Nuzzo v. Rederi, A/S Wallenco, Stockholm, Sweden

• Decision Date: 14 May 1962
• Docket Number: No. 48,Docket 26992.,48
• Parties: Antonio NUZZO, Plaintiff-Appellee, v. REDERI, A/S WALLENCO, STOCKHOLM, SWEDEN, Defendant-Appellant, REDERI A/B SOYA, Defendant and Third-Party Plaintiff-Appellant, v. PITTSTON STEVEDORING CORPORATION, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

304 F.2d 506 (1962)

Antonio NUZZO, Plaintiff-Appellee, v. REDERI, A/S WALLENCO, STOCKHOLM, SWEDEN, Defendant-Appellant, REDERI A/B SOYA, Defendant and Third-Party Plaintiff-Appellant, v. PITTSTON STEVEDORING CORPORATION, Third-Party Defendant-Appellee.

No. 48, Docket 26992.

United States Court of Appeals Second Circuit.

Argued October 31, 1961.

Decided May 14, 1962.

Submitted May 29, 1962.

Petition for Rehearing Denied June 26, 1962.

William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens, and Thomas F. Molanphy, New York City, on the brief), for defendant and third-party plaintiff-appellant.

Frank A. Teti, New York City (Santo R. Sgarlato, Jr., Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Thomas H. Healey, New York City (Monica & Feury, New York City, on the brief), for third-party defendant-appellee.

Before CLARK, HINCKS and FRIENDLY, Circuit Judges.

Petition for Rehearing In Banc Denied June 26, 1962.

HINCKS, Circuit Judge.

Antonio Nuzzo, a longshoreman, brought this action against Rederi, A/S Wallenco, for injuries he received while unloading lumber from defendant's ship "Boheme" in New York Harbor. The undisputed testimony is that Nuzzo and three others were working in a deep tank containing only lumber. The lumber had been loaded on the West Coast and, as is the practice, it had been originally stowed in a series of "false decks." Boards or planks were laid flat on the hold bottom lengthwise, that is to say parallel with the longitudinal axis of the hold, forming a "floor"; on top of that floor another was laid, and so on until the hold was filled. The boards varied in length, from six to twenty feet, and were mixed in other dimensions as well; there were 1 x 4's, 1 x 6's, 2 x 4's, and 2 x 6's. They were tied in bundles, however, apparently of equal thickness; and these bundles were stowed so as to form the successive floors.

The fore and aft bulkheads of the tank were vertically corrugated, for strength and rigidity. Their vertical ribs were about 10 inches apart and about 10 inches thick so that each pair of ribs enclosed on three sides a space of approximately 10" x 10" × 10" and the fourth or open side of this space was about 15". The deep tank itself was 34 feet long and 28 feet wide. The hatch opening in the deck above the tank — through which, of course, the cargo must be loaded and unloaded — was 15 feet by 12 feet, and roughly in the center of the tank.

In unloading, the stowage process was reversed. Slings were lowered into the tank. The longshoremen would fill these slings, which were then raised to the deck, emptied, and lowered again. The longshoremen would first clear out a working space directly under the hatch; this space would be roughly "man height" deep. They would then "go into the wings," that is, unload the lumber, above the level of that on which they were standing, to each side and fore and aft of the hatch. They would then successively repeat the process by removing the lumber in the center of the tank, directly under the hatch, and from this lower floor level again work out into the wings.

At a trial on issues of negligence and unseaworthiness, Nuzzo and his co-workers testified that they had gone down to man height and were working out into the wings. As Nuzzo stepped back to maneuver a bundle into position on the slings, he stepped into an empty space between the vertical ribs of the bulkhead which was "about 18 inches across and about two feet in depth," as found by the district judge.¹ He was thrown off balance and fell backward against the bulkhead, injuring his shoulders and back. His most substantial claim was that the void space was a dangerous and unseaworthy condition within the meaning of Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). His claim of negligence was dismissed by the court for lack of evidence — a ruling not challenged by appeal.

On the issue of unseaworthiness, the trial judge, in order to expeditiously dispose of the case, made his controlling rulings from the bench at the conclusion of the case without filing any written findings or conclusions. In his colloquy with counsel he said: "The case comes down to simply whether or not you made out a case of improper stowage, and that is at the port of loading, the loading port." And later he said: "The sole question in this case is whether or not the shipowner * * * provided a seaworthy vessel. * * * In that regard, the Court finds the issues in favor of the plaintiff against the defendant * * *." The only finding of fact bearing on that issue, to which the court gave expression, was that the claimant while "reaching * * * about head high to take off the bundles from the wing in the hold, and his back being to the bulkhead or the wall, which was corrugated in shape, stepped backwards slightly, and in doing so stepped into a hole about 18 inches across and about two feet in depth. He fell backwards and struck his right shoulder against the corrugated wall of the bulkhead * * *."

