O'Hey v. Matson Nav. Co.

• Decision Date: 03 October 1955
• Citation: 135 Cal.App.2d 819,288 P.2d 81
• Court: California Court of Appeals Court of Appeals
• Parties: Francis J. O'HEY, Plaintiff and Respondent, v. MATSON NAVIGATION COMPANY et al., Defendant and Appellant. Civ. 16358.

Page 81

288 P.2d 81

135 Cal.App.2d 819

Francis J. O'HEY, Plaintiff and Respondent, v. MATSON NAVIGATION COMPANY et al., Defendant and Appellant.

Civ. 16358.

District Court of Appeal, First District, Division 2, California.

Oct. 3, 1955.

Rehearing Denied Nov. 2, 1955.

Hearing Denied Nov. 30, 1955.

Brobeck, Phleger & Harrison, San Francisco, for appellant Matson Navigation Co. Masterson, Bernheim & Sugarman, Richmond, for respondent.

KAUFMAN, Justice.

This is an appeal by Matson Navigation Company, a corporation, from a judgment of the Superior Court in and for the County of Contra Costa, entered on December 22, 1953, upon a jury verdict in favor of plaintiff and respondent in the sum of $11,460, plus costs. Motion for new trial was made and denied.

The case was submitted to the jury on a cause of action charging defendant corporation with unseaworthiness of the SS Hawaiian Builder, the vessel upon which plaintiff was employed as a longshoreman at the time of his injury. A cause of action based on a claim of negligence was dismissed by plaintiff before the case was submitted to the jury. The amended answer denied the charging allegations of the complaint, alleged contributory negligence of plaintiff, and alleged that plaintiff's negligence was the sole cause of the accident.

Plaintiff and respondent, Francis J. O'Hey, was a longshoreman, employed by the Pacific Maritime Association. On March 26, 1952, he went with his crew to Crockett, California, where they went to work under the direction of Matson Terminals, Inc., a corporation engaged in the stevedoring business. They were required to assist in unloading a cargo of raw sugar from the hold of the vessel SS Hawaiian Builder. Plaintiff and other longshoremen obtained tools before going aboard from the office of Matson Terminals, Inc. Longshoremen who desired to do so also obtained at this office loose fitting canvas boots 16 to 18 inches high which were worn over their shoes to protect them while working in the sugar. These boots were secured by two ropes, one around the ankle and one at the top. Respondent put on a pair of these boots before he commenced work.

In order to unload the bulk sugar it was necessary to remove the hatch cover from the Number 4 hatch on the 'tween deck of the ship. The 'tween deck is the lowest deck of the ship, and immediately beneath it is the lower hold, approximately 16 feet in depth, which contained the cargo of raw sugar. Above the 'tween deck is the shelter deck, and above that the main deck. There is an opening through each deck in each hatch, estimated variously by the witnesses herein as 18' by 20' and 30' by 22'. On the shelter and 'tween decks the hatches open flush with the deck, while on the main deck the hatch is surrounded by 3 foot steel walls. The rim of the 'tween deck hatch is lined with steel 3 feet in depth downward from the level of the deck. This is called the coaming. Vertical ladders in the center of the forward and after ends of each hatch opening give access to the shelter and 'tween decks and lower hold.

The after end of the 'tween deck area in Number 4 hatch was a cargo storage area divided into port and starboard halves. A large circular stanchion in the midships line running from the top to the bottom of the ship, is immediately adjacent to the hatch coaming on the after side. A bulkhead runs aft from the stanchion on back to the bulkhead separating the Number 4 and Number 5 hatches. A cargo of canned pineapple in paper cartons had been taken on the ship at Kahului in the Hawaiian Islands. These cartons were stacked at the aft end of the lower 'tween deck from one-half to two-thirds of the way to the ceiling, and a wood fence of dunnage--four by fours--was built to hold the cargo in place. The shipment of pineapple was destined for Oakland and was not to be unloaded at Crockett.

During the course of unloading the raw sugar, respondent was required to scrape sugar from the edges of the coaming around the Number 4 hatch on the 'tween deck. The hatch covers had been removed by respondent and the other longshoremen on the shelter and 'tween decks, and the escalator put down into the sugar. Some of the sugar 'kicks' out from the conveyor, and this necessitates the scraping. Respondent's work required him to work around the edges of the open hatch.

