Grzybowski v. Arrow Barge Co.

• Decision Date: 14 September 1960
• Docket Number: No. 8003.,8003.
• Citation: 283 F.2d 481
• Parties: Henry GRZYBOWSKI, to his own use and to the use of Travelers Insurance Company, Appellant, v. ARROW BARGE CO., Inc., Defendant and Third-Party Plaintiff, Appellee. ARROW BARGE CO., Inc., Defendant and Third-Party Plaintiff, Appellant, v. NACIREMA OPERATING COMPANY, Inc., Third-Party Defendant, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

283 F.2d 481 (1960)

Henry GRZYBOWSKI, to his own use and to the use of Travelers Insurance Company, Appellant, v. ARROW BARGE CO., Inc., Defendant and Third-Party Plaintiff, Appellee.

ARROW BARGE CO., Inc., Defendant and Third-Party Plaintiff, Appellant, v. NACIREMA OPERATING COMPANY, Inc., Third-Party Defendant, Appellee.

No. 8003.

United States Court of Appeals Fourth Circuit.

Argued January 14, 1960.

Decided September 14, 1960.

As Amended October 27, 1960.

John J. O'Connor, Jr., Baltimore, Md. (O'Connor & Preston, Baltimore, Md., on the brief), for appellant, Henry Grzybowski.

Randall C. Coleman, Jr., Baltimore, Md. (Ober, Williams, Grimes & Stinson, Baltimore, Md., on the brief), for appellee and appellant, Arrow Barge Co., Inc.

Jesse Slingluff, Baltimore, Md. (Mathias J. DeVito and Piper & Marbury, Baltimore, Md., on the brief), for appellee, Nacirema Operating Co., Inc.

Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

This is an appeal by a longshoreman from a judgment against him after denial of a motion for a new trial in his suit against a shipowner to recover damages for personal injuries.

Henry Grzybowski, an American longshoreman, was injured while engaged in loading cargo on an American steamship, the SS Joseph Feuer, owned by Arrow Barge Company, Inc. (hereafter called Arrow Barge). At the time of the injuries complained of, the vessel was under a charter from Arrow Barge to States Marine Corporation which, in turn, chartered her to agents for Calmar Steamship Corporation and she was then being loaded by Nacirema Operating Company under a stevedoring contract with Calmar Steamship Corporation. Out of various indemnity suits among these parties, only one remained at the conclusion of the trial and that was the direct third-party complaint of Arrow Barge against Nacirema, Grzybowski's employer, seeking indemnification in the event Arrow Barge should be held liable to plaintiff for his injuries.

Grzybowski alleges two causes of action against Arrow Barge. In the first he charges negligence in failing to provide a reasonably safe place to work; in failing to provide, install and maintain in proper, efficient and safe operating condition the equipment, gear, appliances and appurtenances of the vessel; in failing to make proper inspection to determine the existence of any unsafe conditions; in failing to take adequate precautions to prevent injuries to the plaintiff; in failing to prevent the dangerous and unsafe practice of "soaping" or lubricating "tracks" or other portions of the work area to reduce surface friction and speed the operation of sliding loads into position; in failing to provide a safe and seaworthy vessel and equipment and to maintain the same in a safe and seaworthy condition. For a second cause of action, after incorporating by reference all the specifications of negligence alleged for a first cause of action, he charges that, without fault on his part, he was injured solely by reason of the "unseaworthiness of the vessel as aforesaid."

Plaintiff demanded a jury trial and it was agreed that evidence be first taken on his case against Arrow Barge and that the case be submitted to the jury for special verdicts on issues of fact, the indemnity aspect of the case to be submitted to the court. Under this agreement, the court was to be bound by the jury's special verdicts, as far as they were applicable, but was to be free to make separate findings of fact upon any further issue that arose or upon any further evidence introduced at the trial of the various indemnity cases.

The injury to Grzybowski occurred when heavy packs of steel were being loaded in the No. 4 hold of the ship. One pack, weighing between three and one-half and five tons, was being lowered to be placed in position and, as it swung, the plaintiff's leg was pinned between the steel and the forward bulkhead. The night gang of stevedores had placed a tier of these steel packs over the entire area of the hold and, in so doing, used "tracks" made of scrap strips of lumber called dunnage, coated with a pine jelly soap. These tracks enabled the men to slide the packs into place more easily from the square of the hatch into the wings. The soap was supplied by Nacirema from its gear shop, it being the custom of Nacirema to have an adequate supply available to its longshoremen for the very purpose for which it was used on this and other occasions. These soapcoated tracks were not removed after the packs were placed.

There is conflict in the evidence with respect to the condition of the hold when the day gang, including Grzybowski, began work about eight o'clock on the morning of the accident. Witnesses testified that when they arrived there was grease or soap on top of the first tier or level of packs in the area of the hatch. Nacirema's superintendent saw no grease in the work area before the day gang began working. The only eye witnesses to the accident were plaintiff's fellow employees whose versions varied as to how the accident occurred.

In this loading operation, while each pack of steel was on the loading dock, a clamp was placed at each of the four corners of the pack. Cables from winches were attached to the clamps and thus the pack could be swung over the vessel's hatch and lowered into the hold. As each pack was lowered it was then swung or pushed into place by four longshoremen, one at each corner. The pack involved in the accident was the last one necessary to complete that particular tier or level. There was evidence that the winchman could not see into the hold and his operations were directed by a deckman; that a signal was given to the winchman to "shift the fall" of the load, and as the pack started to rise it began to swing toward Gryzbowski who then tried to jump upon it; that he succeeded in getting his left foot up but his right foot slipped in grease and his leg was caught between the pack and the bulkhead. This was the version of the plaintiff himself and one of his fellow workers. Another testified that plaintiff tried to make a break to get away from his position and could get only one leg out but he said nothing about slipping in grease. One witness said that plaintiff jumped on the pack and slid off, while another said that plaintiff jumped on the pack and fell back off. It was shown that, in his claim filed for compensation, plaintiff described the accident without any reference to slipping in soap or grease.

Questions to be answered categorically were submitted to the jury and, by special verdicts or answers, the jury found that the ship was not unseaworthy and there was no negligence on the part of the ship, the stevedoring company or the plaintiff himself.

The first question submitted to the jury, and the one with which we are primarily concerned, was as follows: "1. Was the SS Joseph Feuer at the time and place of the injury complained of unseaworthy as to the No. 4 hold?" The jury answered "No."

All of the evidence as to how the accident occurred presented a question of fact which, by agreement, was submitted for jury determination. If the jury concluded from the evidence that a slippery, dangerous and hazardous condition was created by the use of soap which was supplied by the stevedoring company and that the plaintiff was injured because he slipped on the soap, a question would be presented as to whether such use of this soap created an unseaworthy condition. Thus the court's instruction to the jury as to the character of the warranty of seaworthiness is vitally important.

It is now well settled that a shipowner's obligation to maintain a seaworthy vessel, traditionally owed by shipowners to seamen, extends to a stevedore who is injured while aboard and loading the ship, although employed by an independent stevedoring contractor engaged by the owner to load the ship. For purposes of the liability for injury, a stevedore is a seaman because he is doing a seaman's work, incurring seamen's hazards, and is entitled to a seaman's traditional protection.¹ Thus the...