Simpson v. Royal Rotterdam Lloyd

• Decision Date: 17 January 1964
• Citation: 225 F. Supp. 947
• Parties: Carl W. SIMPSON, Plaintiff, v. ROYAL ROTTERDAM LLOYD, Defendant and Third-Party Plaintiff, v. ASSOCIATED OPERATING COMPANY, Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

225 F. Supp. 947

Carl W. SIMPSON, Plaintiff, v. ROYAL ROTTERDAM LLOYD, Defendant and Third-Party Plaintiff, v. ASSOCIATED OPERATING COMPANY, Third-Party Defendant.

United States District Court S. D. New York.

January 17, 1964.

Sylvia Miller, New York City, for plaintiff; Chester A. Hahn, New York City, of counsel.

Burlingham, Underwood, Barron, Wright & White, New York City, for defendant and third-party plaintiff; William M. Kimball, New York City, of counsel.

Fogarty & Schreiber, New York City, for third-party defendant; John H. Mulvehill, of counsel

FEINBERG, District Judge.

This is a non-jury diversity case involving what is rapidly becoming in this Court the eternal triangle — longshoreman versus shipowner, and shipowner versus stevedoring company. For the reasons indicated below, I find for the longshoreman in the main action and for the shipowner in the action over.

I

Plaintiff longshoreman was injured on September 19, 1957, aboard the S.S. Bantam owned by the defendant Royal Rotterdam Lloyd ("Shipowner"). The S.S. Bantam was discharging cargo at Pier One, Bush Terminal, Brooklyn. Plaintiff, employed as a hold man by the Associated Operating Company ("Stevedore"), was unloading ingots of tin in the lower number five hold at the time of his injury.

Plaintiff's left foot was fractured when one of the ingots fell upon it. These ingots were molded blocks of tin, approximately eighteen inches long, six inches wide at the top, four inches wide at the bottom, and six inches high. At the top were horns, metal-hand grips which extended about two inches from the top at both sides. The ingots weighed about one hundred pounds apiece and were tiered six high running in the same direction. Plaintiff's job was to lift each block individually, turn around, and place that ingot in a box beside him.¹ While turning, after lifting one of the top ingots, the one immediately below fell upon plaintiff's feet, injuring his left foot.²

Plaintiff claims that the ship was unseaworthy and the Shipowner negligent because of improper stowage of the tin ingots. Specifically, it is claimed that the stowage was improper because (1) it was tiered too high for safety; (2) the ingots were piled running in the same direction, and not in criss-cross fashion which would have been safer; (3) some ingots were edge up; and (4) there was grease on the ingots.³

A ship is unseaworthy if it is not reasonably fit for its intended use. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). Improper and dangerous stowage would constitute unseaworthiness. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Palazzolo v. Pan-Atlantic S.S. Corp., 211 F.2d 277, 279 (2 Cir. 1954), aff'd sub nom., Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). A shipowner is negligent if he knows of, or should know of, a dangerous condition which is reasonably likely to cause injury, and does not exercise the care which a reasonably prudent man would have exercised under the circumstances. Gutierrez v. Waterman S.S. Corp., supra; Ktistakis v. United Cross Nav. Corp., 316 F.2d 869 (2 Cir. 1963). A longshoreman unloading cargo aboard a ship may recover from the ship for injuries caused by an unseaworthy condition or negligence of the shipowner. E. g., Gutierrez v. Waterman S.S. Corp., supra; Seas Shipping Co., v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Mosley v. Cia Mar Adra S.A., 314 F.2d 223, 227 (2 Cir. 1963).

Plaintiff's contention that the tiers were piled too high and not crisscrossed for safety rested upon the testimony of another longshoreman, Cusamano. Cusamano, a member of plaintiff's working gang on the day of the injury, testified that in his experience the ingots should have been tiered only three high and should have been piled in criss-cross fashion.⁴ However, an expert, Hanley, called by Shipowner, testified that the safe height to which tiers of ingots could be piled depends upon many factors,⁵ one of which is the part of the ship where the ingots are carried. In the lower hold of a ship, where the ingots were in this case, they could safely be piled six high, and the expert further testified that he had seen ingots stowed to this height.⁶ Cusamano testified that he had only observed tin piled three high in the tween deck, but had no knowledge of how high ingots were usually piled in the lower hold.⁷ I find that there was no improper stowage due to the height of the tiers.

