Di Salvo v. Cunard Steamship Co.

• Citation: 171 F. Supp. 813
• Parties: August DI SALVO, Plaintiff, v. CUNARD STEAMSHIP CO., Ltd., Defendant.
• Decision Date: 17 February 1959
• Court: U.S. District Court — Southern District of New York

171 F. Supp. 813

August DI SALVO, Plaintiff, v. CUNARD STEAMSHIP CO., Ltd., Defendant.

United States District Court S. D. New York.

February 17, 1959.

Sylvia Miller, New York City, for plaintiff. Chester A. Hahn, New York City, of counsel.

Richards W. Hannah, New York City, for defendant. Lord, Day & Lord, William J. Brennan and John Quinlan, New York City, of counsel.

HERLANDS, District Judge.

Defendant's Motion

The scope of the doctrine of unseaworthiness is the problem squarely posed by the defendant's motion to set aside the jury's verdict. For purposes of the present motion, the Court must resolve all conflicts in the evidence in plaintiff's favor and view the evidence in a light most favorable to plaintiff.

In this personal injuries action brought on the civil side of the court, the plaintiff, a stevedore, is suing Cunard Steamship Co. Ltd., the owner and operator of the Scythia. The complaint, asserting claims of the defendant's negligence and the unseaworthiness of the defendant's vessel, is framed under the general, nonstatutory maritime law.

The accident occurred on the morning of March 28, 1957 at Pier 92, North River, Manhattan. Plaintiff was a longshoreman employed by John T. Clark & Son Company, contracting stevedores. He had the job title of foreman-rigger. John T. Clark & Son Company was under contract with defendant to render services, including the putting out or rigging of a passenger baggage chute from the north side of the dock to the Scythia. Plaintiff was in charge of rigging the particular passenger baggage chute involved in this case.

Pier 92 and the dock building on it were leased from the City of New York by the defendant Cunard Steamship Co. Ltd. The pier was used exclusively by Cunard ships. For the convenience and use of the defendant's ships when docked at the pier, there was kept on the dock a piece of equipment known as a passenger baggage chute.

The Scythia was a combination cargo and passenger ship. While the Scythia was at the pier and for the purpose of overseeing the servicing of the ship, the ship was represented by Captain Gill and his assistant, Chris Robbins. Captain Gill's orders to plaintiff are critically involved in this case. There is no dispute as to the authority of Captain Gill or Robbins to act in behalf of defendant.

On Pier 92 was a two-story dock building. The Scythia was "spotted" or located alongside the pier, parallel to it, with its bow toward the land and its stern toward the river. There was a marker on the span of the dock building, indicating where the vessel should stop and tie up.

The lower or first floor of the dock building is on the street level. The upper or second story is called the "loft." At the lower level of the dock there was a stringpiece that was six feet wide. Between the stringpiece and the vessel was a ten-foot float or platform. Thus, the vessel was approximately sixteen feet from the dock building.

On the side of the dock building, facing the vessel, were regularly spaced doors, separated from each other by columns. The doors were numbered. We are concerned particularly with doors 35 and 36 on the loft. These doors were about twenty feet wide. The column between them was about two feet wide.

The Scythia carried six hundred to eight hundred passengers. Baggage to be kept in the passenger staterooms was to be loaded on the Scythia from the second story or loft of the dock building onto Deck A of the ship, where it could be picked up by crew members or stewards for delivery and distribution to the staterooms of the passengers.

In transferring passengers' baggage from the dock to the vessel, a chute was used. It normally issued out of door 35 on the loft of the building, its inboard end being positioned on the loft floor and its outboard end being positioned on the vessel through an open bulwark door on Deck A. This bulwark door, when closed, formed part of the ship's rail. Baggage slides down the chute from the loft onto the ship by force of gravity.

The chute in question was kept on the dock when no ship was at the pier. The chute was used almost exclusively for the defendant's ships when they are berthed at Pier 92. The physical dimensions, construction, wheels, stanchions and lashings of the chute were minutely testified to. It was approximately thirty feet long and weighed several hundred pounds.

The Scythia was berthed at Pier 92 on March 26, 1957, and remained there on March 27 and March 28, 1957. It was scheduled to sail on the afternoon of March 28, 1957.

