Henry v. A/S Ocean

• Decision Date: 06 January 1975
• Docket Number: D,Nos. 5,460,s. 5
• Citation: 512 F.2d 401
• Parties: Harry HENRY and Robert E. Braye, Jr., Plaintiffs-Appellees, v. A/S OCEAN and John P. Pederson & Sons, Defendants and Third-Party Plaintiffs-Appellees & Appellants, v. PITTSTON STEVEDORING CORPORATION, Third-Party Defendant-Appellant. ockets 73-2153, 73-2868.
• Court: U.S. Court of Appeals — Second Circuit

Page 401

512 F.2d 401

Harry HENRY and Robert E. Braye, Jr., Plaintiffs-Appellees, v. A/S OCEAN and John P. Pederson & Sons, Defendants and Third-Party Plaintiffs-Appellees & Appellants, v. PITTSTON STEVEDORING CORPORATION, Third-Party Defendant-Appellant.

Nos. 5, 460, Dockets 73-2153, 73-2868.

United States Court of Appeals, Second Circuit.

Argued Nov. 1, 1974.

Decided Jan. 6, 1975.

Albert V. Testa, New York City (Sidney A. Schwartz, Alexander, Ash, Schwartz & Cohen, New York City, of counsel), for third-party defendant-appellant.

Morris Cizner, New York City (Zimmerman & Zimmerman, New York City, of counsel), for plaintiffs-appellees.

William P. Kain, Jr., New York City (Stephen R. Remsberg, Haight, Gardner, Poor & Havens, New York City, of counsel), for defendants and third-party plaintiffs-appellees and appellants.

Before LUMBARD, MOORE and MANSFIELD, Circuit Judges.

MANSFIELD, Circuit Judge:

Henry and Braye, two longshoremen, sued the shipowner A/S Ocean and its managers John P. Pederson & Sons for damages for injuries sustained as the result of an accident which occurred while they were working aboard defendant's vessel M/S Dagrun. The shipowner impleaded plaintiffs' employer, the Pittston Stevedoring Company ("Pittston"). Following a trial in the Southern District of New York before Judge Robert L. Carter, the jury returned a verdict finding the M/S Dagrun seaworthy, the shipowner negligent, and that Pittston had breached its warranty of workmanlike performance, thus obligating it to indemnify the shipowner for damages awarded to the plaintiffs. The jury assessed On this appeal Pittston challenges the jury's verdict in favor of Henry as inconsistent with its finding that the vessel was seaworthy and as unsupported by the evidence. It attacks Braye's verdict as unsupported by competent proof of causation. Pittston further contends that the jury's finding of seaworthiness is inconsistent with its award of indemnity to the shipowner for Pittston's breach of its warranty of workmanlike performance, and that the shipowner's conduct precludes it from obtaining indemnity from Pittston. We affirm the award of damages to Henry and the indemnity award to the shipowner. We agree that liability to Braye was established but find the award of $10,000 excessive and remand for a new trial on damages unless Braye consents to a reduction of the award by $5,000.

damages of $57,500 in favor of Henry and $10,000 in favor of Braye.

On the morning of February 26, 1966, longshoremen employed by Pittston began unloading a cargo of Volkswagen automobiles from the hold of M/S Dagrun, which was moored at Port Newark. These cars, which were lashed together by ropes and sticks, were stowed in the hold by means of "false decks" consisting of large pontoons. The longshoremen, using the ship's booms, removed the automobiles forming each layer by hoisting them through the hatch and onto the pier. As a layer was removed the lashing debris that remained was placed in a netting, hoisted out of the hold, and dumped at a designated spot on the deck. The pontoons making up the false deck were then removed and placed in special racks on the ship's deck. Thereupon the longshoremen began removal of the next layer of cars.

There was evidence that the ship's mate had directed that the lashing debris be dumped on the deck at a point forward of the pontoon rack between hatches # 1 and # 2. Because the pontoon rack was equipped with cross-pieces at each end, the netting containing the lashings could not be lowered by the boom directly to the spot on the deck where it was to be dumped. Instead, the longshoremen landed the netting atop the pontoons in the rack. They were then required to push it several feet to the forward end. The height of the pontoon rack on top of which the longshoremen worked was 11 feet. On the outboard side there was a direct drop to the water of some 60 feet. At no time was there a safety line or netting around the pontoons stacked in the rack.

Prior to the accident pontoons from two false decks had been removed and stacked, and the third draft of lashings was about to be removed, lowered to the pontoons and dumped onto the deck. The rack then contained about 6 to 10 feet of stacked pontoons. In order to dump the lashings off the forward end of the pontoons and onto the deck, it was necessary to change the position of the boom from that used to unload the automobiles. Otherwise, as the netting was being dumped, the cargo lift lines would tend to pull the netting back toward the middle of the pontoons, spilling the lashings onto the pontoons. To dump the lashings onto the deck, the longshoremen would have to stand atop the pontoons and push the net forward against the pulling force of the lines.

