Knox v. United States Lines Company, 13408.

Decision Date21 June 1961
Docket NumberNo. 13408.,13408.
PartiesWilliam KNOX, Appellant, v. UNITED STATES LINES COMPANY, Appellee, v. T. HOGAN CORPORATION.
CourtU.S. Court of Appeals — Third Circuit

S. Gerald Litvin, Freedman, Landy & Lorry, Philadelphia, Pa., for appellant.

Rawle & Henderson, Harrison G. Kildare and Thomas F. Mount, Philadelphia, Pa., for appellee.

Before KALODNER, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

This case presents the familiar situation in which a longshoreman, injured on a ship while working for an independent contractor in unloading cargo, seeks to recover damages from the shipowner alleging both that the ship was unseaworthy and that the ship negligently failed to provide a reasonably safe place for the longshoremen to work. The accident occurred when a roll of burlap, unintentionally dislodged from the stowage by the longshoremen, fell or rolled upon a workman's ankle.

The case went to the jury on special interrogatories. The jury found that there was no inadequacy of the original stowage such as would constitute unseaworthiness and that the ship was not negligent in the performance of its duty to use due care in providing a safe place for the longshoremen to work. It was also found that both the complaining longshoreman and the stevedoring company which employed him were at fault in negligently handling the cargo. Accordingly, judgment was entered for the defendant shipowner. The injured longshoreman has appealed.

A principal assignment of error concerns the failure of the trial judge to give requested instructions on a particular theory of negligence. Appellant takes the position that, even though the cargo may have been properly stowed when the unloading began, the longshoremen broke the stowage down in such a way as to create a serious risk that, as the unloading continued, the stowage would, as it subsequently did, collapse and injure someone. In this situation, appellant argues that the jury could properly have found the ship negligent because its officers, who exercised general supervision over the unloading, failed to observe the unsafe condition thus created and have it corrected. To implement his contention appellant requested the following instruction to the jury:

"If you should find from the facts in this case that the accident was caused by dangerous or hazardous methods of discharge employed by the stevedore employees, including the plaintiff, you may find that the defendant shipowner was negligent in permitting employees of T. Hogan Corporation to engage in such dangerous or hazardous methods aboard its vessel."

The court refused to give this instruction. Later, in denying a motion for a new trial, the court explained its refusal to submit this theory of negligence to the jury, saying:

"before the trier of fact may find such property-owner negligent, there must be evidence from which the trier of fact could conclude that the owner knew or should have known of the existence of the dangerous condition. In the case at bar, there was no evidence whatsoever from which the jury could have concluded that the defendant-shipowner knew or should have known that the longshoremen were engaging in this dangerous practice, assuming of course that they were, since the act which caused the plaintiff\'s injury was an instantaneous thing."

In these circumstances we have examined the evidence to determine whether a jury could properly have found that the ship's officers were negligent in permitting the longshoremen to unload the ship in a way dangerous to themselves.

The longshoremen involved furnished the only evidence in the record as to what they did in unloading the hold in which the accident occurred. The cargo in this hold consisted of cylindrical rolls of burlap, each weighing a thousand pounds or more. The individual rolls were ten to twenty feet long and varied to some extent in diameter. Most of them were two to two and one-half feet in diameter. A few were three or even four feet in diameter. The rolls were laid side by side and layer upon layer filling the hold to a height of some fifteen feet. Each roll rested in the depression formed by the circumferences of two rolls lying parallel and adjacent to each other in the layer immediately below it.

The work of unloading this hold began about 9 A.M. and the appellant was injured shortly after 11 A.M. The longshoremen began their work by unloading the burlap rolls in the center of the hold under the hatch opening to a depth, as estimated by the longshoremen themselves, of from six to eight feet, or three or four layers. The opening thus created was wider at the top than at the bottom because the marginal roll in each layer rested on and between two rolls of the next layer. Thus, each layer extended somewhat farther — about the radius of a roll — into the cleared area than did the next overlying layer. Looking upward from the floor of the cleared area the face of the stowage sloped away from the center of the hatch, like the face of a pyramid. In different metaphor, the clearing was somewhat "V" shaped.

Next, the longshoremen stood in the cleared area on the exposed top of the highest undisturbed layer of burlap, which constituted the floor of the clearing, and undertook to remove the cargo from the wings by breaking down the lateral slope of the stowage which confronted them. They proposed to begin by dislodging the top bale from the face of the pyramid and guiding it under manual restraint as gravity caused it to slide down the slope to the small cleared floor space. There, slings would be attached to the roll and lifting gear would be used to remove it from the hold.

