Mosley v. Cia. Mar. Adra SA, 386

• Decision Date: 16 June 1966
• Docket Number: No. 386,Docket 30372.,386
• Citation: 362 F.2d 118
• Parties: Samuel MOSLEY, Plaintiff-Appellee, v. CIA. MAR. ADRA S.A., Defendant-Appellant and Third-Party Plaintiff-Appellee, v. LIPSETT STEEL PRODUCTS, INC., Third-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

362 F.2d 118 (1966)

Samuel MOSLEY, Plaintiff-Appellee, v. CIA. MAR. ADRA S.A., Defendant-Appellant and Third-Party Plaintiff-Appellee, v. LIPSETT STEEL PRODUCTS, INC., Third-Party Defendant-Appellant.

No. 386, Docket 30372.

United States Court of Appeals Second Circuit.

Argued May 25, 1966.

Decided June 16, 1966.

George J. Engelman, New York City (Gay & Behrens, New York City, of counsel), for plaintiff, Mosley.

Victor S. Cichanowicz, New York City (William P. Larsen and Cichanowicz & Callan, New York City, of counsel), for defendant, Cia. Mar. Adra S.A.

Vincent A. Catoggio, New York City (Purdy, Lamb & Catoggio, New York City, on the brief), for third-party defendant, Lipsett Steel Products, Inc.

Before FRIENDLY, HAYS and FEINBERG, Circuit Judges.

HAYS, Circuit Judge:

Plaintiff Mosley, a longshoreman in the employ of a stevedore company, Lipsett Steel Products, Inc., the third-party defendant, was injured while loading scrap metal on the S.S. Turmoil, a vessel owned and operated by Cia. Mar. Adra S.A., the defendant. This is an appeal by the shipowner from a judgment of $125,000 entered in the United States District Court for the Southern District of New York, in favor of Mosley for injury resulting from a breach of the shipowner's warranty of seaworthiness. The stevedore company appeals from a judgment notwithstanding the verdict in favor of the shipowner, on the issue of indemnity. We affirm on both appeals.

This case is before us for a second time, having been reversed and remanded for a new trial on a previous appeal because it was impossible to ascertain whether the general verdict for plaintiff was based on a permissible ground, a finding that there was insufficient lighting, or on an impermissible ground, the use of a hook which was not shown to be an appurtenance of the ship or unfit for its intended use. See Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223 (2d Cir.), cert. denied, 375 U.S. 829, 84 S.Ct. 73, 11 L.Ed.2d 61 (1963).

I.

There is evidence in the record to support the conclusion that the injury to Mosley occurred in the following way.

On October 8, 1956 the S.S. Turmoil began loading a cargo of scrap metal at the Port of Newark. Mosley was part of a gang assigned to load scrap into the 'tween deck of the #5 hatch. Mosley's job was to direct the placing of metal scrap which a crane dumped down a chute. When one part of the 'tween deck became filled, he would direct the chute toward another area in order to assure an even distribution of the cargo. The chute, forty feet long and three to five feet wide at top, tapering to the bottom, was suspended in the hatch from the cargo runners of the ship by means of bridles and shackles.

At the close of the workday on October 14, the day before the accident, a load of scrap metal had been placed in the square of the hatch of the 'tween deck to a height of three-and-a-half or four feet, partially blocking the entry of natural light.

The next morning, after Mosley had been at work about an hour and a half, "a piece of transmission or the rear end of a car" became lodged in the tapered end of the chute, about three feet from the mouth and blocked the flow of scrap.

Mosley, who was working alone on the 'tween deck, told the foreman to suspend the loading. He approached to within four or five feet of the chute, intending to use an "improvised hook" five or six feet in length, to dislodge the metal. He positioned himself "as best as I possibly could" on a deck littered with irregular pieces of scrap. While he was attempting to remove the obstruction, the scrap under Mosley's feet gave way; he fell and was injured.

