Mollica v. Compania Sud-Americana de Vapores, Docket 22479.

• Decision Date: 02 February 1953
• Docket Number: Docket 22479.
• Citation: 202 F.2d 25
• Parties: MOLLICA v. COMPANIA SUD-AMERICANA DE VAPORES (CHILEAN LINE).
• Court: U.S. Court of Appeals — Second Circuit

202 F.2d 25 (1953)

MOLLICA v. COMPANIA SUD-AMERICANA DE VAPORES (CHILEAN LINE).

No. III, Docket 22479.

United States Court of Appeals Second Circuit.

Argued December 4, 1952.

Decided February 2, 1953.

Writ of Certiorari Denied May 25, 1953.

Purdy, Lamb & Catoggio, New York City (Vincent A. Catoggio, New York City, of counsel), for defendant-appellant.

Robert Klonsky, New York City, for plaintiff-appellee.

Before SWAN, Chief Judge, and CHASE and CLARK, Circuit Judges.

Writ of Certiorari Denied May 25, 1953. See 73 S.Ct. 952.

CHASE, Circuit Judge.

The libellant-appellee is a longshoreman who was injured while employed by the Pittston Stevedoring Corporation in carrying out its contract with the appellant, the owner of the S. S. Aconcaqua, to load that ship as it lay moored at 57th Street, Brooklyn, N. Y. He sued the shipowner, and after a trial by jury, a verdict in his favor was returned on which was entered the judgment from which the shipowner has appealed. The sole basis of the appellee's claim that the ship was liable was its unseaworthiness, allegations of negligence in the libel having been abandoned by the time the case was submitted to the jury. The appellant relies for reversal upon the denial of two motions it made, one for the direction of a verdict and one for judgment notwithstanding the verdict.

The stevedores began loading the No. 4 hold, where the appellee was hurt, on the morning of August 18, 1949. They were stowing heavy cases of automobile parts; and when the day gang quit work at about a quarter past six, one such case was suspended at one end about two or three feet above the bottom of the hold. It remained in that position because it was wedged between other cases on one side and the tunnel shaft on the other, and it was still resting in the cable fall from the ship's boom by which it was being lowered when it became so wedged.

The appellee was one of the night gang of stevedores that began work at seven o'clock in the evening. He went into the hold and, on seeing the wedged case, he set about to drag away the case on which it rested so that the wedged case would fall and rest flat on the bottom of the hold. In so doing, he used a cable from a boom other than the one in whose cable the wedged case still rested, rigged up a drag line through a snatch block attached to the bulkhead, and connected this drag line to dog hooks which he held against the supporting case. The supporting case was to be pulled out of the way by power slowly supplied from the boom, and the appellee intended to hold the dog hooks against the case until, and apparently only until, the slack on the drag line was taken up. He gave the signal for taking the cable up slowly to the hatch boss who was standing on the tunnel, and the hatch boss relayed it to the winchman orally and by hand signals. When the power was applied, the supporting case was dragged out of the way, and one end of the wedged case, which consequently fell the two or three feet to the bottom of the hold, landed on the appellee's left foot causing the injuries for which he sued. His explanation of the accident was that the case supporting the wedged case was pulled out so quickly that he did not have time to get his foot out of the way, and that this happened because the hold was so poorly lighted that the hand signal for slow movement was not seen by the winchman and he misunderstood the oral one.

It was undisputed that it was the duty of the ship to provide adequate lights. There were small ceiling lights in the No. 4 hold, but these were not turned on because of danger that they would cause the explosion of nitrate fumes, which remained in the hold from a cargo which had been recently discharged. On the ship's mast there were two illuminated adjustable flood lights of 500 watts each; but, although they were beamed on the No. 4 hold, they were at such an angle that they did not supply adequate light for all parts of it. It was customary to supply additional light for a hold in which cargo was being stowed by cluster lamps, of which the ship had twenty-five on board. These consisted of five or six hundred watt bulbs and a reflector with an extension cord which was plugged into a source for the supply of current, called a resistor house, on the deck. It was the duty of the ship's lampman, in whose custody the cluster lamps were kept, to plug the extension cords into the resistor house and place the lamps on deck so that they would be available for use by the stevedores as and where needed. Although there was conflicting evidence on the subject, the jury could justifiably have found from the testimony that the lampman had not made cluster lamps available for use by the stevedores and that the absence of such a lamp or lamps in the No. 4 hold at the time of the accident so impaired the vision of the winchman that it was a contributory cause of the injury.

Since Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L. Ed. 1099, the duty of a shipowner to provide an initially seaworthy ship for stevedores to load cannot be questioned. But the duty is a concomitant of control, and the shipowner is not liable for unseaworthiness which arises after control of the ship, or that part which includes the unseaworthy condition, has been surrendered to the stevedores. Grasso v. Lorentzen, 2 Cir., 149 F.2d 127, certiorari denied 326 U.S. 743, 66 S.Ct. 57, 90 L.Ed. 444; Lynch v. U. S., 2 Cir., 163 F.2d 97.

It cannot be gainsaid that a ship is unseaworthy for loading if, and when, adequate lights to make the work reasonably safe are lacking in the part of the ship being loaded. Whether...