Conceicao v. New Jersey Export Marine Carpenters, Inc., 66
| Citation | 508 F.2d 437 |
| Decision Date | 28 April 1975 |
| Docket Number | D,No. 66,66 |
| Parties | Joaquim CONCEICAO, Plaintiff-Appellee, v. NEW JERSEY EXPORT MARINE CARPENTERS, INC., Defendant and Third-PartyPlaintiff-Appellee. Cia. De Nav. Mar. NETUMAR, Defendant and Third-Party Plaintiff-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Third-Party Defendant-Appellee. ocket 74-1344. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
George J. Duffy, Hoboken, N.J. (Baker, Garber, Duffy & Baker, Hoboken, N.J., on the brief), for plaintiff-appellee.
William F. Larkein, New York City (Larkin, Wrenn & Cumisky, New York City, of counsel to Coppola & D'Onofrio, New York City, on the brief), for defendant and third-party plaintiff-appellee.
Victor S. Cichanowicz, New York City (Cichanowicz & Callan, New York City, on the brief), for defendant and third-party plaintiff-appellant.
Albert V. Testa, New York City (Sidney A. Schwartz and Alexander, Ash, Schwartz & Cohen, New York City, on the brief), for third-party defendant-appellee.
Before MEDINA, FRIENDLY and GURFEIN, Circuit Judges.
The SS Mosqueiro sailed from Pier 36, East River, New York City on her overseas voyage on November 5, 1970. That morning the task of loading and stowage was nearing completion and the parties to this appeal were performing or failing to perform their respective functions in connection with the removal from a lighter, moored to the offshore or port side of the vessel, of a large quantity of huge steel pipes and stowing them on the forward weather deck ofthe vessel. In connection with this loading and stowing operation, one of the pipes was dislodged and rolled over the foot of the plaintiff, a longshoreman, causing the injuries on account of which the jury awarded him $42,000 damages.
There is no satisfactory proof in the record of the exact number of pipes actually lifted from the lighter and stowed on the forward deck of the vessel. But, as we shall see, the number of pipes was large. They were 30 to 40 feet long, about 18 inches in diameter and each weighed considerably more than a ton. Speaking in broad terms the functions of the parties to this appeal, in connection with the operation of removing the pipes from the lighter and stowing them on the forward weather deck of the vessel were: (1) it was the obvious duty of the shipowner, Cia. De Nav. Mar. Netumar, to decide where and how the pipes were to be stowed; (2) in connection with the stowage in a place where, during the voyage, heavy seas might be encountered, orders were given on behalf of the shipowner to New Jersey Export Marine Carpenters, Inc. (The Carpenters), to build cribs, crates or wooden pipe beds into which the pipes could be lowered and stowed by the winchmen and the longshoremen, and two of these wooden pipe beds were built; (3) the actual loading and stowing were done by longshoremen such as Conceicao employed by the stevedore, International Terminal Operating Co., Inc. (ITO). These longshoremen in the employ of ITO included the winchmen, the hatch boss and, in this case, 8 longshoremen, including the plaintiff, who were stationed on top of the hatch covers at hatch No. 1 to guide the drafts into place in this pipe bed on the starboard or inshore side of the hatch.
Conceicao sued the shipowner, claiming that the unseaworthiness of the vessel and the negligence of the shipowner were proximate causes of the accident, and The Carpenters, claiming that a breach by The Carpenters of its implied warranty of workmanlike performance was a proximate cause of the accident. Each of these cross-claimed against the other, and they also asserted a claim against ITO as a third-party defendant.
The case was tried to Judge Ward and a jury. In answer to written interrogatories the jury found:
(1) That the vessel was not unseaworthy but that the shipowner was guilty of negligence that was a proximate cause of the accident, thus establishing plaintiff's claim against the shipowner, exonerating plaintiff of any contributory negligence and fixing the damages at $42,000.
(2) That The Carpenters had not breached any warranty of workmanlike performance that it owed plaintiff, thus finding no liability on the part of The Carpenters for improperly constructing the pipe bed.
(3) That ITO had breached its warranty of workmanlike performance of the stevedoring operation and that this breach was a proximate cause of the accident, but that the conduct of the shipowner had been such as to prevent the shipowner from recovering indemnity from ITO on the claim against ITO as third-party defendant. In terms of the instructions to the jury this meant that indemnity was denied because the jury found that the shipowner 'by some action or inaction * * * prevented, hindered or seriously handicapped ITO in performing its workmanlike job.'
