Hagans v. Ellerman & Bucknall Steamship Company, No. 13881

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSTALEY and FORMAN, Circuit , and LANE
Citation318 F.2d 563
Docket NumberNo. 13881,13882.
Decision Date17 May 1963
PartiesJames HAGANS v. ELLERMAN & BUCKNALL STEAMSHIP COMPANY, Ltd., Appellant, v. ATLANTIC & GULF STEVEDORES, INC. James HAGANS v. ELLERMAN & BUCKNALL STEAMSHIP COMPANY, Ltd. v. ATLANTIC & GULF STEVEDORES, INC., Appellant.

318 F.2d 563 (1963)

James HAGANS
v.
ELLERMAN & BUCKNALL STEAMSHIP COMPANY, Ltd., Appellant,
v.
ATLANTIC & GULF STEVEDORES, INC.
James HAGANS
v.
ELLERMAN & BUCKNALL STEAMSHIP COMPANY, Ltd.
v.
ATLANTIC & GULF STEVEDORES, INC., Appellant.

Nos. 13881, 13882.

United States Court of Appeals Third Circuit.

Argued October 4, 1962.

Decided May 17, 1963.


318 F.2d 564

Mark D. Alspach, Philadelphia, Pa. (Krusen Evans & Byrne, Philadelphia, Pa., on the brief), for Ellerman & Bucknall Steamship Co., Ltd., Appellee.

Francis E. Marshall, Philadelphia, Pa., for Atlantic & Gulf Stevedores, Inc.

Milton M. Borowsky, Philadelphia, Pa. (Abraham E. Freedman, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for James Hagans.

Before STALEY and FORMAN, Circuit Judges, and LANE, District Judge.

318 F.2d 565

FORMAN, Circuit Judge.

This is a diversity action in which James Hagans (Hagans), a citizen of Pennsylvania, sued Ellerman & Bucknall Steamship Company, Ltd. (Ellerman), a corporation of England, in the United States District Court for the Eastern District of Pennsylvania, alleging that it owned and operated the Steamship "City of London" engaged in foreign commerce; that on July 1, 1957, the vessel was moored at Pier 98, South Wharf, Philadelphia, Pennsylvania; that Atlantic & Gulf Stevedores, Inc. (Atlantic), a corporation of Pennsylvania, was engaged in discharging a cargo of bags of sand from her; that he, Hagans, in the course of his duties as an employee of Atlantic, was working on the pier assisting in the discharge of the said cargo when he was injured by reason of the negligence of Ellerman and the unseaworthy condition of the "City of London" for which he claims damages in excess of the jurisdictional amount.

Ellerman answered Hagans denying liability and filed a third party complaint against Atlantic, claiming indemnity for any award that might be made to Hagans against it.

Trial was had to a jury during which Hagans sought to show that the "City of London" was berthed as set forth in his complaint pursuant to arrangements made by Norton, Lilly & Company, Inc., as agents of Ellerman, for the purpose of discharging a cargo of 571 tons of sand in 11,441 multiple ply paper bags of approximately 100 pounds each. Arrangements were also made by Norton, Lilly & Company, Inc. for a gang of regular longshoremen to discharge the cargo subject to a contract between Ellerman and Atlantic. It consisted of 22 men. Eight worked in the hold of the ship piling approximately 24 bags into each of several canvas slings; three men operated winches elevating the slings out of the hold over the side of the vessel and two men, stationed on the apron of the pier, saw to the deposit of each sling load of bags as it came over the side on to a four wheeled flat truck. Thereupon a man hooked a tow motor to the truck and pulled it into a large warehouse building on the pier. He entered through a door on the south side of the building adjacent to the narrow apron of the pier and proceeded to a point about 100 feet inside the building along its north wall. Here the remaining eight longshoremen were divided into four pairs, a pair to a truck. Working separately, each man of a pair unloaded the sling on a truck by piling the bags of sand on the floor in tiers five bags high. On arrival at the place where the bags were being stacked, the operator of the two motor detached it and picked up an unloaded truck with its empty sling. He returned to the side of the vessel where the empty sling was lowered to the hold and the procedure was repeated.

On July 1, 1957, the day in question, Hagans was one of a pair engaged in unloading the trucks. The operation was commenced at 9:30 a. m. and at about 10:30 a. m., he was in the act of grasping a bag when his foot slipped on sand on the floor, causing his body to twist resulting in an injury to his back.

