Puddu v. Royal Netherlands Steamship Company

• Citation: 303 F.2d 752
• Decision Date: 03 January 1962
• Docket Number: Docket 27095.,No. 119,119
• Parties: Frank PUDDU, Plaintiff-Appellant, v. ROYAL NETHERLANDS STEAMSHIP COMPANY, Defendant and Third-Party Plaintiff-Appellee, v. MAUDE JAMES, INC., Third-Party Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

303 F.2d 752 (1962)

Frank PUDDU, Plaintiff-Appellant, v. ROYAL NETHERLANDS STEAMSHIP COMPANY, Defendant and Third-Party Plaintiff-Appellee, v. MAUDE JAMES, INC., Third-Party Defendant-Appellee.

No. 119, Docket 27095.

United States Court of Appeals Second Circuit.

Argued December 5, 1961.

Decided January 3, 1962.

Petition for Rehearing Denied February 20, 1962.

Reconsideration of Denial of Petition for Rehearing May 15, 1962.

Nicholas A. Scibilia, Brooklyn, N. Y. (DiCostanzo, Klonsky & Sergi, Brooklyn, N. Y., of counsel), (Robert Klonsky, Brooklyn, N. Y., on the brief), for plaintiff-appellant.

George J. Conway, New York City (Michael J. Kenny, New York City, on the brief), for defendant and third-party plaintiff-appellee.

Before WATERMAN, SMITH and MARSHALL, Circuit Judges.

Petition for Rehearing in Banc Denied February 20, 1962.

Reconsideration of Denial of Petition for Rehearing in Banc May 15, 1962.

WATERMAN, Circuit Judge.

Appellant, a longshoreman, was in the employ of the stevedore corporation, Maude James, Inc., when that corporation was loading refrigerator cargo into a reefer hatch of defendant's vessel, M.S Helena. Plaintiff, during this operation, was the gangwayman standing by. Presumably, if there were need to give signals to winchmen, that would have been appellant's function. Appellant was injured when one of the booms, part of the ship's equipment with which the longshoremen were working, buckled and broke.

Appellant brought suit against defendant Royal Netherlands Steamship Company, the owner of the vessel, alleging negligence and unseaworthiness.¹ Three other members of the stevedore gang were also injured and commenced actions against the defendant. The case of one of these other longshoremen was to be tried by a judge with jury, and appellant stipulated that his case be tried simultaneously by that same judge sitting without jury.

In the jury case there was a verdict for the defendant after a prolonged trial. Thereafter in appellant's case the trial judge filed a written opinion containing findings of fact and conclusions of law and entered a decree dismissing the action. From this decree, adverse to him, the longshoreman appeals.

In order to prevail, appellant must satisfy us that the findings below are clearly erroneous and that, though there may be evidence to support them, we are left, after reviewing the entire evidence, with the definite and firm conviction that a mistake was committed. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954). This burden appellant has failed to carry. The cause of the buckling of the boom was the major issue before the trial judge. The eyewitness and expert evidence introduced by plaintiff and the stevedore corporation tended to show that the boom was defective and that it was not reasonably fit for the purpose for which it was used, and that the stevedore gang was doing its work at the time of the buckling in a normal and proper manner. Hence plaintiff claimed that his injury was caused by the negligence of the defendant and the unseaworthiness of the M.S. Helena in that she was equipped with a defective boom. Defendant's eyewitness and expert evidence tended to show that the boom was in good serviceable condition and was caused to buckle by the negligent conduct of the members of the stevedore gang in failing properly to handle the ship's gear. Resolving the conflicting testimony the trial judge found that the accident occurred while the stevedore gang was raising a rain tent that had been placed over the reefer hatch the previous day, and that in doing so the longshoremen caused the falls of the winch to be stretched to an angle of almost 180 degrees, a maneuver called "high lining," which resulted in an unusual and dangerous stress on the boom and was the sole cause of its collapse.

The court therefore concluded after considering the conflicting testimony of the eyewitnesses and the experts that the sole cause of the buckling of the boom was the negligent conduct by the longshoremen of the stevedore operations; that inasmuch as the owner of the vessel was in no way responsible for the conduct of these operations it was not negligent with respect to any duty it owed Puddu, and that inasmuch as the ship's equipment with which the stevedore gang was working was in good serviceable and workable condition, the M.S. Helena was not unseaworthy.

