CRESCENT WHARF & WARE. v. Compania Naviera De Baja Calif.

• Decision Date: 16 September 1966
• Docket Number: No. 20193.,20193.
• Parties: CRESCENT WHARF & WAREHOUSE, Appellant, v. COMPANIA NAVIERA DE BAJA CALIF., Appellee. COMPANIA NAVIERA DE BAJA CALIFORNIA, Appellant, v. Bernard NORIEGA, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

1966 AMC 2670, 366 F.2d 714 (1966)

CRESCENT WHARF & WAREHOUSE, Appellant, v. COMPANIA NAVIERA DE BAJA CALIF., Appellee.

COMPANIA NAVIERA DE BAJA CALIFORNIA, Appellant, v. Bernard NORIEGA, Appellee.

No. 20193.

United States Court of Appeals Ninth Circuit.

September 16, 1966.

Robert Sikes, Sikes, Pinney & Matthew, Los Angeles, Cal., for appellant Crescent Wharf etc.

Dan Brennan, Jerome O. Hughey, Overton, Lyman & Prince, Los Angeles, Cal., for appellant Compania Naviera De Baja Calif., S.A.

Newton R. Brown, Wilmington, Cal., Wm. B. Murrish, Ben Margolis, Margolis & McTernan, Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and TAYLOR, District Judge.

FRED M. TAYLOR, District Judge:

This action was brought by appellee Bernard A. Noriega (Noriega) against appellant Compania Naviera De Baja California, S.A., a corporation, (Compania) for personal injuries received while working as a stevedore on a vessel owned by said appellant. At the time of his injury on April 18, 1963, Noriega was an employee of appellant-third party defendant, Crescent Wharf & Warehouse Company, a corporation, (Crescent) on board the vessel "San Luciano". Compania filed a third party complaint against Crescent alleging that Crescent was negligent and breached its warranty of workmanlike service and sought indemnification for any liability it might have to Noriega. Crescent answered the third party complaint and as a special defense claimed that Compania failed to use ordinary care to provide a vessel, gear and equipment in such condition that Crescent would be able to load the vessel with reasonable safety. The case was tried to the court, without a jury, and the court awarded judgment in favor of plaintiff Noriega against Compania and a judgment in favor of Compania against Crescent on Compania's claim for indemnity. Both Compania and Crescent have appealed.

The following is a résumé of the facts as shown by the undisputed evidence. On April 18, 1963, Noriega and other employees of Crescent were on board the "San Luciano", a Mexican freighter, for the purpose of loading pallets of bricks into the starboard side of No. 3 lower hold, known as the No. 3 starboard deep tank. The shaft into which the pallets of bricks had to be lowered to reach the bottom of the hold was very narrow and confined. Because of the location of a shaft alley the rigging had to be manipulated so as to miss this obstruction. Crescent had worked the ship on several previous occasions. The hold had at one time been divided into a 'tween deck and a lower hold by means of strongbacks. The 'tween deck hatchcoaming was affixed with strongback slots which had formerly supported the strongbacks. The strongback slots were composed of double flanges, a flange on either side of the slot. The hatch boss for Crescent, a Mr. Hansen, knew they were there and he testified that they did not appear to be in any different condition than they had been on prior occasions. Before the work of loading commenced, the flanges were flush against the coaming and on inspection by the hatch boss appeared to be secure. Soon after the loading operation commenced three or four loads of brick, each weighing about 2100 pounds, hung up or caught on the flanges which created a strongback slot and this caused one of the flanges to become bent out from the coaming. Bricks fell from the pallets when the loads hung up on the flange. As a result of the loads hanging up, the hatch boss stopped the loading operation and reported the problem to the first mate of the vessel and requested that the situation be corrected. Members of the crew then proceeded to hammer the flange back against the coaming with a sledge hammer. Prior to resuming the operation of loading, the hatch boss made a personal inspection of the repaired flange and ascertained that it looked perfect and that the weld and bolts securing it to the coaming had not been broken. He also determined that the flange had been placed back against the coaming in the same condition as it had been when the work had commenced that morning. The hatch boss testified that the flange looked perfect to him but that he did not physically take hold of the flange and attempt to move it in any fashion because it was welded and bolted. The bolts extended out from the flange an estimated distance of one-half to one inch. The hatch boss concluded that since the flange was back flush against the coaming the loads could not hang up anymore. After such inspection, the loading was resumed and continued for approximately thirty minutes without incident until a load caused a portion of the flange to break off and fall into the hold below, striking and injuring the plaintiff. The evidence reveals that prior to the flange being bent out and thereafter until the time of the accident, some portion or portions of the rigging struck and rubbed against the flange.

