The opinion of the court was delivered by: CAMPBELL
CAMPBELL, District Judge.
This is a motion made by the plaintiff for an order vacating the judgment entered herein on May 8, 1941, and granting to the plaintiff a new trial, on the ground that the Court erred in granting defendant's motion to dismiss the complaint at the end of the plaintiff's case, and for such other and further relief as to the Court may seem just.
On July 24, 1940, the defendant, as owner thereof, turned over its Steamship Cantuaria to the independent contracting stevedore, Universal Terminal & Stevedoring Company, to discharge the cargo from said vessel, consigned to New York, which meant the Port of New York. On that day the plaintiff was in the employ of the said stevedores as a holdman, but was not an employee of the said Steamship Cantuaria, or her owner the defendant.
When the plaintiff came on board he, as instructed by his employer, proceeded to No. 4 hatch to assist in discharging that portion of the cargo destined for New York, which consisted of coffee beans, and was in the forward part of hatch No. 4. In the after part of that hatch was stowed the portion of the cargo destined for Philadelphia consisting of cocoa beans, which were stowed from the deck to the beams on the under side of the deck above and in the hatch square up to the beams on which the hatch cover rested.
The hatch covers and beams at least, if not all, those over the after part were removed by the said contracting stevedore, its agents, or servants. The work of discharging the cargo generally was under the orders and control of Charlie Johnson, the stevedore's Superintendent, and particularly the cargo for New York from hatch No. 4 was under the direction and control of the hatch boss, Fucelli, the representative of the independent contracting stevedore, and the subordinate of the Superintendent Johnson, and no officer of the ship, or her owner, was present at hatch No. 4 at any time during the unloading, or discharging of the cargo from said hatch, nor did any such officer give any order or direction with reference to the same.
At the time the Steamship Cantuaria was turned over to the independent contracting stevedore, and at the time the plaintiff commenced to work, the plaintiff was presented with safe access to hatch No. 4, and a safe place therein to work.
There was no defect in the vessel, or any of its appliances, or equipment.
Frequently in the testimony the word "bulkhead" is used to describe the forward line of the cargo destined for Philadelphia, in the after part of the hatch, but that word was not used to describe any wooden or metal structure, but simply to describe a method of storage of the bags of cargo for Philadelphia.
After the holdmen had been working discharging the New York cargo for about an hour, they discovered that bags on the top of the forward line of the Philadelphia cargo were leaning forward, and they believed it was dangerous to them, and they notified the hatch boss who, after looking at it, ordered them to remove several drafts which they did about 50 bags in all of the Philadelphia cargo. The holdmen wanted to remove more, but the hatch boss directed them to knock off and resume the discharge of the New York cargo.
Before removing any of the Philadelphia cargo the hatch boss obtained the permission of the head assorter, an employee of the Universal Terminal & Stevedoring Company, and did not notify the vessel, or any of her officers, of the condition.
The only member of the crew of the ship, who was present, was a sailor whose duty it was to point out cargo destined for discharge at various ports. The sailor was not an officer of the ship, but only a member of the crew, and the hatch boss took no orders from that sailor. Fucelli testified that he asked the sailor for rope to lash the cargo. The sailor left the hatch, and about 15 or 20 minutes thereafter, and before he returned the accident occurred. Work continued after the sailor left, and the accident occurred about one-half hour after they had resumed work when several bags from the top of the Philadelphia cargo fell, and the plaintiff, who was working below, was struck on the back.
No authorities need be cited to show that on a motion to dismiss the plaintiff is entitled to the best inferences deductible from the evidence.
The outstanding fact is, however, that the ship owner turned the ship over to an independent contractor in a safe condition for the purpose of discharging her cargo, destined for New York; that no officer of the ship gave any orders with reference to, or supervised the discharging of the ship's cargo, and that the plaintiff was the employee of such independent contractor, and not of the ship or her owner, and that he took no orders from any officer of the ship, or from the ship's owner. Therefore, the ship and her owners are not liable for the injuries to plaintiff. The Clan Graham, D.C., 163 F. 961; Long v. Silver Line, Limited, 2 Cir., 48 F.2d 15, 17; The Hindustan, D.C., 37 F.2d 932, 933; The Kongosan Maru, 9 Cir., 292 F. 801; Navigazione Alta Italia, of Turin, Italy, et al. v. Vale, 5 Cir., 221 F. 413; The Saranac, D.C., 132 F. 936; The Auchenarden, 100 F. 895; The Wm. F. Babcock, D.C., 31 F. 418.
No question of master and servant is in issue here, as there was no contractual relation between the ship, or her owner, and the plaintiff, but the plaintiff was the ...