Vittone v. American President Lines

• Decision Date: 27 July 1964
• Court: California Court of Appeals Court of Appeals
• Parties: Carmine VITTONE, Plaintiff and Respondent, v. AMERICAN PRESIDENT LINES, Defendant and Appellant. Civ. 27907.

Page 758

39 Cal.Rptr. 758

228 Cal.App.2d 689

Carmine VITTONE, Plaintiff and Respondent, v. AMERICAN PRESIDENT LINES, Defendant and Appellant.

Civ. 27907.

District Court of Appeal, Second District, Division 4, California.

July 27, 1964.

Robert Sikes, Los Angeles, for defendant and appellant.

George E. Shibley, Long Beach, Margolis & McTernan, and John T. McTernan, Los Angeles, for plaintiff and respondent.

BURKE, Presiding Justice.

Plaintiff, a longshoreman, was injured while engaged in discharging cargo from aboard the SS President Johnson, a vessel owned and operated by defendant American President Lines. He was employed by the Associated-Banning Company, a stevedoring corporation, an independent contractor performing the unloading operations for defendant. Plaintiff brought an action sounding in negligence and unseaworthiness of vessel under the general maritime law and a jury found in his favor and awarded $50,000 damages against defendant American President Lines for personal injuries suffered by plaintiff. Defendant appeals from the judgment and the appeal involves only the unseaworthiness cause of action and asserted errors of the trial court in giving and refusing instructions pertaining to that issue.

The evidence adduced at the trial was substantially without conflict and a brief summary of it, viewed from the point of view of the prevailing party, follows.

The alleged unseaworthiness of vessel is related to the lack of dunnage between the layers of large steel pipe, their cantline stowage, the pipe being stowed metal to metal, upper tiers resting in the valleys of the lower tiers, and the inadequacy of the gear used in a pickup operation incidental to the discharge of the pipe. Ordinarily, dunnage, consisting of wood planks, is inserted between the layers of pipe in a cargo to permit the ready encirclement of each pipe by a choker line for removal by lifting from the hold by crane operation. Without dunnage, it is necessary to perform a preliminary pickup operation wherein one end of each pipe is lifted about 2 feet, the attending longshoremen then placing a 4"' X 4"' timber under the pipe, upon which the pipe is then lowered. It is then free from the other pipe on which it has rested and a choker line can be applied to it and the pipe lifted from the hold.

Normally four pipes are lifted in the preliminary operation at one time and again lowered, which was being done in the instant case by using a plasterboard bridle which had four hooks on it. When so lifted the pipes are moved out from the wing or side of the hatch to the center of the hatch and lowered on the 4"' X 4"' blocks. The plasterboard bridle is attached to a 'blacksmith' from which run the cables to the cargo booms through a pulley and down onto the power driven winch drum. At the time of the accident here involved the four pipes had been lifted and plaintiff had picked up a 4"' X 4"' block and was trying to place the block under the pipe. When he did so one of the pipes slipped from its hook, hit the 4"' X 4"' block, and it in turn struck plaintiff, breaking his jaw and causing other serious injuries.

The plasterboard bridle method of discharging pipe was contended to be an unsafe method and complaints were made to the supervising stevedore personnel prior to the accident. No complaint was made to defendant ship's personnel. The danger of such method results from the fact that there is no purchase or grip between the metal pipe and metal hook. A safe method, in more common use in the Los Angeles Harbor area, for picking up 40 foot pipes, as here, was the sling and block pickup which involved inserting 4"' X 4"' blocks of 4 to 6 feet in length into each pipe (the pipes here were a little over a foot in diameter) and having a choker-sling wrapped around the protruding ends of the blocks and then lifted. When so lifted pressure is put on the block and it binds against the inside of the pipe preventing the pipe from slipping and falling. There is no metal to metal contact. The plasterboard bridle method is a faster method, however, and enables the stevedoring company to get more production. All the materials necessary to use both methods were available on board the vessel and in good condition at the time plaintiff was injured. All employees engaged in the unloading operations were longshoremen and none a member of the ship's crew; the longshoremen took no orders from the ship's officers but received their supervision from the hatch boss, foreman for the stevedoring company. After the accident the longshoremen changed to the safe choker-sling method, with wooden blocks, to unload the remaining pipe.

Accordingly, the issue on appeal is whether the availability of proper gear on the vessel for a safe method of unloading avoids liability for the defendant shipowner, or the use of the improper gear, the plasterboard bridle method, fixes liability on defendant for the injuries sustained.

