Ferrante v. Swedish American Lines
| Decision Date | 16 April 1964 |
| Docket Number | 14147.,No. 14146,14146 |
| Citation | 331 F.2d 571 |
| Parties | Joseph J. FERRANTE, Antonio Hroncich and Vito Salvemini, Appellants v. SWEDISH AMERICAN LINES and the STEAMSHIP MALTESHOLM, her engines, tackle, apparel, etc., v. NACIREMA OPERATING CO., Inc. Joseph J. FERRANTE, Antonio Hroncich and Vito Salvemini v. SWEDISH AMERICAN LINES, Appellant, and the Steamship Maltesholm, her engines, tackle, apparel, etc., v. NACIREMA OPERATING CO., Inc. |
| Court | U.S. Court of Appeals — Third Circuit |
331 F.2d 571 (1964)
Joseph J. FERRANTE, Antonio Hroncich and Vito Salvemini, Appellants
v.
SWEDISH AMERICAN LINES and the STEAMSHIP MALTESHOLM, her engines, tackle, apparel, etc.,
v.
NACIREMA OPERATING CO., Inc.
Joseph J. FERRANTE, Antonio Hroncich and Vito Salvemini
v.
SWEDISH AMERICAN LINES, Appellant, and the Steamship Maltesholm, her engines, tackle, apparel, etc.,
v.
NACIREMA OPERATING CO., Inc.
Nos. 14146, 14147.
United States Court of Appeals Third Circuit.
Argued October 8, 1963.
Decided April 16, 1964.
Harvey Goldstein, New York City, for appellants in 14146; J. M. Estabrook, New York City, for appellant in 14147 (Samuel M. Cole, Jersey City, N. J., proctor for appellants, Goldstein & Sterenfeld, New York City, of counsel, on the brief), for appellants.
George P. Moser, Union City, N. J., for Nacirema Operating Co., Inc. (Moser, Roveto & McGough, Union City, N. J., proctors for impleaded-respondent, appellee, William V. Roveto, on the brief), for appellee.
Before KALODNER, STALEY and SMITH, Circuit Judges.
KALODNER, Circuit Judge.
The District Judge found that the negligence of a stevedore in using a faulty method in discharging a ship's cargo did not make the ship unseaworthy or negligent and this appeal and cross-appeal followed.1
The issues presented are whether the District Court used proper legal standards in arriving at its findings that the ship was neither negligent nor unseaworthy. The libellants contend that the District Court's fact-findings were "clearly erroneous" because they were the end result of the failure to apply proper legal standards.
Since the District Court's Findings of Fact and Conclusions of Law are essential to our disposition they will be stated as follows:
"FINDINGS OF FACT
"1. Libelants, Joseph J. Ferrante, Antonio Hroncich and Vito Salvemini, were on October 28, 1960, and now are residents of the State of New Jersey, and were injured while working as longshoremen employed by Nacirema Operating Co.,
Inc. in the #2 hold of the M/S Maltesholm on October 28, 1960.
"2. Claimant-respondent, Swedish American Lines, was and now is a corporation duly organized and existing under and by virtue of the laws of the Kingdom of Sweden and was, on October 28, 1960, and still is, the owner of the M/S Maltesholm.
"3. Respondent-Impleaded, Nacirema Operating Co., Inc., was, on October 28, 1960, and now is, a corporation duly organized and existing under and by virtue of the laws of one of the states of the United States and was on October 28, 1960, and still is, doing business in the State of New Jersey as a stevedore.
"4. The M/S Maltesholm was on October 28, 1960, and now is, a merchant vessel of Swedish registry, her home port being Gothenburg, Sweden. The ship had six hatches, #2, the site of the accident, being in the forward part of the ship.
"5. Libelant Ferrante asked the stevedore hatch boss for slings to be used in unloading some plywood boards. In turn the hatch boss asked the third mate of the ship for `slings.\'
"6. The third mate of the M/S Maltesholm procured and gave to the stevedore hatch boss two manila rope slings which the hatch boss then sent down to the employees of Nacirema, who proceeded to make up a sling load of plywood boards by assembling two piles of the boards side by side, these piles resting on 4 × 4 timbers so that each sling could be passed beneath the boards. Each sling was passed around the piles, one at each end, looped through itself and attached to a single hook. The hook was attached to wire rope runners which would lift the sling load from the hold.
"7. The making up of this sling load was done entirely by and under the direction of employees of Respondent-Impleaded.
"8. The only suggestion made by the third mate to the hatch boss was not to make big sling loads `because something might be could happen and broken,\' to which the hatch boss replied "I am the foreman and I know what I am doing." No attempt was made by the third mate to direct the method of unloading nor did he interfere in any way with the conduct of the stevedoring.
"9. When the sling load of boards was lifted out of the hatch, the load came apart and some of the boards fell, striking Libelants and injuring them.
"10. Libelants\' expert witness (with extensive experience as a longshoreman, as a supervisor of loading and unloading ships and as a ship foreman) testified that it was not standard procedure to make two piles of plywood boards, placed side by side to be lifted by slings, single piles only being used to make a sling load. He further testified that if this standard practice were not followed, it would be an element that would cause the load to fall. He also testified that the use of either rope or wire is standard practice for lifting plywood, and that there was a preference for the use of rope on plywood.
"1. The accident was caused by the manner in which the sling load was made up by employees of Respondent-Impleaded with two piles, side by side.
"12. The duties of the third mate did not include supervision and control of the manner in which the longshoremen were doing their work. Rather, his duties consisted in pointing out the cargo to be discharged at Jersey City and also to observe the longshoremen so as to prevent damage to or theft of cargo, damage to the ship or smoking by the longshoremen.
"13. At the close of Libelant\'s case as to liability, Libelants having
reserved their rights to introduce further medical testimony, Claimant-Respondent reserving its rights to proceed further if its motion be denied, moved to dismiss the libel and Respondent-Impleaded, with a similar reservation of rights if its motion be denied, moved to dismiss the petition.
"CONCLUSIONS OF LAW
"1. This Court has jurisdiction under Article III, Sec. 2 of the Constitution and under Title 28 U.S.C. Sec. 1333.
"2. The M/S Maltesholm was seaworthy at the time of the accident causing Libelants\' injuries because the ship\'s equipment, with which Libelants were working, was reasonably fit for its intended use. Mahnich v. Southern S. S. Co. 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); Mitchell v. Trawler Racer, Inc. 362 U.S. 539 , 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).
"3. In the absence of interference or assumption of authority by a...
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