Hanley also testified that ingots were not customarily stowed criss-cross aboard ship,⁸ but were usually stowed running in the same direction, as they were aboard the Bantam. Although customary practice is not necessarily determinative of safe practice, there is not enough evidence in this case to conclude that the arrangement of the ingots was improper.

Some of the ingots were lying with their edges up. Again the expert called by Shipowner testified that this would be unusual but not a hazard, since the men would pick an ingot up, after righting it, the same way as ingots piled with their tops up.⁹ There is no evidence that ingots with their edges up are more likely to fall than ingots piled with their tops up.

Plaintiff finally claims that Shipowner is liable under both the unseaworthiness and negligence theories because there was grease on the ingots. Both plaintiff and Cusamano testified that they found grease around the lower hold and on the tin ingots when they entered the hold to commence work.¹⁰ There was also grease on the ladder leading to the hold, and grease filled rags were scattered about.¹¹ The longshoremen complained to the hatch boss, Cipriano (also an employee of third-party defendant Stevedore), of the greasy condition of the hold and cargo,¹² and the longshoremen were warned to work with care.¹³ An officer of the ship,¹⁴ after being informed of the conditions by the hatch boss, inspected the hold in person and actually saw the grease.¹⁵ There is no evidence in the record of any conversation or instructions given by the ship's officer. At no time did Shipowner or Stevedore's hatch boss order the men to stop work¹⁶ until the grease was completely removed or the condition was otherwise made less dangerous.

I find that the ingots in a greasy condition in this case constituted an improper stow and rendered the vessel unseaworthy. Greasy ingots are likely to slip and make the stow not reasonably fit for its intended disposition.

Since Shipowner's officer had actual knowledge of the greased condition of the ingots, which made the area an unsafe place in which to work, I also find Shipowner negligent. Although the record is not completely clear on what caused the ingot to fall when it did, there is evidence that it "slid out" and that "there was grease on it."¹⁷ I conclude that the greased condition of the ingots was the proximate cause of plaintiff's injury.

There was no contributory negligence on the part of plaintiff. He was in the hold working pursuant to instructions. Even if a bump set in motion the ingot that fell on plaintiff, and there is no evidence that there was such a bump,¹⁸ I would not find this a negligent act.

Plaintiff received a crush injury to the left foot and fracture of the left second metatarsal bone.¹⁹ As a consequence, he visited a doctor forty-five times from September 1957 to February 3, 1958, receiving primarily whirlpool and diathermy treatments. On the latter date, he received another injury to his left foot and visited the same doctor an additional thirty-six times. Fifteen of these later visits were attributable to the February 3, 1958 injury.²⁰ Thus, in all, the injury in question here resulted in sixty-six visits to a doctor and three sets of X-rays for which plaintiff incurred bills of $330. Although Shipowner claims that the number of visits was grossly excessive, no evidence was introduced as to how many visits would be proper for this type of injury. Under these circumstances, the Court will allow the full amount claimed as the fair and reasonable value for medical services incurred as a result of the accident on September 19, 1957. Plaintiff's injury prevented him from working from September 24, 1957²¹ to the middle of January 1958,²² for a total loss in wages of at least $1,540.32.²³ Plaintiff has been left with a mild partial disability.²⁴ I also award $1,250 for the nature and extent of his injuries and for pain and suffering — a total award of $3,120.32.

II

Shipowner seeks indemnity from Stevedore, plaintiff's employer, for the award to plaintiff. The evidence shows that Stevedore had actual notice of the grease on the ingots by observation of its hatch boss (Cipriano) and Cusamano,²⁵ to whom the employees in the hold, including plaintiff, also looked for supervision. This condition was brought to the attention of a ship's officer.²⁶ However, Stevedore's employees continued to unload the cargo in its unsafe condition.

In Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), the Court held that there is an implied warranty in a stevedoring contract to perform the job contracted for in a "workmanlike" manner. Applied to the handling of cargo, there is an obligation on the part of the stevedore to perform its duties with reasonable safety. Weyerhaeuser S. S. Co. v. Nacirema Operating Co., 355 U.S. 563, 567, 78 S.Ct. 438, 2 L. Ed.2d 491 (1958).²⁷ A shipowner has a right of action against a stevedore when the latter's breach of its obligation to perform in a workmanlike manner results in liability of the ship to a third party (here, plaintiff longshoreman). As between a shipowner and stevedore, the latter "cannot use the shipowner's failure to discover and correct the stevedore's own breach of warranty as a defense," (Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., supra 350 U.S. at 134-135, 76 S.Ct. at 237-238, 100 L.Ed....