Skibinski v. Waterman Steamship Corporation

• Decision Date: 31 March 1966
• Docket Number: No. 232,Docket 30065.,232
• Citation: 360 F.2d 539
• Parties: Joseph SKIBINSKI, Plaintiff-Appellee, v. WATERMAN STEAMSHIP CORPORATION, Defendant-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

360 F.2d 539 (1966)

Joseph SKIBINSKI, Plaintiff-Appellee, v. WATERMAN STEAMSHIP CORPORATION, Defendant-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-Party Defendant-Appellant.

No. 232, Docket 30065.

United States Court of Appeals Second Circuit.

Argued January 25, 1966.

Decided March 31, 1966.

William A. Blank, Brooklyn, N. Y. (Wilfred L. Davis, New York City, and Robert Halper, Brooklyn, N. Y., on the brief), for appellee.

Joseph Arthur Cohen, New York City, (Sidney A. Schwartz, Alexander, Ash & Schwartz, New York City, of counsel), for appellants.

Before FRIENDLY and HAYS, Circuit Judges, and DOOLING, District Judge.^*

HAYS, Circuit Judge:

We are here concerned with the question of liability for injuries suffered by plaintiff Skibinski, an employee of the International Terminal Operating Co., Inc., a stevedoring concern and the third-party defendant-appellant herein. When Skibinski was injured, he was working in the cargo hold of the defendant's ship Madaket from which Terminal was engaged in unloading a cargo of sugar. The issue is whether Skibinski's injury was caused by the unseaworthiness of the Madaket. We affirm the district court which held that the injury was caused by the ship's unseaworthiness.

There is evidence in the record to support the conclusion that the injury occurred in the following way:

Terminal, in order to facilitate the unloading operation, obtained permission to remove temporarily from the cargo hold a one ton steel ladder that was affixed to the ship's structure by welded steel brackets. Skibinski, a welder, was assigned to use his welding equipment to burn off the ladder and brackets. Three days later, the unloading operation having been completed, Skibinski, and a co-worker named Stuve, returned to the vessel to reaffix the ladder, which was lying on the main deck.

Skibinski and Stuve first welded the brackets and then gave the word to lower the ladder. The ladder was to be lowered by three longshoremen, also in the employ of Terminal. Since there was inadequate space to permit the lowering of the ladder at the place it was to be reaffixed, the longshoremen devised a plan, which was described as follows:

"(1) lowering the ladder through the open middle section of the hatch; (2) laying it down flat on the bottom of the hold; (3) uncoupling the fastening mechanism by which it was lowered; (4) retrieving the fall; (5) lowering the fall again through the opening between the beams and the aft end of the hatch; (6) recoupling the fastening mechanism; (7) dragging the ladder to the aft end of the hold and lifting it into position."

Skibinski v. Waterman Steamship Corporation, 242 F.Supp. 290, 294 (S.D.N.Y. 1965).

In order to lower the ladder through the hatch the longshoremen inserted an open mouth, "S" shaped cargo hook under the top rung of the ladder. Then, with one of the longshoremen operating the winch, the ladder was raised from the deck, positioned over the middle section of the hatch, and lowered. When the foot of the ladder reached the floor of the hold, the ladder disengaged itself from the hook, and rebounded against Skibinski, who, as the district court found, "was in the wings bending over his tools in preparation for his task."

The district court held that "the use of the open mouth cargo hook and the falling ladder were proximate causes of plaintiff's injury."

Before reaching the principal issue itself, we must determine whether Skibinski was within the class protected by the warranty of seaworthiness. The resolution of this issue turns upon whether Skibinski was engaged in the type of work traditionally done by seamen. See, e. g., Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 412-413, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 98-99, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Lawlor v. Socony-Vacuum Oil Company, 275 F.2d 599, 602, 84 A.L.R.2d 613 (2d Cir. 1960). In Pope & Talbot, Inc. v. Hawn, supra, 346 U.S. at 413, 74 S.Ct. at 207, where a shore based carpenter, employed by an independent contractor, was injured while repairing grain loading equipment, the Supreme Court held:

"* * * Legal protection was not based on the name `stevedore\' but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness. The ship on which Hawn was hurt was being loaded when the grain loading equipment developed a slight defect. Hawn was put to work on it so that the loading could go on at once. There he was hurt. His need for protection from unseaworthiness was neither more nor less than that of the stevedores then working with him on the ship or of seamen who had been or were about to go on a voyage. All were subjected to the same danger. All were entitled to like treatment under law."

See The Tungus v. Skovgaard, 358 U.S. 588, 595 n. 9, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959).

