th BN gS .

53

page 37, “And the people who put the paper over the

crates were the longshoremen? Is that right?”

And you answered, “That’s correct.”

Then, “Question: and did you help put the paper over

the crates?”

And you answered, “Yes, sir, I did.”

(112] A. I’m still telling you, when we got up to the

height of the crates, we did put paper over there.

Q. Okay. A. You asked me did we put paper when we

went to there to put the paper on the floor.

Q. No, no. I’m sorry. Maybe I asked you the wrong

question.

My question is, after you got your sacks of cargo on up

to the height of the crates— A. That’s correct.

Q. —then you would go and lay some paper over the

crates before putting bags down on top of the crates? A.

That’s correct.

Q. And you, yourself, and the other men in your gang,

had laid some separation paper on top of the crates and

after you put the paper on top of some of the crates, you

then put a bag or bags, and when you got ready for the

next row you put more paper and more bags, right? A.

Yes, sir, only in the wing, though.

Q. In the wing? A. In the wing, each one of your

wings.

Q. Because at the time your accident happened, you

hadn’t gotten back to this part to load sacks [113] on it,

had you? You always start loading from the wings inward,

don’t you? A. We had started in the wings and was

coming out, but we had loaded up to that point.

Q. lIunderstand;But my point is you had loaded all this

except that even to the crates? A. That’s right. :

Q. Then you would lay paper first back here in the

ESS SE LIES TR AEE RS

54

wings and then lay sacks back in here. Then you might lay

another strip of paper and then lay sacks in there in the

wing? A. Yes, sir. Could I straighten you up a little bit?

Q. Go right ahead. A. When we working in spaces

like this, we always leave quite a bit of room there in the

hatch before we start laying paper, sacks, back in the wing.

Q. Right. A. And, naturally, some men can work out

. there still in this area. I want that to be understood.

Q. I understand. You’ve got to keep this area open so

that the pallet bags can be laid? A. We still haven’t

got it up to the height of the crates, you understand. Still

plenty of room [114] that you can work in that area though

we was working in each wing of the vacant spaces up there

where the crates is. ‘

Q. Now, before your accident happened, you had laid

some paper on top of the crates and had loaded some sacks

on top of the paper on top of the crates? A. That’s right.

Q. All right. Now, the separation paper that you were

using and laying, Mr. Sessions, was it white paper? A. It

was brown paper, separation paper. It was brown paper.

Q. Brown paper? A. Yes, sir.

Q. All right. Now, you say that this piece of paper that

you stepped on, or when you stepped on it, did your foot

go through the paper? A. It tore through the paper.

Q. All right. And that was a piece of white paper?

A. White-looking paper.

Q. All right. It wasn’t like any kind of brown corru-

gated paper that you see in these pictures here in front of

you? It’s not that kind of brown corrugated cardboard

paper? [115] A. Well, now, you see, I can’t tell too much

about it —

THE COURT: Let me see those pictures.

A. —about how white this paper is, whether it’s brown

or white, but it was whitest-looking paper.

55

Q. (By Mr. Harmon) Well, here is what I am talking

about in the photographs here. You see, this is a corrugated

cardboard, you might call it corrugated paper or card-

board, that’s on top of this crate that you see in picture

No. 6. You can see the same color of cardboard here on top

of this picture No. 3. You see what I’m talking about here?

A. Yes.

Q. And you see the same thing, there’s the same kind

of corrugated brown cardboard paper on top— A. It

didn’t look to be that type of paper. A. It didn’t look

to be that type. I wouldn’t say it wasn’t, but it didn’t look

that type. This was just old, old, slick-looking, white-looking

paper.

Q. Well, now, was it corrugated? A. It looked to be

corrugated.

[116] Q. Corrugated paper? A. Yes, sir.

Q. And about how big was it? Was it as big as that

green blackboard over there? A. Oh, yes. Larger than

that.

Q. Well, was it— A. Wider than that.

Q. What? A. It was wider than that.

Q. Was it as big as this big blackboard here? A.

Something about like that.

Q. About this size? A. Oh, it might not have been

quite as wide, but about.

Q. Well, this blackboard, I’m guessing, is about four

foot by about five foot, maybe. A. Well, it might not have

been quite that, four foot, but it was about that wide.

Q. Was it a rectangular — was it a regular-shaped piece

of paper or did it have jagged edges on it? A. No. It was

just a regular piece of paper.

Q. Well, my point is, did it have square corners to it

and flat sides or did it look like it had been torn and torn

off of another piece? [117] A. It looked like an ordi-

nary piece of paper that had been torn off other pieces, to

BT et BELLE DIE SPITE SE LEY SE GT A BEE AS BEF IB

56

‘me. I didn’t examine it real good to actually tell you the

truth about it to tell whether it was four corners or three

. corners. I know it was just white, long-looking paper, cor-

“rugated-looking paper.

Q. All right. And it was the only piece of paper like

that that was on top of any of the crates? A. The crates

where I stepped. Now, there was—the other paper was

down in the ship, other — that same type of paper was on

across in the wing of the other — in the same hatch, but it

was in the wing, you know, on top of the crates over there,

too.

Q. Well, this wasn’t separation paper, was it? A. It

could have been. Like I say, I don’t know what kind of

paper it was. It was there when we went there.

Q. Now, the great majority of the crates that were

down there, though, were not covered by this kind of paper,

isn’t that true? A. Well, I’d say the majority of them

wasn’t.

Q. Now, in most places, therefore, could you see, [118]

as you would walk along on top of the crates, could you see

where the crates came up together? A. Against the other

crate?

Q. Yes. A. Yes, you could see.

Q. I mean, you could see that separation between the

crack that represents where one crate comes up against

another? A. That, you could see that.

Q. All right. And as you walked up toward where this

piece of paper was with this sack you were carrying, did

you see the piece of paper up in front of you? A. No,

because, you See, when you be working, you don’t be just

looking and watching, you know, trying to see. You be

working so fast trying to get unloaded the pallet where

you can be ready for the next cargo when it come in, and

that’s what we was doing.

PPRESL SVL MOS TY me eA pce Ise

57

Q. Now, was this white paper that was laying around

down here scattered in different areas over the crates? Was

that the way it was, kind of one piece here and maybe

another piece there and another piece there? A. That

particular piece I stepped on was one piece [119] across

there. But, now, there were other pieces scattered, too, on

other crates, but not the crate where I was — you know, in

the area where I was working. I’d say in the offshore it had

some white paper like that, too, on top of the crates.

Q. All right. Was this paper laying perfectly flat or was

it in some places ruffled up or crinkled? A. It all looked

flat to me.

Q. Was the paper the type anybody who looked down

in the hatch could look down in the crates and see that there

was different white pieces of paper lying there? A. It

was more or less right in the wing of the ship, like, and

coming out from the wing, right at the coaming and going

back toward the wing.

Q. Certainly anybody who goes down the hatch and

looks over the top of these crates can see that there are

pieces of paper in various places, can’t they? A. If they

were looking for paper, they should.

Q. When you went on the ship that morning, did you

all have to uncover the hatch at the main deck level? A.

Yes, sir, we uncovered it. We rigged the ship.

[120] Q. As I understand it, you don’t recall there being

any tween dock hatch opening? A. No, it wasn’t no tween

deck.

Q. Well, now, here again, Mr. Sessions, in all fairness

to you, we’ve got some plans that the steamship company’s

lawyers have given us of the ship, which indicates that

there was a tween deck on the ship. You know what a tween

deck is, do you not? A. Sure, I know what a tween deck is.

Q. All right. Do you think it’s possible that there might

have been a tween deck area in this ship and that the rea-

58

son you don’t remember it is that you all didn’t have to

take any hatch boards off the tween deck area? A. No.

We went right down the ladder, right on top of the cargo.

We didn’t go no more than eight or ten feet at the most

before we was on top of the other crated-up cargo. If there

had been a tween deck, that would have been the tween

deck, but that was the lower hold and it was an old-time

ship with a wooden bottom in it. You very seldom see those.

Q. Well, let me show you what the lawyers for the steam-

ship company have submitted and said that [121] this is

the cargo plan of this vessel. And you see, here it shows

it’s the “S. S. Karina” and shows that it loaded in Mobile

and then New Orleans and then Houston. And you see on

this — this plan does show that it’s got a tween deck area.

A. What hatch?

Q. In No. 1.

MR. SMITH: You can’t tell that.

A. Well, I’ve never seen a tween deck with a wooden

bottom in it, have you?

Q. (By Mr. Harmon) No, I haven’t, but all I’m saying

is that this plan here shows that there is a tween deck

area here in the No. 1 hatch as well as the other hatches

in the vessel, and I am just saying that may be the reason

that you do not remember is because the hatch opening in

the tween deck was open and therefore when you went

down you just, you know, you just forgot it was there. A.

I don’t think I forgot it. Maybe I did, but I don’t think I

- . did. This shop was an old, wooden vessel, because we all

spoke about putting dunnage on top of wooden floors.

Very, very seldom they’ll ever put dunnage on top of a

wooden floor.

Q. When you say the dunnage you were putting down,

[122] you just mean the separation paper? A. Dunnage

is wood. Dunnage is wood.

