decided: December 1, 1959.
ANGELO SANTAMARIA, LIBELANT-APPELLANT,
THE SS OTHEM, FEARNLEY & EGGER, INC., R. MYRSTEN & REDERI, A/B/VOLO, RESPONDENTS-APPELLEES.
Before CLARK, Chief Judge, and HINCKS and WATERMAN, Circuit Judges.
Libelant is a longshoreman who sustained injuries while engaged in unloading operations aboard respondent vessel. After presentation of evidence by both parties the court below entered a decree for respondent, holding that libelant's injuries did not result from any unseaworthy condition of the ship. The opinion is reported at D.C.E.D.N.Y. 1959, 170 F.Supp. 866.
Although libelant urges a different factual setting, the court below found that libelant sustained his injuries as the result of a loss of footing occasioned by rainwater which had left the deck slippery. Since this finding was not clearly erroneous, it is not to be set aside by this court. McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S. Ct. 6, 99 L. Ed. 20 modification denied, 348 U.S. 957, 75 S. Ct. 447, 99 L. Ed. 748; Alison v. United States, 2 Cir., 1958, 251 F.2d 74, 76. Nor do we disagree with the ruling of the court below that a deck made slippery by rainwater does not constitute an unseaworthy condition. See Daniels v. Pacific-Atlantic S.S. Co., D.C.E.D.N.Y.1954, 120 F.Supp. 96, 98, and cases there cited. However, the court below also found that one of the guys on a boom near which libelant was stationed had broken and that libelant left his post and went to the place of his injury in order to examine the condition of the boom. Libelant contends that this broken guy constitutes an unseaworthy condition entitling him to recover from the vessel.
The court below seems to have found that the deck at the location where the injury occurred was no more slippery than the deck at the location where libelant was originally stationed.*fn1 Given such a finding, the broken guy could not have caused the injury. But even if the deck at the scene of the accident was peculiarly slippery, the broken guy cannot be said to have proximately caused the injury for there was no showing that libelant had any duty to repair the boom, or that the appearance of the boom was so alarming as to awaken in libelant fears for his own safety or that of his co-workers. See Jackson v. Pittsburgh S.S. Co., 6 Cir., 1942, 131 F.2d 668, 670.