Shenker v. United States

• Decision Date: 21 August 1963
• Docket Number: Docket 27949.,No. 315,315
• Citation: 322 F.2d 622
• Parties: Maxwell SHENKER, Libelant-Appellee, v. UNITED STATES of America, Respondent-Appellant-Appellee, v. AMERICAN STEVEDORES, INC., Respondent-Impleaded-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

322 F.2d 622 (1963)

Maxwell SHENKER, Libelant-Appellee, v. UNITED STATES of America, Respondent-Appellant-Appellee, v. AMERICAN STEVEDORES, INC., Respondent-Impleaded-Appellant.

No. 315, Docket 27949.

United States Court of Appeals Second Circuit.

Argued May 7, 1963.

Decided August 21, 1963.

Michael J. Kenny, New York City (George J. Conway, New York City, on the brief), for respondent-impleaded-appellant.

Stanley P. Danzig, New York City (Fuchsberg & Fuchsberg, New York City, on the brief), for libelant-appellee.

Philip A. Berns, Atty., Admiralty & Shipping Section, Dept. of Justice, Washington, D. C. (John W. Douglas, Asst. Atty. Gen., Joseph P. Hoey, U. S. Atty., Leavenworth Colby, Chief Admiralty & Shipping Section, Dept. of Justice, Morton S. Hollander, Chief, Appellate Section, Civil Div., Dept. of Justice and Louis E. Greco, Atty. in Charge, New York Office, Admiralty & Shipping Section, Dept. of Justice, on the brief), for respondent-appellant-appellee.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

This is an appeal by the United States, defendant below, and by American Stevedores, Inc., which was impleaded as defendant, from an interlocutory decree in admiralty entered in the United States District Court for the Eastern District of New York after a trial before Judge Rosling, sitting without a jury. The decree awarded a judgment in the amount of $12,500 to the libelant, Maxwell Shenker.

Shenker is a stevedore timekeeper who was injured on May 28, 1957, while aboard the Lt. Robert Craig, a naval vessel owned and operated by the United States which was moored at the Brooklyn Army Terminal. Asserting jurisdiction under the Public Vessels Act, 46 U.S.C. §§ 781-790, he brought suit against the United States, alleging unseaworthiness and negligence. The United States then impleaded as defendant American Stevedores, the stevedoring contractor which employed Shenker, seeking indemnity from it, under the terms of an express contract between the parties, for any recovery which Shenker might have.

At the close of all the evidence, the district court in an unreported opinion held that the United States was liable to Shenker because of the unseaworthiness of the Lt. Robert Craig, "but that libelant's own fault contributed in equal degree to the accident." Damages of $25,000 were found and a judgment of $12,500 was entered since the court's finding that libelant's contributory negligence was 50 per cent responsible for the accident resulted as a matter of law in a reduction by 50 per cent of the total amount of damages to which he would otherwise have been entitled. Ktistakis v. United Cross Navigation Corp., 316 F.2d 869 (2 Cir., 1963); Dunbar v. Henry DuBois' Sons Co., 275 F.2d 304 (2 Cir.), cert. denied, 364 U.S. 815, 81 S. Ct. 45, 5 L.Ed.2d 46 (1960); Boat Dagny, Inc. v. Todd, 224 F.2d 208 (1 Cir., 1955). Libelant's claim was disallowed to the extent that it rested upon an allegation that the United States was negligent. Cf. Poignant v. United States, 225 F.2d 595 (2 Cir., 1955). The district court further held that the United States, under the terms of its contract with American Stevedores, was entitled to indemnification from the stevedoring contractor in the amount which it was required to pay to Shenker.

The United States appeals from the judgment in favor of libelant, urging in the alternative that if that judgment is affirmed, the judgment awarding it indemnity against American Stevedores also be affirmed. American Stevedores appeals from the judgment in favor of libelant and from the indemnity judgment in favor of the United States. Shenker, resting upon his judgment, has not appealed; there is thus no challenge by any party to the district court's findings that Shenker was contributorily negligent and in a degree that was 50 per cent responsible for causing his injuries.

The findings of fact of the district court are amply supported by the record and we sustain them as not clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954). Briefly stated, they present the following picture of the events leading to the accident in which Shenker was injured.

