# Petition for Writ of Certiorari — Arena v. Luckenbach Steamship Co. (No. 396) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0609%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1960 ## Text ~ ANDY i acre ata! IN THE Supreme Court of the United States Ocroper Term, 1960 ~~ hRaNK ARENA, —V— e LUCKENBACH STEAMSHIP Company, INc.., PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR .THE FIRST CIRCLIT GeoRGE J. ESGELMAN $4 Whitehall Street New York 4. New York Attorney for Petitioner a TABLE OF CONTENTS : PAGE Petition ror Writ of CERTIORARI | 2 ee NR Jurisdiction ...... Bess dceecratumsorcinnparnsipanshvennsnesnens connie ? Questiohs Presented .............. ae ae Ss MERE 2 " No Statutes Involved ............,......... & 2 dns oe RO fe 4 6 8 a re oe CONCLUSION ............. oe aees: i 1 1 9 skeeia Seta nae vache eens * APPENDIX: : _ A. Opinion of the District Court 20002000000. WS B. Opinion of the Court of Appeals 0000000000... 1% C. Opinion of the Court of Appeals on Petitioner's Motion for Rehvaring ............................ ee 30 D. Judgment of the Court of Appeals ............. keds ai TABLE oF Citations Cases: : Chicago & N. W. R. Co. v. Bower, 241 U. S. 470: 36 ee ee ener ee 11 = ve W eyerhaeuser S.S. Co., 236 I’. 2d S48: 2. C. A.) - Sees Ninn, Sa eeicmeamame bs Considine v. Black Dieneed 3 s.S. aan (D.C. dD. Seen ee We OO, BOS oc... ies . § PAGE Cowan v. Inland Waterways isi 121 F. Supp. 683 (i OL Oe . 0) Jeeneennertcesrteeperrntennsnret rer seerrerrt erent 13.: Craumady v. The Joachim H. Fisser, 358 U. S. 423; 79 S. Ct. 445; 3 L. = 2d 413 sesessssneseessneennssnsenseenee 12 ‘DiSalvo v. Cunard S.S. Co., 171 PF. Supp. si (D.C. “Sf 2 geile pane cobstar sacicaaesnlanciaptibeetas Sesonsesssseet 9 Ferguson v..Moore-McCormack Lines, Inc., 352.U. S. 521; 77 S. Ct. 457; 1 L. Ed. 2d S11 ............................ 4,12 Grillea y, United States, 232 F. 2d 919 (2 C. C. A.) _ 10 Hecht Co. v. Jacobsen, 180 F. 2d 13 (C. A. D.C.) ....... WW Johnson v. United States, 333 U.S. 46; 685. Ct. 391. 138 - Mitchell v. Trawler Racer, Inc.: 361 U. S. 808; 80 S. Ct. 926; 4 i eset 9,11 Palazzclo v. Pan Atlantic S. S. Corp., 211 F. 2d 277 RA STS “hn BpeeeeUrariok - RUD ene te densenlon are eee Se loan ere iz Petterson v. Alaska Steamship Co., 347 U..S. 396; © 74S. Ct. 601; 98 L. Ed. 798... aieemcaeeieeona coe Pope & Taibot, Inc. v. Hawn, 346 U. ‘S. 406; 76S 3. Ct. es i ca a esiecnaecraren oy 2 Rich v. Ellerman, 278 F. 2d 704 (2 C. C. fy Vaasa . Ww Rogers v. Missouri P. R. Co., 352 U.S. 500; 775. Ct. is 0 Te Oe resists rcicreceectentcsshcesiercncees 2 Rogers v. United Petre Lines, 347 U. S. 984; 79 OR as OB Bis Fa Re icnrccsettntneescsciensens 9, 10 Seas Shipping Co. v. Sieracki, 328 U. S. 85; 66S. Ct. ee is Be I. phason ce beenccncbuasbhisnannicncmunsioiens tetas 8, 11 ili PAGE Texas & Pac. Ry. v. Behymer, 189 U. S. 468; 23S. Ct. See Oe Se Oe nc er 11 United New York & New Jersey Sandy Hook Pilots Assn. v. IHalecki, 358 U. S. 613; 79 S. Ct. 517; 3 ap ae | ee Siekasestatnlotaniauaaneatesedeties br eniteinn 8 Weyerhaeuser S.S, Co. v. Nacirema Operating Co., Inc., 300 U.S. 563; 78'S. Ct. 438; 2 L. Ed. 2d 491. 12 i ess se IN THE Supreme Cot of the United States Octrosper Term, 1960 rd . - ligation of seaworthiness to the Petitioner? : , ~ + pe ‘ 3. Where the Trial Court refused te receive proof of, the use and merits.of another type of cargo board, holding the one supplied by the stevedore w hich failed, to be rea- sonably fit, did not the Court deny the Petitioner the rischt to a seavorthy appurtenance of the vessel! 4. Where the ship's officers knew or should have known that’ the stevedore was bringing alefird tle rolls of pauper unsecured to the cargo board, did - epee net breach a duty of care owing to the Petitioner? d. Dic not the District Court err in directing a verdict for Respondent, for in-a loneshoreman's suit aiaifist a shipowne , is net the “test of a jury case”, the same as that prot ounced by this Court ina seanian’s case (Pe rguson 4. v, Moore-McCormack Lines, Inc., 352 U.S. 521), "% * ° Whether the proofs justify with reason an inference that * * @ * the negligence of the shipowner or the unseaworthi ness of the vesse}) " * * * played any part even the slightest in producing the injury or death for which damages are sought’? - There Are No Statutes luvolved Statement of the Case On April 1, 1957 the MATTIIEW LUCKENBACHE lay docked at the Port of Boston and Respondent, Luckenbach, owner and operator of the ship, employed American Steve- doring Corporation, Respondent, to discharge and to load cargo abaard the vessel (R. 23, 12, 61.. Appendix B19, 20. 