Marshall v. Ove Skou Rederi A/S

• Decision Date: 15 May 1967
• Docket Number: No. 23295.,23295.
• Citation: 378 F.2d 193
• Parties: John L. MARSHALL, Appellant, v. OVE SKOU REDERI A/S, and the SS BIRGITTE SKOU, her engines, hull, tackle, cargo and appurtenances thereof, Appellees, The Travelers Insurance Company, Intervenor.
• Court: U.S. Court of Appeals — Fifth Circuit

378 F.2d 193 (1967)

John L. MARSHALL, Appellant, v. OVE SKOU REDERI A/S, and the SS BIRGITTE SKOU, her engines, hull, tackle, cargo and appurtenances thereof, Appellees The Travelers Insurance Company, Intervenor.

No. 23295.

United States Court of Appeals Fifth Circuit.

May 15, 1967.

Ross Diamond, Jr., Mobile, Ala., for appellant.

Alex T. Howard, Jr., W. Boyd Reeves, Mobile, Ala., for intervenor, McCorvey, Turner, Johnstone, Adams & May, Mobile, Ala., of counsel.

Before RIVES, GEWIN and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge.

Appellant John L. Marshall, a longshoreman, filed a libel against the SS Birgitte Skou and her owner¹ to recover damages for personal injuries sustained on board the vessel during loading of cargo at Mobile. The United States District Court for the Southern District of Alabama found that the equipment used in the loading operation was not shown to be unseaworthy.

Marshall, an employee of a stevedoring company, was a member of a gang loading structural steel of varying size, shapes and weights into a hold of the ship by derrick. He was hurt in the loading of a painted steel H-beam or I-beam, measuring approximately 2 feet by 1½ feet by 40 feet and weighing 2 to 2½ tons. Its length was such that it could not be brought into the hold in a horizontal position, so it was picked up at an angle of 40° to 60° and "dived" into the hold at that angle. When it was in position over the hold and the winch reversed the beam fell from the cargo sling into the hold and struck another beam. Marshall, who was standing on the struck beam but under the bulkhead rather than underneath the hold opening, was thrown into the air by the impact, injuring his right ankle joint.

There were no allegations of negligence. The sole issue was seaworthiness of the cargo sling.

The sling consisted of two straps leading off a single ring, the first five to six feet of each made of wire cable and the last six or eight feet of steel chain. A hook was attached to the free end of each chain. The angular position of the beam for descent into the hold was effected by wrapping one chain twice around one end of the beam and carrying its hook back to the chain, and taking a single turn of the second chain at the other end and connecting its hook back to the chain. The derricks of the vessel were rigged at such angle that the load could be brought in without striking any part of the vessel.

Appellant claimed unseaworthiness in two respects: (1) That the chain straps used to form the sling were not fit and suitable for the job to be performed. There was no contention that the chains were defectively manufactured or deteriorated or that they broke in use. (2) That wood chocks or dunnage should have been available and used between the chains and the load to help create traction.

All the evidence was that the gear other than the sling was in good order and properly used and operated and the load which fell was not jerked or mishandled. There was no evidence of external force striking the beam in the process of its descent, nor evidence of negligence on the part of the crane operator or any of the other participants active in the loading operation.

Earlier in the day, and after the accident also, beams of the same general size and type were loaded in the same manner without falling from the sling; some smaller pieces of steel that were handled several pieces to a load had fallen prior to the accident.^1a Since the accident (March, 1964) and to the time of trial (August, 1965) the same chain straps were in use loading steel onto other ships without incident; whether these operations involved "diving" the steel into the hold does not appear.

On the record the finding of fact by the trial court that the use of a chain sling was customary is not clearly erroneous. This leaves us with the problem whether under the undisputed evidence the chain sling, in the circumstances of this case, was unseaworthy as a matter of law. Walker v. Harris, 335 F.2d 185 (5th Cir.), cert. denied, 379 U.S. 930, 85 S.Ct. 326, 13 L.Ed.2d 342 (1964); Mills v. Mitsubishi Shipping Company, 358 F.2d 609 (5th Cir., 1966). We conclude it was unseaworthy and remand for assessment of damages.

