Ross v. Steamship Zeeland

• Decision Date: 07 January 1957
• Docket Number: No. 7314.,7314.
• Citation: 240 F.2d 820
• Parties: Milton M. ROSS, Appellant and Cross-Appellee, v. STEAMSHIP ZEELAND, her engines, etc. and NV Koninklijke Rotterdamsche Lloyd, her owners, of Rotterdam, Holland, Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

240 F.2d 820 (1957)

Milton M. ROSS, Appellant and Cross-Appellee, v. STEAMSHIP ZEELAND, her engines, etc. and NV Koninklijke Rotterdamsche Lloyd, her owners, of Rotterdam, Holland, Appellees and Cross-Appellants.

No. 7314.

United States Court of Appeals Fourth Circuit.

Argued November 30, 1956.

Decided January 7, 1957.

Sidney H. Kelsey, Norfolk, Va., for appellant and cross-appellee.

Thomas M. Johnston, Norfolk, Va. (Harry E. McCoy, and Seawell, Johnston, McCoy & Winston, Norfolk, Va., on brief) for appellees and cross-appellants.

Before SOPER and SOBELOFF, Circuit Judges, and THOMSEN, District Judge.

THOMSEN, District Judge.

Libellant was injured when he tripped over some wire or cable piled on the 'tween deck in a hold of the SS Zeeland, on which he was serving as a night watchman. The district judge found that the pile of wire rendered the vessel unseaworthy, that libellant's own negligence contributed to the injury to the extent of 60%, and that libellant, if free of contributory negligence, would have been entitled to an award of $1,000; mitigating the damages by the proportion he attributed to libellant's own negligence, he entered judgment for $400, plus taxable costs. Both sides have appealed.

The facts with respect to the accident are fairly stated in the opinion of the district judge, 143 F.Supp. 656, and may be quoted from that opinion in condensed form. "Libellant * * * was * * * employed by Tidewater Port Service as a watchman" aboard the SS Zeeland "in the port of Hampton Roads. On March 23, 1954, libellant reported for duty at 3 P.M., while stevedores were unloading the No. 1 hold which contained boxes of rubber. During that afternoon and evening, libellant had occasion to go down the after ladder of the No. 1 hold approximately six times. He observed a pile of wire cable about four feet in height located in the vicinity of the forward ladder of the No. 1 hold, but contends that he did not realize this wire or cable was located as close to the forward ladder as later developed. During unloading operations by the stevedores, a cluster of lights in the hold provided adequate lighting facilities. These lights were removed at midnight when the stevedores ceased work. There remained, however, a mast light which generally lighted the entire area other than the 'tween deck. Shortly after midnight the Chief Officer told libellant to enter the No. 1 hold * * *; * * * libellant entered the * * * hold by descending the forward ladder leading from the main to 'tween decks. Approximately 4 to 6 feet from the bottom of the ladder, libellant tripped over the pile of wire or cable * * *. He concedes that the wire had not been moved since it had been observed by him on his earlier trips into the hold but * * * states that it was difficult to estimate the precise location of the wire on his prior trips * * *. He states that it was dark in the 'tween deck area, which was known to him before he entered the hold; * * * no flashlight was used or requested by libellant. There was no conversation with the Chief Officer as to the existence or location of the wire or cable on the 'tween deck, and no evidence that this Officer knew of same when he requested libellant to enter the hold. * * * The loose wire or cable was apparently not permanently affixed to the 'tween deck and there is no explanation for its presence. Presumably it was in use by the stevedores in unloading the vessel. No reason is advanced as to why it was not removed to a corner of the 'tween deck where it would not constitute an obstruction to one lawfully thereon. * * *"

We agree with the district judge that "while the issue of unseaworthiness is not free from doubt, the evidence is sufficient to sustain libellant's position." A vessel and her owner are liable to indemnify a seaman for an injury caused by the unseaworthiness of the vessel or a failure to supply and keep in order the proper appliances appurtenant to the ship. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. This obligation of the shipowner has been extended to benefit longshoremen and carpenters who are injured in the course of their employment while aboard the ship, even though they were employed by independent contractors. Seas Shipping Co., Inc., v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. The owner's absolute duty to provide a seaworthy vessel, with appurtenant appliances and equipment, is not affected by relinquishment of control to another. Alaska Steamship Co., Inc., v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, affirming Petterson v. Alaska S.S. Co., 9 Cir., 205 F.2d 478; Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120, reversing Rogers v. United States Lines, 3 Cir., 205 F.2d 57. Those cases hold that the owner is liable for defects in equipment brought aboard by a stevedore and used under the stevedore's sole control. The doctrine of seaworthiness has also been extended to include improper stowage of cargo, causing personal injuries. Palazzolo v. Pan-Atlantic S.S. Corp., 2 Cir., 211 F.2d 277, 279; The State of Maryland, 4 Cir., 85 F.2d 944, 947, and cases cited. Cf. Berti v. Compagnie De Nav. Cyprien Fabre, 2 Cir., 213 F.2d 397.

But the ship and her owners are not insurers of the safety of men working on board. Jones v. Gould Steamships & Industrials, Ltd., D.C.D. Md., 300 F. 109, affirmed 4 Cir., 10 F.2d 792. A vessel does not need to be free from all cause for mishap; it is enough if she is reasonably fit. Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354; Poignant v. U. S., 2 Cir., 225 F.2d 595; Doucette v. Vincent, 1 Cir., 194 F.2d 834. The seaworthiness of a ship, her equipment and appurtenance is a relative concept, dependent in each instance upon the circumstances in which her fitness is drawn in question. The crucial consideration is whether the ship was, in all respects pertinent to the injury, reasonably fit to permit libellant to perform his task aboard the ship with reasonable safety. Lester v. U. S., 2 Cir., 234 F.2d 625, 628. The doctrine of unseaworthiness does not extend...