There was evidence that the winch used to hoist and dump the net of lashings, which was operated by a longshoreman and controlled the cargo lines, had been malfunctioning. In addition the ship's mate had instructed the longshoremen not themselves to reposition the booms but rather to allow the crew to perform the task. When the crew failed after some 15 minutes to respond to a call to reposition the boom preparatory to removal of the third draft, plaintiffs' evidence indicates that the stevedore foreman, one "Bosco," gave an order to proceed without repositioning the boom. To correct the resulting tendency of the lashings draft to be pulled back across the top of the pontoons, plaintiff Henry and a co-worker pushed forward on the lashings draft during the dumping process.

At this point Henry's accident occurred. While Henry pushed forward on the draft, the winch jerked the cargo Plaintiff Braye, on learning of Henry's plight, ran onto the deck, removed his clothes, and jumped into the water to rescue Henry. It then took the ship's mate 15 minutes to locate and toss a lifebuoy into the water. Eventually a pontoon was lowered to remove Henry and Braye from the water. Thus Braye was obliged to remain in the cold and polluted water for about 20 minutes. He testified that following his immersion he suffered colds and a skin rash over a three-year period following the accident and ultimately was forced to move to California.

lines backward. The cargo hook caught in the cross-piece of the pontoon rack. This caused the line suddenly to go taut, striking Henry in the left shoulder and knocking him overboard.

DISCUSSION

I. Inconsistency of the Jury's Verdict

Pittston argues that the jury's finding that the ship was not unseaworthy eliminates any basis for its finding of negligence on the part of the shipowner, since the claim of negligence was based on alleged unseaworthy conditions, i.e., defectiveness of the winch, improper spotting of the boom and failure to provide a safe place to work on top of the pontoons. We disagree. Some of the conditions, it is true, might be common to both claims. Unseaworthiness, for instance, has been broadly defined in some cases to encompass employment of a dangerous method of operating equipment that would otherwise be seaworthy, Crumady v. The J.H. Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959): Blassingill v. Waterman Steamship Corp., 336 F.2d 367 (9th Cir. 1964); Sanchez v. Lubeck Linie A. G., 318 F.Supp. 821 (S.D.N.Y.1970), or failure to provide appropriate safety equipment, Salem v. United States Lines, 370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962); White v. Rimrock Tidelands, Inc., 414 F.2d 1336 (5th Cir. 1969).

If the trial judge had used such a general definition of unseaworthiness in the present case, Pittston might conceivably have some support for its position. Judge Carter, however, limited the jury to a narrow definition of the term, instructing that the jury could find unseaworthiness only if it found that plaintiffs' injuries were caused by defective equipment, i.e., equipment that was not reasonably fit for its intended purpose. ¹ In view of the court's limitation of unseaworthiness to the condition of the ship's equipment the jury may reasonably have concluded that other claims (e.g., failure to reposition the booms properly) could only be resolved on a negligence theory. The jury's findings on unseaworthiness and negligence were therefore not necessarily inconsistent. The situation here is thus distinguishable from that in Spano v. N. V. Koniklijke Rotterdamsche Lloyd, 2 Cir., 472 F.2d 33, 35 n.1, where the court stated that "[i]t is hard to imagine ... how an owner could be negligent, if the ship was not unseaworthy." See also Rice v. Atlantic Gulf & Pacific Co., 484 F.2d 1318, 1320 (2d Cir. 1973).

Even if the court had defined unseaworthiness in broader terms, we would hesitate in these circumstances to overturn the jury's findings of seaworthiness and negligence on grounds of inconsistency. Verdicts finding negligence but no unseaworthiness have been accepted despite an apparent conflict in the findings. See, e.g., Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958); Drago v. A/S Inger, 305 F.2d 139 (2d Cir.), cert. denied sub nom., Daniels & Kennedy, Inc. v. A/S Inger, 371 U.S. 925, 83 S.Ct. 292, 9 L.Ed.2d 232 (1962). In Malm v. United States Lines, 269 F.Supp. 731 (S.D.N.Y.), affd. on the district court's opinion, 378 F.2d 941 (2d Cir. 1967), for instance, Judge Weinfeld, observing that the law "at times recognizes the jury's right to an idiosyncratic position," upheld just such a verdict. The general rule that a court should reconcile the jury's verdict if at all possible, Gallick v. Baltimore & Ohio R. R., 372 U.S. 108, 83 S.Ct. 659, 9 L.Ed.2d 618 (1963), is entitled to broad application. No straining is required in this case, however, to reconcile what might at first blush appear to be an inconsistency.

II. Recovery of Indemnity when Shipowner is Negligent

Pittston next contends that the jury's determination that the shipowner was negligent, although its ship was seaworthy, should preclude the...