Lopez v. American-Hawaiian Steamship Co.

• Citation: 201 F.2d 418
• Decision Date: 05 February 1953
• Docket Number: No. 10852.,10852.
• Parties: LOPEZ v. AMERICAN-HAWAIIAN STEAMSHIP CO.
• Court: U.S. Court of Appeals — Third Circuit

201 F.2d 418 (1953)

LOPEZ v. AMERICAN-HAWAIIAN STEAMSHIP CO.

No. 10852.

United States Court of Appeals Third Circuit.

Argued January 9, 1953.

Decided February 5, 1953.

Rehearing Denied March 10, 1953.

Herman Moskowitz, Philadelphia, Pa., for appellant.

T. E. Byrne, Jr., Philadelphia, Pa. (Springer H. Moore, Jr., Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellee.

Before MARIS, McLAUGHLIN and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

Following a jury disagreement in this civil action by a stevedore carpenter for injuries sustained aboard a ship owned pro hac vice by appellee, the district judge granted the defense reserved motion for judgment and plaintiff appeals.

Lopez, the plaintiff, was employed by a stevedore contractor, Luckenbach Steamship Company, Inc. On May 3 and 4, 1948, the latter was loading the S.S. Willis Vickery under a written contract with her owner, the appellee. That agreement, which was in evidence, called upon Luckenbach to provide, among other services, "all necessary * * * hatch tenders * * *." Luckenbach was also responsible for "* * * removing and replacing beams and hatch covers." Throughout May 3rd the ship was at Pier No. 84, Philadelphia. Its No. 2 hold had four decks and a lower hold. Lopez worked all that day on C or D deck of No. 2 hold shoring cargo loaded by the Luckenbach stevedores. He testified that when he stopped at five o'clock in the afternoon he left his tools where he had been working. The following morning the ship was moved across the Delaware River to Camden where Lopez with a number of Luckenbach stevedores went aboard at about ten o'clock. He stated that his foreman, Claire, told him to work on No. 4 hold and to get his tools. To do this Lopez went through the No. 2 escape hatch. It is not too clear at which deck level he emerged but at any rate as he did there was some light from the escape hatch which enabled him to see for two or three feet ahead. He walked that distance and then lit a match which went out. About that instant, according to Lopez, "I slip off, went down and I went down to the hatch. That is all I know." As a result of the fall he sustained injuries for which he brought this suit, alleging they were caused by the unseaworthiness of the vessel and by the negligence of its owner.

Absence of protective hatch covers at whatever deck from which Lopez fell is relied on as the unseaworthy condition. Appellant concedes, as he must, that the appellee's responsibility for that situation depends upon whether it was in control of No. 2 hold during the critical period. He asserts that the evidence establishes such control.

The record fails to support that statement. By the written contract the Luckenbach company undertook "* * * to faithfully furnish such stevedoring services as may be required upon such vessels of appellee as are assigned to the Contractor Luckenbach Co.." The testimony is that Luckenbach had been ordered by appellee to do the stevedoring work on the Vickery. Evidence was adduced that when the cargo loading started the Luckenbach stevedores removed the Vickery hatch covers and that when the stevedores stopped work around five o'clock on May 3rd "they left all the other decks open and just put the top pontoons hatch covers on, put a tarpaulin over that", as the foreman Claire said. This, according to him, left the remaining decks open down to the D deck level. He said those decks were not covered because the cargo loading in the hold had not been completed and that the stevedores were going back to work on that same deck the next day. There is some testimony that apparently another group of...