The opinion of the court was delivered by: BRUCHHAUSEN
After a seven days trial, the jury rendered a verdict in favor of the plaintiff and against the defendant, also suing as a third party plaintiff, in the sum of $ 47,500 and absolved the third party defendant of liability.
The defendant-third party plaintiff now moves for a directed verdict in its favor and for alternative relief.
The action was instituted by the plaintiff, a ship's rigger and boom tester, against Moore-McCormack Lines. Inc., the owner of the S. S. Mormacsurf, to recover damages for personal injuries claimed to have been sustained by the plaintiff on December 23, 1952, by reason of the shipowner's negligence and unseaworthiness of the vessel.
The shipowner impleaded as third party defendant, Eastern Rigging Corp., hereinafter called 'Eastern' or 'the boom testers,' the plaintiff's employer, upon the theory of indemnity.
The shipowner at and prior to the time of the accident was engaged in preparing the vessel for Canadian trade. One of the requirements therefor was that the masts or king posts and the booms be tested by experts in that field, pursuant to prescribed regulations, and the stamping of them by a representative of the American Bureau of Shipping, certifying to the tests.
The S. S. Mormacsurf, as is the case with cargo ships, was fitted with the equipment for the loading and unloading of freight into or out of the hatches or compartments. It consisted of stationary masts or king posts, movable booms or poles, capable of being lowered from an upright to an oblique or horizontal position by steel cables or runners, extending from the winches. The shipowner contracted with Eastern, a concern engaged in the business of testing masts or booms and rigging, authorizing it to test the equipment. Eastern thereupon caused ten of its employees, including the plaintiff to board the vessel on the morning of December 23, 1952. The group was divided into two gangs of about five men each. The first gang, including the plaintiff, lowered the boom to the desired angle for testing at Hatch No. 5 in the aft part of the ship, then at Hatch No. 1, forward, and then proceeded with a similar operation at Hatch No. 2, followed in each case by the second gang, engaged in testing the booms. The accident occurred while the first gang was working at Hatch No. 2 and the second gang was at Hatch No. 1. The latter gang was in the act of applying pressure on the winch cable, measured by a scale attached to the boom, when the king post securing it snapped under the testing strain and broke off at a point about eight feet above the deck and fell in the direction of Hatch No. 2. The plaintiff was working with the second gang near that hatch and aiding in lowering a boom for testing. He was not struck by the falling king post but by the topping cable, attached to the boom at Hatch No. 2, which cable whipped across the deck and wrapped around his leg. The topping cable or lift was operated by hand and used by the workmen to lower the boom. At the time of the crash of the king post, one of the plaintiff's gang was paying out cable, while the plaintiff was taking kinks out of it and feeding it to a co-worker. When the members of the plaintiff's gang ran from their posts at the sound of the crash and gave up control of the topping cable, the boom dropped abruptly, releasing the cable, which snaked across the deck and injured the plaintiff.
The Shipowner was not Liable upon the Ground of Unseaworthiness of the Vessel
Not only did the jury make a special finding that the shipowner did not warrant the seaworthiness of the king post to the plaintiff but the evidence established that the work in which the plaintiff was engaged was not of the nature ordinarily performed by seamen. Therefore, the plaintiff was not in a position to lawfully found a claim upon the ground of unseaworthiness. Bruszewski v. Isthmian S.S. Co., D.C., 66 F.Supp. 210, affirmed in 3 Cir., 163 F.2d 720, certiorari denied 333 U.S. 828, 68 S. Ct. 451, 92 L. Ed. 1113.
As to the Plaintiff's Claim that the Shipowner was Negligent, Including the Contention that a Prior Occurrence was Notice to it that the King Post had been Damaged
The evidence of the prior occurrence on September 9, 1952, came from the plaintiff's witness John Weber and the ship's log. The latter exhibit disclosed that a runner attached to the boom at Hatch No. 1 had snagged on the deck and broken. No mention was made therein of any damage to the king post. However, the witness Weber, a former seaman on the ship, testified that when the runner broke he heard a cracking noise in the direction of the king post, that he made no statement about it to anyone until he related the incident to the plaintiff's attorney, shortly prior to the trial and about four and a half years after the accident. Apparently he made no inspection of the king post and makes no claim that there was a crack in the king post. Not only is there no evidence of a crack in the king post but we have the statement in the brief of the plaintiff's attorneys that 'a mere visual inspection of the king post itself apparently did not disclose whether or not any damage had occurred to the king post as a result of the incident which took place on September 9, 1952.'
The only other evidence which has any relation to the claim of negligence is the testimony of two of the plaintiff's coworkers that they saw some rust spots in the fractured area of the king post, upon examination made after it broke. There is no evidence that they existed or were observable prior to that time.
This leads to a consideration of the duty owed by the shipowner to a business visitor, such as was the plaintiff, and whether the plaintiff's injuries were caused by a violation of such duty.
That duty 'is to use reasonable care to make the premises reasonably safe or else give warning of the danger.' Spaulding v. Parry Nav. Co., 2 Cir., 187 F.2d 257, 260, certiorari denied Parry Nav. Co. v. Todd Shipyards Corp., 342 U.S. 918, 72 S. Ct. 362, 96 L. Ed. 686. The obligation of a shipowner to give such warning, presupposes knowledge on its part of a dangerous or defective condition or its existence and failure to observe it, provided that it was discoverable by a careful inspection. Corrado v. Pennsylvania R. Co., 2 Cir., 171 F.2d 73, certiorari denied336 U.S. 919, 69 S. Ct. 641, 93 L. Ed. 1081. The law does not require a shipowner to engage experts to make such inspection. Wild v. Atlantic Refining Co., 3 Cir., 195 F.2d 151, certiorari denied 344 U.S. 857, 73 S. Ct. 92, 97 L. Ed. 665. In this instance, if there were such a requirement, the ...