The result of these findings was a judgment in favor of Conceicao and against Netumar for the amount of damages fixed by the jury. The claims and cross-claims against The Carpenters and ITO were dismissed. The trial judge on December 10, 1073 filed an unreported opinion denying the shipowner's motion to set aside the verdict and for judgment in its favor either dismissing the complaint or granting it indemnity against ITO or in the alternative for a new trial. The shipowner appeals. There is also a protective appeal by Conceicao.
There was evidence from which the jury was justified in concluding that on the morning of November 5, 1970 there was a lighter on the port or offshore side of the Mosqueiro and on this lighter were the heavy pipes to be loaded and stowed on the vessel. Alongside the port and starboard No. 1 hatches, which were those nearest to the bow of the vessel, The Carpenters had constructed two wooden pipe beds or cribs. In loading the starboard or inshore crib the pipes were lifted, two at a time, from the lighter, swung across the No. 1 hatches and guided by the longshoremen, who were standing on the closed and battened down hatch covers of the starboard hatch No. 1, to a position just over the pipe crib. Then the two pipes were lowered gently into the crib. As soon as the pipes were in place, a longshoreman at both the bow and stern end of the pipe would step forward from his position on the hatch covers and release the hooks holding the pipes.
There was ample testimony concerning the proper manner of building a pipe crib and concerning the manner of building this particular crib. It was made of new lumber with a number of whalers at the bottom and sturdy uprights about five feet high at intervals of five feet. The whole affair was tightly wedged against the steel coaming of the hatch on one side and similarly wedged against the rail of the vessel on the other.
The testimony of plaintiff and others was to the effect that the draft of two pipes was gently lowered to a place about the center of the stow of pipes, that he stepped forward to release the hook at his forward end of the pipes when one or more of the uprights broke apart, 'the pipes moved' and his foot was crushed. This was the last draft loaded into the starboard crib. The very considerable number of remaining pipes was not placed in any crib but was stowed athwartship over the port and starboard No. 1 hatch covers. Before this draft pipes had been stowed to the top of the uprights and there is some testimony to the effect that pipes had been loaded to a point well above the tops of the uprights. There is expert testimony that this was bad practice. In any event, one or as many as three of the uprights broke apart and, as the pipes in the stow shifted, one of them caught Conceicao's foot. Only the forward end of the stow shifted, as the after end of the load of pipes rested against the deckhouse on which the winches and the winchmen were located.
We think it too clear for extended discussion that the jury had before it proof to justify a finding that the pipe crib was in every respect properly built by The Carpenters and that the findings that the vessel was seaworthy and that The Carpenters had not breached their implied warranty of workmanlike performance must stand. The pipe crib was fit for the purpose for which it was intended to be used. We also think the evidence justified a finding by the jury that a stevedore with expertise and special competence in the loading and stowage of vessels, including the filling of pipe cribs, should know enough not to overload a pipe bed and cause some of the uprights to break off and dislodge some of the pipes. Findings that ITO had breached its warranty of workmanlike performance and that this breach was a proximate cause of plaintiff's accident are supported by sufficient evidence.
The substantial questions on the appeal concern the finding of negligence on the part of the shipowner and the additional finding that the shipowner had acted or failed to act in such a manner as to defeat the shipowner's claim for indemnity against ITO.
The deposition of the shipowner's Port Captain, Richard A. Piper, was read at the trial. It was his job to lay out the stowage of all outbound cargo and to supervise the loading in conjunction with the Master and Chief Officer of the vessel. What the jury could have found was that, although Piper knew the exact quantity of pipes to be loaded and already had decided that three pipe beds were necessary, two at No. 1 hatch and another at No. 2 hatch, as is clearly shown on the Stowage Plan that was received in evidence as Plaintiff's Exhibit 4, he did not show the Stowage Plan to William Montella, the foreman of The Carpenters, nor did he tell Montella the quantity of pipes to be loaded. While Piper insisted that he did tell Montella how many pipes were to be loaded and that he ordered three pipe beds, including the one at No. 2 hatch...
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