A space of three feet is customarily left between the edge of the hatch and stowed cargo. This three foot space is usually marked on the deck of Matson ships by white or yellow lines. There was testimony that Safety Rule No. 817 of the Pacific Coast Longshoremen's Agreement required a 36 inch space to be left clear around hatch coaming and to be designated by a proper marking in order to furnish clear space for handling hatch covers and strongbacks during covering and uncovering operations. The jury was, however, cautioned that this was testimony to the effect that there was such a rule and a custom, but that the Matson Navigation Company was not a party to the agreement, and the rule was not obligatory upon them. The chief officer of the ship Rathke, testified that Matson Terminals, in charge of stevedoring operations, have orders that clearances are to be 3 feet around hatch coamings and that it is regular pratice to maintain that clearance.

The evidence was conflicting as to whether or not there was three feet of clearance between the hatch coaming on the aft end of the hatch and the cargo of pineapple. There was testimony that no yellow or white line was visible. Rathke, the chief officer, said that the lines were not visible, that they had probably been worn away. One witness stated that the space between hatch and cargo on this end was only 18 or 20 inches. Respondent said it was between 12 and 16 inches and that he had to walk in the area with his body turned.

Before noon on the day of the accident, one of respondent's fellow workers who was working on the aft end of the hatch asked him for a couple of scrapers. O'Hey, who was then on the port side went down to the aft end, swung out over the ladder in the square of the hatch and handed the scraper to the other longshoremen. He could not go behind through an escapeway in the bulkhead at the aft end, as this escapeway was blocked by the cartons of canned pineapple. As the longshoremen did not want the second scraper, respondent laid it alongside the bulkhead at the end of the hatch and went to dinner. Respondent, when he returned, came down the ladder at the forward end of the hatch, walked along the port side and turned on the aft end in order to get his tools. After taking about three steps he slipped or tripped, grabbed at the dunnage fence surrounding the pineapple cargo in an attempt to get his balance, but the piece he grabbed broke loose and he fell into the hold.

There were no guard chains or rails around the hatch at the time of the accident. Stanchions and chain are standard equipment to provide a safety chain around hatches. The ship's first mate testified that there were sockets in the deck for the stanchions, that such stanchions and railings were available for every hatch on each deck of the ship. The first mate stated that the stanchions and the chain railing for he Number 4 hatch of the 'tween deck were in place behind the ladder in the hatch, between the ladder and the bulkhead. There is no question but that it was the duty of the stevedoring company to put the chain guards in place after they had opened the hatch, but it was the duty of the ship to have such safety device available. Two longshoremen, Moisive and Lara, were questioned as to whether they saw any such guard railings either installed or lying around in the area of the Number 4 hatch. They said that they saw none. Respondent was asked whether he saw any such railing in that area 'either in place or laying down in there.' He answered, 'No, sir, and there was no place there to make it fast either.' Although appellant contends that there is no real conflict on the question that such safety devices were available on the ship for use by the stevedores, it appears that at least respondent's testimony that he saw no such devices in that area and that there was no place to make such a railing fast, does create a conflict with the mate's testimony that the deck contained sockets around the hatch in which to place the stanchions for a chain railing, and that they were available.

A hospital record containing a history given by respondent shortly after the accident stated that respondent said he fell because of the narrowness of the passageway and his clumsy oversize boots, and that there was no safety line around the hatch.

Respondent was hospitalized for about two weeks because of his injuries. He sustained a fractured rib, a minimal compressed fracture of the 11th thoracic vertebrae, a contusion of the kidney, abrasions of the left arm, a concussion, and soft tissue injury to his back. He was fitted with a special type brace to support his back and was given physiotherapy. In November 1952, respondent was examined by Dr. Burton, the compensation doctor, who found some muscle spasm in the lower back and some limitation of motion on forward flexion and some limitation of rotation of the hips. This doctor attributed some of the difficulty to degenerative arthritis that had existed prior to the injury, and some to the injury.

Dr. Harry Walker, an orthopedist, was of the opinion that respondent would be limited to light work permanently.

Respondent had earned $3,548.16 in the year prior to the accident. At the time of the trial, respondent was not doing work as a regular longshoreman but was employed as an extra boss, a lighter type of work. During the two months prior to trial he testified that he secured from a day to a day and a half of work in that capacity, although his employment in the prior months had been much steadier. He stated that there is not as much employment for extra bosses as for longshoremen.

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