The evidence is clear and it is agreed that negligence might have been deemed by the jury to have been established, both in the method of cantline stowage used by defendant, without dunnage, and in the selection by the stevedoring company of the more hazardous method of performing the preliminary pickup operation which caused the accident. However, since the jury's verdict may have been based on the theory of unseaworthiness, the judgment must stand or fall on the issue of whether or not the vessel was, in fact and in law, unseaworthy and whether this issue was submitted to the jury on proper instructions. Plaintiff contends that if unsafe gear was used, even though safe gear was made available by the ship and the selection was made by an independent contractor, the vessel was legally and factually 'unseaworthy' and liability attaches to the ship and her owner; defendant contends that the ship becomes unseaworthy under such circumstances only if safe gear was not made available. The trial court gave an instruction which embodied plaintiff's theory ¹ and refused to give three instructions ² requested by defendant and embodying its theory.

Though the forum herein is the state court of California, the federal maritime laws and decisions are controlling (Pope & Talbot, Inc. v. Hawn, 346 U.S. 406-409, 74 S.Ct. 202, 98 L.Ed. 143; Reynolds v. Royal Mail Lines, D.C., 147 F.Supp. 223, 226). The law does not impose upon a shipowner a duty to provide continuing observation and immediate supervision of work being done by a qualified independent stevedoring contractor in unloading ordinary cargo (Knox v. United States Lines Company, 3 Cir., 294 F.2d 354). 'Unseaworthiness' is explained in Doucette v. Vincent, 1 Cir., 194 F.2d 834, at 837-838 as follows: 'Nor is perfection required of shipowners by the maritime law of seaworthiness for generally stated it is the shipowner's duty under that law to provide a vessel sufficient, that is reasonably adequate, in materials, construction, equipment, stores, officers, men and outfit for the trade or service in which the vessel is employed.'

In The Osceola, 189 U.S. 158, at page 175, 23 S.Ct. 483, at page 487, 47 L.Ed. 760, the obligation of the shipowner is stated as follows: 'That the vessel and her owner are * * * liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship.'

To sustain the trial court, plaintiff relies principally upon the case of Mahnich v. Southern S.S. Co., 321 U.S. 96, 103, 64 S.Ct. 455, 459, 88 L.Ed. 561 (1944), in which the Supreme Court stated: 'We have often had occasion to emphasize the conditions of the seaman's employment, see Socony-Vacuum Oil Co. v. Smith, supra, 305 U.S at pages 430, 431, 59 S.Ct. at page 266, 83 L.Ed. 265 [269, 270], and cases cited, which have been deemed to make him a ward of the admiralty and to place large responsibility for his safety on the owner. He is subject to the rigorous discipline of the sea, and all the conditions of his service constrain him to accept, without critical examination and without protest, working conditions and appliances as commanded by his superior officers. These conditions, which have generated the exacting requirement that the vessel or the owner must provide the seaman with seaworthy appliances with which to do his work, likewise require that safe appliances be furnished when and where the work is to be done. (Emphasis added.) For, as was said in The Osceola, supra [citation], the owner's obligation is 'to supply and keep in order the proper appliances appurtenant to the ship.' (Italics supplied.) It is not enough that the 'Wichita Falls' had on board sound rope which could have been used to make the staging seaworthy, if in fact the staging was unsafe because sound rope was not used. [Citations.]'

A shipowner's liability for injuries caused by gear that is not reasonably fit is 'absolute' and 'a species of liability without fault.' (Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 90 L.Ed. 1099, 1107, 1109 (1946).) Such liability is 'nondelegable' and cannot be escaped by showing it was caused by another or that others contracted to assume the responsibility. (Crumady v. 'Joachim Hendrik Fisser,' 358 U.S. 423, 427, 79 S.Ct. 445, 3 L.Ed.2d 413, 416, 417 (1959); Crawford v. Pope & Talbot, Inc., 206 F.2d 784 (C.A. 3, 1953); Thorson v. Inland Navigation Company, 270 F.2d 432, 77 A.R.L.2d 825 (C.A. 9, 1959.)

As was held in Seas Shipping Co. v. Sieracki, supra, the fortuitous circumstances of a ship worker's employment by the shipowner or a stevedore contractor should not determine the measure of his rights. Such a worker performs a function essential to maritime service aboard the ship.

Clearly, we deal here with a very special type of absolute liability. A landowner who employs an independent moving company to remove pipe from his warehouse, while liable for an unsafe condition of...