One of the ship's crew was an eyewitness, and he testified for the defendant. The trial judge made no findings with respect to this circumstance; and appellant would have us hold that the seaman's presence there caused his employer, the steamship company, to have some responsibility in connection with the stevedoring operations. It is uncontradicted that this crewman was present under orders to prevent cargo pilferage by the longshoremen and had no other duty. Merely stating the admitted reason for the presence of this able-bodied seaman disposes of appellant's tenuous argument.

Bound as we are by the rule in McAllister, supra, we can find no ground upon which to reverse the findings and conclusions below and therefore affirm the decree.

Plaintiff is not entirely uncompensated for the injury he suffered, as he is entitled to receive payments under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.

Affirmed.

Petition for Rehearing in banc

Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.

PER CURIAM.

All of the active judges concurring, except Judge CLARK, who dissents, the application is denied.

CLARK, Circuit Judge (dissenting).

This is another of the several cases before the court at this term putting in issue the question of a vessel's unseaworthiness as a basis for liability to an injured seaman or longshoreman working upon it. The various panels of the court have been in disagreement on this important issue and, in this writer's view, some have shown an unwillingness to accept the Supreme Court's present conception of unseaworthiness. See, as upholding denial of liability, Pinto v. States Marine Corp., 2 Cir., 296 F.2d 1, 8; Hooper v. Terminal S.S. Co., 2 Cir., 296 F.2d 281; Ezekiel v. Volusia S.S. Co., 2 Cir., 297 F.2d 215; and the present case; and as reversing such a holding below, Van Carpals v. S.S. American Harvester, 2 Cir., Dec. 13, 1961, rehearing denied Jan. 10, 1962, 297 F.2d 9, and Massa v. C. A. Venezuelan Navigacion, 2 Cir., 298 F.2d 239. In order to avoid discrimination and unfairness among litigants because of differing views among panels we should make an attempt to resolve these differences so far as we can by consideration in banc. Indeed, this seems really necessary because in the view of at least a vigorous minority of the Supreme Court that Court should not take this class of cases on review. See, e. g., the dissent in Crumady v. Joachim Hendrik Fisser, 358 U.S. 423, 429, 79 S.Ct. 445, 3 L.Ed.2d 413. Further, the authority of the Crumady precedent cannot be overlooked; there on closely analogous facts the Court reversed the holding below, 3 Cir., 249 F.2d 818, to hold that the vessel had become unseaworthy through the negligence of the stevedoring company and hence liable to the longshoreman for his injuries.

Plaintiff, a member of a stevedore gang for the unloading of cargo, was injured when one of the booms being used in the operation buckled and fell with its rigging on him. The stevedores were removing a rain tent from the No. 4 hatch of the M/S Helena. Two booms were being used for the operation. The port, or up and down, boom was spotted over the hatch, while the Burton boom was angled out over the dock. Each boom had a winch, and from this winch a cable ran to the head of the boom and thence toward the other boom. These cables ("falls") were joined ("married") at a point between the two booms, and at that point a cargo hook was attached. The tent, which weighed 682 pounds wet, was attached to this hook. Thus the married falls formed a V, with the tent and hook hanging from the apex and the heads of the booms at the points. The tent was large for the hatch, and the stevedores, as the court found, negligently failed to bundle it; thus when lifted, it hung down a considerable distance from the center point of the falls.

The method of moving the tent to the dock was apparently as follows: the winch on the up and down boom would be tightened, thus raising the tent from the hatch; following this the winch on the Burton boom would be tightened and that on the up and down boom slackened, so that the tent would be moved out over the side. In the course of this operation it became necessary to raise the unbundled tent rather high to clear the hatch coaming and deck obstacles. As the up and down boom was short relative to the size of the tent, this meant that the internal angle of the V formed by the falls was increased. The district judge found that this resulted in high lining or tight lining the rig; that is, that the internal angle of the falls approximated 180 degrees, so that the two winches could, if they were both tightened, work directly against one another, thus greatly increasing the stress on the booms. He further found that the sole cause of the breaking of the boom was the high lining or tight lining, which put excessive strain on the boom. Since he found that the stevedores who were operating the winches were thus negligent, and their negligence was the sole cause of the buckling of the ship's gear, which was otherwise found to be in good, serviceable, and workable condition, he held that the Helena was not unseaworthy.

Contrary to these conclusions it would seem, even on the facts as found, that we have here a classic situation of unseaworthiness: a dangerous condition, namely, a tight lined rig which would potentially overstress the boom. This condition led to the boom's collapse, and thus to plaintiff's injury. It is true...