Q. All right. Did you all put wood dunnage down? A.

~.

59

Yes, sir. We put wood dunnage down on top of the floor

when we first started to work, not on top of the crate. On

top of the wooden floor. Then we put down paper on top

of the dunnage, and that’s why I’m telling you, this was a

wooden floor. It had been washed down. Somebody had

washed it down from some port or another.

Q. Now, your gang went to work at 10:00 o’clock that

morning? <A. Yes, sir.

Q. Do you know whether or not some other gang had

worked that ship before your gang started working it that

morning? A. It may have. I don’t know.

Q. What? <A. It might have another gang worked it

because that particular gang — he caryied a gang for some-

body. It wasn’t Tom’s original gang. He was assigned to

that gang.

Q. Now, did I understand you to say earlier that you

could-tell, when you first saw these crates, that they were

not banded or chocked or secured [123] in any way? A.

Yes, sir. You heard me say that when I saw them and we

got down in the ship and I looked at them I could tell that

they weren’t secured by looking at them.

Q. All right. And you said that you had experience in

working with crates and you have seen occasions both

where they have been banded or chocked or secured by

dunnage or some other means and you have had occasion

to see them when they’re not secured? Is that correct, sir?

- A. That’s right.

Q. And you don’t know who it is that makes this deci-

sion about whether they are going to band them or chock

them or secure them in some other means? As to who makes

that decision, you don’t know who does it, do you? A. No,

sir, I don’t know who does that.

Q. All right. Now, Mr. Sessions, is it correct, sir, that

at a time in the past, at least that you remembered in,

60

talking to some of the people that you talked to right after

the accident happened, that you remembered telling them

that you were working on crates of brick? A. On bricks?

[124] Q. Yes, on crates of brick? A. No, sir, I don’t

recall telling no one I was working on crates of brick. I

remember someone telling me that they thought it was

bricks in the crate.

Q. Mr. Sessions, did anybody in your gang ever suggest

to you all that you all try to pick up any of this paper that

was laying around there on top of these crates? A. I

didn’t hear.

Q. Sir? A. I didn’t hear ’em.

Q. Allright. A. If they did.

Q. You have had occasion, I’m sure, when you’ve got

into a hold and you have found that somebody has left

some trash laying around that may constitute a hazard to

you in walking around where you have been told by your

gang foreman to go in here and clean up this trash before

you start working so that you could see where you’re walk-

ing? A. Yes, sir.

Q. You have had that experience, have you not, sir?

A. I’ve had that experience.

[125] Q. All right. Now, from the way this paper was

seattered, it was obviously just scattered at random, was

it not? I mean, there was no plan or system to the way

the paper was laying there? A. It looked like it could

have been used by separation or something of that nature.

Q. Oh, you think that maybe somebody had tried to

put some separation paper on top of these crates? A.

Well, I wouldn’t say yes, but I’'d say that’s what it looks

like.

Q. I see. And, of course, you don’t know who put the

separation — who might have put the paper there, do you?

That you don’t know, do you? A. No, sir, I do not.

MR. HARMON: All right. I believe that’s all.

‘61

REDIRECT EXAMINATION

By Mr. Brock:

Q. Mr. Sessions, what kind of paper were you fur-

nished for separation paper? A. Brown-looking paper.

Q. What kind of paper were you furnished to put on

top of the wooden dunnage? A. Brown-looking paper.

[126] Q. And this was not brown paper? A. No, sir.

You’re speaking of — you said “this.” You mean the brown

paper what was on top of the wood?

Q. What color was the paper that you stepped on and

your foot went through a concealed hole? A. That was

white-looking paper.

Q. White paper? A. Yes, sir.

Q. Did it appear to be thicker or thinner? <A. Yes,

sir. It appeared to be much thicker than the paper we was

putting down.

Q. It certainly was not the kind of separation paper

that you people were using? A. No, sir.

Q. It was thicker than what you normally find with

separation paper? A. Yes, sir, it was thicker.

Q. Do you know whether or not the ship’s crew is the

one that makes the decision to secure the crated cargo?

A. No, sir. The only thing I know about the securing is

the foreman tells us when, you know, we got to secure it.

Q. All right. You don’t know who makes the decision —

[127] A. No.

Q. — As to whether or not this particular cargo will be

crated— A. No, sir.

Q. —or would be secured? A. I do not know who

makes that decision.

Q. And what is the reason, if you know, for securing

the cargo? A. Well the reason for securing it is keeping

it from shifting from one side to the other one.

i - i le we S , Se ee

62

Q. And in the process of shifting what happens? A.

Well, you could lift your ship or either you could damage

your cargo.

Q. And can you get spaces in between them? A. Can

I get which, now?

Q. And can you get spaces in between them? A. Yes,

sir. It will work spaces in between. Any time anything

shifts around, spaces will work in between them.

Q. I don’t know that it is really material in the case,

but Mr. Harmon was questioning you about whether or

not there was a tween deck and you say you just absolutely

have no recollection of a tween deck? A. That’s correct.

[128] Q. At one point in your deposition, and Mr. Har-

mon read from page 36 where you said you put paper over

the crates. That was this separation paper, the brown

paper you're talking about, is that right? A. That’s right.

Q. And in another place in your deposition, when you

were asked if you put the paper down over the crates, on

page 35, your answer was, “No, sir.”

Did you put that paper over the crates or not? A. The

brown paper?

Q. Yes, sir. A. Yes, sir. We put brown paper over

the crates.

Q. Allright. A. Yes, sir. That’s the question I give.

We put brown paper over the crates as we come out.

Q. What is the name of your doctor who advised you

not to work this dirty cargo, dusty, dirty cargo? A. Dr.

Ralph Dunn.

Q. With respect to gang size, there are many, many

different gang sizes, are there not? A. That’s correct.

Q. For example, there are five-men gangs? A. Yes.

Two-men gangs and three-men gangs and you’ve [129] got

eleven-men gangs. You’ve got a fourteen-men gang and

you have a fifteen-men gang and you’ve got a seventeen-

63

men gang and you have an eighteen-men gang and you

have a twenty-one-men gang. And you have a ten-men gang.

Q. Has it been your observation that there are fewer

containers or more containers moving through the Port

of Houston than formerly? A. Well, for the past two

or three months it’s been more containers moving through.

Q. And in the loading of a vessel with containerized

cargo, does the stevedore use as many longshoremen as

they would in handling general cargo? A. No. They cut

the gang down, the gang size down, to a fourteen-men gang.

Q. Do you know of your own knowledge whether or

not they are never even to cut the gang size below fourteen

in loading containerized cargo? A. Well, not to my know-

ledge, but they probably have.

Q. And in response to a question asked by Mr. Smith,

you stated that it was sometimes impossible to fit crates

snugly. That would certainly be the case if you didn’t

secure them, would it? A. Yes, sir.

[130] MR. BROCK: I have no other questions

now, sir.

THE COURT: Do you have anything further, Mr.

Smith?

MR. SMITH: No, Your Honor.

EXAMINATION

By the Court:

Q. Mr. Sessions, do I understand that your gang was

the first gang that worked in this particular hold that morn-

ing? A. Yes, sir. That morning, to my knowledge, it were.

Q. In other words, your gang opened up the hatch?

A. Yes, sir.

Q. And went down into this hold and worked it for the

first time? A. Yes, sir.

Q. Do I understand that where you stepped through

64

this paper was at a place where your gang had not put

down any paper? A. Yes, sir.

Q. Do I understand that the place where you stepped

through this hole was a place that was covered with paper?

A. Yes, sir.

[131] Q. And according to your testimony, that paper

was a different type and color of paper than the paper that

your gang had put down? A. Yes, sir.

[193] DAVID GUY THOMAS,

called as a witness by the plaintiff and, having been first

duly sworn, was examined and testified upon his oath ae

follows:

DIRECT EXAMINATION

By Mr. Brock:

Q. State your name, please. A. David Guy Thomas.

Q. And Mr. Thomas, where do you live? A. 5521

Makeig.

Q. Houston, Texas? A. That’s correct.

Q. How old amanare you? A. Sixty.

Q. On July 2nd, 1969, were you working with the plain-

tiff in this case, Troy Sessions? A. I were.

Q. Are youalongshoreman? A. I am.

Q. And how long have you been following that trade?

A. Fifteen years.

Q. I would assume, then, that you must have started

sometime about 1955? A. Yes, somewhere along in there.

[194] Q. And what classification do you hold? A. A.

Q. You and Mr. Sessions were working in what hatch?

A. I don’t know. I think it was No. 2.

Q. The evidence indicates that it was the No, 1 hatch.

Is that— A. No.1?

aT)

65

MR. BROCK: Can we stipulate to that?

MR. SMITH: T'll stipulate that is what’s on the

gang list. The cargo or stowage plan and everything

verifies it’s No. 1 hatch.

MR. HARMON: The witnesses both testified it was

No. 2. I don’t know.

THE COURT: Where were your crates?

MR. HARMON: Sir?

THE COURT: Where were your crates?