The owner owes an absolute and non-delegable duty to provide a seaworthy vessel for the libelant working as a longshoreman thereon; however, the absolute duty is only to furnish a vessel and equipment reasonably safe and fit for the purposes of intended use, and reasonably adequate to the place and occasion where used by direction of the owners.²

An improper method of handling cargo can amount to unseaworthiness.³

The courts have struggled to supply and put to use meaningful criteria to determine seaworthiness, tossed between the horns of liability without fault and fitness of a sufficiently high standard that the shipowner is relieved of liability.⁴ Seaworthiness is a relative concept, depending in each instance upon the circumstances in which fitness is drawn into question.⁵

In Vickers v. Tumey, 290 F.2d 426, 433, n. 5 (5th Cir. 1961) this Circuit approved this definition of seaworthiness: "Seaworthy * * * means that under the circumstances existing at the time of the injury, the vessel and her equipment * * * were reasonably fit to perform the duty of safety, which this vessel owed to human beings aboard her, and to perform duties for which they were intended."

Reasonable suitability of ship and equipment is spelled out in terms of matching operating proficiency against anticipated operating conditions. Mills v. Mitsubishi Shipping Company, supra. The test is phrased as follows in Walker v. Harris, supra, 335 F.2d at 191:

"The subsidiary questions leading to ultimate conclusion of seaworthiness are therefore: What is the vessel to do? What are the hazards, the perils, the forces likely to be incurred? Is the vessel or the particular fitting under scrutiny, sufficient to withstand those anticipated forces? If the answer is in the affirmative, the vessel (or its fitting) is seaworthy. If the answer is in the negative, then the vessel (or the fitting) is unseaworthy no matter how diligent, careful, or prudent the owner might have been. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, 1960 AMC 1503."

The courts are, in the end, attempting to determine whether the seaman may perform his task aboard the ship with reasonable safety. Sanford v. Caswell, 200 F.2d 830, 832 (5th Cir.) cert. denied, 345 U.S. 940, 73 S.Ct. 831, 97 L.Ed. 1136 (1953); Lester v. United States, 234 F.2d 625 (2d Cir.) cert. granted, 352 U.S. 889, 77 S.Ct. 130, 1 L.Ed.2d 85 (1956), appeal dismissed, 352 U.S. 983, 77 S.Ct. 384, 1 L.Ed.2d 366 (1957); Walker v. Sinclair Refining Co., supra.

Articulating criteria to determine seaworthiness requires use of the language of negligence.⁶ In the language of Walker v. Harris, supra, "* * * What is the gear to do? What are the hazards, the perils, the forces likely to be incurred," or, in the language of Mills, what are the "anticipated operating conditions." The force and hazard to be incurred — single, obvious and great — by this cargo sling was the simple one of the force of gravity (or an external force, blow or mishandling) which, unless guarded against by operating proficiency, would cause the tilted beam to slip from the sling and fall and hurt someone. The force was not guarded against by shipowner's gear, and libelant was injured.

The operational forces the sling was to incur were known. There is no problem whether shipowner should or should not have anticipated or acted upon the degree of likelihood that certain forces and hazards might occur, such as storms which might be conceivable but not reasonably anticipable, or perils of the sea that are imaginable but not normally foreseeable. Mitchell v. Trawler Racer, supra.

In many loading operations the forces and hazards to be incurred by the gear include the possibility of application of conditions and forces other than those inherent to the properly conducted movement itself — the winch may jerk or suddenly stop and cause the sling to lose its draft of cargo, or the sling may be struck against a hatch. See Smith v. M/V Gisna, 362 F.2d 164 (5th Cir., 1966). A new agent may be introduced, as the slime in Trawler Racer or the apple peel in Poignant v. United States, 225 F.2d 595 (2d Cir., 1955), giving rise to "transitory unseaworthiness." But this accident occurred under the most antiseptic conditions possible. The winch was operated properly. The load struck nothing. The sling did not break. No new agency affected the sling. The loading operation was done without negligence. The sling simply did not perform its single assigned purpose of retaining the load without dropping it while moving it from point A to point B.

We turn to the effect of a sling that will not hold its draft upon the reasonable safety of the longshoreman's place of work. The effect in this case was a significant one, considering the size, weight, and bulk of the item carried, and the possibility of death or serious injury to those working underneath it as it was lifted into the air, moved and set down.

In addition, there was no place of safety to which the longshoremen could go. The libelant, who had retreated to the forward end of the hold when the gangway man shouted a warning and was not underneath the square of the hatch, was nevertheless injured by the movement of beams already in the hold when they were struck by the falling beam.

Other circumstances will bring different results. In Phipps v. N. V. Nederlandsche Amerikaansche, S.M., 250 F.2d 143 (9th Cir., 1958) the load in draft was, comparatively speaking, lighter and smaller, consisting of bundles of 3" x 6" timbers up to 40 feet long, and libelant had a place of safety to which to go and a warning of "heads up" with each load. In Smith v. M/V Gisna, supra, the sling carrying rolls of newsprint struck the hatch coaming...