280 F. 618 (2nd Cir. 1922), 221, Port of New York Stevedoring Corporation v. Castagna

Docket Nº:221.
Citation:280 F. 618
Case Date:March 06, 1922
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 618

280 F. 618 (2nd Cir. 1922)




No. 221.

United States Court of Appeals, Second Circuit.

March 6, 1922

Though a servant of a stevedoring company would assume the risk of stepping or stumbling into a hatchway, which he could see was unguarded, he did not assume the risk of being knocked into the hatchway by the fall of a pile of dunnage not properly secured.

Writ of error to the District Court for the Southern District of New York to review a judgment of $20,040.25 entered upon a verdict in favor of plaintiff below. The parties will be referred to as they were aligned below.

Plaintiff is an alien. Defendant is a New York corporation in the business of stevedoring. Plaintiff was a longshoreman. In the circumstances hereinafter related he was precipitated into the open hold of the steamer Lake Fackler, upon which he was working for defendant; the latter, through its employees, being engaged in loading barrels of cement into the hold of the vessel. The vessel, which was not owned by defendant, was lying alongside a pier in Jersey City. As a result, plaintiff suffered injuries of the gravest character.

For the purpose of packing the barrels in tight, dunnage was used. This dunnage had been previously piled by the sailors on the vessel, but had not been inspected by defendant. During the early part of the work the men found sufficient dunnage in the hold, but later more dunnage was needed, and plaintiff went to Facciola, the foreman, and asked him where he could get additional dunnage. The foreman told plaintiff to go on deck, but plaintiff found none there, whereupon the foreman told him to go to the 'tween-deck, which was immediately over the hold, where the foreman said there was 'lots of dunnage * * * close to the hatch.' Plaintiff climbed up the ladder to the 'tween-decks and saw the dunnage piled in a rack.

The manner of piling was that two or three

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long boards were stuck behind one of the sweatboards of the vessel, and large quantities of the dunnage were stacked up on the rack thus made. The particular pile approached by plaintiff stuck out 5 or 6 feet from the side of the ship, and extended about 3 feet from the deck to a point opposite plaintiff's chin or head. It was testified that the top of the pile was about 8 feet above the deck. The distance from the side of the vessel to the open hatchway was 12 feet 9 inches. This hatchway was flush with the deck and entirely unprotected. What is known as the life line, which is customarily stretched around such an opening, was not present.

One of the sticks which held up the pile was, according to the testimony of the first officer of the Lake Fackler, 'rough stuff, very light stuff.' One of the plaintiff's fellow workmen saw the broken board as it lay on the deck after the accident, and testified that 'it was a rotten board.' As plaintiff grasped the first piece of dunnage, this rotten piece of wood, which acted as a support, gave way. The whole pile thereupon fell and struck plaintiff full in the chest. He attempted to 'grab something'; but there was nothing to grab, and thus he was thrown into the open hold, where he fell upon the pile of cement barrels.

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The foregoing version of the accident is, of course, that for which there is support in the testimony adduced on behalf of plaintiff. In respect of several questions of fact, there were contradictions put forward by the testimony of the witnesses for defendant. With the differences in these versions we are not concerned, as it is necessarily assumed that the jury accepted the story of plaintiff and his witnesses.

Bertrand L. Pettigrew, of New York City (Walter L. Glenney, of New York City, of counsel), for plaintiff in error.

David M. Fink, of New York City (Harold R. Medina, of New York City, of counsel), for defendant in error.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MAYER, Circuit Judge (after stating the facts as above).

1. The first point urged by defendant is that he did not neglect any duty which he owed to plaintiff in regard to the inspection of the pile of dunnage wood, and therefore that the complaint should have been dismissed. There would, of course, have been no duty on the part of defendant, if the defect were a latent one, not discoverable by such an inspection as a reasonably prudent employing stevedore would make under like circumstances. It is now too elementary to require citation of cases that the employing defendant was required to furnish plaintiff with a safe place in which to perform his work and safe implements or tools in connection therewith.

The fact that the dunnage wood was originally piled by the sailors on the vessel is a matter of no consequence. When defendant took charge of the loading of the cement barrels, he at once became the master, both in respect of the place where his employees worked and the implements or tools (other than those furnished by themselves) with which they worked. Defendant made no inspection whatever of the dunnage, and yet the slightest inspection might have disclosed the fact of the existence of this rotten piece of wood, which was the original cause of the accident which ultimately hurled plaintiff down the hatch.

The case is quite different from Liverani v. Clark & Son, 231 N.Y. 178, 131 N.E. 881. In that case the hoisting falls were hooked into an iron ring bolt fastened in the ship's deck. During the progress of the work the ring bolt broke, and the pulley block struck Liverani, causing his death. The defective condition of the ring bolt could have been ascertained according to the testimony of an expert only under the hammer test. The court said:

'Under such circumstances, what was the duty which the law placed upon the stevedore with relation to the use of the ship and its parts? In the absence of any condition to excite suspicion, or to suggest defects or danger, the stevedore might assume the safety of the appliances, and that due care had been used by the shipowner to keep and maintain them in reasonably safe condition.'

Having stated the foregoing, the court was careful to point out:

'This does not mean that the stevedore could use the tackle or the ship's parts blindly and without looking at them, but that, if appearances indicated no danger or defects, an inspection by tests for latent imperfections was not required of it. To expect a stevedore in the absence of these indications to

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minutely examine masts, booms, and bolts, and apply to them expert scrutiny before permitting his servants to use them, would be...

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