Jones v. NV Nederlandsch-Amerikaansche Stoomvaart M.

• Citation: 374 F.2d 189
• Decision Date: 13 October 1966
• Docket Number: No. 15469.,15469.
• Parties: Robert JONES v. N.V. NEDERLANDSCH-AMERIKAANSCHE STOOMVAART MAATSCHAPPIJ, Appellant, v. PHILADELPHIA CEILING AND STEVEDORING COMPANY, Third-Party Defendant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

374 F.2d 189 (1966)

Robert JONES v. N.V. NEDERLANDSCH-AMERIKAANSCHE STOOMVAART MAATSCHAPPIJ, Appellant, v. PHILADELPHIA CEILING AND STEVEDORING COMPANY, Third-Party Defendant.

No. 15469.

United States Court of Appeals Third Circuit.

Argued April 12, 1966.

Decided October 13, 1966.

On Rehearing December 28, 1966.

Further Rehearing Denied February 16, 1967.

T. E. Byrne, Jr., Philadphia, Pa. (Krusen, Evans & Byrne, Philadelphia, Pa., on the brief), for appellant.

Victor L. Drexel, Philadelphia, Pa. (William J. O'Brien, Pepper, Hamilton & Scheetz, Philadelphia, Pa., on the brief), for Philadelphia Ceiling and Stevedoring Co.

Before McLAUGHLIN, GANEY and FREEDMAN, Circuit Judges.

OPINION OF THE COURT

FREEDMAN, Circuit Judge.

A longshoreman brought suit against the owner of a vessel to recover damages for personal injuries caused by the unseaworthiness of the vessel. He was employed by the stevedore to discharge a cargo consisting of bales of peat moss. As work progressed loose peat moss flaked off or was loosened by the longshoremen's hand hooks and accumulated in the hold of the vessel. Plaintiff claimed that he sustained his injury when he stepped into an open bilge box in the hold which was concealed by an accumulation of loose peat moss.

The owner of the vessel claimed that the stevedore, which it brought in as a third-party defendant, was liable over to it for breach of the warranty of workmanlike service. It asserted that the cover of the bilge box had been removed by representatives of the stevedore and that it was they who had created the unseaworthy condition. At the conclusion of the longshoreman's case, however, the shipowner conceded its liability. The jury ultimately returned a directed verdict in favor of the longshoreman against the shipowner in the amount of $45,000, but found in favor of the third-party defendant. It is from the judgment against it as third-party plaintiff that the shipowner has taken this appeal. We shall for convenience refer to the shipowner as the plaintiff and to the stevedore as the defendant.

The verdict of the jury establishes that in its view the work conducted by the stevedore had not gone forward in an unsafe or unworkmanlike manner even though peat moss had been permitted to accumulate. It is true that such an accumulation, however slight, when sufficient to cover the surface of the hold, might obscure dangers, but none of the witnesses testified that this would constitute an unsafe or unworkmanlike practice. There are some risks which are inherent in the nature of the activity.

Plaintiff's claim is more directly focused on the assertion that its expert testified that the only safe and proper method of stevedoring was to remove the scattered peat moss by shoveling it into a net covered with burlap or canvas and then having it dumped or removed. It concedes that if there had been any evidence to controvert such an expert opinion it would have created a factual issue for the jury. The argument falls under the weight of the concession. For the opinion of an expert even if uncontradicted is not conclusive and a jury is not required to accept it. Such testimony must pass through the screen of the jury's judgment of credibility. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944); Rhoades, Incorporated v. United Air Lines, Inc., 340 F.2d 481 (3 Cir. 1965); Wooley v. Great Atlantic & Pacific Tea Company, 281 F.2d 78 (3 Cir. 1960).

Moreover, the testimony of plaintiff's expert would not justify a finding that any accumulation of loose peat moss would have constituted an unsafe or improper stevedoring practice. Originally he was asked to assume that as the operation progressed peat moss had accumulated to perhaps 6 inches and in some places even deeper, and that at one time an accumulation had been shoveled into a pile which reached as high as the courtroom doorway. This, he said, would not be a proper or safe stevedoring practice. On cross-examination he was asked how much of an accumulation of loose peat moss would make the use of a net necessary. He answered, "a couple of inches". It is clear, therefore, that the testimony of plaintiff's expert would not condemn as unsafe practice the smallest accumulation of loose peat moss but only one where at least a couple of inches had been permitted to accumulate without being moved. Even if this were accepted by the jury as the standard of a safe and proper practice it would not inevitably follow that the defendant was shown to have breached its warranty. For replete in the testimony of every witness is the characterization of the circumstances which shows that the accumulation varied. Thus, the chief officer of the vessel testified there was about a foot of accumulated peat moss under the coaming but that it was not of a uniform depth throughout...