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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| |} | __ _
| | | | ft
| | | || _
| if | | {| |
| i | | | a |
| ' | | | { |
| if a !
H ! t
RECEIPTS. REMARKS. ETC.
TO wHom Ove AMOUNT
{
|
-— eo
|
: _
|
_ ‘need:
——_—. ‘ i
j
-—_—_
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
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-
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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