There was testimony that as this operation began a man standing on the floor could just reach up to the middle of the top roll which was about to be dislodged. Several of the longshoremen stood in the clearing near the after end of the top roll, in order to handle it from there. Appellant stood near the forward end of the roll. Having thus disposed themselves, the longshoremen began to shift the top roll. In so doing they accidently dislodged underlying rolls so that two or three rolls slid uncontrolled down the slope to the floor. One of them struck and broke appellant's ankle. It is this mishap which appellant would attribute to negligence on the part of the ship in failing to use due care to keep the hold a reasonably safe place to work during the unloading operation.

Beyond the longshoremen's account of what happened during the unloading operation, there was testimony by an expert witness that it was needlessly dangerous to clear out a center opening as deep as seven or eight feet before proceeding laterally to remove the upper layers of cargo from the wings. In the opinion of this witness it would have been practical and proper to clear the central area only to "man height", meaning not more than the shoulder height of a standing man. In this view of proper unloading procedure, the longshoremen should have made the central opening only two rolls deep, rather than three or four.

Appellee has admitted that the discharging of cargo was conducted under the "general supervision" of the ship's officers, averring at the same time that the stevedoring company supplied the "immediate supervision" of the operation. In its response to interrogatories appellee added the more detailed statement that its watch officer "was in general charge of seeing that the loading and discharging operations were carried out by the stevedoring contractors in accordance with the ship's loading plan".

In Brabazon v. Belships Co., 3 Cir., 1953, 202 F.2d 904, 906, 908, we discussed the nature and extent of a ship's responsibility for the supervision of an independent contractor's operations in that kind of situation, saying:

"The owner who retains control of the vessel as a whole and general supervision of what is being accomplished by an independent contractor in one part of the vessel is not relieved of all responsibility in connection with the prevention, discovery or correction of new hazards which may make the area temporarily used and occupied by independent contractors an unsafe place to work. * * In such cases as we are now considering, the nature of the work being done in the hold, the fact that it was being accomplished by responsible independent contractors whose employees were the only persons working in the hold, and the fact that the area was safe when that work began, all may have bearing upon the issue of what would constitute due care by the shipowner during the loading period. * * *
* * * * *
"* * * A practical view of the operation * * * of the independent contractor and his employees should influence judgment of what affirmative precautionary measures the shipowner can reasonably be expected to take in each set of circumstances to safeguard the contract operation and its immediate environment as work progresses."

Cf. Restatement of Torts, § 344, comment b.

We shall apply this legal analysis to the circumstances of this case. In order to hold that the ship was liable here, a jury would have to find that in the exercise of due care before the accident the ship's officers should have (1) observed that the stow had been broken down in the center to a depth of seven or eight feet, (2) concluded that the exposed face of the stow was dangerously high, and (3) caused the timely correction of this condition. We think the record does not provide a sufficient basis for so comprehensive a finding.

The evidence shows that the first two hours of the morning working period were devoted to the removing of the top layers of cargo directly beneath the hatch opening. It also appears and is not disputed that the longshoremen began the removal of cargo from the wings as soon as this central area had been cleared to a depth of seven or eight feet. On the evidence, the clearing of the central...

To continue reading

Request your trial
26 cases
  • Calderone v. NAVIERA VACUBA S/A
    • United States
    • U.S. District Court — Southern District of New York
    • April 4, 1962
    ...F.2d 904, 908 (3d Cir. 1953). The Third Circuit, however, appears to have restricted the effect of Brabazon in Knox v. United States Lines Co., 294 F.2d 354, 359 (3d Cir. 1961). 40 Compare Alexander v. Meiji Kaiun K.K., 195 F.Supp. 831 (E.D.La.1961); Morris v. Blue Star Lines, 193 F.Supp. 7......
  • Earles v. Union Barge Line Corporation, 72-1313
    • United States
    • U.S. Court of Appeals — Third Circuit
    • May 23, 1973
    ...Transport Corp., 467 F.2d 139 (3d Cir. 1972); Ward v. Union Barge Line Corp., 443 F.2d 565 (3d Cir. 1971); Knox v. United States Lines Company, 294 F.2d 354 (3d Cir. 1961). 56 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959). 57 Id. at 123, 80 S.Ct. at 193. 58 467 F.2d 139 (1972). See gener......
  • Owens v. Aetna Life & Cas. Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 7, 1981
    ... ... Company, a New Jersey Corporation, Joseph A. Britton, ... No. 80-1049 ... United States Court of Appeals, ... Third Circuit ... Regulation even reaches across the state lines to assure that in deciding on the propriety of ... In Knox v. United States Lines Co. v. T. Hogan Corp., 294 ... ...
  • Sykes v. United States
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • April 11, 1968
    ...205, 63 S.Ct. 543, 87 L.Ed. 714 (1943); DiGiovanni v. Di Giovannantonio, 98 U.S.App.D.C. 147, 233 F.2d 26 (1956); Knox v. United States Lines Co., 294 F.2d 354 (3 Cir. 1961). Sykes in a letter asked the clerk of the district court to "withdraw" his notice of appeal from the December 7 judgm......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT