Waterman Steamship Corp. v. Gutierrez, 5887.

• Decision Date: 11 April 1962
• Docket Number: No. 5887.,5887.
• Parties: WATERMAN STEAMSHIP CORP., Respondent, Appellant, v. Federico Marin GUTIERREZ, Libelant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

301 F.2d 415 (1962)

WATERMAN STEAMSHIP CORP., Respondent, Appellant, v. Federico Marin GUTIERREZ, Libelant, Appellee.

No. 5887.

United States Court of Appeals First Circuit.

April 11, 1962.

Antonio M. Bird, San Juan, P. R., with whom Hartzell, Fernandez & Novas, San Juan, P. R., was on brief, for appellant.

Harvey B. Nachman, San Juan, P. R., with whom Nachman & Feldstein, San Juan, P. R., was on brief, for appellee.

Before MAGRUDER^*, ALDRICH and SMITH^*, Circuit Judges.

ALDRICH, Circuit Judge.

This is a libel by a longshoreman for personal injuries sustained on a dock at which respondent's vessel was unloading, allegedly by reason of "improper storage of cargo on said dock." In addition, there were general allegations of unseaworthiness of the vessel and of negligence of its master, officers and crew. The district court made findings in libelant's favor as to unseaworthiness and negligence and assessed damages. It rejected a defense of laches. Respondent appeals.

The accident occurred on October 21, 1956. Libelant was in the employ of a stevedore unloading respondent's vessel pursuant to contract. The first notice respondent received of the claim and, for all that appears, of the injury¹ was when suit was brought on January 9, 1959. By this date more than twice the period of the analogous statute of limitations had elapsed. The court found, "While working on the dock libelant slipped on some beans, twisted his torso and fell upon his buttocks. The injuries sustained by libelant were proximately caused by this unseaworthiness² of the vessel, the failure to furnish libelant with a safe place to work and by the negligence of the respondent." With respect to laches the court found that libelant had shown a sufficient excuse by the fact that he consulted counsel within the statutory period, and concluded that respondent was not prejudiced by the delay because the witnesses remained available and respondent had its own "records indicating the cargo damage."

The first question is the responsibility for the beans. The court found that many of the bean bags were defective; that coopers were employed in sewing them up; that nonetheless beans were spilled from the drafts as they were being swung ashore. "On one occasion, according to the records produced by respondent and admitted into evidence, a bag broke open in mid-air spilling its contents all over the dock. This event occurred while a draft from Hold No. 1 was in mid-air and still attached to the vessel. Hold No. 1 is immediately adjacent to No. 2 forward. Beans scattered about the surface of the pier caused a dangerous condition for the longshoreman. The cargo being discharged was defective and unseaworthy. The ship owner was negligent in permitting the broken and weakened bags to be discharged, when it knew or should have known that injury was likely to result to persons in the service of the ship who had to work on and about the spilled beans. The condition on the pier was caused by the respondent's unseaworthy cargo and its lack of care. In permitting this condition to remain existent, the respondent failed to furnish libelant with a safe place to work."

The quoted portion of the court's opinion contains several errors. In the first place, the respondent's records do not show that the bag broke open in midair, but show that it fell from mid-air, and broke when it hit the deck.³ Secondly, the bag fell, and beans were spilled, whether from there or anywhere else, by no conduct in which respondent was shown to have participated. Cf. Robillard v. A. L. Burbank & Co., D.C.S.D. N.Y.1960, 186 F.Supp. 193, 197. And it is undisputed, with respect to "permitting this condition to remain existent" on the pier, that respondent had neither control of nor even a right to control that locus. The court's findings as to respondent's negligence cannot stand.

There remains the finding of unseaworthiness of the cargo. One speaks of unseaworthy cargo really in terms of result: rather, it is the unsafe condition, created by the cargo, which is felt to be a violation of some absolute duty of the shipowner. We recognize, of course, that a shipowner's duty is not to be evaded by calling a man a longshoreman and placing him in someone else's employ. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. But while labels cannot avoid liability, they should not be used to create it. This is not a case of a defective piece of ship's equipment, or of a dangerous condition aboard the ship. Nor is it a case of a claimant whose work carries him both on and off the vessel. At best, lading, which was not part of the ship, which did not make the ship unsafe, and which had left the ship, is being used to impose absolute liability upon the shipowner for a condition caused by the lading to a shore worker. Some may feel this gangway has been crossed. See, e. g., Hagans v. Ellerman & Bucknall S.S. Co., D.C.E.D.Pa., 1961, 196 F.Supp. 593; Fitzmaurice v. Calmar S.S. Corp., D.C. E.D.Pa., 1961, 198 F.Supp. 304. But it seems to us that to extend such protection disregards the whole origin and purpose of the doctrine of unseaworthiness.⁴ True, such a worker may be broadly argued to be in the service of the ship. But not even in a technical sense was he on or about to go "on a voyage." Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 413, 74 S.Ct. 202, 98 L.Ed. 143. His dangers were not the same. Ibid. We see no difference to a land employee in source, cause, risk, or effect between beans spilled on a dock, or on a trucking platform, or on a warehouse floor in Denver. The very fact that unseaworthiness obligations are "awesome," Kent v. Shell Oil Co., 5 Cir., 1961, 286 F.2d 746, 752, suggests that they should not be handled with prodigality. We are unwilling to recognize one here.

A recent case somewhat close on the facts is Partenweederei MS Belgrano v. Weigel, 9 Cir., 1962, 299 F.2d 897. There libelant was a dock worker engaged in driving a tractor handling lumber on the dock which was about to be loaded onto respondent's vessel. He was struck by a defective ship's boom. The court found that libelant was not performing traditional ship's work within the scope of the obligation of seaworthiness. While the court noted a distinction between cargo not yet connected with the ship's loading gear and...