Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
This cause comes before us upon appeals by both Strika, the plaintiff, and the Netherlands Ministry of Traffic, the defendant, from a judgment in favor of the plaintiff, a foreman longshoreman, for 90 per cent of damages assessed in his favor, as an award for personal injuries. The plaintiff had commenced one action against the Holland American Line and another against the Rotterdam Lloyd Steamship Company, which eventually, by a series of changes in parties defendant and in the pleadings, were resolved into a single action against the present defendant. Both parties agree that the defendant was the owner of the ship, the failure of whose tackle caused the plaintiff's injuries, although title and possession had passed to it only on the afternoon of the day before the accident happened. The complaint alleged negligence on the part of the defendant in the conduct of the operation, and also that the tackle used was unseaworthy; and the court left to the jury seven questions under Rule 49, which they answered as follows:
(1) The defendant furnished the tackle which failed.
(2) It was not suitable for the purpose.
(3) Its unsuitability caused the injury.
(4) The defendant had no reason to know that it was unsuitable.
(5) The damages are $75,000.
(6) The plaintiff's fault contributed to his injury.
(7) The proportion of his fault is ten percent.
The judge accepted these answers and dismissed the complaint, so far as it depended upon negligence; but he entered judgment for $67,500 upon the allegations of the unseaworthiness of the tackle.The only questions which we find it necessary to decide are: (1) whether it was wrong to dismiss the complaint so far as it was based upon negligence; (2) whether, assuming that the verdict was right that the ship's tackle was not suitable for the purpose, the plaintiff may recover, when he was injured, not on the ship, but on the dock alongside of which she lay; (3) the plaintiff's contributory negligence.
To an understanding of these questions some outline of the facts is necessary. The plaintiff was employed by the Jarka Company, a corporation which had contracted with the United States, the previous owner of the ship, to lade her as she lay alongside a pier on the New Jersey side of the Hudson River. When the plaintiff was leaving work the next day at about 3 P.M. he was told to replace upon its proper hatch a "pontoon" hatch cover which lay on the dock alongside. To do this it was necessary to lift the "pontoon" by the ship's winches, booms and falls, and the injury happened after it had been lifted a short distance from the floor of the dock, at which moment it dropped and caught the plaintiff's leg, causing injuries which made necessary amputation below the knee. The "pontoon" was a heavy single piece of metal, weighing about a ton and used to cover part of the hatchway; it had been placed on the dock that morning, and to lift it back into place it was rigged to the hook of one of the ship's falls by two "bridles." Each "bridle" consisted of two lengths of wire cable, each length having a hook at one end, and the other end being fastened to a single common ring. Each hook was passed into a "slot" at one corner of the "pontoon," and the common ring was passed into the hook at the end of the fall. In this way each "bridle" could lift the "pontoon" at two of its corners, and two "bridles" could lift it at all four corners. Instead of making the two rings fast to each other, so as in effect to make a single "bridle" with four lengths of wire, the rings were left separate on the hook; and in consequence, after the winch had lifted the "pontoon" a short distance from the dock, it tilted, the two rings separated and one of them slipped out of the hook, dropping one end of the "pontoon."
The plaintiff's position - in addition to his charge of negligence - is that two "bridles," instead of one, were unsuitable for the purpose, and made the ship's gear pro tanto unseaworthy, and so the jury found. Both "bridles" belonged to the ship; but other "bridles" were available which could have been used, and which had a single ring with four lengths of wire. These concededly would have been suitable, and the defendant asserts that their presence made the ship seaworthy, even if they were not used. In answer we need only cite Mahnich v. Southern S.S. Co.*fn1 Moreover, there was testimony, some of it coming from the defendant's witnesses, that it was not an approved method to rig two separate "bridles" upon the hook, unless the rings were fastened together. That testimony was enough to support the second answer.
As we have said, the first question is whether the answer of the jury shall stand that the defendant was not guilty of negligence; and that depends upon whether the evidence of the ship's negligence was so one-sided that the judge should have directed a verdict in favor of the plaintiff. That is, however, not before us, because the plaintiff did not ask for a direction on the issue and therefore may not raise it on appeal.*fn2 We come, therefore, to the second question: whether a longshoreman injured ashore by the unseaworthiness of the ship's gear has an action for indemnity against the ship owner. In O'Donnell v. Great Lakes Dredge & Dock Co.,*fn3 the Supreme Court held that a seaman, injured ashore by the owner's negligence, had an actionable claim under § 33 of the Jones Act.*fn4 It interpreted the phrase, "in the course of his employment", as extending beyond his work on the ship, and it supported the power by Congress to deal with transactions ashore, not only as part of its power to regulate interstate commerce, but to modify substantive maritime law, "at least with respect to those matters which traditionally have been within the cognizance of admiralty courts either because they are events occurring on navigable waters * * * or because they are the subject matter of maritime contracts or relate to maritime services", 318 U.S. at page 41, 63 S. Ct. at page 491. It adduced as an instance of jurisdiction depending upon "maritime contracts" or "maritime services," the seaman's right to maintenance and cure for injuries suffered ashore, which "must be taken as an incident to the status of the seaman in the employment of his ship"; a status which Congress has power "to ...