The cargo of sand for Philadelphia was stowed beneath 300 tons of bagged sand, consigned to New York, and discharged there first. There was testimony that on arrival the Philadelphia cargo was covered with loose sand and that there were many broken bags. In piling the bags in a sling the broken bags were placed on top. Loose sand fell out of the sling load as it was moved, all along the way to the point where the bags were taken from the trucks to be stacked. Here loose sand fell on to the floor from the broken bags and the tops of those that were unbroken. The broken bags were taken from the sling loads and placed on the stacked bags for recoopering.

The issues posed at the trial were submitted to the jury in six interrogatories. The questions and the answers by the jury were as follows:

"1. Was the plaintiff performing a service of the ship in connection with the discharge of cargo
318 F.2d 566
from the S.S. `City of London\' at the time he suffered his injury?
Yes X No
"2. If your answer to No. 1 is yes, answer the following question. If the answer is no, you need not answer any further questions.
"(a) Was the unseaworthiness of the vessel or of the stowage of the cargo a substantial factor in causing the plaintiff\'s injuries?
Yes X No
"(b) Was the defendant\'s negligence in failing to furnish plaintiff with a safe place to work a substantial factor in causing his injuries?
Yes X No
"3. If your answer to any part of No. 2 is yes, answer the following question; otherwise, you need not answer any of the remaining questions.
"Was there negligence on the part of the plaintiff which was a contributing factor in causing his injuries?
Yes No X
"4. If your answer to No. 3 is yes, state to what extent expressed in terms of percentage his own negligence contributed to his injuries.
%
"5. State in what amount you assessed the damages suffered by the plaintiff without regard to any percentage for contributory negligence provided in the foregoing question, that is question No. 4.
$12,500 plus medical expenses
"6. If you do not find in favor of the plaintiff as against the defendant, you need not answer the following question:
"(a) Do you find that the Atlantic & Gulf Stevedores, Inc. performed their services in connection with the discharge of the ship\'s cargo in a reasonably safe and workmanlike manner?
Yes No X
"(b) If your answer is no, was their failure to perform the work in a reasonably safe and workmanlike manner a substantial factor in causing the plaintiff\'s injuries?
Yes X No "

Judgment was entered in favor of Hagans against Ellerman in the amount of $12,500 plus medical expenses of $573.65 and in favor of Ellerman against Atlantic in the same amounts. Ellerman filed a motion for judgment notwithstanding the special verdict and for judgment in accordance with the motion it had made for a directed verdict. Ellerman then moved to vacate and set aside the judgment or in the alternative for a new trial.1

Atlantic also moved to set aside the jury's findings as to it and for entry of judgment in its favor or in the alternative for a new trial as to the cause of action by Ellerman against it.

The Trial Court gave consideration to motions of both Ellerman and Atlantic in a memorandum,2 pursuant to which it entered an order denying all of the motions by both parties. Ellerman and Atlantic appealed from the judgments found against each of them.

I

Ellerman first asserts that Hagans's cause of action does not amount to a maritime tort — one arising within the admiralty or maritime jurisdiction. It submits that it is the locality or situs of the "substance and consummation of the wrong which determines whether the matter is a maritime tort. * * *"3

318 F.2d 567
It argued that this accident occurred a hundred feet away from the vessel in a building on a pier; that the pier is an extension of land beyond the admiralty jurisdiction and that the law of the State of Pennsylvania applies to causes of action arising thereon.4

Ellerman complains that the Trial Court erroneously created a brand new concept when it held that Hagans was entitled to recover under the general maritime law because of his status in performing a service to the ship. At best, it contended, "where admiralty and maritime jurisdiction exists and the wrong thus qualifies as a maritime tort, the status of the injured may assume significance in determining his rights under that jurisdiction. But the injured's status never has determined the basic question of whether jurisdiction exists."5

Ellerman specifically took issue with the reliance the Trial Court placed on the annotation following Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959), as found in 3 L.Ed.2d 1769, and the answer

318 F.2d 568
of the jury to Interrogatory No. 1 in applying the general maritime law.6

Fundamentally it must be conceded that the Supreme Court has never held a longshoreman not on board a vessel to be within the maritime jurisdiction and thus entitled to the protection afforded by the maritime tort doctrines.7 However, an analysis of decisions commencing with Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) leads us to the conclusion that the Trial Court did not err when it held that it is the plaintiff's status, or relationship to the vessel which entitles him to the maritime tort protections.