The trial judge charged the jury:

"Specifically here the question which you have to decide is whether under all the circumstances the tween deck area was reasonably fit to permit the plaintiff to perform his work with reasonable safety. And here you have to take into consideration all of the conditions then obtaining, the type of operation that was going on, the lighting conditions, the chute, the kind of chute it was, the condition of the deck.

* * * * * *

But consider all the conditions and decide whether under all of those conditions that area was reasonably fit for the plaintiff to perform his work in the task assigned to him with reasonable safety."

The defendant shipowner argues that this charge permitted the jury to consider "grounds which were not established by the evidence." But the evidence on each point mentioned in the charge need not be weighed separately. Mosley's contention, and the theory on which the case was submitted to the jury, was that the various factors mentioned each contributed to the unseaworthiness of the 'tween deck area, i. e., rendered it unsuitable for the use to which it was put.

In Krey v. United States, 123 F.2d 1008, 1010 (2d Cir. 1941) this court, referring to a number of separate factors which, it was charged, resulted in the unseaworthiness of an area of the ship, held that:

"these factors combined seem to us clearly to establish an unseaworthy condition." (Emphasis added.)

Here, the chute was specifically put in place to receive the cargo of metal scrap. It was an appurtenance of the ship. Plaintiff presented evidence that because of the tapered nature of the chute, and the diverse sizes and shapes of the metal scrap, obstructions were bound to occur. "The vessel's duty to furnish seamen with tools reasonably fit for their intended use is absolute." Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 327, 81 S.Ct. 6, 9, 5 L.Ed.2d 20 (1960).

The 'tween deck was littered with irregular pieces of metal scrap. The chief officer of the S.S. Turmoil testified that he refused to enter the 'tween deck area during loading because it was "dangerous"; scrap would "fall off" the chute; it "bounces" and "ricochets around." This situation when combined with lack of adequate lighting resulted in unseaworthiness. See Ross v. S.S. Zeeland, 240 F.2d 820, 822-823 (4th Cir. 1957). There was more than enough evidence to support a finding that there was insufficient lighting in the 'tween deck area. See Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223, 227-228 (2d Cir.), cert. denied, 375 U.S. 829, 84 S.Ct. 73 (1963).

Defendant contends that portable lighting equipment was available to the longshoremen on request. There is testimony that such equipment was in the storehouse of the ship, but there is no showing that it was available for this area on the date in question. Nor was evidence produced concerning the adequacy and condition of electrical outlets. Indeed, Foreman Brown, who was in charge of loading, testified that his general request for lighting equipment was not acted upon.

In Mahnich v. Southern S.S. Co., 321 U.S. 96, 103-104, 64 S.Ct. 455, 459, 88 L.Ed. 561 (1944) the Supreme Court said:

"Nor does the fact that there was sound rope on board, which might have been used to rig a safe staging, afford an excuse to the owner for the failure to provide a safe one. * * * the owner must provide the seaman with seaworthy appliances with which to do his work, * * * safe appliances must be furnished when and where the work is to be done." (Emphasis added.)

Unseaworthiness is not "excused because proper equipment was available but went unused." Skibinski v. Waterman S.S. Corp., 360 F.2d 539 (2d Cir. 1966).

"The owner warrants to longshoremen * * * a safe place in which to handle cargo." Carabellese v. Naviera Aznar, S.A., 285 F.2d 355, 359-360 (2d Cir. 1960), cert. denied, 365 U.S. 872, 81 S.Ct. 907, 5 L.Ed.2d 862 (1951). There was ample evidence to support the jury's finding that the place where Mosley was assigned to work was unsafe.

Defendant also argues that the district court "submitted the case to the jury on issues other than those defined and limited by the pre-trial order. The pre-trial order simply indicated that "all the issues of fact and law to be raised at the second trial of this action have previously been raised at the first."

Mosley's proof involved substantially the same factors on both trials. To the extent that there was any variation, the district court properly modified the pre-trial order pursuant to Rule 14, of the Calendar Rules of the United States District Court for the Southern District of New York.

There is nothing in the charge of the district court concerning the hook used by Mosley that conflicts wih this court's opinion in Mosley v. Cia. Mar. Adra, S.A., supra.

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