MR. HARMON: There were some in No. 1 and

there were some in No. 2. There were some back in

No. 5. :

MR. BROCK: The time sheet —the reason I ask

about stipulating —

[195] MR. HARMON: The reason I said particu-

larly, judge, is that we did not load any crates that

we’re going to show were the type that Mr. Sessions

testified that he was walking around on top of.

THE COURT: In any hatch?

MR. HARMON: In any hatch. And, therefore, he

may have been walking on something, some crates that

somebody else stowed.

THE COURT: Okay. I can’t get you to—no rea-

son for him to stipulate to it. I don’t think the evidence

is going to show.

You all haven’t settled this case yet?

MR. BROCK: No, sir, we’ve not settled it.

THE COURT: Okay. Go ahead.

66

Q. (By Mr. Brock) With respect to the hatch, if the

time sheet shows that you were a part of the crew or the

gang that was working on the “S. S. Karina” on July 2nd,

1969, that you started work at 10:00 a.m., that would be

right, would it? [196] A. That’s correct.

Q. And if the time sheet also shows that the hatch was

No. 1, would that be more apt to be correct? A. I didn’t

remember. It’s been so long. I didn’t remember what hatch

it was.

Q. All right. But if the time sheet showed that, that’s

a part of the timekeeper’s job, isn’t it, to show what hatch

you’re working in? A. That is correct.

Q. When you and the other members of the gang went

to the “Karina” on July 2nd, 1969, at about 10:00 a.m., did

you go first into the hatch to commence working? A. We

uncovered the hatch and went down.

Q. First thing you did was uncover the hatch? A.

That’s right.

Q. Would the fact that the hatch was on indicate that

no work had been perfo e the Port of Houston on

the “Karina” or would it just indicate that no work had

been performed that morning? A. It indicate that no

work had been did on that hatch that morning.

Q. Allright. After taking the hatch cover off, then what

did you do? A. Went down and I set up for the load —

set up [197] to load the other cargo.

Q. When you went down into the hatch was any portion

of the floor already loaded with cargo? <A. It was up in

that end, the forward end.

Q. The portion of the hatch floor was already loaded?

A. Yes, that’s correct.

Q. And what kind of cargo was in there insofar as what

you could see? A. It looked like boxes with little bands

around it. That’s what I thought it were.

Lea To POOP LG Po ™ etd GE ERR IS OT EEO

67

Q. In other words, it looked like some type of a crate?

A. Yes, that’s right.

Q. Orabox? A. Yes, that’s right.

Q. I want to show you some pictures and ask you if you

recognize any. There are five pictures I’m going to hand

you and I want you to look at them very carefully and tell

me if any of the cargo that you saw already in the hatch

appeared like any of the cargo in those pictures? A. If

I remember correctly, that looked like some of them.

Q. All right. Now, you have identified a picture which

is marked No. 3 as looking like some of the [198] crates

that you saw? A. That’s right.

Q. Is that correct? A. That is correct.

THE COURT: Let me see No. 3, Mr. Brock, please.

Okay.

Q. (By Mr. Brock) So far as you could tell as a long-

shoreman, a member of the gang —

THE COURT: Let me see that picture.

Q. (By Mr. Brock) — did the crates appear to be all

right? A. Yes. They appeared to be all right down in

where we were. ;

Q. All right. Did you notice or observe anything about

any kind of paper on the crates? A. ¥es. Up in the end

there was a piece of white paper up at the end. We hadn’t

gotten that far. It was laying in there and we went in there

and there was some white paper laying across the cargo.

Q. Do you have any idea how many crates were covered

by the paper? A. No, I do not.

[199] Q. What kind of cargo were you and your gang

putting in the No. 1 hatch? A. It was a starch, I think

it were.

Q. Starch? A. Yes.

Q. Bagged cargo? A. Yes, bagged cargo.

68

Q. And approximately how much did the bags weigh!

A. I don’t know what they weigh. I wouldn’t have any

idea what they weighs. I didn’t have any idea what they

would weigh because, I tell you, I may be wrong.

Q. All right. Were you and the plaintiff, Troy Sessions,

working buddies? A. We were.

Q. Does that mean that the two of you were working

one end of a pallet? A. That’s right.

Q. And were there two other longshoremen working

the other end of the pallet? A. That’s correct.

Q. Did you notice or observe whether or not the crates

were already there when you all went to work? <A. Yes.

The crates, all the crate cargo was in there [200] when

we went to work. :

Q. All right. Did you notice whether the crates were on

skids, whether or not they were on pallets? A. No. I

didn’t pay that much attention to it.

Q. All right. A. Whether they was on skids or not.

Q. Your testimony, then, would be that you don’t know

whether the crates were on the skids or not? A. That’s

right.

Q. And you don’t know whether the crates were on

pallets or not? A. Because I didn’t observe that much of

it.

Q. Was there another feréman gang or another fore-

man working another pallet of a goods? A. Yes,

there were, on the offshore side.

Q. They were working both sides? A. We were work-

ing both sides. Troy and I was on the inshore side and

they was working offshore side.

Q. All right. Did you complete the loading of the bagged

goods on the other area of the flooring up to the height of

the top of the crates? A. I did.

[201] Q. In doing that work, did you put out any dun-

nage? A. No, no dunnage.

oarer i i oa Ee el le ee pee Om wR tN eNeT

Si te gr: CREE

69

Q. What kind of flooring was in the No. 1 hatch? Was

it steel or was it wood, if you recall? A. I don’t recall.

I don’t want to tell no story. I don’t know what kind of

flooring it was. I didn’t pay that much attention to the

flooring.

Q. After you got the bagged goods up to the level of

the crates and had covered the flooring, then what did you

dot A. We worked putting some bags on the other, on

the top of the crates.

Q. And who gave you those instructions and directions?

&: The walking foreman and also the foreman.

Q. And the foreman. Are you referring to the gang fore-

man? A. That’s right.

Q. In connection with putting the bagged goods down

initially, did you put out any kind of paper? A. Yes. We

was using —we’d been using brown paper. We’d put it

down as we worked the sacks.

Q. Did you put a layer of paper down in connection

with each layer of sacks? A. That’s right,

Q. Each layer you men call a key, don’t you? [202]

A. Yes, that’s right.

Q. After you got it level and you started working above

the — putting the cargo on top of the crates, were you

using paper there for separations? A. On top of the

crates?

Q. Yes. A. Yes. We were — we bring our sack. We

put the paper down.

Q. And what kind of paper were you putting down? A.

We putting down brown paper.

Q. During the course of unloading the pallets did any-

thing happen to Troy Sessions? A. Yes.

Q. What happened to him? A. He walked on top of

that white paper and fell through there, walked in a hole.

Q. Did you look to see what was under the white paper

after he fell? A. No, I did not look under there.

70

Q. Did you notice or observe how far he fell in the hole?

A. No, I didn’t,

Q. You just noticed that one foot went into this — went

into a hole? [203] <A. That’s right.

Q. And this white paper gave way with him? A.

That’s right.

Q. And you don’t know the width of the hole or the

length of the hole? A. No, I do not.

Q. And about what time of the day did this occur? A.

This occurred — it must have been around 11:00 o’clock,

I believe, or a little later, approximately.

Q. All right. After this occurred did Mr. Sessions — did

you help him out, or what happened? A. No. He got out’

hisself and we insisted that he get a ticket.

Q. You insisted that he get a ticket? A. Yes. We all

said, told him, “Go get a ticket.”

Q. And what do you mean by “Go get a ticket”? A.

Get wrote up, any time that you have an injury-en a ship or

think you’ve got an injury, you gets a ticket.

Q. And you suggested to him and the other people sug-

gested to him that he go get himaticket? A. That’s right.

Q. At that particular time did Mr. Sessions make any

complaints to you about hurting his back? [204] A. Yes.

He say, “I believe I hurt my back.” é'

MR. BROCK: All right. I have no other questions.

THE COURT: All right, Mr. Smith.

CROSS EXAMINATION

By Mr. Smith: |

Q. Mr. Thomas, as I understand your testimony, you

and Mr. Sessions and the other six longshoremen went down .

in the hold shortly after 10:00 o’clock, after you opened up

the hatch? A. That’s right. =>

SER SE! ? TOY, EE I Ne I Le

71

Q. And you went down a ladder that was in the end of

the hatch where the crates were already loaded? A.

That’s right.

Q. And you walked across the crates to go into the

other end of the hatch where you initially, or you started

loading these bags of grits? A. That’s right.

Q. Now, isn’t it true that when you walked across the

crates the first time, that they appeared to be level and

loaded next to each other in a proper manner? A. Yes.

From my observation, that they were tight. [205] We

didn’t know no holes in those crates.

Q. All right. So when you first went down there, the

crates looked good? A. That’s right.

Q. As far as walking on top of them? A. That’s right.

Q. And you saw this piece of paper that was already

down there? A. That’s right.

Q. All right. There’s ng question in your mind that the

—none of the Houston Longshoremen put that piece of

white paper over that hole? A. No, no, because Houston,

we don’t use that type of paper that way. We don’t use it.

Q. That was a type of separation paper, though, wasn’t

it? A. That’s right, it were.

Q. But it just was not the type that you were using that

day? A. That’s right.

