Burgess v. Farrell Lines, Inc., No. 9129.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: BOREMAN and J. SPENCER BELL, Circuit , and BARKSDALE
• Citation: 335 F.2d 885,1964 AMC 1873
• Parties: Andrew H. BURGESS, to his own use and to the use of Liberty Mutual Insurance Company, Appellant, v. FARRELL LINES, INC., Appellee.
• Docket Number: No. 9129.
• Decision Date: 27 July 1964

1964 AMC 1873, 335 F.2d 885 (1964)

Andrew H. BURGESS, to his own use and to the use of Liberty Mutual Insurance Company, Appellant,
v.
FARRELL LINES, INC., Appellee.

No. 9129.

United States Court of Appeals Fourth Circuit.

Argued November 18, 1963.

Decided July 27, 1964.

Eugene V. Chircus and Fred Ginsberg, Baltimore, Md., for appellant.

William R. Dorsey, III, and David R. Owen, Baltimore, Md. (Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellee.

Before BOREMAN and J. SPENCER BELL, Circuit Judges, and BARKSDALE, District Judge.

335 F.2d 886

BOREMAN, Circuit Judge:

Plaintiff, Burgess, seeks damages for injuries sustained while engaged as a longshoreman in unloading a cargo of ore from defendant's vessel, the AFRICAN DAWN, charging unseaworthiness of the vessel and negligence of the defendant. The defendant denied liability and, in turn, filed a Third-Party Complaint against Chesapeake Operating Company, the stevedore employer of the plaintiff, which complaint was dismissed prior to the trial had before the court without a jury. The court found neither unseaworthiness nor negligence¹ and entered judgment for defendant. We affirm.

Plaintiff was regularly a bulldozer operator and was so engaged until shortly before the accident. He went to work with fellow longshoremen at eight o'clock in the morning and started to unload ore from the "after deep tanks" of the vessel's No. 4 hatch. Discharge of the cargo was accomplished by use of a "grab bucket" owned and furnished by the stevedore which was attached to the ship's gear. Its movements controlled by the ship's winches, the bucket grabbed the ore and lifted it through the hatch, depositing it in railroad cars on the pier. During the early stages of the work the bucket was allowed to fall free into the hold. However, as unloading progressed it was necessary to position the bucket at various points around the square of the hatch and, in this operation, hooks or blocks were placed at the forward and after ends of the hatch coaming. The bucket was lowered to a position in the center of the hatch just above or on the shaft alley by means of the "up and down fall" which was controlled by a winch on deck. Another fall, called the "burden fall," which was slack, was placed in the hook and was controlled by a second winch operated by longshoreman Clarence Dates. A strain was then taken on the burden fall while the up and down fall was slacked off. By this means the bucket was pulled to a position directly beneath the hook through which ran the burden fall and over piles of ore.

Plaintiff's usual job was to operate a small bulldozer to push the ore from the wings and far sections of the hold into piles within reach of the grab bucket when falling free or when pulled forward or aft in the maneuver described. It is apparently undisputed that at least two of the stevedore's bulldozers had broken down during operations on that particular day and had to be removed. A third was brought into the hold and there was testimony to the effect that about one hour before the accident its use was discontinued because the clutch was slipping and plaintiff was instructed by his foreman to move the bulldozer to the wings and out of the way. The stevedores then used shovels to get the ore which was close to the "skin" of the tank, between the ribs, in the bilge pockets and close areas in position to be grabbed by the bucket. However, other testimony showed that, at the time the use of the last bulldozer was discontinued, it was not inoperable but the quantity of ore in the hold was so low and so positioned that the use of the bulldozer was impracticable. After the shoveling was begun the longshoremen, including plaintiff, pushed or guided the grab bucket with their hands to spot it over various piles of ore.

Immediately prior to the accident they were using the hook on the aft side of the hatch coaming to spot the bucket and four men in the hold were pushing or guiding. Lambert, the stevedore foreman, was at the forward end of the bucket. Next to him, on the same side and only about a foot away, was Burgess. Two other men were on the port side of the bucket. The four would push or guide the bucket over a pile of ore at which time Lambert would yell "back on it" to Downing, the stevedore "gang carrier," who was on deck. This was the signal for the bucket to be lowered into the ore and for the men around the bucket to get out of the way. Downing would immediately relay this signal to winchman

335 F.2d 887

Dates who would then ease off on the winch controlling the burden fall, thereby lowering the bucket. The position of Dates' winch prevented him from seeing or hearing Lambert. The accident occurred when the bucket dropped and landed on Burgess' foot, causing serious injury. Plaintiff testified that he did not hear Lambert's signal to drop the bucket although it was heard by the other men guiding the bucket and by Downing who was on deck. Lambert testified that he warned all hands, including Burgess, to be careful. The District Court observed that, after the pushing or guiding operation was begun, there had been "from seven to thirty hoists before the accident occurred; testimony varied that much." It seems clear, however, that the accident happened within forty-five minutes to an hour after the use of the bulldozer was discontinued. There was no difference between the operation in the course of which Burgess was injured and the previous manual bucket-guiding operations; when the bucket was properly spotted, Lambert signaled to Downing who passed the signal to Dates who, in turn, promptly lowered the bucket. Unfortunately, however, the bucket landed on Burgess' foot on this particular occasion. Following the accident the longshoremen continued to follow the same procedure until the discharge of the ore was completed

Plaintiff contended at trial that the failure of the ship's crew to provide a proper amount of illumination in the hold rendered the ship unsafe and unseaworthy. But the District Court found as a fact, from a preponderance of the evidence, that the lighting was adequate and noted that "Burgess himself testified that the lighting was adequate for his purpose of bulldozing the ore, as well as guiding the bucket." (215 F.Supp. 319, 323). This finding is amply supported by the evidence. Except as to alleged inadequate lighting, it is uncontroverted that all of the gear and equipment furnished by the ship was in perfect working condition.

The "top man" aboard for plaintiff's employer was supervisor Henry Thompson. The stevedores had complete control of the discharging operation and they selected the method used. Both Chief Mate Daly and Frank DiVenti, the latter being the only mate on watch at the time of the accident, had occasionally observed the discharging operations but neither of them saw or knew that the stevedores were pushing or guiding the bucket.

It must be borne in mind that this was a trial before the court sitting as the trier of fact without a jury. It is well established that a Court of Appeals may not set aside findings of fact made by the District Court in Admiralty unless they are "clearly erroneous," for no greater scope of review is exercised by appellate tribunals in admiralty cases than exercised by them under Rule 52(a) of the Federal Rules of Civil Procedure.² A finding of fact is clearly erroneous only when "although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed."³

Plaintiff challenges as clearly erroneous the finding below that "handling the bucket in the manner indicated was customary and proper under the circumstances" because the evidence, upon which the court based its findings as stated in its opinion, is inconsistent with the evidence in the case, and also "because the court based its finding upon improper interpretation of evidence."

In his brief plaintiff contends "that the court...