Simmons v. GULF AND SOUTH AMERICAN STEAMSHIP COMPANY

• Decision Date: 28 September 1966
• Docket Number: No. 5845.,5845.
• Citation: 260 F. Supp. 525
• Parties: Edward Cabon SIMMONS, Libelant, v. GULF AND SOUTH AMERICAN STEAMSHIP COMPANY, Inc., Respondent.
• Court: U.S. District Court — Eastern District of Louisiana

260 F. Supp. 525

Edward Cabon SIMMONS, Libelant, v. GULF AND SOUTH AMERICAN STEAMSHIP COMPANY, Inc., Respondent.

No. 5845.

United States District Court E. D. Louisiana, New Orleans Division.

September 28, 1966.

Edgar N. Quillin, Arabi, La., John Sidney Brown, Charles A. Arceneaux, New Orleans, La., for libelant.

Terriberry, Rault, Carroll, Yancey & Farrell, Maurie D. Yager, William E. Wright, New Orleans, La., for respondent.

Lemle & Kelleher, Charles Kohlmeyer, Jr., Thomas W. Thorne, Jr., New Orleans, La., for respondent-impleaded and intervenor.

IN ADMIRALTY

AINSWORTH, Circuit Judge:^*

This libel in personam was filed by Edward Cabon Simmons against Gulf and South American Steamship Company, Inc., for damages growing out of personal injuries sustained by Simmons on November 15, 1961. Simmons, a longshoreman employed by T. Smith and Son, Inc., was working aboard respondent's (Gulf) vessel, the GULF TRADER, docked in the Port of New Orleans.

The libel is based on alleged unseaworthiness of the vessel and failure to provide the longshoreman with a safe place to work. Respondent Gulf impleaded Smith, an independent contract stevedore, for indemnification (including attorney's fees, costs and expenses) on the basis of the Ryan Doctrine,¹ claiming that if Simmons was injured Smith had breached its implied warranty of workmanlike performance of a stevedore to a vessel. Smith has also cross-libeled as intervenor for medical expenses and compensation which it has already paid libelant under the Longshoremen's and Harbor Workers' Compensation Act.²

On November 15, 1961, Simmons and his fellow longshoremen, all employed by Smith, the stevedoring contractor, began their work on the night shift aboard the GULF TRADER at 6:00 p. m. The vessel had already called at several Gulf ports and was partially loaded. Libelant was working as lead-off man on the offshore gang in the No. 1 upper tween deck. The gang in this hatch consisted of eight longshoremen, four each constituting the inshore and offshore gangs. The No. 1 Hatch was already partially loaded with cargo stowed in the after end of the hatch and in the offshore wing. The longshoremen began loading in the area and somewhere between 8:30 and 9:30 p. m. the work ceased for an unspecified reason.³ The longshoremen began playing cards in the lighted area awaiting resumption of work. The foreman was not present, being up on deck. Libelant, the lead-off man, did not play cards and began straightening out and restowing cargo in the offshore wing, including a number of small boxes which were scattered about. He came upon one large wooden box about 5 feet by 3½ feet which he found upended and resting partway on the lower batten of the vessel.⁴ The box was tilted, about half of it resting on the batten and the balance on the deck of the ship. It was a high box reaching up to Simmons' chin, was in a damaged condition, and some of the wooden boards were split. Its weight was variously estimated at between 300 to 400 pounds up to 1,100 to 1,200 pounds. Simmons had found the box when he went into the hatch and decided it should be moved because it was leaning and in danger of falling and was an obvious hazard. Since the next work to be done was to be around the box, he believed that this cargo would be unsafe and that it was his place as lead-off man to straighten the box and move it off of the batten to the deck. He asked his nephew, Otis Simmons, a member of the inshore gang, to assist him in moving the box. His regular partner was playing cards at the time and Otis was agreeable to helping him. Libelant held the box, using his longshoreman's hand hook to grasp it, and Otis Simmons, on the other side, placed his hook in the box and attempted to pull it away and twist it around so that it would sit up straight on the deck. In doing so, Otis' hook slipped and broke out of the damage, splintered box and Otis lost his hold which in turn threw the entire weight of the box which fell on libelant and caused injury to his lower back. Libelant continued to work but finally had to stop because he was in severe pain. On the following day his employer sent him to receive medical attention and he attempted to work after treatment but was unable to do so. His injury was then diagnosed as a herniated intervertebral disc and a lumbar laminectomy was performed on him on February 28, 1962.