Q. All right. Now, did this piece of paper completely

cover up the hole that Mr. Sessions stepped in? A. Yes.

Mr. Sessions, when he stepped on that paper, he fell in the

hole. But if you looked at it, [206] you won’t know no hole

is in that paper.

Q. You couldn’t see it? A. No, you couldn’t see it.

Q.: Because the paper covered it up? A. No, we

couldn’t see it.

Q. And there was nothing to indicate that there was a

hole under there? A. No, nothing.

Q. And this was just a hole or space between two crates,

ELIOT ELL ALA LL OLE LEENA SEEN LP LID APs aE I ON = ? ar

72

wasn’t it? A. Yes. It was a space between two crates, but

how big, I don’t know. »

. Q. You had plenty of light to see by? A. Beg your

“pardon?

Q.. You had plenty of light to see by? A. Oh, yes,

plenty of light to see.

Q. Mr. Thomas— A. Uh-hum?

Q. —is it normally the longshoremen’s job to put down

separation paper when you are loading or unloading cargo?

A. That is our job, to put down separation paper.

Q. It’s not the seamen’s job on a ship to put down the

separation paper? A. No, definitely not.

[207] Q. So if there’s any separation paper that was

put on top of this cargo, would you expect it was done by

longshoremen— :

MR. HARMON: Your Honor, I object to that. He

couldn’t possibly know that, as to who put the piece

of paper there.

THE COURT: [I'll accept his testimony that long-

shoremen usually put down separation paper and that

that’s all he knows.

Q. (By Mr. Smith) Have you ever seen a seaman putting

down separation paper? A. Never in my life.

Q. Mr. Thomas, how much money did you report to

Uncle Sam that you earned last year? A. Close to

$12,000.

Q. $12,000?

THE COURT: Close to how much?

THE WITNESS: Close to Twelve Thousand.

Q. (By Mr. Smith) And you have an A rating? A.

That’s right.

MR. SMITH: I pass the witness, Your Honor.

73

[208] CROSS EXAMINATION

By Mr. Harmon:

Q. Mr. Thomas—

THE COURT: Was that all for longshoring?

THE WITNESS: That’s all. That’s all I do is long-

shoring.

Q. (By Mr. Harmon) Mr. Thomas, did you have occa-

sion to give a written statement sometime after this acci-

dent happened to investigators for an insurance company?

A. I did.

MR. HARMON: Do you have a copy of the state-

ment, by chance?

MR. SMITH: Yes, I have a copy.

MR. HARMON: Can I see a copy of it, please?

THE COURT: I thought you said you all ex-

changed all statements on the pretrial order.

MR. SMITH: The pretrial order was entered be-

fore I ever got in the case, Your Honor. I didn’t know

what had been done.

THE COURT: If you have a copy [209] of the

statement, show it to him.

The pretrial order says: All signed, written state-

ments of parties and witnesses contained in the files

of Plaintiff, Defendant, Third-Party Plaintiffs, Third

Party Defendants, if any, have been exchanged and

copies of same filed with the Court.

That’s what your pretrial order says.

MR. HARMON: Judge, we were kind of ina hurry

to get the pretrial order filed, as I recall. There was

some indication that either the case might be dismissed

SERIE Pee EOE NRE IT

( 74

or it would be a default judgment entered if we didn’t

get it filed very promptly, so Mr. Brock very quickly

called me and I think \Bud Cecil to get us to sign the

thing and so it was, I think, signed and returned to

the Court when perhaps we hadn’t actually done some

of the things we said there.

THE COURT: Well, is it your statement that I

should hold the attorneys in contempt for false swear-

ing?

[210] MR. HARMON: Oh, no, no, particularly since

I signed it myself.

MR. BROCK: Mr. Thomas, you never did give me

a statement, did you?

THE WITNESS: No.

MR. BROCK: All right.

Q. (By Mr. Harmon) Would you look at the statement,

please, Mr. Thomas, and see if that is your signature there?

A. That’s my signature.

Q. And you see the last line above your signature, it

says, “I’ve read the above statement. It is true and correct

to the best of my knowledge,” and then apparently you

swore to it before some notary public? A. That is correct.

Q. Now, in this statement here you say you’ve been —

it gives your home address and the number of your local,

that you’ve been longshoring for fifteen years.

It says, “I have been asked what I know about the acci-

dent that happened to Troy Sessions.” You said, “I recall

the accident.”

This statement you gave January 29th, 1970. That would

be a matter of about six months [211] after the accident.

A. I don’t know how long it had been, because I didn’t

keep up with no dates.

Se eR a eee eee or rg ees pa a are eee

Be. a

75

Q. I understand. I think Mr. Sessions said the acci-

dent happened on the 2nd of July of 1969, so that would

be about six months later. Your statement Was given on

January 29th, 1970. A. And you’re saying that would

be six months later?

Q. Yes. A. I'll have to get a pencil and have some-

body to count that up for me.

THE COURT: That’s about six months.

Q. (By Mr. Harmon) Okay. Roughly six months. You

say, “I recall the accident. We were working at Man-

chester docks. We were charging grits.” You say, “I am

not sure what time we started to work. It had to be a

10:00 a.m. gang or a 1:00 p.m. gang. I do not recall what

time the accident happened. I do not recall the name of

the ship. Troy was injured in the lower hold of the, I do

not recall the hatch number, inshore side.”

You said, “He was coming out to land his load. We

were setting loads on the inshore [212] side then the

next on the offshore side. I was working across from

Troy. He was on the inshore side and I was on the offshore

side. Troy caught hold of the bridles to help land his load

and stepped into this hole.”

Now, is that the way you recall it? You say, “This hold

was boxes of cargo. These boxes of cargo, we did not load.

We were only loading grits. These boxes of cargo was

already on board when we arrived to work. We noticed

the breaks in the cargo and wondered why they had been

Stored this way.”

Now, is that correct, that you all had noticed some

Separation between these boxes? A. N. 0, we didn’t —

no, we didn’t observe no —

THE COURT: I can’t hear you, Mr. Thomas.

OG ee NT ER ee ee re ne al pe eD

; e

8 WE RT

76

A. No, we didn’t observe no breaks. The cargo looked

like it looked good.

Q. (By Mr. Harmon) "hy in this statement did you

say you had noticed the breaks in the cargo if that weren’t

true? A. Well, it had been a long time and my mind

hadn’t been refreshed on it, what I mean. It had been a

long time and I had never thought about it. [213] and

after I begin to think about it, I thought about it, that it

was not cracks in it.

Q. All right. You say, “I do not know whether or not

anyone reported this breaks in the cargo to anyone. There

was not any covering over this cargo.”

Is that correct?

A. In the hold all the cargo wasn’t covered up. It was

just a strip of paper across that cargo. All the boxes

wasn’t covered up.

Q. You say, “when you see these holes you try to work

around them. If all holes were checked in the cargo you

could not get any work done. There was breaks in the

cargo all over the lower hold. This hole was about seven

inches wide. From where I was standing I could not tell

how deep it was.”

Are you saying here that the hole was seven inches

wide? A. Got to be something wrong there because I —

in other words, I didn’t measure that hole. Got to be some-

thing wrong there, seven inches.

Q. See the statement— A. See, I don’t have but a

very little schooling. I have very little schooling. I came

up in the [214] hard times and I don’t read too well.

Q. Well, can you read this? A. No, I can’t. I can read

some of the words, but I can’t read all of the words, see.

See, I come up the hard way.

Q. Well, can you read what this says right here? A.

I see “if,” and what this word is, I wouldn’t know, see. I

can read some words, but some words I cannot.

17

Q. Well, how much of this last sentence here can you

read? A. And it took time and— well, now, what this

word is, I don’t know. I had to be hung. In other words,

I don’t read. I had a hard time coming along. I had to

work. Small words like that, but I don’t know what this

word is here. Like that, I don’t know what that means.

MR. HARMON: We would like to have that

marked, please.

Q. (By Mr. Harmon) Mr. Thomas, how big was this

piece of white paper?’ A. It was the size —it was ample

size, the size of a piece of paper that would come off of

a roll.

Q. How wide? Two feet wide? A. I don’t know how

wide, but it’s an average roll. [215] You know, the aver-

age. If you know anything about longshoring, you know

how long paper comes that you make breaks with.

Q. Well, was it as wide as this little green blackboard?

A. I don’t know. I didn’t measure, but it’s just a common

roll of paper that you buy.

Q. Hold up your hands and indicate how wide you

would say. A. You want me to tell a story, which I’m

not.

Q. No— A. No. You just try to confuse me.

Q. No, I don’t want to confuse you. A. You see, I

don’t know how long a roll of paper is.

Q. Can you hold up your hand? A. If I hold up my

hand, I'll be giving the indication that I do, but I don’t

know how long a roll of paper is. It come different lengths

and I didn’t measure that paper to see what width it were.

Q. Was this the only piece of white paper that you

saw down there‘in that hold? A. The only one I re-

member.

Q. Okay. Now, you saw the piece of paper before Mr.

Sessions stepped on it? [216] A. We all saw that paper

there.