24). Petitioner, a longshoreman in the employ of American Stevedoring Corporation (R. 32), was working in one of the, forward deep tanks in number 2 hatch illustrated in Plain tiff’s Ex. 1 (R. 97, 44, 45, 68), loading cargo (R. 45, 48), when he was struck by rolls of paper which fell out of a draft of cargo coming aboard when the cargo board tipped , (R. 30, 46, 48, 70). The ease was tried by a young, inexperieneed attorneys ; the record shows he had difficulty eliciting the proof, that he was restricted in offering proof by the Trial Cour (R. 24-28, 43, 48, 57-60), and that he was not familiar witli the law involved (R. 80-92). | The sievedoring contractor, American Stevedoring Cor. poration, supplied the cargo boards for transporting the cargo from the dock to the ship CR. 42, 52, 53). The board Which tipped was of the same design ahd construction as the board indicated in Plaintiff's Ex. 2 (R. 99, 18). The ‘board was eight feet long and five ‘feet wide (R. 42, 67). Attached to gach side of the board was a rope lanyard - which was secured to the board by means of two shackles, one located near each end CR. 47); the lanyard ropes “necessarily extended from the two shackles in triangutar fashion as they were joined by a ring bolt illustrated in Plaintiffs Ex.2 (R. 99). The léngth of the lanvards was not established. The ring bolt of each lanyard was secured to the cargo hook, thus the ‘lanvards on each side of the eargo board were the sole means of supporting the board and its cargo. Plaintiff's lx. 2 (i. 99, 15,16). At each end of the cargo board there was a rope net illustrated in Plain- tiffs ex, 2 (R. 99), the length of the nets Was not estab- lished. The purpose of the nets was to secure the cargo to the board (R. 63, 69). The board had a load of five rolls or packages of paper; each Was about 212 feet in diameter, five feet long and weighed about 500 pounds (R. 18, 19). There were three separate rolls of paper in each package or roll and each of them weighed about 180 pounds (R. 31, 82). Similar rolls or packages though not completely intact because of dam- age to the outer wrapping paper are shown in Plaintiff's Mx. 4 (R. 108, 31); the same exhibit shows the three rolls in each package; but the packages are on a paltet and not a cargo hoard and they are in a vertical position rather than the position in which they were loaded (R. 31, 32), Then three packages or rolls rested on the cargo board so that th® axis of each roll was at right angles to the sides of the board; two rolls lay in the same manner on the top of the bottom three (R. 67, 68, 7s). Obviously they would het be loaded on the board in any other way. The rolls of paper were loaded on the éargo board on the dock by Petitioner's fellow longsloremen COR. 35, 59, 60). The load was brought aboard by means of the ship's hooms a:d winch which controlled the movement of: the. wire fall, leading to the eargo hook Which went into the i ring bolt in each lanyard on the cargo board (R. 13-16, 6s- 71). The winch controls are shown in Plaintiff's Ex. 3 (R. 101, 71). In the vicinity of the hatch coaming the cargo board tipped up and the rolls fell off the board, some struck the separator between the deep tanks breaking the package | and Petitioner was struck by two of the rolls in the package (R. 29, 30, 46, 69, 70, 77). The shifting of the two top rolls caused the board to tip) and spill the rolls (R. 69,70). There is no direct proof of the cause of the shifting of the top rolls; it may have been caused by a winch “a litfle faster than usual” (R. 71, 72), for the load was swinging when it came aboard and it was necessary for the winchinan to steady it twice before it tipped up at the hatch coaming (R. 28, 29). When the board tipped there was nothing to prevent at least the top two rolls from falling out of the draft because the nets at each end of the cargo board did not go over them (R, 69, 70).