On this appeal Compania contends that the trial court erred in the making of certain Findings of Fact and Conclusions of Law and in particular Findings of Fact Nos. 3, 4 and 5, Supplemental Finding of Fact No. 11, Conclusion of Law No. 2 and Supplemental Conclusions of Law Nos. 2 and 3.¹ Compania argues that the court erred in that portion of Finding of Fact No. 3 which states: "* * * said metal flange * * * at the time of the accident was protruding into the working area * *", except insofar as the court was describing the condition which existed at the moment of the accident. It is claimed that the court erred in Findings of Fact Nos. 4 and 5, Supplemental Finding of Fact No. 11, Conclusion of Law No. 2 and Supplemental Conclusions of Law Nos. 2 and 3 by failing to find and conclude that the unseaworthiness of the "San Luciano" was instantaneous with plaintiff's injuries. Said appellant claims that the court erred in that portion of Conclusion of Law No. 3 which states: "plaintiff is entitled to a decree against the defendant Compania Naviera De Baja California, S.A., * * *." Compania contends that part of Finding No. 3 to the effect that the flange "at the time of the accident was protruding into the working area which was narrow and confined" and Finding No. 4 that by reason thereof the vessel "was in unseaworthy condition" are not supported by the evidence. Also, that they are in conflict with Supplemental Finding No. 8 which states in part that "on completion of the pounding referred to above, the flange was then against the coaming and in the identical position it had been in at the commencement of said loading operation".² It is appellant's position that the finding in Supplemental Finding No. 8 that before the accident the flange was flush against the coaming is to be construed to mean that it was not protruding into the working area as found in Finding No. 3. We do not agree. The evidence reveals that the flange, although flush against the coaming, still protruded into the hatch area by its own thickness in that it was fastened to the hatchcoaming and not inlaid therein. It is clear from the evidence that the flange was at all times protruding into the hatch area at least to the extent of its thickness and was being struck or rubbed against by the gear and rigging used in lowering the pallets of brick which created the unseaworthy danger when the method of loading by Crescent was employed. Also in Supplemental Finding No. 8, the court found that the accident happened when "the loading gear struck or caught said flange causing a part of it to break off and fall and strike plaintiff." This is not in conflict with the finding in Finding No. 3 that the flange was protruding into the hatch opening at the time of the accident. The findings are supported by the evidence and are not clearly erroneous. It is well settled that findings of fact shall not be set aside unless clearly erroneous. F.R.Civ.P. 52(a)³.

It is clear that the two flanges had no useful function and were located on the coaming of the narrow 'tween deck hatch and were, by their location, subject to being struck, rubbed over or caught by the gear and rigging lowering the pallet loads. This was a continuing danger and a constant condition of unseaworthiness. When the loading first commenced the dangerous condition existed and it continued to exist after the flange was pounded back against the coaming.

In light of what we have heretofore said it follows that the instant unseaworthiness doctrine, urged by appellant, as enunciated in Beeler v. Alaska Aggregate Corp., 336 F.2d 108 (9 Cir. 1964); Titus v. The Santorini, 258 F.2d 352 (9 Cir. 1958); and, Billeci v. United States, 298 F.2d 703 (9 Cir. 1962) is not applicable under the facts of this case.

Since we find that the trial court's Findings of Fact and Conclusions are supported by the evidence, we affirm the judgment against appellant Compania.

We shall next consider Crescent's appeal. This appellant-third party defendant urges that the court erred in finding that the Stevedore Company (Crescent) negligently allowed the gear to strike a metal flange on the vessel (Supplemental Finding No. 5)⁴; that the court erred in finding that the loading gear struck or caught the flange causing a part of it to break off and strike the plaintiff (Footnote 2); that the court erred in finding that the Stevedore Company was negligent and had breached its duty to do its stevedoring services in a workmanlike manner by causing or permitting the loading gear to strike or catch on the said flange and by failing to conduct the loading in such a manner as to avoid unnecessary risks to the plaintiff, and that such negligence and breach of warranty caused the unseaworthiness of the vessel and were the proximate causes of the injury to the plaintiff (Supplemental Finding No. 11, Footnote 1); and, that the court erred in finding in effect that it was not true that the shipowner Compania breached its obligations to the Stevedore Company to have the vessel and its gear and equipment in such a...