Silver v. American Export Isbrandtsen Lines, Inc.
| Decision Date | 25 March 1970 |
| Docket Number | No. 8515.,8515. |
| Citation | 310 F. Supp. 681 |
| Parties | Fletcher SILVER, Libelant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INCORPORATED, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Leonard B. Sachs, Norfolk, Va., for libelant.
William B. Eley, Norfolk, Va., for defendant.
Libelant, Silver, a longshoreman, brings this action in admiralty against the shipowner, American Export Isbrandtsen Lines, to recover damages for personal injuries sustained by him when he fell from a gondola car during unloading operations alongside the vessel after being struck by a log as it was hoisted from the car to be loaded into the vessel. The principal issue is whether, under the circumstances of this case, the vessel was unseaworthy.
In resolution of various conflicts of testimony, the Court makes the following findings of fact:
Libelant, Silver, a member of a gang of longshoremen, was injured in the early morning hours of May 22, 1964, while loading logs from a gondola car onto the S. S. Exford at the Lamberts Point docks in Norfolk. The walnut logs, fifteen to sixteen feet in length and weighing about 2,500 pounds, were being hoisted from the car into the hold of the ship by means of two twenty-foot running hook wire slings attached to a cargo hook which had a metal-to-metal type triple swivel.
During the course of the loading operation, which had begun the night before, some of the logs had been turning or spinning as they were hoisted according to the testimony of Silver during the time he was working on the gondola car. Breeden, a superintendent for Atlantic and Gulf Stevedores, testified to the contrary, stating that all of the logs which he saw remained straight right into the hold. While each witness has potential bias, we were nonetheless impressed with the demeanor of Silver and think that, as the man working closer to the logs, he would have been more aware of any movement. At the same time Breeden, who was not working as close, may have meant only that there was no pronounced twisting. Accordingly, we find that prior to the accident other logs were twisting but to what degree is not clear, although it is apparent that, at best, the twisting was slight.
Just prior to the accident, Silver and a co-worker hooked a log to the hoisting apparatus and stepped aside for it to be hoisted. Silver went to the forward inshore corner of the car where he stood several feet to the side of the log being lifted with one foot on a log which was even with the top of the car, and the other foot on the edge of the car. Silver then signaled for the log to be lifted and it was raised to a point two to three feet above the car when its upward movement was halted. At this point the log may have swung toward the ship three to four feet and then have twisted, or it may have just twisted, but in either event we find ample evidence that the log did start to twist before it struck Silver. The testimony of Silver that after the accident he could see about a foot of the log hanging over the car indicates that the log did turn at least at some point. On the basis of all the evidence we find that the log was turning slightly at the time that it struck Silver.
It is undisputed that no tag lines were used in this loading operation. It is also undisputed that tag lines have never been used in the Port of Hampton Roads for loading logs of this type. They have, however, been used when loading such items as pilings, steel beams, heavy boxes, automobiles, or telephone poles. They have also, according to one witness, been used in Cuba for the loading of logs.
There was a conflict of testimony as to whether tag lines would have been useful in preventing logs such as these from twisting. The better evidence, however, was that before a log starts to turn, a tag line may be used to prevent it from starting such a turn. Once it starts to turn the tag line would allow some, though not complete control. There was also a dispute as to whether the use of a tag line would have been helpful in preventing this accident. Breeden testified that it would not, but since his testimony was based on his opinion that the log did not twist, but merely swung, his testimony is less persuasive than that of others who thought the line would be useful. Accordingly, we find that use of tag lines would have been one way to minimize the risk of such an accident. We do not find that the use of tag lines would have prevented the accident.
Finally, 29 C.F.R., section 1504.81(f), the Safety and Health Regulations for Longshoring, Subpart H—Handling Cargo, provides that "Loads requiring continuous manual guidance while in motion shall be provided with tag lines." There was a conflict in the testimony as to whether the loads in this case required "continuous manual guidance." We find that in order to move the logs without damage to them or the ship, no tag lines would be needed. In order to reduce the chance of injury to personnel, tag lines would be one way to cut down on the risks as the logs are hoisted. There was, however, no evidence that any manual guidance would be needed after the logs were clear of the car, thus the guidance needed, if any, was not continuous.
Libelant seeks to recover from the shipowner for damages resulting from the accident. It is now settled that the warranty of a seaworthy vessel extends from the shipowner to a longshoreman, if the longshoreman is performing the type of work traditionally done by seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).