- While the longshoreman on the dock who set up the draft testified that the load was in “proper condition” with the nets tied, he did not testify that the nets went over or se- cured the two top rolls (R. 63). There is not a scintilla of proof that the nets were sufficiently long to coyer or secure the two top rolls. As thirty similar drafts came aboard prior to the occurrence with the two top rolls uncovered and unsecured by nets (R. 37, 38, 70), it is a fair inference that the nets were too short to secure the two top rolls. There was another type of cargo board with the lanyards at the ends of the board and a raised curbing or cargo stopper at each end of the board, illustrated in Plaintiff’ wEx. 6 (R. 107, 47). This the Court of Appeals referred to as a “can” or “end” board and it referred to the board in use With the lanyards on the sides as a “side” board (Ap- pendix 13 20). It was the side board and not the end board: which was used to discharge canned goods in addition to rolls of. paper (R. 47, 75, 76). While there was some un- certain proof that it was custemary to use the side board for loading rolls of paper ©R. 46-48, 75, °76), the Trial Court exeluded proof, that there also Was “a different set of boards” for loading paper (R. 24, 25), thatythe end hoard was or was not available (R. 43), that the end board had been used for loading roll type paper (RL 48), that the end board, was a safer and better appliance (R. 57-60). Thus the availability, use, merits and construction of the end beard, save for its patogremm, Plaintitf’s Ex. 6 (RR. 107) was excluded. . The photograph of the end board shows that each end had a stopper or curbing designed to prevent slippage of cargo, particularly’ rolled cargo which moves freely, and that the lanyards, which restrain the cargo as well as hold ‘the bourd (R. 48), were shackled to the ends of the board rather than to the sides. As the draft of cargo Was brought i“aburton”, so that the ends of the cargo board moved across the ship at a right angle to her keel ‘or cout sr line, the danger arose from the tipping of the ends of the*board. the direetion of movement—for “a load swings as it rides” (R. 22) and the danger of end tipping obviously increas: d as the roils of paper lay on the board with their axis parallel with the ends of the board and the direction of mover nt (R. 67, 58, 78). . The Court of Appeals upholding the use of the side bodrd, said the lanyards prevented “longitudinal slippage” (Ap “pendix B 21), that is the slippage from the sides of th: ‘board. As the two lanyard ropes on each side of the board rose to form the apex of a triangle, it is obvious that the lan yards could not prevent side slippage af each of the five rolls because their ends were at the des of the board and the lanvards could not press against all five ends. As the drat't came m*aburton™ the danger was not from side slippage of the cerge, but from énd slippage and the lanyards on io 8) the end board could prevent such slippage because the sides of the rolls were parallel with the ends of the board, so that it was only necessary for lanyards so placed to press against the bottem and.top‘roll at each end of the board, the center roll was held by the pressure of the lanyards against the end rolls. The ship had been loading paper since 8:00 o'clock the morning of the accident (R. 13-15, 70), bringing aboard the same size loads with the top two rolls unsecured and with the same equipment (R. 55-57, 62, 69, 70). This took place in the presence of the ship's officers and crew (R. 709). The Court of Appeals concluded that the cargo board was fit for the work, predicated its failure on the negligence: of the longshoremen, and did not consider that Petitioner was prevented from proving the use and merits of anothe' board; while admitting that the shipowner might be liable for the unseaworthiness of the bodrd, held that “improper loading” was “not chargeable” to it and thus without con sidering the matter, in effeet, held that it was not labl for the unseaworthiness of the draft of cargo (Appendix 1 19-24). f Reasons for Allowance of the Writ ARGUMENT _ Anwering the questions posed in numerical order. 1. As Petitioner was engaged in the traditional work ot seamen loading cargo aboard Respondent's ship he had the protection of the doctrine of scaworthiness, Seas Shs) ping Co.v. Steracki, 328°U. 8. 85; United New York & Neu Jerse Wy Sandy Hook Pilots «issn. V. Hal: chi, 305 ce S. 615. The shipowner’s. hability for unseaworthiness extends te equipment brought aboard by the stevedoring contractor v and used by, it in performing its serviee of Toading and discharging cargo. Petterson v. Alaska S.S. Co. BAT ULS. 39; Rogers v. United States Lines, 847 ULS. O84. The cargo board secured >to and operated by the ship's loading and unloading equipment became a vital part of the ship's ap paratus; like the wire cargo runner the stevedoring con tractor brought aboard in Rogers v. United States Lines (supra), Where this Court reversed the Court of Npypeals for the Third Cireuit, 205 BF. 2d 57, it was incorporated in the ship’s loading equipment and*became an appurtenance of the ‘vessel to which the obligation of seaworthiness attached. The simple almost primitive cargo board was neers. sarily traditional ship's equipment. While this Court: has never stated that the warranty of seaworthines? extends only to traditional ship's equipment brought aboard hy the stevedoring contractor, it has been held that the war ranty extends to non-traditional equipment, such as a truck brought aboard by the stevedore, Considine ve Black Dia mond Steamship Corporation (D. ©. D. Mass.). 