78

Q. But nobody went over and picked the paper up?

A. No. You don’t go around picking up paper on ships,

seeing what’s under the cargo. You don’t do those kind

of things. If you have no way of knowing, when you see a

piece of paper you don’t be raising the paper. You don’t

get working on the ship. You get run off a ship looking

under the paper.

Q. You realize that there may be spaces between boxes

of cargo on a ship, do you not? A. Yes, It be’s breaks

in cargo.

Q. All right. And you therefore know that if there is a

piece of paper laying down on top of boxed cargo that

you're walking around on, you try not to walk on the paper

because you can’t tell whether there might be a break under-

neath it, isn’t that true? A. You don’t walk on the paper

because you don’t know what’s under there. You have no

reason to know what’s under there.

_Q. And that’s why I’m saying you don’t walk on the

paper because there might be a space under it, isn’t that

right? A. No. You walk on — you see some paper spread-

ed [217] out, you walk on it because you figure the cargo

wouldn’t be — you wouldn’t figure there would be no hole

under there. Anybody would do that. When you work, you

don’t be looking for holes. When the paper is down, you

don’t look for holes. You look for a place to store your

cargo.

Q. You hadn’t stepped on the paper, had you? A. I

wasn’t on that side.

Q. Now, do you happen to recall the fact that the deck

was wet where somebody, had apparently washed? I’m talk-

ing about the deck where the bags were being loaded in

the forward end of the hatch. Do you remember? A. I

haven’t seen no water.

a a a Ee LG SLELD AS E Sie AOS EL

79

Q. You don’t remember that? A. Don’t remember no

water.

MR. HARMON: I believe that’s all.

THE COURT: Any further questions from Mr.

Thomas?

MR. BROCK: I have one.

THE COURT: All right.

[218] REDIRECT EXAMINATION

By Mr. Brock:

Q. Mr. Thomas, in connection with the statement which

has been marked Third Party Defendant’s Exhibit No. 2,

did you or not read that before you signed it? A. I read

what I could of it before I signed it.

Q. But you didn’t read it all? A. No, because, like I

explained to you, in other words, I had to work when I was

coming up, take care of my sisters, and I didn’t get much

education, and some of the words I can read and some of

them I couldn’t.

Q. You gave this statement to a representative of Texas

Employers Insurance Association, didn’t you? A. That’s

right.

Q. And in that connection you were relying on him to

put it down the way you told him? A. Correct.

Q. Do you recall whether or not you told the repre-

sentative of Texas Employers Insurance Association that

Mr. Sessions stepped on some white paper that was cov-

ering a hole? Do you recall whether or not you told him

that? [219] A. Let me think. Yes, I think I told him that.

[233]

TOM HOCKER,

called as a witness by the Plaintiff and, having been first

duly sworn, was examined and testified upon his oath as

follows:

DIRECT EXAMINATION

By Mr. Brock:

Q. State your name, please, sir. A. Thomas Hocker.

[234] THE COURT: He is a foreman? He was the

foreman?

MR. BROCK: Yes, sir.

THE COURT: Okay.

Q. (By Mr. Brock) Are you a member of Local 872?

A. Iam.

s = e ‘

[237] Q. All right. Now, on July 2nd, 1969, is it a

fact that you were or were not the gang foreman on the

“S.S. Karina”? A. I was.

Q. In what hatch was your gang working? A. No.1.

Q. Was Troy Sessions a part of your gang? [238]

A. He was.

Q. As gang foreman, did you make the assignments

as to where each man in the gang would work? A. Yes,

I do.

Q. And where was Troy Sessions assigned to work?

A. In the hold.

Q. Who, if you know, was Troy Sessions’ working

partner? A. Guy Thomas.

PEE TENET IOOLLE LL LENCO Ga Ig At EGRET ee OPI Oo

81

Q. Guy Thomas. Now, of course, we’re talking about

on July the 2nd, 19692 A. That’s right.

Q. That was his working partner on that day. Is that

correct, sir? A. (Nodding.)

Q. You'll have to answer out. A. That’s correct. But,

you see, I has eight men in the hold so they work with one

another, but him and guy was supposed to be partners.

[239] Q. Thank you, At the Union Hall you have a

shipping station, do you not? A. That’s right.

Q. And you were the gang foreman who had been

assigned to pick up a gang for the 10:00 o’clock call? A.

I was.

Q. And you went to the shaping station and from the

people assembled in the shaping station you picked them

up on the basis of their seniority? A. That’s right.

Q. And among those was Troy Sessions and Guy

Thomas? A. You're right.

Q. At the time you picked those men up you knew, and

everybody else knew who inquired, the nature of ‘the cargo

that was going to be worked on the “Karina”? A. Let

me have that again, please? oF

Q. When you were assigned as the gang foreman, you

knew, from the information furnished the Local, [240] the

kind and character of cargo? A. Not at the time. I didn’t

know until after I got to the dock what we was going to

work.

Q. All right. You found out the kind of cargo when you

got down to the dock? A. That’s right.

Q. So would it also follow that none of the longshore-

men knew what cargo you were going to work until you

got to the dock? A. We do not know until we get to the

dock what we are going to work.

82

Q. All right. When there is an order put in for a

seventeen-man gang, including the gang foreman, do you

know that it is going to be general cargo? A. Yes. That’s

why we classify the men. We know it’s going to be seats

cargo by the amount of men they order.

Q. -All right. In other words, if they order a five-man

gang, you know that it is going to be another kind of cargo?

A. Yes.

Q. But when they order | a seventeen-man gang, you

know it is going to be general cargo? A. That’s right.

Q. Is that right, sir? [241] A. That’s right.

Q. Now, when you got down to the “S.S. Karina” at

10:00 were the hatches covered or were they open? A. It.

was covered. We uncovered it,

Q. You uncovered the hatch, the hatch No.1? A. Yes.

Q. What duty and responsibility does the gang foreman

have when you open up and uncover a hatch? A. Well,

the gang foreman is supposed to look in the hatch and see

what kind of cargo is already in there, see, and where we’re

going to work at. The end we worked on didn’t have any

cargo. The cargo is in the after end.

So I goes down there and look at it and tell my mens

how high to bring it up, how to bring it up, and if we going

back on that cargo, I tell them we going back on top of this

cargo.

Q. All right. Now, as I understand, when you uncovered

the hatch, and if you assume that this little dotted square

that I have here is the hatch opening and here is the ladder,

we'll say, you actually went on the “Karina,” walked to the

hatch, opened — saw to it that your people [242] opened

the hatch cover, and then you went down the hatch? A.

And checked it.

Q. And you checked it. And when you got down there,

as I understood your testimony, the aft end of this par-

ticular Hatch No. 1 was already loaded with cargo? A.

Had cargo in it. It wasn’t loaded.

POG LE PIETER I AONE we OE . _ . ro °°

83

Q. The aft end? A. The aft end had cargo there but

it wasn’t loaded.

THE COURT: What do you mean — he means it

was not full, I assume?

THE WITNESS: That’s right.

Q. (By Mr. Brock) The forward end— A. Didn’t

have any in it.

Q. —Didn’t have any? A. That’s right.

Q. And how many layers or tiers did the aft end have?

A. I think it was one high.

Q. One high. In other words, if this is the floor— A.

Yes.

Q. —vyou had one hight A. Yes, sir.

Q. Is that correct? [243] A. Yes, that’s right.

Q. And what kind of cargo did it appear to be? A.

Well, it was palletized cargo.

Q. All right. A. I think it was rocks or bricks or

something. I don’t know exactly what kind it is, it’s been

so long now.

Q. You think it was— A. Rocks or bricks or some-

thing, and palletized. I don’t know what it was.

Q. All right. A. But I know it was palletized.

Q. Now, in connection with that particular cargo, let

me just hand you all the photographs that I have and ask

you to look at them in order that we may be of whatever

help we can to the Court. :

I have handed you seven photographs, and I ask you, in

connection with those seven, do any one of those photo-

graphs appear to be the kind of cargo that was already

in hatch No. 1 when you started to work? A. The crates

looked about the same height, but I don’t know what kind

of cargo it is.

POF eR mE ee ae ee TS RY Se eas

84 o

Q. Well, my question may have just been miskeading.

You said you had crated cargo in there? [244] A. Yes.

The crates looked the same.

THE COURT: I can’t hear you, Mr. Hocker. You'll

have to speak up so I can hear you, sir.

THE WITNESS: I say the crates look kind of

like it, but I don’t know whether it’s the same height

or what? But that’s the way it be.

Q. (By Mr. Brock) All right. The crates looked like

they were the same height? A. Yes.

Q. Now, my question is, did you notice or observe

whether the crates were banded? A. I didn’t look that

close to them to see whether they was banded.

Q. Did you notice whether or not the crates were on

pallets? A. Stpposed to be. Yes, they were on pallets

where a forklift go under them, a forklift pick them up.

- You couldn’t handle them with hands.

Q. So far as you know, it was crated cargo that was on

pallets? Is that correct? A. That’s right.

