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April 13, 1948


The opinion of the court was delivered by: HULBERT

The Circuit Court of Appeals (Second Circuit) affirmed a decree of this court (Militano v. United States, 156 F.2d 599) dismissing a libel in a suit in Admiralty against the United States of America, to recover damages for personal injuries, sustained by Joseph Militano, a longshoreman, employed on the docks at the United States Army Base in Brooklyn, New York. Militano was transferred to the S/S Benjamin Hawkins lying at one of the piers at the Army Base and loading government owned cargo, to operated a winch at hatch No. 5. The vessel, upon which Militano was injured, was owned by the United States of America and operated under a general agency agreement by defendant, States Marine Corporation.

At the time the Admiralty cause came on for trial, libelant's advocate requested that a civil action, brought against the operating agent of the vessel and then awaiting trial on the Jury Calendar, be heard at the same time. This was consented to, trial by a jury was duly waived and, at the conclusion of the case, the complaint was dismissed, and the judgment entered accordingly was reversed on appeal, the cause being remanded for further proceedings. 156 F.2d 599.

 Both appeals were heard on the same record. A stipulation entered into between the litigants was not included therein, but for clarity, is quoted here from the stenographic minutes:

 'Stipulated by and between the attorneys for the parties in the civil cause No. 24 -- 344, plaintiff being present and having been first fully advised by his counsel, assenting hereto, that the trial of the issues in this cause to a jury is waived.

 'Further stipulated by and between the Proctors for the respective parties in Admiralty cause No. 128 -- 77 that this case may be taken from the Admiralty day calendar and consolidated for trial with the civil cause above mentioned.'

 The complaint in the civil action contained an allegation that it was predicated upon the Jones Act, 46 U.S.C.A. § 688. But counsel for the plaintiff conceded upon the trial that the Jones Act was inapplicable and, since there was no diversity of citizenship, the Court was without jurisdiction to hear and determine that cause. Upon the assumption that plaintiff might convert his claim into a suit in Admiralty, 'stating an ordinary claim for negligence' it was so treated in order that plaintiff 'might have his day in Court.'

 After trial, this Court in the civil action made, inter alia, two conclusions of law, quoted in the opinion of the Appellate Court. The Circuit Judge writing for that Court pointed out that the trial judge had stated in his opinion that he was unable to perceive upon what theory the States Marine Corporation could be held liable for negligence, and stated that he did not feel sure that the trial judge would have made the first finding quoted, if he had considered the States Marine Corporation, under its agency agreement, the owner pro hac vice.

 The opinion of the Circuit Court of Appeals further points out that the rule of law applicable in this case was re-emphasized in Hust v. Moore-McCormack Lines, 328 U.S. 707, 66 S. Ct. 1218, 90 L. Ed. 1534. In the instant case, this Court's opinion was dated and filed December 20, 1944.

 The United States Supreme Court has since had occasion to express itself in Caldarola v. Eckert, 332 U.S. 155, 67 S. Ct. 1569, 91 L. Ed. 1968, and the Circuit Court of Appeals (Second Circuit) in Shilman v. United States of America War Shipping Administration and Grace Line, Inc., 2 Cir., 1948, 164 F.2d 649, 653, certiorari denied, 1948, 68 S. Ct. 608 per A. N. Hand, C.J., (decided Dec. 4, 1947) stated:

 'In neither the Hust nor the Caldarola decisions did the majority of the court hold the agent to be the owner of the vessel pro hac vice.'

 Cf. Buro v. American Petroleum Transport Corp. et al., D.C., 1948, 75 F.Supp. 371.

 But it is neither necessary, nor does it seem appropriate, for this Court to interpret the Hust or Caldarola cases as applied to this litigation. This Court has read and re-read and weighed and re-weighed the testimony in this case. The S/S Benjamin Hawkins was a vessel of recent construction and its equipment was new. It was provided with spare parts including an extra steel cable. When the plaintiff was transferred from the dock to the vessel as a winch operator, about 15 minutes before the accident happened, he lowered the draft and discovered when he attempted to raise it, that the cable was loose on the drum. He tried to adjust it and his gloved hand caught on the loose wire ends or 'fish-hooks.' These so-called 'fish-hooks' are likely to appear at any time in the operation of the cable, from usage. The new spare cable was available for substitution. It is hardly to be expected that such substitution would have been ordered by the officers or crew of the ship as the agents or servants of the operating corporation, unless the presence of the 'fish-hooks' had come to their attention or had been discovered with reasonable diligence.

 But there is an additional factor in the plaintiff's case. According to his testimony he was endeavoring to adjust the loose cable on the drum. He did not suspend operation for that purpose; he did not call upon the ship's officers or crew; he undertook to do the job himself. As the cable continued to move, his glove caught in the 'fish-hook' and his hand was dragged up to the gin block and drawn into it. There was an emergency foot brake in addition to the usual method, available to stop the drum instantly. The plaintiff failed to use it, but when the attention of a fellow servant was attracted by his outcry, he crossed over from the opposite wince and stopped the movement of the cable promptly by use of the foot brake.

 This court cannot persuade itself, in the circumstances of this case, that the ship was unseaworthy, or that the injury to the plaintiff was due to any negligence on the part of the defendant, and accordingly makes the ...

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