163 F. Sapp. é i : ae / 107, and a baggage chute kept on the dock, DéSalru vy. Cunard S.S. Co. (D.C. 8. DLN. Y.), 171 F. Supp. S13, In the interest of mechanical progress and efficieney it would seem sufficient that the appliance is used in work tradition ly performed by the ship and her crew. The seaworthiness of the cargo board-and its attachments is to be determined by its “retisonable fitness” for “in. tended use”, Mitchell ve Trawler Racer, Tne. 36" U.S. 80S, It is unlikely chat longshoremen would have had se little regard for the safety of their fellow workers in the hold that they would have left the nets untied on the load that tipped and the thirty previous loads that came aboard the morning of the accident (R. 37, 38, 10), if they could have heemseenured. It is pertinent that experieneod conn-el for ship did not establish the length of the nets. In the absence 10 of such proof the Court of Appeads (Appendix B 25, foot note 4) says, “A photograph in evidence demonstrates them to be approximately 5 feet.” Obviously such a conclusion i- risky at best; as each roll was 2! feet in-diameter (R. Is, 19) and as the nets would have to be drawn upward from the ends of the board at an angle, because the top two roll- were in from the board ends, the nets would have to | greater than five feet in length to secure the top two rolls. The two top rolls being free to shift and fall with th. movement of the draft, reasonable men might conclude that the cargo board was unfit for its intended use and un seaworthy. * . 2. Assuming without conceding that fhe nets were sut ficiently long to secure the top two rolls, but were’ not tied through the negligence of the longshoremen, still the draft was as unfit to,board the ship as one having no net- at all. The stevedoring contractor can render a slip unsea worthy not only by bringing aboard defective equipment as in the Petterson and Rogers cases (supra) but by creating an unfit condition with proper ship’s.equipment, Grilled v. United States, 232 F. 2d 919 (2 C. C. AL); Rich ve. Eile rmin 278 KL 2d 704 (2. C. C2 AL). In Grillea the longshoreman re covered even though it was his own carelessness in mi- placing a hatch cover which later caused his injury. In Rich it was held that improper stowage of ship's carge by the longshoremen made the ship liable to them for un seaworthiness. As liability arises without fault, and selel) . by reason of an unfit condition created by the misuse «1 proper equipment by the longshoremeri, there is no reason why liability should attach only when the shipowner pro vides the equipment, for the stevedore’s equipment mia) become.an appurtenance of the ship as well, L’efferson \ Alaska S.S. Co.: Rogers v. United States Lines (supra). In holding that “improper loading” (Appendix B 23) and “negligent use or negligent choice of equipment” (Ap ¢ 1! pendix & 2H) in bringing freight aboard does not render a ship unseaworthy, the Court of Appeals below erred for it failed to consider the draft of catgo an appurt nanes of the ship, Which when suspended from the ship's beveorea Wats probably the most potential hazard above the deck, eo? tainly to the Petitiener and his fetlow workers in th. hateh. As the hability for unseaworthiness was desiined to protect against the hazards arising out of, work traditional! s performed by séamen, Seas Shipping Co. vit Sieracks (su- pra) it should’ attach to a draft of cargo even theugh it be a transitory appurtenance, for it can ‘no longer be urged * * * ° that liability for a temporary unseaworthy condition is ditferent from the liability that attachos when the condition is permanent.” Mitchell vo Trawler Racer, Inc. (supra). oan oe 3. While the record is far from clear there was some proof that it was customary to use the “side” board for loading paper in the Port-of Buston CR. 25. 