Q. When you went down in there did you notice or

observe whether or not any of the —strike that. [245]

When you went into Hatch No. 1, did you notice whether

or not the crates were secured by chocking, by cable, by

chain or by anything else? A. No, the crates weren’t

secured. :

Q. They were not secured? A. No, sir.

Q. Did you notice whether or not, with respect to the

particular crates in question, whether there was any paper,

cardboard, corrugated board, or anything else on top of

the crates? A. At one place in the wing where I see

the paper, some white paper, I don’t know. I don’t know

whether they had it up there for separation paper or

what, but it was spread about ten feet in the wing, down

in the wing.

ne LO TE AER OLE MOLE Be we Wj ee oe So oo

85

Q. On the inshore or offshore side, if you recall? A.

I disremember whether it was on the starboard or port.

Q. All right. In any event, you saw some white paper?

A. Yes.

Q. Did it appear to be like butcher paper, only white,

or did it appear to be like corrugated paper? A. It could

have been white corrugated paper. [246] A. It could

have been.

Q. Could have been? A. Yes, But, see, we don’t use

that kind of paper here.

Q. Do they use white butcher paper here? A. We

use brown.

Q. You use brown butcher paper? A. At the time,

they was using brown paper.

Q. As I believe you testified, you saw this paper which

was about a ten-foot square? A. Straight down the wing.

Q. Well, it was about ten foot long? A. Yes.

Q. How wide? A. Oh, I'll say three feet or four.

Q. Now, if this is the inshore side and this is the

offshore —in other words, the starboard and the port

side —and if this is the aft end of Hatch No. 1, where

would the paper have been? over here, here, or where-

abouts? A. I disremember now which side it was on.

It was on the side.

Q. After you found that paper, did you go over there

and pick itup— A. No.

[247] Q. —and look in underneath? A. No, no, We

don’t do that.

Q. You don’t do it? A. No.

Q. Why! A. Why? Because if the paper is already

down, my orders is to leave it down and put cargo on the

top of it and put my paper down as I come out.

Q. Is that the orders you were given by the walking

foreman? A. That’s right. That’s all of them we do that

all the time. We don’t ever pick up paper.

sanieatll

ieee iin ats *

86

Q. And is that what you instructed your gang to do?

A. That’s right. They don’t pick it up.

Q. When you saw that white paper in there, did you

say anything to anybody in the ship’s crew about it? A.

No.

Q. Did you say anything to your walking foreman about

it? A. No.

Q. When you went down in there to check the con-

dition of the cargo, did it appear to you to be level across

the top? [248] A. It did.

Q. So far as you determined by your investigation, did

you determine whether or not there were any breaks or

openings in the cargo? <A. I didn’t.

Q. You did not? A... Didn’t bother the paper.

Q. All right. A. That was almost level all the way

over.

Q. And then you put your gang to work? Is that cor-

rect? A. That’s right.

Q. Were you in the hatch No. 1 when Mr. Sessions got

hurt? A. No, I wasn’t.

Q. Was it reported to you that he got hurt? A. It

was.

Q. Did you go down into hatch No. 1— A. At 1:00

o’clock.

Q. —to check? A. At 1:00 o’clock.

Q. Ati1:00o0’clock? A. Yes.

Q. About what time of the morning did he get hurt?

A. It was pretty close to noon. About, I’d say, [249]

about a quarter or twenty minutes or a quarter to twelve.

Q. Between a quarter and twenty minutes to twelve?

A. Yes, something like that, because we just finished —

we just finished going to dinner.

Q. Who was it that pointed out to you where Troy

Sessions got hurt? A. Well, at 1:00 o’clock when I went

87

down there and checked the hold I seen where the paper

had went down between the crate.

Q. Did somebody point it out to you and say, “This is

where Mr. Sessions got hurt”? A. That’s right.

Q. Who was that? A. Guy.

Q. Guy Thomas? A. Yes.

Q. Now, at that time, did you lift the paper up to see

what it was that had caused him to fall through? A. No.

I seen what it were.,See, the paper is already down in the

hole. I could see how large the hole was. It was about, I

guess, about six or seven inches.

Q. Wide? [250] A. No. Something like that, where

you could step your feet down in. See, the paper is already

down there.

Q. How long was the hole? A. It was long as a crate,

about three or four feet long.

Q. Long as the crate? A. Yes.

Q. Did you report what you found to your employer,

the stevedore? A. No.

‘Q. All right. Now, you got your instruction on July

2nd, ’69, from the walking foreman? It that correct, sir?

A. That’s right. I gets my orders from him.

Q. I want to ask you to assume —I mean, I want to

ask you a question about how you people conduct your

work. Let’s assume that instead of discharging, instead

of putting bag cargo on this ship, let’s assume’ that you

people had been the ones that had gone in here and put

the crates. A. Uh-hum.

Q. The crates that were already there when you all

went to work. And you got up here and that was all the

crates to be loaded. [251] A. (Nodding. )

Q. So you got this area that is empty. You understand

what I’m talking about? A. Right.

Q. Who in the usual course of business decides whether

to secure those crates or to leave them unsecured? A,

4

a7

-

ab SAA alice are A ASD NL eA strc ee

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cA Went

i dain

88 ‘

Who is sapposed to decide to secure them?

Q. Who makes that decision? A. Well, that woul

be either the superintendent or the mate.

Q. Either the superintendent— <A. Or the mate.

Q. —or the mate? A. That’s right.

' Q. In other words, the chief mate, the first mate? A.

Well, it might be asejstant. It could be the first or chief.

Q. Allright. Now, as long as you’ve been in the longshore

work, you know, do you not, that if the stevedore you are

working for, if he secures this cargo, he is going to charge

for securing it? A. That’s right.

Q. Isn’t that correct, sir? A. That’s right.

[252] Q. And as long as you have been in this business,

that charge is going to be made to the ‘ship, isn’t it? <A.

That’s right.

2 5 e

Q. (By Mr. Brock) As between the superintendent or

the chief mate or first mate, do you know who makes the

ultimate decision— A. I do not.

Q. — about whether or not to secure the cargo? A. No,

I don’t.

Q. All right. Did you see Mr. Sessions after he got

[253] hurt? I’m talking about— A. That day?

Q. —the day of the accident. A. No.

Q. As I understand, you folks do not have a gang

system any longer; in other words, like you had before the

hiring hall plan? A. I didn’t get you.

Q. All right. I can understand why it is misleading.

Since you adopted the hiring hall and seniority plan, you

don’t have the regular gang system any more? A. No.

Q. Since July 2nd, 1969, have you seen Troy Sessions

down there at the waterfront? A. I have.

Q. “Has Troy Sessions worked for you in your gang? A.

Since then?

89

Q. Yes, sir. A. No, he hasn’t worked since then.

Q. In other words, he hasn’t been a part of your gang

since July 2nd, 1969? A. Well, he just have started back

to work. He haven’t been working regular.

Q. All right. [254] A. I guess he started back to

work. I wouldn’t say he had and I wouldn’t say he wasn’t.

I see him once in a while. in ia

Q. My question simply is, has he worked in your gang?

A. No. —

a iN

[259] Q. And I gather when you first went down into

the hold that morning and saw the crates that were already

there, the top of the crates looked fine? Is that right? <A.

That’s right.

Q. You didn’t see any holes or spaces or anything that

needed covering up? A. I didn't. Quite naturally, if I

seen the hole, I’d’a put dunnage over it.

MR. SMITH: All right. Your Honor, I have here

the original of the gang list, which I’ve shown to the

other attorneys and they don’t object to it.

THE COURT: That is Defendant’s Exhibit what?

MR. SMITH: No. 1.

THE COURT: Do you want something, Mr.

Moody?

MR. MOODY: No, sir.

Q. (By Mr. Smith) Mr. Hocker, I’ll show you Defen-

dant’s Exhibit No. 1. Is that the original of the gang list of

the gang that went to work in the No. 1 hatch on the “Kar-

ina” on July 2, 1969? A. That’s right. That’s the gang.

Q. All right, sir. It shows you worked the No. 1 [260]

hatch, does it not?’ A. That’s right.

Q. It shows you as gang foreman over here at the top?

Bb SEDs. BE LO NERO LNG ella on

90

A. That’s right.

Q. All right, sir. It shows you went to work at 10:00

that morning? A. That’s right.

Q. You just keep that and refer to it, if you’d like.. When

you first looked down into the hatch and went down in

there after they opened it up, it was apparent that these

crates that we are talking about had arrived with the ship?

Is that correct? A. Was what?

Q. The crates that we are talking about that were

down in the lower hold of the No. 1 hatch, there is no

doubt in your mind that those crates came in with the

vesself A. They come in with the ship, they did.

Q. And did you see any —or were you the first man

down in the hatch? A. I wasn’t.

Q. You weren’t the first man down there? A. (Shak-

ing head.)

[261] Q. Did you see any of your fellow longshoremen

carrying any white paper down into the hold that morning?

A. No. We didn’t carry any down there.

Q. All right, sir. Is putting down separation paper

longshoreman’s work or seaman’s work? A. Longshore-

man’s work.

Q. All right, sir. If this cargo of crates was loaded over

in Mobile, Alabama, is that where this piece of white paper

probably came from?

MR. HARMON: Your Honor, I object to that. I

don’t think he could possibly say.

THE COURT: I sustain that objection.

