Pope & Talbot, Inc. v. Cordray

• Decision Date: 05 August 1958
• Docket Number: No. 15863.,15863.
• Citation: 258 F.2d 214
• Parties: POPE & TALBOT, INC., a corporation, Appellant, v. Jack V. CORDRAY, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

258 F.2d 214 (1958)

POPE & TALBOT, INC., a corporation, Appellant, v. Jack V. CORDRAY, Appellee.

No. 15863.

United States Court of Appeals Ninth Circuit.

August 5, 1958.

Summers, Bucey & Howard, Charles B. Howard, Richard W. Buchanan, Seattle, Wash., for appellant.

Zabel & Poth, Philip J. Poth, Seattle, Wash., for appellee.

Before HEALY, HAMLEY and HAMLIN, Circuit Judges.

HAMLIN, Circuit Judge.

This is an appeal by appellant Pope & Talbot, Inc., (defendant below) from a judgment against appellant in the sum of $28,750 and in favor of Jack V. Cordray, appellee herein and plaintiff below. The judgment was entered after a jury verdict in favor of appellee.

The action was originally commenced in the Superior Court of the State of Washington for King County and was removed to the United States District Court, Western District of Washington, Northern Division, by reason of the diversity of citizenship of the parties and the amount in controversy being in excess of $3,000. Jurisdiction in the District Court is based upon Title 28 U.S. Code, Section 1332 and Section 1441, and jurisdiction in this court is based upon Title 28 U.S.Code, Section 1291.

The facts show that the S.S. P & T Adventurer was owned by appellant and that Cordray was injured while this ship was at a dock in the port of Seattle and was engaged in discharging its cargo. The shipowner had contracts with two stevedoring companies in the cargo operation. The contract with one, the Seattle Stevedore Co., covered the operations pertaining to the discharge of cargo from the ship's hold to the ship's side at Pier 38; and the contract with the other, the Olympic Steamship Co., covered the operations pertaining to the moving of cargo from ship's side to place of rest on the dock. The longshoremen on the ship were employed by the Seattle Stevedore Co. and the longshoremen on the dock were employed by the Olympic Steamship Co. Cordray was an employee of the Olympic Steamship Co. and was a foreman of the dock longshoremen. It was one of Cordray's duties to see that the cargo was moved to its first place of rest from the ship's tackle, and it was his duty also to coordinate the activities of the dock working longshoremen with those of the ship working longshoremen in order to have terminal employees and equipment available at the end of ship's tackle to keep the cargo moving. While most of the work of Cordray was done upon the dock, the evidence showed that Cordray was aboard the vessel at the time of his injury for the purpose of coordinating the cargo handling work of the dock longshoremen with that of the longshoremen working on the ship. The accident happened about a quarter to five in the morning and Cordray went on board to ascertain whether the gang of longshoremen on the ship were going to go home or shift to another hatch, so that Cordray could determine whether or not he would keep his dockside longshoremen available to continue the work.

While Cordray was talking to a foreman for the Seattle Stevedore Co. on board the ship, "the boom was `wung in' over the edge of the ship and the block on the tent gantline dropped and hit him on the side of the neck and head." Cordray thereby suffered certain personal injuries which will be discussed later. There was evidence in the record which shows that the wire strap securing the block which fell upon Cordray was completely rusted through, and that the sole cause of its falling was the unseaworthy condition of the wire strap suspending it.

Cordray alleged in his amended complaint that the accident occurred by reason of the unseaworthiness of the vessel and the negligence of the appellant. At the close of the evidence, defendant moved for a directed verdict in its favor. After this was denied and a jury verdict was rendered against the defendant, it moved for a new trial and a judgment notwithstanding the verdict, — all of which were denied by the trial Court. Notice of appeal to this court was thereafter filed by defendant.