48, 57, 76, 79, Sl). Customary use of an applianee does not establish its reasonable fitness for the use to whichut is put. Mech? Co Vv. Jacobse n, SOF. 2d 1 (CLA. D.C): Chic aga cd Ae. &. Co. v. Bower, 2417. S. 470. For “What usually is- dem may he evidence ot what ought to bie dene, but w liaat eruhit to be done is fixed by a standard of reasonable prudence, eae - Whether it usually is complied with or not.”, Teans dh Pac. Buoy. Bohymer. Us US. 468. So it is proper to show ‘lat there is available in the industry another, a better o: sifer appliance or method than the one claimed te be un fit, echt Co. v. gs obsen isupray; The Tod Hooper, 60 B.2d 737 (2. C. AL). It is then for the jury to determine which if any ap eae meets the standard of “reasonable, fitness” for “intended use”, ‘Had th> Trial Court permitted Petitioner to prove th use and merits of the end board (R. 24, 25, 45, 48, 57 60), a act , e - . : . / iz jury may, reasonably have found that it met+the test of reasonable fitness and the side board did not (supra 6-8). In refusing to permit proof of the use and merits of another type of cargo board (R. 08, ov), the Trial Court plac “d the stamp of reasonable fitness on the cargo board the steve dore supplied, even though its fitness was supported only by its use and it finally failed. Thus the stevedore’s obli gation to provide a reasonably fit appllance was virtually abrogated and Petitioner's right to‘a seaworthy one denied. Petitioner, a longshoreman, had the right to recover for Respondent, Luckenbach’s negligence, Pope & Latbot, Inc. vo Hawn, 346 U.S. 406. Surrender of control to the stevedoring contractor does not immunize the shipowner for its negligence, Palazzulo v. Pan Atlantic SS. Corp., 211 PS Sie 20. Ast ‘'rumady Vv. The Joachim H. Biss: r. 358 U.S. 423. The shipowner remains liable for his nest gence all during the time the stevedore is in control, he ean not stand by and knowingly permit the neglect of the stevedoring contractor to injure its own-employees who are lawfully abpgard his ship, Connolly ve Weuerhacuser S.S. -Co., 236 F. 2d S48 (2 C. C. AL): Weyerhaeuser SwS. Co. s Nacirema Operating Co., 305 U.S. 363. As the testimony is undisputed that from the time th work began on the morning of the accident until its ce eurrence 30 similar unsecured loads came aboard (R., 15, 76) and that during this time the ship's crew and No Witaess was called who had londed the board. or who had ~ een 1 bel ig loaded testimony from whieh it could be gathered, what speed cor speeds the winch had been operated in with respect. to this particular load. For all that appears, high speed was used only when the board was lizht. Nor was there any . suggestion that it was unusual for a loud to swing a little or tip a little, or that the rate of speed, in high or other- wise, had been the cause of such movement. Although the burden upon a longshoreman to establish causation is not lreavy, there must be some evidence that whatever might he claimed to be a defect in the vessel liad some ‘connection with the occurrence. The defendant, on this reeord, could not be charged simply because high speed on this winch Was faster Gian on some others. - The plaintiff bases his attaék principally apon the board.’ There wa& no evidence that? this particular board was damaged or defective. Nor were its lanyards or nets. The hoard, with its appurtenances, continued te be used for furtwer loading. Apparently, not even any net lines had heen injured, Although no witness testified direetly what caused the accident to occur, we believe it can be deduced. When the winehman was asked whether he observed any- thing about the load as it was coming in, he Stated, “This was one thing I noticed. The net. They had three bales on the bottem and two on the top... Fhis net here had three rolls on the bottom; for two nothing was on them, to hold them... and these two bales on top they shifted on me . The. board went up straight and down like that.” In other words, with no fastening over the tep rolls, and, the net. partly filling the spaces between the bottom rolls which would normally help retain them, the top rolls were free te shift, which. would-further unbalance the board, and ‘e- . ‘Boards are stevedore’s property. We assume, without deciding, that the obligation of seaworthiness applies to equipment such as this, if used for performing a regular ship's funetion, even though hot customarily ship's property. Cf. Considine vo Black Diamond S.S. Ctrp., D-C.D.Mass..