Thompson v. Calmar Steamship Corporation
Decision Date | 15 April 1964 |
Docket Number | No. 14410.,14410. |
Citation | 331 F.2d 657 |
Parties | James THOMPSON v. CALMAR STEAMSHIP CORPORATION, Appellant. |
Court | U.S. Court of Appeals — Third Circuit |
T. E. Byrne, Jr., Philadelphia, Pa. (Mark D. Alspach, Krusen, Evans & Byrne, Philadelphia, Pa., on the brief), for appellant.
Avram G. Adler, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee.
Before STALEY and GANEY, Circuit Judges, and NEALON, District Judge.
Plaintiff, James Thompson, brought suit against defendant, Calmar Steamship Corporation, seeking to recover damages for injuries allegedly sustained as a result of defendant's negligence and for breach of the warranty of seaworthiness under the principles of maritime law. The jury having returned a verdict for plaintiff in the amount of $118,000.00, defendant has filed this appeal.
The relevant facts are well summarized in the opinion of the Court below, as follows:
Before considering the arguments of appellant, certain basic propositions must be established. It is elementary that the owner of a ship is liable to indemnify a seaman for an injury caused by the unseaworthiness of the vessel or its appurtenant appliances and equipment and it has been settled law in this Country ever since The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903). There can be no dispute also, that longshoremen, engaged in the service of the ship, are entitled to the same protection against unseaworthiness which members of the ship's crew would enjoy. Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L.Ed. 1099 (1946). McKnight v. N. M. Paterson & Sons, Ltd., 286 F.2d 250 (6th Cir. 1960). The work of loading and unloading the ship is, as a matter of law, the work of the ship's service, performed until recent times by members of the crew. Hagans v. Ellerman & Bucknall Steamship Company, 318 F.2d 563 (3d Cir. 1963). The shipowner cannot escape liability by the simple means of delegating the loading function to an independent contractor. "* * * that the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker's hazard and should not nullify his protection." Seas Shipping Company v. Sieracki (supra). Further, the unseaworthiness of a vessel or its equipment may arise from acts of the longshoremen crew or, indeed, of the injured longshoreman himself. Grillea v. United States, 232 F.2d 919 (2d Cir. 1956); Knox v. United States Lines Company, 294 F.2d 354 (3d Cir. 1961); Smith v. Lauritzen, 201 F.Supp. 663 (E.D.Pa.1962).
If the longshoreman is actually engaged in the service of the ship, it is immaterial whether the accident caused by the vessel's unseaworthiness occurs away from the ship on the pier. Gutierrez v. Waterman Steamship Corporation, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963). As Mr. Justice White observed in Gutierrez:
The shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability, and this is true whether the unseaworthy condition be of a permanent or merely a temporary nature. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Alaska Steamship Co., Inc. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). (emphasis supplied) Morales v. City of Galveston, 370 U.S. 165, 82 S. Ct. 1226, 8 L.Ed.2d 412 (1962).
Here we are faced with a highly questionable loading procedure. Plaintiff was a member of a longshoremen's gang engaged in loading a vessel, and in the course of doing so it fell to him to participate in an operation on land, but one intimately associated with the use of the ship's equipment, i. e., the bull winch and the bull line. As Judge Freedman so aptly stated in his opinion in the District Court:
Thompson v. Calmar Steamship Company, 216 F.Supp. 234 (E. D.Pa.1963).
In Robillard v. A. L. Burbank & Co., Ltd., 186 F.Supp. 193 (S.D.N.Y.1960) (cited Gutierrez), the longshoremen crew used the vessel's winches, which the Court found were operating properly, to unload lumber from the vessel. The lumber was being unloaded from the center of the deck at first and the Second Mate was dissatisfied with this procedure and so informed the stevedores inasmuch as he feared that the heavy loads passing over the remainder of the cargo on the side of the deck might "knock it off the dock." He remonstrated with the stevedores, but they continued their operation, and while one of the loads passed over the side it dislodged several pieces of the stacked lumber which fell over and hit plaintiff longshoreman, who was working on the dock. Circuit Judge Friendly, sitting by designation, citing Mitchell, Petterson, and Grillea, held that the unsafe method of unloading the lumber rendered the equipment unseaworthy.
In Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2d Cir. 1950), the longshoremen crew was attempting to lift a heavy metal "pontoon" from the dock by fastening it with two "bridles" to the ship's winches, booms and falls. The pontoon fell and struck a longshoreman who was assisting in the operation. According to the Court's opinion:
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