In Crumady v. The Joachim Hendrik Fisser, supra, 358 U.S. at 426-427, 79 S. Ct. at 447-448, the Court makes concise reference to the decisions reflecting the expansion of the doctrines of seaworthiness for the protection of longshoremen equally with that afforded seamen when performing "the ship's service". It said:

"We held in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95 66 S.Ct. 872, 90 L.Ed. 1099 that stevedores, though intermediately employed, are, when performing `the ship\'s service,\' entitled to the same protection against unseaworthiness which members of the crew doing the same work would receive. And see Pope & Talbot v. Hawn, 346 U.S. 406 74 S.Ct. 202, 98 L.Ed. 143. The
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41 practice notes
  • Zenith Radio Corp. v. Matsushita Elec. Ind. Co., Civ. A. No. 74-2451
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • September 29, 1980
    ...similar effect. See, e. g., United States v. Rosenstein, 474 F.2d 705 (2nd Cir. 1973); Hagans v. Ellerman and Bucknall Steamship Company, 318 F.2d 563, 574-77 (3d Cir. Coughlin, for instance, appears to be quite specific on the point: There can be no doubt but that the party who seeks to in......
  • I.T.O. Corp. of Baltimore v. Benefits Review Bd., U.S. Dept. of Labor, Nos. 75--1051
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 22, 1975
    ...preparing the cargo for loading, and was therefore not actually engaged in loading the ship. In Hagans v. Ellerman & Bucknall S.S. Co., 318 F.2d 563 (3d Cir. 1963), bags of sand were unloaded from a ship in canvas slings. The bags were placed upon a four-wheeled flatbed truck; then a tow mo......
  • Marine Stevedoring Corporation v. Oosting, No. 10060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 20, 1968
    ...on land." 6 See also, Thompson v. Calmar Steamship Corp., 331 F.2d 657 (3 Cir. 1964); Hagans v. Ellerman and Bucknall Steamship Co., 318 F.2d 563 (3 Cir. 1963); Puget Sound Bridge & Dry Dock Co. v. O'Leary, 260 F.Supp. 260, 264 (W.D. 7 The Senate revisions, concurred in by the House, certai......
  • Gebhard v. SS Hawaiian Legislator, No. 22880.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 9, 1970
    ...on section 740. (E. g., Hagans v. Ellerman & Bucknall S.S. Co. (E.D.Pa.1961) 196 F.Supp. 593, vacated on other grounds (3d Cir. 1963) 318 F.2d 563; Litwinowicz v. Weyerhaeuser S.S. Co. (E.D.Pa.1959) 179 F.Supp. 812; Di Paola v. International Terminal Operating Co. (S.D.N.Y.1968) 294 F.Supp.......
  • Request a trial to view additional results
41 cases
  • Zenith Radio Corp. v. Matsushita Elec. Ind. Co., Civ. A. No. 74-2451
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • September 29, 1980
    ...similar effect. See, e. g., United States v. Rosenstein, 474 F.2d 705 (2nd Cir. 1973); Hagans v. Ellerman and Bucknall Steamship Company, 318 F.2d 563, 574-77 (3d Cir. Coughlin, for instance, appears to be quite specific on the point: There can be no doubt but that the party who seeks to in......
  • I.T.O. Corp. of Baltimore v. Benefits Review Bd., U.S. Dept. of Labor, Nos. 75--1051
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 22, 1975
    ...preparing the cargo for loading, and was therefore not actually engaged in loading the ship. In Hagans v. Ellerman & Bucknall S.S. Co., 318 F.2d 563 (3d Cir. 1963), bags of sand were unloaded from a ship in canvas slings. The bags were placed upon a four-wheeled flatbed truck; then a tow mo......
  • Marine Stevedoring Corporation v. Oosting, No. 10060
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • June 20, 1968
    ...on land." 6 See also, Thompson v. Calmar Steamship Corp., 331 F.2d 657 (3 Cir. 1964); Hagans v. Ellerman and Bucknall Steamship Co., 318 F.2d 563 (3 Cir. 1963); Puget Sound Bridge & Dry Dock Co. v. O'Leary, 260 F.Supp. 260, 264 (W.D. 7 The Senate revisions, concurred in by the House, certai......
  • Gebhard v. SS Hawaiian Legislator, No. 22880.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 9, 1970
    ...on section 740. (E. g., Hagans v. Ellerman & Bucknall S.S. Co. (E.D.Pa.1961) 196 F.Supp. 593, vacated on other grounds (3d Cir. 1963) 318 F.2d 563; Litwinowicz v. Weyerhaeuser S.S. Co. (E.D.Pa.1959) 179 F.Supp. 812; Di Paola v. International Terminal Operating Co. (S.D.N.Y.1968) 294 F.Supp.......
  • Request a trial to view additional results

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