Q. (By Mr. Smith) Mr. Hocker, is it unusual for

longshoremen to load a particular cargo such as these

types of crates to put paper on top of those crates?

MR. HARMON: Im going to object to that as to

what is unusual.

91

THE COURT: I'll sustain that objection. He’s al-

ready testified. It wasn’t his. They didn’t put it down.

MR. SMITH: But, your Honor, I [262] think he’s

an expert as to what longshoremen do in general.

THE COURT: Well, he already testified that they

don’t put any —they put separation paper down.

Longshoremen put separation paper, right?

MR. SMITH: Yes, sir.

THE COURT: That’s part of their job?

MR. SMITH: Yes, sir.

THE COURT: They don’t pick up any paper,

right?

MR. SMITH: Yes, sir.

THE COURT: Okay.

Q. (By Mr. Smith) Have you ever seen a seaman put

down any separation paper on cargo? <A. No, I haven't.

Q. All right, sir. N ow, the cargo that was in the hold,

these crates that we’re talking about, assume that these are

crates of brick, brickbats, now, would that be pretty heavy?

A. Sure, it’s heavy.

Q. Something a man could not pick up one end of the

crate, could he? A. That’s right.

[263] Q. Now, in your expert opinion, how many years

since 1934 have you been longshoring? A. I’ve been a

longshoreman since 1934.

Q. Allright, sir. Now, do you ever secure skids of bricks,

just one tier high, when loaded in the lower hold like this?

A. No.

Q. You don’t? A. No.

Q. Tell Judge Singleton why not. A. It’s too heavy.

You won’t move no way.

Me Aiea Bataan died.

litt aa

92

Q. You don’t have to secure them! <A. Too heavy.

Q. Too heavy. You just put them there and they stay

where you put them? <A. That's right. They ain’t going

nowhere.

Q. Isn’t this particularly true when you have one tier

high in the lower hold? A. That's right.

Q. Well, the fact that this cargo wasn't secured was

because it didn’t need to be secured?

MR. BROCK: I object to that. That calls for a

conclusion.

THE COURT: I sustain that objection.

[264] Q. (By Mr. Smith) Well, is it your testimony that

in all the years of your longshoring experience, you have

never seen a cargo—crates of bricks one tier high like

this secured?

MR. BROCK: I further object to it on the grounds

that he hasn't testified that he knew it was in, the

crates. He said he didn’t know.

THE COURT: Well, he’s asking him. He has

assumed by his questions that it’s bricks. I don’t

know —

MR. BROCK: Well, he sure is assuming.

MR. HARMON: It’s very likely that it wasn’t

bricks, Judge.

THE COURT: Well, I don’t know what it was.

MR. HARMON: Sacks of furnace liner. There was

a few pallets of bricks. Most of it was hundred-pound

sacks of furnace liner.

THE COURT: I don’t know what was in it, but

Mr. Smith’s questions of this witness have assumed

that they were crates of brick.

93

[265] (By Mr. Smith) Well, assume they were crates of

bricks, fire bricks, some type of ceramic or brick object —

MR. HARMON: Your Honor, I am going to object.

MR. SMITH: The stowage plan— we're going to

bring that out later by the ship’s cargo stowage plan.

THE COURT: Can't you stipulate as to what they

were?

MR. HARMON: Yes, It wasn’t brick.

THE WITNESS: Whatever it was, it was heavy.

MR. SMITH: Ninety-two tons of it, wasn’t it?

&

MR. HARMON: What? It’s bags of furnace lining.

Here’s thirty pallets of furnace lining, here’s twenty-

seven pallets of it, here’s nineteen pallets of furnace

lining. There were six pallets of fire brick and there

were eight pallets of mineral wool block, but the bal-

ance of it was furnace lining, which is bag material,

which is not brick.

[266] MR. SMITH: Your Honor, they have about

eighty crates that weighed a total of ninety-two tons.

The point I’m trying to make, I don’t care what was

in it, they were heavy and didn’t need to be secured.

THE COURT: I think you're going to have to bring

a witness here to testify to that.

MR. SMITH: This is an expert witness.

THE COURT: He is an expert longshoreman. He’s

not an expert loader and storer of cargo, is he?

(By Mr. Smith) Mr. Hocker, do you consider that

you are an expert as to how to properly stow cargo of var-

ious types? A. I think I am.

THE COURT: All right.

ce are et eee. 2 Sen

94

Q. (By Mr. Smith) All right. Have you stowed skids of

bricks or other smaller type commodities in your many

years of longshoring? A. I have.

Q. Do you think you know the proper way todoit? A.

I sure do.

[267] Q. All right. In your oipnion, would a cargo of

crates such as these in the lower hold of the No. 1 hatch

that you saw on the morning of July 2, 1969, in your opin-

ion, should these crates of heavy objects have been secured

in any way? <A. I don’t think they needed to be secured.

Q. Allright. A. All I say about it, whatever that they

carry in there, they didn’t put it in tight. They left a crack

in there.

Q. That one crack that Mr. Sessions fellin? A. Right.

Q. But the rest of it was tight, snugged up? A. There

was just one.

Q. There was just one, one crack? A. Yes.

Q. Inthe whole stow? A. Yes.

THE COURT: Big oaks from little acorns grow. It

only takes one, Mr. Smith.

MR. SMITH: I pass the witness, your Honor.

THE COURT: All right, Mr. Harmon.

[268] CROSS EXAMINATION

By Mr. Harmon:

Q. Mr. Hocker, have you ever seen—this white paper

that you described, as I understand it, was just one piece of

paper? Is that correct? A. What’s that?

Q. I say, you saw just one piece of white paper? A.

Yes, sir. It was about ten feet long, I did, in the wing.

Q. Okay. You say ten feet long and about three or four

feet wide? <A. Yes.

Q. And just one piece? A. That’s right. In other

95

words, it looked to me like this, like somebody started

putting down the separation paper and they cut the gang

out there and says that’s all the cargo they’re going to put

down there and they just left the paper down in the hold.

That’s what it looked to me like.

Q. Was it corrugated paper? A. I don’t know

whether it was corrugated or kraft paper. See, I don’t know

which. It’s been there so long.

THE COURT: Kraft?

[269] THE WITNESS: Yes, sir.

Q. (By Mr. Harmon) But it was definitely white? <A.

Yes.

Q. All right. Have you ever seen that kind of separa-

tion paper used in Houston? A. N 0, we haven’t used that

kind. Some seamen use it, but they don’t use it, I don’t

think. I’ve never seen them use it.

Q. Who is “them”? A. Huh?

Q. Who is “them”? A. The port.

Q. Sirt A. The stevedores we were talking about now,

the port.

Q. Midgulft A. I mean Midgulf.

Q. All right. Have you ever seen any other ships come

in from any other ports that have had that kind of separa-

tiotn paper in them? A. That white paper?

Q. Yes, A. Ihave.

Q. You have seen them. Do you know whether or not

there’s certain ports that use that type separation [270]

paper? A. I don’t know about the other ports. I couldn’t

tell you.

Q. You don’t know what ports may use white paper?

A. No.

Q. But in Houston at least, Midgulf doesn’t use it?

A. That’s right.

96

Q. All right. A. So all I can tell you, what kind we

use around here.

Q. Do you recall whether or not this ship had McGregor

Hatches or whether it had hatchboards? A. They had

hatchboards, I think.

Q. All right. Now, this ship had a tween deck in it, did

it not? A. I think it did, if I’m not mistaken. It’s been

three years: And I don’t know what happened in three

years.

Q. Do you recall whether or not the hatch opening

in the tween deck going on down into the lower hold,

whether that hatch opening was open or closed before

your gang went down there? A. I think we didn’t hatch

it off the tween deck. I think. But I know we opened the

main deck.

Q. All right. This one piece of paper that was down

[271] there was not going to be of.any use to your men,

was it? A. (Shaking head.) :

THE COURT: You have to answer up, Mr. Hocker.

THE WITNESS: No. It wouldn’t be any use to

us, but we just left it there because it looked like

separation paper and we come on top of it with sacks

and just throw these sacks down on them and the

gentleman just stepped in the hole. That’s all I can

tell you.

Q. (By Mr. Harmon) Now— A. We didn’t move

other ports’ separation, if its paper.

Q. Of course, this was just one piece of paper, though?

This wasn’t like the separation had been completed, was it?

A. I didn’t get you.

Q. Sirt A. I didn’t get you.

Q. I say, you don’t move separation paper if the cargo

has come in with separation paper all over the top of it?

A. No, we don’t move it if it’s all over the top. [272] If

it’s one piece laid down, we don’t move it. One piece of

paper, we don’t move it.

97

Q. You realize that when you have cargo that’s in

crates, you might have some cracks between the crates,

do you not? A. Yes.

Q. That’s not at all uncommon to find, is it? A. Yes.

Q. Is that right? A. Yes. But still we don’t move the

paper. Whoever put the paper down, they should have had

dunnage over the cracks.

Q. Well, how do you know whether or not there might

be a crack with the paper on top of it so it’s not going to

be safe for your méi to walk on the paper if you don’t

have somebody pick up this ten-foot piece of paper and

look underneath it? A. Quite naturally, I would think

this: If the, paper is down there, we don’t supposed to move

it. See, if another port spreads paper down, they come from

another port — Mobile, Dallas, anywhere — and we’re not

supposed to move the paper. Just throw cargo on top of

it. We puts our paper down as we go.