There are numerous conflicts in the evidence and respondents, Gulf and Smith, vigorously assert that Simmons and his witnesses are unworthy of belief and that he was not and could not have been injured on the date or in the manner he described.⁵ They point to numerous conflicts in his testimony at the trial compared with his discovery deposition taken more than two years before. Respondents also introduced evidence as to the actual cargo stowed on the vessel in the No. 1 Hatch of the upper tween deck to the effect that there was no box of this size or weight stowed in the area either before the vessel arrived at New Orleans for further loading or at any time during loading operations in New Orleans, and also to show that so much cargo had already been loaded at the time as to make it physically impossible for such a box to be situated in the area, there being no room for it. Respondents have analyzed every detail of the testimony given at the trial and on deposition to show inconsistencies and conflicts. They ask: Where did the large box come from which was resting on the batten? Who loaded it? Why was it not seen by Smith supervisory personnel or the vessel's crew? They ask why Simmons did not state on discovery that he had a witness to the accident (i. e., Cherryfield Butler, who testified at the trial). They point out that Simmons, in discovery testimony, said he reported the accident to his foreman, White, but at the trial said he reported the incident to the water boy, Mendoza. They show that Simmons failed to mention that the box was badly splintered when he testified on discovery as opposed to his trial testimony. At the trial Simmons testified that he was straightening out scattered boxes in the hatch, in the offshore wing, but no mention was made of this in his discovery deposition. Simmons was involved in an automobile accident six months before the present injury, and admitted this at the trial, but on pretrial deposition denied previous accident to his back.⁶ Other discrepancies in testimony as to de tails are pointed out, all of which we have considered. At times Simmons was not the most lucid of witnesses, but consideration must be given for his lack of education and for the fact that the trial occurred more than four years after the incident and more than two years after the giving of his discovery deposition. However, on the basic essential details pertaining to where the box was located, its size, weight and condition, its position upended on the batten of the vessel, the slipping of Otis Simmons' hook while he was "walking" the box around, and the manner of the weight of the box being thrown on libelant causing him to bend back severely, libelant and his witnesses, Otis Simmons and Cherryfield Butler, are in substantial agreement and their testimony is consistent.

Simmons testified that he found the box in the hatch when he went to work in the area. Its presence in the No. 1 Hatch is in conflict with the stowage plans and records of the vessel, but nevertheless the direct testimony of three witnesses is that it was there, and we believe the evidence preponderates in favor of a holding that Simmons was injured in moving a large, heavy and damaged box which was improperly stowed on the vessel by being upended against the batten at the time. Substantial corroboration of the basic essential facts testified to by libelant is found in the testimony of Otis Simmons and Cherryfield Butler. Butler was a member of the longshoremen's gang and observed the large box improperly stowed and heard it fall and went to libelant's assistance after the accident.

Both Simmons and his nephew were experienced longshoremen and the large box ordinarily could be straightened out and placed on the deck of the vessel without too much difficulty. Had it not been improperly stowed and not been in a damaged condition, the accident would not have occurred. The manner of handling the box by the two longshoremen was not unusual, and we find no fault on the part of libelant in so doing.

We hold, therefore, that the accident occurred in the manner described and that Simmons received disabling injuries as a result of the unseaworthy condition of the GULF TRADER due to improper stowage of the large box.

The warranty of seaworthiness applies to longshoremen who perform traditional duties of seamen aboard vessels because they are doing seaman's work and incurring a seaman's hazards. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). It is essentially a species of liability without fault limited by conceptions of negligence not contractual in character. Seas Shipping Co. v. Sieracki, supra. This obligation is nondelegable and the shipowner cannot contract it away by employment of an independent stevedore who is in control of loading and unloading the vessel. Petterson v. Alaska...