Here, Skibinski had been working steadily repairing sugar ships for about four years prior to the accident. The work which he performed often required no welding at all. Wheeler, an expert witness, who was called by appellants, answered affirmatively the district court's question:

"As a matter of tradition and custom in the days prior to the advent of steel ladders welded to brackets on the ship\'s structure, would it have been the duty and function of a member of the vessel\'s crew to affix, remove or replace a ladder in the ship\'s hold, when necessary or desirable, in relation to loading or unloading operations?"

"That the owner seeks to have * * * a traditional seamen's job done with the advantages of more modern divisions of labor does not minimize the worker's hazard and should not nullify his protection." Seas Shipping Co. v. Sieracki, 328 U.S. 85, 96, 66 S.Ct. 872, 878, 90 L.Ed. 1099 (1946).

The district court was correct in finding that Skibinski was within the coverage of the warranty of seaworthiness.

On the issue of seaworthiness appellants argue that the "misuse of seaworthy equipment by plaintiff's co-workers in putting it to an unintended use, and their failure to properly use the proper equipment available to them and in their hands, falls without the ambit of the warranty of seaworthiness."

The open mouth hook used by the three riggers to lower the ladder into the hatch was unsuitable for the use to which it was put. Improper use of otherwise sound equipment may give rise to a condition of unseaworthiness. See Reid v. Quebec Paper Sales & Transportation Company, 340 F.2d 34 (2d Cir. 1965); Grillea v. United States, 232 F.2d 919 (2d Cir. 1956). Unseaworthiness is not excused on the ground that it was caused by the acts of fellow servants. See Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); cf. Crumady v. The J. H. Fisser, 358 U.S. 423, 427, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). Nor is it excused because proper equipment was available but went unused. See Mahnich v. Southern S.S. Co., supra; Strika v. Netherlands Ministry of Traffic, 185 F.2d 555, 556 (2d Cir. 1950).

This case also presents the question of whether the defect "should be considered as an incident in a continuous course of operation" and not as an unfitness of the ship. Grillea v. United States, 232 F.2d 919, 922 (2d Cir. 1956). In defining unseaworthiness we are not concerned with the conduct or process by which fitness is changed to unfitness. Our focus is upon the resulting condition of the ship. See Puddu v. Royal Netherlands Steamship Company, 303 F.2d 752, 757 (2d Cir.), cert. denied, 371 U.S. 840, 83 S.Ct. 67, 9 L.Ed.2d 75 (1962) (Hays, J., concurring).

Here, the longshoremen, by improperly using an open mouth hook, fashioned an apparatus which was patently unsuitable for the job to which it was put. The use of this apparatus took a substantial amount of time, so that the apparatus became part of the Madaket's equipment. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1962).

Recently, in Reid v. Quebec Paper Sales & Transportation Company, 340 F.2d 34, 35 (2d Cir. 1965), where a portable ladder was left unsecured, we said:

"Under the circumstances it was necessary for the ladder to be secured in some fashion when it was being used, and unless it was so secured, it was unfit for its intended use. An unsecured and dangling ladder under the conditions existing at the time of the accident posed a serious threat to the safety of those standing below in the hold, regardless of whether the shipowner knew it was unsecured and regardless of how quickly this threat materialized."

See Strika v. Netherlands Ministry of Traffic, supra; Grillea v. United States, supra.

Massa v. C. A. Venezuelan Navigacion 332 F.2d 779 (2d Cir. 1964); Spinelli v. Isthmian S.S. Co., 326 F.2d 870 (2d Cir.), cert. denied, 377 U.S. 935, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964) and Puddu v. Royal Netherlands S.S. Co., 303 F.2d 752 (2d Cir.), cert. denied, 371 U.S. 840, 83 S.Ct. 67, 9 L.Ed.2d 75 (1962), are all distinguishable since they were thought to involve transitory situations which had not yet ripened into unseaworthiness. Each arose "as a momentary step or phase in the progress of work on board," and was "considered as an incident in a continuous course of operation." Grillea v. United States, supra, 232 F.2d at 922.

On the basis of the evidence before it the trial court was justified in holding that Skibinski's injury resulted from the unseaworthiness of the ship.

Appellants claim that Skibinski was contributorily negligent because at the time of the accident he was beneath the center of the hatch with his hands grasping the descending ladder. The argument is predicated upon the testimony of Stuve, Skibinski's co-worker, and inferences to be drawn from the location of appellee's injuries. Skibinski contends that he was against the skin of the ship, with his back to the space beneath the center of the hatch, and was bending over picking up tools, when the ladder crashed to the floor and...