Bordas & Company v. Pizarro Serrano

• Citation: 314 F.2d 291
• Decision Date: 06 March 1963
• Docket Number: 6051.,No. 6045,6045
• Parties: BORDAS & COMPANY et al., Impleaded-Respondents, Appellants, v. Jesus PIZARRO SERRANO et al., Appellees. FLETES MARITIMOS, S. A., Respondent, Appellant, v. Jesus PIZARRO SERRANO et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

314 F.2d 291 (1963)

BORDAS & COMPANY et al., Impleaded-Respondents, Appellants, v. Jesus PIZARRO SERRANO et al., Appellees.

FLETES MARITIMOS, S. A., Respondent, Appellant, v. Jesus PIZARRO SERRANO et al., Appellees.

Nos. 6045, 6051.

United States Court of Appeals First Circuit.

Heard February 5, 1963.

Decided March 6, 1963.

Jaime Pieras, Jr., San Juan, P. R., with whom Joseph Wynn and Pieras & Martin, San Juan, P. R., were on brief, for Bordas & Co. and others.

Antonio M. Bird, San Juan, P. R., with whom Hartzell, Fernandez & Novas, San Juan, was on brief, for Fletes Maritimos, S. A.

Harvey B. Nachman, San Juan, P. R., with whom Nachman & Feldstein, San Juan, P. R., was on brief, for Jesus Pizarro Serrano.

Before WOODBURY, Chief Judge, and MARIS^* and ALDRICH, Circuit Judges.

ALDRICH, Circuit Judge.

The only substantial question raised on these appeals is whether the evidence warrants the district court's finding that respondent's vessel on which libelant, a longshoreman employed by impleaded-respondent stevedore, was injured was unseaworthy. Libelant was struck when a number of bags of cement toppled over onto the floor of the hatch where he was loading other bags onto a pallet. The court was fully justified in finding that the bags were piled stack on stack rather than interlocked or crisscross,¹ and that the stevedore, instead of removing one layer at a time, made a "hole" a number of layers deep for the men to work in, so that they would not continually have to stoop to pick up the remaining bags. The court's precise findings were that the hole was so deep that the walls of the remaining stow were "at least as high as a normal human being," and that this was unsafe.

Careful study of the record reveals that the quoted finding exceeds the testimony of the witnesses, either singly or collectively. We hope that we shall not again hear the suggestion, implicit in libelant's argument, that irrespective of the record regard should be given to the court's findings on the ground that the witnesses "testified in Spanish, a language in which the trial judge is fluent." Since all proceedings must be conducted in English, 48 U.S. C.A. § 864, it should be obvious that it is what the interpreter states on the record, not what the court may, conceivably, have understood the witness to say, that must control both the trial and the appeal.

Even by over-fragmentizing the record testimony of the witnesses, cf. Sylvia v. United States, 1 Cir., 1963, 312 F.2d 145, footnote, which libelant seeks to persuade us to do, it would be difficult to find that by the time of the accident the remaining stow was as high as found by the court. The dispute lies over the thickness of the individual bags. No witness placed the stow at the time in question as more than 12 to 14 bags high. Libelant's witness, and Bordas, a witness for the stevedore, the only ones to testify on this subject, agreed that stacked a bag was 3 to 4 inches thick.² It is true that Bordas testified that if a bag was removed from the stack and allowed to decompress it would expand up to 6 inches. Any personal feelings we might have as to the improbability of this do not seem to us to warrant a finding that, stacked, the bags were 5 to 6 inches thick. Consequently the maximum height of the walls of the remaining stow that the court could warrantably have found is 4 feet, 8 inches.³

The only expert testimony was to the effect that eight feet would be unsafe, but that if the bags were four feet...