Q. Has Midgulf told you not to ever pick up a piece

[273] of separation paper? A. No, nobody told us that.

Q. Nobody told you that? A. No need in picking it

up what was already down there.

Q. Now, after Mr. Sessions’ accident happened, did you

have them pick up this piece of paper? <A. No, we didn’t

pick it up.

Q. Did you have them put dunnage down? A. We

put two pieces of dunnage across the hole, put paper on

top of it.

THE COURT: On this particular hole?

THE WITNESS: Yes.

THE COURT: That Mr. Thomas stepped through?

THE WITNESS: Yes. .

98

THE COURT: You put two pieces of dunnage nd

paper on top of it? /

THE WITNESS: That’s right.

THE COURT: And who told you to do that?

THE WITNESS: Nobody.

THE COURT: I see,

Q. (By Mr. Harmon) That was your responsibility as

[274] a gang foreman, was it not? A. No.

Q. Huh? A. No.

Q. It wasn’t? A. You say that’s my responsibility?

Q. Yes. A. My responsibility is to see it works safely

and I tells the men, I tell them daily, I say, if there is a

hole down there, we see it, put dunnage over it. If there’s

any paper in the hold, any paper down there, we don’t move

the paper. But we don’t put dunnage on top of the paper.

Q. Do you recall whether this was a foreign ship? A.

Huh?

Q. Do you recall if this was a foreign ship? A. I don’t

know what kind of ship it was. See, I don’t keep a record of

the ship.

Q. Now, your men‘had not done any cleaning down in

the hold, had they? A. No.

Q. You do know that sometimes the crews of foreign

ships will do cleaning down in the hold while the ship is at

sea?

MR. SMITH: Your Honor, I object. [275] That is

complete speculation that he’s been to sea on foreign

ships.

THE COURT: [I'll sustain that objection.

Q. (By Mr. Harmon) Did you have occasion to give a

written statement to anybody concerning Mr. Sessions’ acci-

dent? A. Have I given any written—no, I haven’t.

99

Q. You have not. All right. And you’re sure that this

was white paper? A. That’s right.

Q. It wasn’t a piece of corrugated— <A. No, it wasn’t

no corrugated.

Q. All right. Now, the crates that you saw, were they

covered on the top with paper like this or cardboard like

this? A. The white paper that I done showed you twice,

this is the last time, the paper is on the top of the crate like

this. See, like you put a sheet on something.

Q. No. I’m asking you about the crates. Were the top of

the crates covered with cardboard like that? A. I didn’t

check it. I don’t know. I didn’t check them that tight to see

if there was any paper on [276] top, any cardboard.

Q. Well, you had to look at the top to see what your

men were going to work on, didn’t you? <A. The boards

on top of the crate were high. I couldn’t see under them.

Q. You say there were boards on top of the crate? A.

The crates were crated up and they had boards on top

of it.

Q. They had boards on top of it? A. Them pictures

wasn’t taken on the ship. Don’t bring them over here.

Q. Well, just let me ask you this. A. They wasn’t

taken on the ship.

Q. You see picture No. 10, were the crates this type

of crates with boards on top or this type of crates that

you see on No. 6 that has the cardboard on top? A. I

don’t know what kind of crate. I know it was flat crate

about like this, had boards on top of it.

Q. It definitely had boards on top of it? You’re sure

about that? A. It had close together except one place.

Q. And you’re sure that these crates had boards on

atl, Pe Mead

100

top of it? [277] A. That’s right, what I seen, but them

wasn’t on the ship.

MR. HARMON: Thank you.

THE WITNESS: Thank you.

[286] Q. (By Mr. Brock) Do you know how much those

crates weighed that were in the aft end of hatch No. 1

when you went in the hold of the ship? A. Do I know

how much they weighed?

Q. Yes, sir, each crate. A. No, I couldn’t tell you

how much they weighed because I didn’t look at the weight.

All I know, they was too heavy for a man to handle.

[289] MR. SMITH: These were interrogatories

propounded to Cooper Stevedores by the Defendant.

“Question: Please give the date during June and July,

1969, that you stevedored the “S.S. Karina” at Mobile?

“Answer: June 27-28th, 1969. All of this activity took

place at Mobile, Alabama.

“Question: Did longshoremen in your [290] employ

load cargo in the “S.S. Karina’s No. 1 lower hold at Mobile

during June and July of 1969 —”

THE COURT: Let me ask you something. Can’t

you just give me those interrogatories and let me read

them?

MR. SMITH: Yes, sir, if you can take them into

evidence.

THE COURT: Certainly. You can file them and

mark them as an exhibit. This takes the Court Re-

porter’s time and Everybody’s time. I believe I can

read them about as fast as you all can.

Le SE Le wet .

101

[292] MR. SMITH: At this time, I tender De-

fendant’s Exhibit No. 2 into evidence, which everybody

has been furnished a copy of, which verifies that they

were working in the No. 1 hatch.

All right. At this time, I call Mr. Juckes, Midgulf

Stevedore Superintendent. He’s a witness.

THE COURT: You don’t list him.

MR. SMITH: Superintendent.

THE COURT: Is he a supervisor of personnel of

the stevedores? Is that what you say he is?

MR. SMITH: Yes, sir.

THE COURT: All right.

[293] RUSSELL A. JUCKES,

called as witness by the Defendant and, having been first

duly sworn, was examined and testified upon his oath

as follows:

DIRECT EXAMINATION

By Mr. Smith:

Q. Mr. Juckes, would you —

THE COURT: How do you spell his name?

THE WITNESS: J-U-C-K-E-S.

THE COURT: J-U-C-K-E-S.

Q. (By Mr. Smith) Mr. Juckes, would you state your

name for the record, please? A. Russell A. Juckes.

Q. What do you do for a living? A. I’m a Stevedore

Superintendent for Midgulf Stevedores.

DD EE RE IES te

—

SEI ee

102

Q. How long have you been a stevedore superintendent?

A. About ten years.

Q. Would you explain to Judge Singleton in brief sum-

mary what the job of a stevedore superintendent entails

working in the Port of Houston? A. We supervise the

loading and discharging of vessels and the stowage of

cargo.

[2994] Q. Are you the head stevedore, superintendent or

the head stevedore, supervisor or personnel as far as the

longshoring work goes on any particular ship you may be

assigned to? A. Yes.

Q. I gather you load all kinds of cargoes, various types

of ships? A. Yes.

Q. I assume some of them are simple, easy-type jobs,

some of them are more complicated? A. That’s right.

Q. And you’ve been working in this supervisory capacity

for some ten years? A. Yes.

Q. All right, sir. Did you have an occasion to be a

superintendent on board the “S.S. Karina” on June the 2nd

of 1969? <A. Yes.

MR. SMITH: Your Honor, at this time I tender

into evidence the Defendant’s Exhibit No. 3, the cargo

stowage plan that was mentioned in the pretrial order.

MR. HARMON: No objection.

THE COURT: Defendant’s Exhibit what?

[295] MR. SMITH: 3. Defendant’s Exhibit 3.

Q. (By Mr. Smith) I also show you Defendant’s Ex-

hibit 1, which is already in evidence, which is the gang

list of the gang.

Also, Mr. Juckes, we have your employer’s complete

stevedore file available, so if at any time you wish to refer

to any other records concerning this particular job in an-

103

swer to any of the questions by me or Mr. Brock or Mr.

Harmon or Judge Singleton, please feel free to ask for any

records that will help you answer the questions. A. All

right.

Q. They’re very voluminous and I don’t intend to go

through all of them.

MR. HARMON: While you're asking the ques-

tions, can I look at them?

MR. SMITH: Yes.

Q. (By Mr. Smith) Mr. Juckes, would you explain to

Judge Singleton what Defendant’s Exhibit 3, this final

cargo stowage plan is and what it indicates?

[297] Q. (By Mr. Smith) Would you explain to Judge

Singleton how this cargo stowage plan is made up as the

vessel moves from port to port and how this is the final

plan? [298] A. Well, on this vessel, she started in Mobile.

When they completed loading their cargo, they indicated

the stowage on this plan. And then she went to New

Orleans. They did the same. We did the same thing at

Houston. And at the final port in Galveston they did the

same.

Q. And then the ship left Galveston for foreign ports?

A. Right.

Q. All right, sir. Now, in reference to the No. 1 hold of

the “Karina,” would you tell Judge Singleton what the

cargo stowage plan shows? A. Well, it shows skids of

firebrick and clay loaded at Mobile.

Q. How many and how much, or do they just give

weight? A. Ninety-two tons.

Q. All right, sir. What else was— A. The balance of

the cargo is Houston cargo, loaded here, of course.

A SE RTE Rt ea ge

es,

arn

104

2

*Q. All right, sir.

THE COURT: Which one is the No. 1 hold?

MR. SMITH: It’s fhe one on the right-hand side.

[299] THE WITNESS: On the right, all the way

at the bottom.

MR. BROCK: Right botto

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