Among the issues raised by defendant upon this appeal are (1) that the appellee was not within the class of workers entitled to recover damages from a shipowner upon the ground of unseaworthiness nor on the ground of negligence to an invitee and business guest; and (2) that the Court erred in the following particulars: (a) in instructing the jury on unseaworthiness by its use of the term "cargo unloading longshoreman and his foreman" and similar terms, (b) in instructing the jury on unseaworthiness by directing the jury that "employees of each of such contractors" had a right to go aboard the vessel in connection with the performance of their work in "discharging said cargo from the vessel" and by referring to appellee in its instructions as a "foreman of the dock-working longshoremen, assisting on the dock in the discharge of the vessel's cargo", (c) in refusing to give certain instructions offered by the appellant upon negligence which included legal definitions of "invitee" and "licensee", (d) in refusing to give special interrogatories to the jury as proposed by appellant which it is contended "would have enabled determination of whether the jury found liability based upon unseaworthiness or negligence, or both", and (e) in denying the motion for a new trial upon the ground of excessive damages.

The liability of a shipowner for injuries to a seaman by reason of the unseaworthiness of the vessel is settled law. The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760.

This right has been extended to a longshoreman injured aboard ship. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 877, 90 L.Ed. 1099. The Court there said:

"On principle we agree with the Court of Appeals that this policy (of liability for unseaworthiness) is not confined to seamen who perform the ship\'s service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement. All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner shall not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship\'s work or by other devices which would strip the men performing its service of their historic protection. 328 U.S. at page 95, 66 S.Ct. at page 877. * * *

"* * * Historically the work of loading and unloading is the work of the ship\'s service, performed until recent times by members of the crew. 328 U.S. at page 96, 66 S.Ct. at page 878. * * * 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. 328 U.S. at page 96, 66 S.Ct. at page 878. * * *

"Accordingly we think * * * that the liability arises as an incident, not merely of the seamen\'s contract, but of performing a ship\'s service with the owner\'s consent." 328 U.S. at page 97, 66 S.Ct. at page 878.

In Strika v. Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F.2d 555, certiorari denied 341 U.S. 904, 71 S.Ct. 614, 95 L.Ed. 1343, the Court held that a longshoreman on a dock alongside the ship who was injured by the unseaworthiness of the ship's gear can recover against the shipowner. The Court there reasoned that if the obligation of maintenance and cure extended to a seaman injured ashore, that a seaman injured ashore by unseaworthy ship's gear can recover from the shipowner. The Court then said: "If a seaman can, we see no reason to question the ability of a longshoreman also to recover, for that follows from the reasoning of Seas Shipping Co. v. Sieracki, supra, especially when it is read with the opinion in Swanson v. Marra Bros., supra, 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045."

See, also, Valerio v. American President Lines, D.C., 112 F.Supp. 202, 203, where libellants, while working on the dock unloading cargo, became infected from handling part of ship's discharging equipment which the ship was required to maintain in a seaworthy condition. It was there said "Libellants were engaged in the maritime service of unloading the ship and were injured by contact with cargo known to be hazardous and requiring special precaution, * * * and accordingly the shipowner is also liable to them."

For the extension of the doctrine of unseaworthiness to other persons doing "seaman's work" see Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 207, 98 L.Ed. 143 and Halecki v. United New York & New Jersey Sandy Hook Pilot Ass'n, 2 Cir., 1958, 251 F.2d 708, 711, set out in the footnote.¹

In the instant case the appellee, although performing most of his work on the dock in the moving of the ship's cargo from ship's tackle to its first place of rest (which was part of the ship's obligation),² was on board the ship when the accident happened. Under the testimony, he was coordinating the unloading of the cargo from the ship's hold to its place of rest on the dock.³ We hold that the duty of providing a seaworthy ship and gear at the time of this accident extended to the appellee, whether or not appellee was on board the ship or on the dock. The test is, what was the nature of his work? He was performing a service for the ship in the discharge of its cargo. His employer was under contract with the shipowner to take the cargo from the shipside and to put it in a place of storage, and appellee was engaged in the performance of this work. The appellee's work was the work of a longshoreman and he was entitled to seaworthy gear while he was performing his services.

The appellant complains that the Court erred in its instructions by certain references it made therein to the plaintiff. A portion of the instructions is set out below.⁴ The references were in accordance with the uncontradicted facts in the case. The Court had a right to refer to the undisputed testimony describing the plaintiff's duties. The critical factual question was left for the...