To test the validity of the conclusion reached we turn to the evidence. In addition to the undisputed evidence recited above there was the following. Bluni, a fellow longshoreman working with the plaintiff at the time, said that he saw the hole before the plaintiff's fall; that it had not been filled with dunnage but had been covered by a layer or floor of lumber until not more than fifteen minutes before the accident happened; that some of the lumber went "flat up against the bulkhead" and "sometimes it is short"; that "sometimes they put the top board against it, they cover it up with the hole"; and "the hole is supposed to be covered."

Durante, another longshoreman, testified for the plaintiff that after fifteen years experience in unloading lumber, the only hole he saw was the hole into which the plaintiff fell; that this hole had been "covered until we dug out the stuff that had to be out"; that "we always find holes. We always find holes if it is not properly stored." At this point, defendant's counsel contended that the witness did not qualify as an expert on the subject of stowage and unsuccessfully objected to his opinion that "holes" always were found "if it is not properly stored." However, in responding on cross-examination to the question, "It was a good lumber stow, wasn't it? But you saw it?" Durante testified: "Yes, I could say that."

The plaintiff himself testified that he worked at unloading similar lumber from similar ships since 1953; that on the day of the accident he had worked from 8 a. m. to 5 p. m. when he fell into a hole between the cargo and the bulkhead; that the hole into which he fell was the only one he had seen; and to the question, "Up to the time that you say you fell, Mr. Nuzzo, the lumber had been stowed properly, hadn't it?" he answered "Yes."

A careful reading of the transcript discloses no other evidence to support the plaintiff's case on the issue of unseaworthiness. And what appears is not enough, we think, to support the conclusion of unseaworthiness. In so holding we do not disagree with the learned trial judge that improper stowage may constitute a breach of the warranty of seaworthiness. That stowage, as well as hull and gear, is within the ambit of the warranty is well recognized in this circuit. Palazzolo v. Pan-Atlantic S.S. Corp. (Pan-Atlantic S.S. Corp. v. Ryan Stevedoring Co.), 2 Cir., 211 F.2d 277, affirmed as to the liability over of the stevedore in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Rich v. Ellerman & Bucknall S.S. Co., 2 Cir., 278 F.2d 704; cf. Grillea v. United States, 2 Cir., 229 F.2d 687, rehearing 2 Cir., 232 F.2d 919. See also Gindville v. American-Hawaiian Steamship Co., 3 Cir., 224 F.2d 746.

Nor does our holding rest upon the fact that the hole into which the plaintiff stepped had been uncovered by the plaintiff himself and his "partner" but a few minutes before. That a longshoreman may recover for injuries resulting from unseaworthiness caused by himself or his fellows has been the law of this circuit at least since Grillea v. United States, supra.

Our holding rather is that there was neither finding nor proof of facts upon which the conclusion of unseaworthiness could properly be based. The mere fact that there was at a point in the perimeter a small empty space extending two feet below the adjacent "floor" of boards was not enough by itself, as we read Mitchell v. Trawler Racer, supra, to violate the standard of reasonable fitness prescribed by that opinion. Just as the owner was under "a duty only to furnish a vessel and appurtenances reasonably fit for their intended use," as was said in Mitchell, so the owner's duty, with respect to the stowage of the ship, is only to furnish a stowage reasonably fit for its intended purpose. The purpose of stowage, of course, is a disposition of cargo within the vessel which will be reasonably safe and convenient both for carriage at sea and for unloading at the destination. The fact here that lumber of assorted sizes was to be fitted into a hold of fixed size made it likely, indeed inevitable, that here and there would be gaps or holes at the ends of the bundles. And that, so far as appears, none of these holes between bundles existed under the hatch where the longshoremen were continuously working, but only at the perimeter of the hold between the bundles and the bulkhead where they had little occasion to be, was a fact obviously adding to the reasonable fitness of the stow. Especially in the absence of evidence that this peripheral cavity was obscured by inadequate lighting we find no basis for holding that the stow was unseaworthy. Certainly we are referred to no cases in which unseaworthiness is based solely upon lack of a precisely fitted "wall-to-wall" stow of the successive floors of a lumber cargo.

The problem which faces us as to the applicable standard of seaworthiness is...