Blassingill v. Waterman Steamship Corporation, 19029.

• Decision Date: 09 September 1964
• Docket Number: No. 19029.,19029.
• Parties: Robert BLASSINGILL, Appellant, v. WATERMAN STEAMSHIP CORPORATION, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.2d 367 (1964)

Robert BLASSINGILL, Appellant, v. WATERMAN STEAMSHIP CORPORATION, a corporation, Appellee.

No. 19029.

United States Court of Appeals Ninth Circuit.

September 9, 1964.

Ben Margolis, Margolis & McTernan, Los Angeles, Cal., for appellant.

James D. Garibaldi, Warren J. Lane, Abe Mutchnik, Los Angeles, Cal., for appellee.

Before JERTBERG, BROWNING and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

Appellant Blassingill was plaintiff in the trial court. His complaint, which showed jurisdiction by reason of diversity of citizenship, contains two counts, one charging negligence, the other unseaworthiness of appellee's vessel. The vessel was unloading at Wilmington, California. Blassingill was a longshoreman, employed by Metropolitan Stevedoring Company, and was on board, performing his duties. The charging paragraph of the negligence count reads:

"At the time and place aforesaid, defendant did negligently, carelessly and recklessly fail to furnish plaintiff with a safe place in and about which to work and with safe gear and equipment with which to work in that the sling load of burlap bales which plaintiff was required to discharge was dangerously overloaded, and unstable, thereby creating the danger that it would fall on plaintiff and other members of the gang as it was being discharged."

The charging paragraph of the unseaworthiness count reads:

"At the time and place aforesaid, said vessel and her gear, appurtenances and appliances were unseaworthy, and defendant furnished plaintiff with an unsafe and unseaworthy place in and about which to work and gear with which to work in that the sling load of burlap bales which plaintiff was required to discharge was dangerously overloaded, and unstable, thereby creating the danger that it would fall on plaintiff and other members of the gang as it was being discharged."

Each count also charges that, as a result of the negligence or unseaworthiness, a sling load of bales fell apart, and one of the bales struck and injured Blassingill.

A jury returned a verdict for appellee, judgment was entered accordingly, and Blassingill appeals. He does not claim that the verdict is not supported by the evidence. His attack is upon the refusal of the court to give certain instructions, and upon certain instructions that the court gave, all relating to the issue of unseaworthiness.

We consider first the claim that the court should have told the jury, in substance, that the employment of an unsafe method of unloading would render the vessel "unseaworthy."¹ In considering whether the requested instructions should have been given, we apply the rule stated in Wong v. Swier, 9 Cir., 1959, 267 F.2d 749, 761, that a party "is entitled to have his theory of the case presented to the jury by proper² instructions, if there be any evidence to support it." That case was decided under the laws of Washington, but the rule is applicable in any case tried to the jury in a federal court. See, for example, the comment of Chief Justice Marshall in Douglass v. McAllister, 1806, 7 U.S. (3 Cranch) 298, 300, and of Mr. Justice Clifford in Insurance Company v. Baring, 1873, 87 U.S. (20 Wall.) 159, 161, 22 L. Ed. 250. We therefore state the evidence which, Blassingill asserts, would require that the requested instructions be given.³

At the time of the accident, bales of burlap were being hoisted from a hatch. The ship's gear was being used. The bales were hoisted from the hold by a single wire rope sling, upon which they were placed. The sling was then wrapped around the bales, and apparently fastened by a hook or a hook and eye. When the sling was attached to the winch cable, and it was raised, the sling "cinched" the bales together. Work began at about 8:00 A.M. and during the first three quarters of an hour only two bales at a time were placed in the sling. The hatch boss, an employee of the stevedoring company, then ordered that four bales at a time be lifted. The men protested, but were ordered to proceed. The bales were then taken out in loads of four, until about 11:30 A.M., when a load fell out of the sling and Blassingill was injured. Another such load had collapsed somewhat earlier. Putting two bales in the sling was a safe method of unloading them. Putting four bales in the sling was not. It is to this method of handling the bales that the proposed instructions were directed.