Normally, the baggage chute issued from door 35 of the loft at almost right angles on the horizontal plane to both the dock building and the ship, the ship lying parallel to the building. In this way, the chute normally would be almost perpendicular to the building and the ship, issuing out of door 35 straight into the bulwark door on Deck A of the ship. The ship normally tied up at a spot that placed the bulwark door on Deck A directly opposite door 35 of the loft of the dock building. On the vertical plane the chute would incline downward from the level of the dock loft at door 35 to the bulwark door on Deck A.

On the day of the accident, Captain Gill ordered plaintiff to rig the chute out from pier door 36 (instead of door 35) to the bulwark door on Deck A. Over plaintiff's protests, Captain Gill insisted that the chute issue out of door 36. As the ship was scheduled to sail that afternoon, certain cargo loading involving hatch number 6 had to be carried on at the same time as the passenger baggage was being loaded via the chute; and Captain Gill ordered the particular positioning of the chute to achieve the concurrent operations.

According to the plaintiff's proofs, the issuance of the chute out of door 36, instead of door 35, necessarily involved putting out the chute at a sharp angle, as distinguished from the normal right angle. In addition, the Deck A of the vessel was considerably below the level of the loft of the dock building. Consequently, plaintiff's compliance with Captain Gill's order meant putting out the chute at sharp angles horizontally and vertically; hence plaintiff's protests, which were overruled.

Upon the trial, detailed testimony was given on the following subjects, among others: how the ship was positioned relative to the pier, and its distance from the pier; how the opening in the bulwark on Deck A was positioned relative to the pier doors 35 and 36; how far the bulwark door on Deck A was below the level of the dock loft; the relative location of hatch number 6 with respect to the pier doors; the angles, horizontally (that is, right or left) and vertically (that is, up and down) at which the chute was issued out of door 36 toward the bulwark door on Deck A; customary and usual practices, principles, procedures and methods with respect to putting out baggage chutes; the angles at which chutes were put out; the details of handling such chutes and alleged safety practices, including matters of keeping control of the chute; how the plaintiff actually operated or manipulated the chute; the state of the tide at the time of the accident; the nature of the danger to the plaintiff in putting out the chute.

The Court charged the jury that, for purposes of this case, the baggage chute was to be deemed "ship's equipment" and that plaintiff was to be treated as a "seaman," as follows:

"For purposes of your consideration of the evidence in this case, I charge you that the baggage chute must be deemed to be, as a matter of law, a part of the ship's equipment, and that the chute must be so deemed notwithstanding the fact that one of the witnesses referred to it as `dock equipment.' Passenger baggage chutes, like gangways, escalators and accommodation ladders, are traditionally and functionally part of a passenger ship's gear, because such appliances afford immediate means of egress and ingress from and to the ship; are essential for loading and unloading the ship and the carrying of the ship's passengers.

"I also charge you that, although the plaintiff was a longshoreman, performing work as a foreman-rigger, as a matter of law he was rendering an essential and maritime service to the defendant's vessel, in rigging up the chute, as it was a passenger vessel, carrying 600 to 800 passengers. Thus, the plaintiff as a matter of law was performing work traditionally done by seaman or crew members. Moreover, the order originated with Captain Gill, who represented the defendant and was a person with authority to represent the defendant.

"In view of the facts that I have referred to, that the baggage chute must be considered as part of the ship's equipment; that the plaintiff must be considered as a matter of law as in the status of a crew member, maritime or admiralty law— the words "maritime" or "admiralty" are synonymous; they mean the same thing—maritime or admiralty law applies to this case, as I shall and now do charge you; and the plaintiff, for purposes of this case, is deemed to be a seaman within the meaning of the law. As such, the plaintiff is entitled to all the legal protection normally extended to seamen who are actually members of the crew of a vessel.

"Now, the accident, it is undisputed, took place while the plaintiff was standing on the second floor or loft of the dock building, and the dock building is part of the land. So, ordinarily, you would say or think that land law applies, because he wasn't on the ship. But the legal principles applicable to this case as such, as I have said to you, that maritime or admiralty law, as I shall explain to you, applies to this case."

On the subject of "unseaworthiness," the Court charged the jury as follows:

"I have explained to you the theory of negligence, and I had to refer to unseaworthiness, incidentally. But now I come to the definition of what is unseaworthiness, and it is an entirely different concept from the concept of negligence, because negligence deals with what a

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