° (1958), 163 F.Supp. 107. oad ant > centuate the movement with the eventual result. In view of the fact that even the bottera laver of rolls came out and the nets were not found to be injured after the accident, it may well be that the nets had not been tied at all, but were simply held over the bottom rolls by the weight of. the top ones. until their shifting released the tension. In any event, the tmproper loading was not chargeable to the defendant... . , The plaintiff's contention, which is purely eounsel’s sug- gestion, as no witness so testified, is that so-called end- boards would have prevented this accident, and that the vessel was accordingly unseaworthy., There are two an- swers to this. In the first place, if the lanyards had been at the ends instead of at the sides of the board, fhere would have been no protegtion against end-wise slipping of the” rolls. The mets were there to guard against roll-offs, The board was not defective simply because the longshoremen, Who loaded it neglected to do so in the proper fashian. Secondly, even if at could be found that end:hoards. rather tian side-bourds should have been used, the choice of side-. boards was the stevedore’s, There was no evidence of unavailability of end-boards. If anything, the reeard, sug- gests the contrary, AU vessel is not unseaworthy simply because the Hnproper type ot equipment Was used hy and belief tere is good ground to support it... . For a willful violation of this rut an attorney may be subjected. : to an appropriate disciplinary action.” Ut is diflicult to believe that counsel who signed this answer thad good” grounds to assert, among other things, that his client did not either own, operate or manage the vessel, that th: plaintilf was not employed by the stevedore, and-that fn was not injured, or even aboard the vessel. Jt is a breach of counsel's obligation fo the court to file am answer erent ing issues that counsel does net affirmatively believe have a basis. | 3 Jridqment will enter affirming the judqment of the Dis. trict Court. APPENDIX C UNITED STATES COURT OF APPEALS ; Fok tug First Cirevrr No? 5601 > - FRANK ARENA, : ; . Plaintiff-Appellant, . —_—vV— _ Luckexsacn Sreamsuir Company, Inc., ef al., Li fendants-Appellees. ,.. ir Appeal from the United States District Court for the District of Massachusetts. a. a Before: Woopsury, Chics Judge. and Hartigan and ALpricn, Corcuit Judges. : Ae iecepcnicnenllN casencigassota Crorck P. Doxovas, for appellant. Leo F. Guyxs, for Luckenbach Steamship. Com- pany, lne., appellee, ee Opinion of the Cofrt On Petition for Rehearing June 10, 1960 Aupricny, Circuit Judge: Plaintiff has filed a petition for rehearing, citing the.— ‘ “Case of Rich v. Ellerman & Bucknall S.S. C'u., Lid., decided . 6 by the Court of Appeals for the Second Circuit a day after the instant case, —— F. 2d ——. In Rich, the stevedores loading the ship left some,of the stow a “dangerous working platform” in the hold, whieh gave way when the plaintiff longshoreman stepped on it. The decision that a portion of the ship may be made unseaworthy by an act of a steve. dore presents no novel principle. It is quite another step to say, as plaintiff does, that because a stevedore may have made negligent use, or negligent choice,* of equipment an which it is bringing freight aboard, fhe ship becomes un- seaworthy. The possible transitory nature‘of a condition of unseaworthiness has been accented sinee our opinion herein. Mitchell v. Trawler Racer, Inc., May 16, 1960, —— U.S. -—. But we do not believe that wunseaworthiness is to be equated with mere negligent conduct. If a winehman employed by a stevedore negligentl*¥ lowered a boom onto a longshoreman, it would be true, in a sense that the Jon: shoreman had not been working in a safe place. But absent a showing that the winchman. was: an unfit individual we could not say that the vessel was unseaworthy,. The petition for rehearing is denied: * While we held that the jury might have found that the rolls were inadequately made fast to the beard, the statement. in cur opinion about negligent choice of a wrong type of board was cumulatise, only, Our primary holding as to that aspect of th: case Was that there was no evidence warranting a finding that it Was the wrong type of board. ay “I APPENDIX D JUDGMENT May 11, 1960 This cause came on to be heard on appeal from the Urited States District Court for the District of Massachusetts, anid was argued by counsel. Ae) . 4 Upon consideration whereof, it is now here ordered. adjudged and deerced as follows: The Judgment of th District Court is affirmed. By the Court: /s/ Rocer A. STincuriesi Clerk = 2 Approved: , /3/ Peter WoopBuRY Chil. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386420_0609%3A2. Public record. Not legal advice.