The question is whether the shipowner should be liable to the longshoreman for violation of the warranty of seaworthiness, either from the shipowner's failure to supply tag lines for the control of logs as they were hoisted, or because of the alleged operating negligence of the stevedore in failing to instruct the longshoreman to stand in a safer position as the logs were hoisted. The latter question was not urged in argument.
Libelant contends that the failure to use tag lines in this loading operation per se renders the vessel unseaworthy. We do not agree.
The method of loading logs, as described in the findings of fact, was without dispute a reasonably fit means of getting the logs from the car to the hold of the ship, even though there was potential danger to personnel. In substantially every loading or unloading operation there is potential danger to personnel in some degree. While it is true that tag lines would reduce the risk of injury to personnel, it also seems to be equally clear that a longshoreman could simply move out of the way before the log was hoisted. Nothing in the evidence indicates that it would have been impossible for the longshoreman to avoid the potential path of the logs either by climbing down the ladder at the end of the car or by walking to the end of the car away from where the logs were being hoisted. The foregoing statement does not suggest that Silver was guilty of contributory negligence or otherwise assumed the risk of injury, but is made for the purpose of demonstrating the "reasonableness" of the method used.
It was undisputed that tag lines have never been used in the Port of Hampton Roads for loading logs or, to the knowledge of the witnesses in this case, elsewhere on the East Coast with the exception of Cuba. Although we recognize that custom in the trade is not controlling, The T. J. Hooper, 60 F.2d 737 (2 Cir., 1932), we are nevertheless reluctant to rewrite the Longshoring Regulations, prepared by far more knowledgeable persons, in order to require tag lines when there apparently was another simple means to protect personnel. Hence, we hold that the failure to use tag lines did not per se render the vessel unseaworthy.
The question still remains, however, whether there was operating negligence by the stevedore which thereby renders the owners liable under the warranty of seaworthiness as a result of the failure of the stevedore to instruct the longshoreman to stay to the side of the logs as they were being hoisted. While this point was not briefed or stressed in argument, we think it better to consider same. If there was such negligence, then there is a further question whether the plaintiff would be chargeable with contributory negligence for unnecessarily standing in a potentially unsafe place. These questions are interesting ones involving somewhat unsettled positions for this circuit.
At this point we must determine when a ship can be rendered unseaworthy as a result of operating negligence of the stevedore. While the law in this circuit is somewhat confused, other circuits have considered the question.
The Second Circuit in Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, rehearing denied, 386 F.2d 444 (2 Cir., 1967), cert. denied 390 U.S. 1027, 88 S.Ct. 1416, 20 L.Ed.2d 284 (1968)1 and Alexander v. Bethlehem Steel Corp., 382 F.2d 963 (2 Cir., 1967)2 held that, in view of Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967), a ship can be rendered unseaworthy solely on account of the negligence of a longshoreman during loading operations. Thus, according to Judge Edelstein in Mendoza v. A/S J. Ludwig Mowinckels Rederi, 293 F.Supp. 1319 (S.D.N.Y., 1968), the law in the Second Circuit is that operational negligence of a stevedore can render a vessel pro tanto unseaworthy.3
The Fifth Circuit rejects the notion that operating negligence can create "instant unseaworthiness." Antoine v. Lake Charles Stevedores, Inc., 376 F.2d 443 (5 Cir., 1967), cert. denied 389 U.S. 869, 88 S.Ct. 145, 19 L.Ed.2d 146 (1967); Robichaux v. Kerr McGee Oil Industries, Inc., 376 F.2d 447 (5 Cir., 1967); Moye v. Sioux City and New Orleans Barge Lines, Inc., 402 F.2d 238 (5 Cir., 1968); Parker v. Cargill, Inc., 417 F.2d 772 (5 Cir., 1969), cert. denied 397 U.S. 973, 90 S.Ct. 1089, 25 L.Ed.2d 267 (March 3, 1970). At the same time, it has held that...
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Kiesel v. American Trading and Production Corporation, Civ. No. 21002-M.
...custom is not a measure of negligence or seaworthiness, The T. J. Hooper, 60 F.2d 737 (2d Cir. 1932); Silver v. American Export Isbrandtsen Lines, Inc., 310 F.Supp. 681 (E.D.Va.1970), evidence of prevailing industry standards may be considered as some evidence that the ship was not unseawor......