Before WATERMAN, SMITH and MARSHALL, Circuit Judges.
Appellant, a longshoreman, was in the employ of the stevedore corporation, Maude James, Inc., when that corporation was loading refrigerator cargo into a reefer hatch of defendant's vessel, M.S Helena. Plaintiff, during this operation, was the gangwayman standing by. Presumably, if there were need to give signals to winchmen, that would have been appellant's function. Appellant was injured when one of the booms, part of the ship's equipment with which the longshoremen were working, buckled and broke.
Appellant brought suit against defendant Royal Netherlands Steamship Company, the owner of the vessel, alleging negligence and unseaworthiness.*fn1 Three other members of the stevedore gang were also injured and commenced actions against the defendant. The case of one of these other longshoremen was to be tried by a judge with jury, and appellant stipulated that his case be tried simultaneously by that same judge sitting without jury.
In the jury case there was a verdict for the defendant after a prolonged trial. Thereafter in appellant's case the trial judge filed a written opinion containing findings of fact and conclusions of law and entered a decree dismissing the action. From this decree, adverse to him, the longshoreman appeals.
In order to prevail, appellant must satisfy us that the findings below are clearly erroneous and that, though there may be evidence to support them, we are left, after reviewing the entire evidence, with the definite and firm conviction that a mistake was committed. McAllister v. United States, 348 U.S. 19, 20, 75 S. Ct. 6, 99 L. Ed. 20 (1954). This burden appellant has failed to carry. The cause of the buckling of the boom was the major issue before the trial judge. The eyewitness and expert evidence introduced by plaintiff and the stevedore corporation tended to show that the boom was defective and that it was not reasonably fit for the purpose for which it was used, and that the stevedore gang was doing its work at the time of the buckling in a normal and proper manner. Hence plaintiff claimed that his injury was caused by the negligence of the defendant and the unseaworthiness of the M.S. Helena in that she was equipped with a defective boom. Defendant's eyewitness and expert evidence tended to show that the boom was in good serviceable condition and was cause to buckle by the negligent conduct of the members of the stevedore gang in failing properly to handle the ship's gear. Resolving the conflicting testimony the trial judge found that the accident occurred while the stevedore gang was raising a rain tent that had been placed over the reefer hatch the previous day, and that in doing so the longshoremen caused the falls of the winch to be stretched to an angle of almost 180 degrees, a maneuver called "high lining," which resulted in an unusual and dangerous stress on the boom and was the sole cause of its collapse.
The court therefore concluded after considering the conflicting testimony of the eyewitnesses and the experts that the sole cause of the buckling of the boom was the negligent conduct by the longshoremen of the stevedore operations; that inasmuch as the owner of the vessel was in no way responsible for the conduct of these operations it was not negligent with respect to any duty it owed Puddu, and that inasmuch as the ship's equipment with which the stevedore gang was working was in good serviceable and workable condition, the M.S. Helena was not unseaworthy.
One of the ship's crew was an eyewitness, and he testified for the defendant. The trial judge made no findings with respect to this circumstance; and appellant would have us hold that the seaman's presence there caused his employer, the steamship company, to have some responsibility in connection with the stevedoring operations. It is uncontradicted that this crewman was present under orders to prevent cargo pilferage by the longshoremen and had no other duty. Merely stating the admitted reason for the presence of this able-bodied seaman disposes of appellant's tenuous argument.
Bound as we are by the rule in McAllister, supra, we can find no ground upon which to reverse the findings and conclusions below and therefore affirm the decree.
Plaintiff is not entirely uncompensated for the injury he suffered, as he is entitled to receive payments under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq.
Petition for Rehearing in banc
Before LUMBARD, Chief Judge, and CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and ...