Blassingill's position is well taken. The Supreme Court has said that an improper method of handling cargo can amount to unseaworthiness. (Morales v. City of Galveston, 1962, 370 U. S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412). This was dictum. But it is fully supported by decisions of the lower federal courts, some of which have been cited by the Supreme Court as illustrative of the kinds of circumstances that can amount to unseaworthiness. (Knox v. United States Lines Co., 3 Cir., 1961, 294 F.2d 354 — improper unloading of burlap rolls, by taking too many from the center of a pile, thereby causing one to fall from the side; Ballwanz v. Isthmian Lines, Inc., 4 Cir., 1963, 319 F.2d 457 — unsafe method of tying heavy "spreaders" to cables when spreaders were being hoisted from hold, resulting in the fall of a spreader; Strika v. Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F.2d 555 — improper rigging of bridles used in lifting a hatch cover which fell; Robillard v. A. L. Burbank Co., S.D.N.Y. 1960, 186 F.Supp. 193 — similar to Knox. Robillard and Strika were cited by the Supreme Court in Gutierrez v. Waterman S.S. Corp., 1963, 373 U.S. 206, 214, 83 S.Ct. 1185, 10 L.Ed.2d 297.) The Frank and Willie, S.D.N.Y., 1891, 45 F. 488; The Julia Fowler, S.D.N.Y., 1892, 49 F. 277, and Wm. Johnson & Co. v. Johansen, 5 Cir., 1898, 86 F. 886, all involve what seems to us to be the use of unsafe methods of unloading. All three are cited by the Supreme Court in Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 100, 64 S.Ct. 455, 88 L.Ed. 561, although it characterized the latter two as involving defective tackle. The tackle, however, was defective only in the sense that it did not perform the work for which it was used. So here, the tackle was safe when used to handle two bales. The jury could find that it was unsafe when used to handle four. This would not be because it was physically defective, but only because it was used in a hazardous manner.

Closely analogous is the decision in Crumady v. The Joachim Hendrik Fisser, 1959, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed. 2d 413, where loading gear that was in good condition was overloaded, thereby causing it to fail. The case is really not one of defective equipment, but of an improper method of using it.

Appellee argues that it should not be liable for unseaworthiness because it provided sound gear, and it was the stevedoring company, not appellee, that used the gear improperly. Apparently, it was upon this theory that the court gave an instruction proposed by appellee, to which Blassingill objects:

"`Seaworthy\' means that the vessel and her equipment were reasonably fit for the purpose for which they were intended to be used. Perfection is not required. The shipowner discharges his duty if he furnishes and maintains a vessel reasonably adequate in materials, construction and equipment for the trade or service in which the vessel is employed."⁴

It is now established, however, that it is no defense to the shipowner that the stevedore, rather than the shipowner, brought about the condition of unseaworthiness. (See Alaska S.S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S. Ct. 601, 98 L.Ed. 798, affirming per curiam the decision of this court in Petterson v. Alaska S.S. Co., 9 Cir., 1953, 205 F.2d 478). That case involved defective equipment brought on board by the stevedore. But we can see no difference between such a case and the improper use by the stevedore of nondefective equipment, whether that of the ship or that of the stevedore. In either case there is a dangerous condition, and the shipowner is liable. The liability is absolute and nondelegable. See also Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Crumady v. The Joachim Hendrik Fisser, supra; Grillea v. United States, 2 Cir., 1956, 232 F.2d 919, and Robillard v. A. L. Burbank Co., supra.

This is not a case of "instant unseaworthiness," such as we referred to in Titus v. The Santorini, 9 Cir., 1958, 258 F.2d 352, 354, and Billeci v. United States, 9 Cir., 1962, 298 F.2d 703, 706. General language in those cases and others indicating that the shipowner is not liable for unseaworthiness brought about by action of the stevedore must be confined to the facts of the cases in which it is used. Thus, Blassingill might fail in this case if...