Barbarino v. Stanhope SS Co., 32.

• Decision Date: 31 October 1945
• Docket Number: No. 32.,32.
• Citation: 151 F.2d 553
• Parties: BARBARINO v. STANHOPE S. S. CO., Limited, et al.
• Court: U.S. Court of Appeals — Second Circuit

151 F.2d 553 (1945)

BARBARINO v. STANHOPE S. S. CO., Limited, et al.

No. 32.

Circuit Court of Appeals, Second Circuit.

October 31, 1945.

Frederick H. Cunningham, of New York City, for appellant Stanhope S. S. Co., Ltd.

Patrick J. McCann, of Brooklyn, N. Y., for appellee Northern Dock Co., Inc.

Before L. HAND, SWAN, and CLARK, Circuit Judges.

L. HAND, Circuit Judge.

The Stanhope Steamship Company, Ltd., appeals from a decree which dismissed its petition impleading the Northern Dock Company, Inc., filed in a suit brought by Barbarino, the libellant, against the shipowner to recover damages for personal injuries alleged to have been suffered because of the "unseaworthy and dangerous condition of the" ship's "gear, appurtenances and equipment." The shipowner answered, and then impleaded the Northern Dock Company, which was the stevedore employing Barbarino when he was hurt. The stevedore answered the libel and the petition, as required by the Fifty-Sixth Rule, and the case came on for trial, at the end of which the judge entered a decree, holding the shipowner solely liable, and dismissing the libel and the impleading petition, as against the stevedore. Thereafter he vacated the decree so far as it held the shipowner liable, and set the case down for a second trial — this, for reasons not necessary now to state. The shipowner has now appealed from that part of the decree which remained outstanding, and which dismissed the impleading petition.

The facts, on which the liability, if any, of either respondent depends, are as follows. On February 22, 1943, the ship was in the Port of New York, being laded by the stevedore; and in the course of the work it became necessary to rig upon one of the booms at the fifth hatch what is known as a "preventer guy," whose office is not altogether clear from the testimony, but about which it is enough to say that it is a wire cable with a loop at one end which must be slipped over the boom to a collar about eighteen inches from its end. To do this the boom, which had been at an angle of about forty-five degrees, had to be lowered so that the men could reach the end, and it was held in that position by a wire cable, called a "messenger," made fast to the end of the "topping lift" — a stouter cable which holds the boom when in use. The free end of the "messenger" passed around the drum of a steam driven winch, and was fastened by a bolt inserted through a hole in the "niggerhead" of its drum. This bolt had a thread at one end and was held in the hole by a nut. At the time of the accident the boom was held by several turns of the "messenger" around the drum and by the bolt, as we have described. One of the stevedore's workmen put the loop of the "preventer guy" over the boom's end, while Barbarino stood by, passing out the slack of the guy. After this had been done, Elia, the stevedore's foreman on the job, gave the word to the winchman to raise the boom, and the winchman admitted steam to the winch. For some reason, not entirely clear, the boom, after rising a few feet, suddenly fell and struck Barbarino, causing the injuries for which he sued. His case against the shipowner was that the boom dropped because the bolt which held the end of the "messenger" to the drum of the winch was defective and broke; but it was impossible to demonstrate this, for the ship sailed shortly after the accident, and was sunk by enemy action with all on board; and, as the bolt had not been taken ashore when she sailed, it disappeared.

As we have said, Barbarino sued only the shipowner, basing his claim altogether upon the supposed defect in the bolt; but the shipowner in its impleading petition charged the stevedore with negligence in performing the work, because it lowered the boom so far as to leave only two or three turns of wire on the drum, and because it did not secure the "topping lift" by a chain to a ring bolt on the deck, at times used for that purpose. As the result of this too much strain was thrown on the bolt, which caused it to break and to let down the boom. The judge found that the boom fell because the bolt broke; that it broke because it was defective; and that there was no evidence that the stevedore's employees were negligent in their management of the chain attached to the "topping lift." For these reasons he dismissed the impleading petition and the libel as against the stevedore. Upon this appeal two questions arise: (1) whether the shipowner may appeal, as a party "aggrieved" by the dismissal of its impleading petition; and (2) if so, whether the judge was wrong in exonerating the stevedore. We shall assume for argument that the boom fell because the bolt broke and that the bolt was defective; but we wish it understood that both these issues will be open...