On May 28, 1957, Shenker, who was then 62 years old, was performing his duties as timekeeper for American Stevedores at a pier at the Brooklyn Army Terminal. The Lt. Robert Craig had been moored starboard side to the pier since May 22 while longshoremen employed by American Stevedores, working under a governmental contract, discharged and loaded the vessel's cargo. Shenker worked from an office at the pier. On the day of the accident he had been instructed by his supervisor, one Perrone, who was the head timekeeper, to ascertain when the stevedores who were working aboard the ship would quit work that day. After attempting to obtain the information by telephone and receiving no answer, Shenker decided to go aboard the ship to consult with Domenic Judice, the American Stevedores foreman in charge.

Shenker boarded the ship shortly before 2 p.m., by means of the starboard accommodation ladder. Once aboard he turned right and walked forward along the starboard side of the main deck until he saw Judice walking along the portside of the main deck. Shenker yelled to Judice in order to attract his attention. When he noticed Shenker, Judice waved and beckoned to him. Judice mounted the No. 2 hatch from its portside and Shenker mounted it from the starboard side. The hatch, a box-like structure measuring 24 feet long and slightly more than 22 feet wide, was raised about 40 inches above the main deck and had been covered with protective tarpaulins and battened down. The two men met at approximately the center of the hatch and engaged in a conversation for a minute or two about whether the stevedores would complete the cargo operations before five o'clock. When the conversation was completed, they proceeded to walk together to the starboard side of the hatch.

Shenker intended to get off the hatch by "squatting down" at the edge of it, placing his hand on the tarpaulin for support, and easing himself down onto the deck. However, when he and Judice came to within a few feet of the starboard side of the hatch, he unexpectedly stubbed his toe against a piece of dunnage — a plank of lumber about four feet long, a foot wide, and an inch thick — which had been lying on the hatch but which neither man had seen earlier. Shenker pitched forward and fell to the deck, the board falling with him. He sustained multiple injuries which necessitated a lengthy period of hospitalization and medical care, and was left with a marked limp.

On cross-examination Shenker was asked:

"Q. And as you walked — how far a distance did you walk from where you were standing in the center of the hatch, talking to Mr. Judice? How far did you walk over to the edge of the hatch in distance? A. Maybe ten, twelve feet.

"Q. During that ten or twelve feet, did you have occasion once to look down where you were walking and to look ahead of you? A. No, I didn\'t. We were looking and talking to each other, looking at each other."

In finding on these facts that Shenker was contributorily negligent, the district court said, "His very unfamiliarity with the vessel which serves him in his disclaimer of knowledge of routes less perilous than the one he selected, called upon him to exercise a commensurately greater caution * * *. A minimal regard for his own safety demanded that he look about him as he walked in alien surroundings — not in the unobservant fashion he adopted wherein he was oblivious to lurking danger underfoot."

I.

We deal first with the challenges made by appellants to Shenker's right to recover.

Under legal principles now well established, a ship and its owner are liable to indemnify a seaman for injuries caused by the unseaworthiness of the vessel or its appurtenant appliances and equipment. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903); Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944). See Note, 76 Harv.L.Rev. 819 (1963). The shipowner's duty to furnish a seaworthy ship is not a duty to furnish an accident-free ship; "it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960); Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Massa v. C. A. Venezuelan Navigacion, 298 F.2d 239 (2 Cir., 1962). "Thus, the concept of the unseaworthiness of a ship is a relative one, dependent for definition in each instance upon the circumstances in which her fitness is drawn into question." Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223, 227 (2 Cir., 1963).

The district court found that the Lt. Robert Craig was unseaworthy because of the unaccounted presence on the No. 2 hatch of the plank of lumber over which Shenker tripped. It held that the presence of such "a random object, not serviceable as dunnage for any stevedoring use," created a "danger, not integral to the necessary operations of the ship" which in the circumstances rendered the ship less than reasonably fit for its intended use. It has often been held that dangerous and uncertain conditions underfoot may constitute transitory unseaworthiness. See, e. g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Ktistakis v. United Cross Navigation Corp., 316 F.2d 869 (2 Cir., 1963); Pinto v. States Marine Corp., 296 F.2d 1 (2 Cir., 1961), cert. denied, 369 U.S. 843, 82 S.Ct. 874, 7 L.Ed.2d 847 (1962); Blier v. United States Lines Co., 286 F.2d 920 (2 Cir.), cert. denied, 368 U.S. 836, 82 S.Ct. 32, 7 L.Ed.2d 37 (1961). The district court here found that in walking on the hatch Shenker and Judice were giving it an intended use because they "were following a customary practice" that was "foreseeable as a likely one by the owner and...