The opinion of the court was delivered by: ZAVATT
The plaintiff, a longshoreman in the employ of the third party defendant, McGrath, seeks damages for personal injuries on the ground of the alleged negligence of the defendant, the owner and operator of the SS CIUDAD DE CUMANA, and on the ground that said vessel was unseaworthy. By a pre-trial order, dated December 7, 1960, the plaintiff limited the issues of alleged negligence and unseaworthiness to an alleged defective pallet.
During a previous trial, the trial judge granted the defendant's motion to dismiss the complaint and the third party defendant's motion to dismiss the third party complaint after the jury disagreed. On appeal to the Court of Appeals of this Circuit, the judgments of dismissal were reversed and the claims of the plaintiff and the third party plaintiff was remanded for re-trial. Massa v. C. A. Venezuelan Navigacion, 298 F.2d 239 (2d Cir.1962).
The second trial was tried to the court without a jury on the theory that a proximate cause of plaintiff's personal injuries was a defective pallet, the use of which in the loading of the vessel constituted negligence on the part of the defendant and rendered the defendant's vessel unseaworthy. In view of the findings of fact and conclusions of law herein, it is unnecessary to discuss the claim over of the defendant against the third party defendant.
The court makes the following findings of fact based upon the credible evidence and the court's view of a loading operation during the trial with the knowledge and consent of the parties and their attorneys and in the presence of said attorneys:
1. On February 24, 1955, the SS CIUDAD DE CUMANA, owned, operated, managed and controlled by C. A. Venezuelan Navigacion the defendant and third party plaintiff, was berthed at Pier 10, North River, within the Eastern District of New York, for purposes of taking on cargo.
2. On February 24, 1955, the third party defendant was loading cargo into said vessel pursuant to a stevedoring contract with the defendant and third party plaintiff. The entire loading operation was under the control of the third party defendant.
3. In connection with said loading operations, the third party defendant supplied longshoremen, supervisors, hatch bosses, gangwaymen, hi-lo drivers, gearmen, an assembly known as a 'pallet bridle' and wooden cargo handling platforms, known as pallets.
4. The 'pallet bridle' consisted of a 'spreader', a square or rectangular shape metal frame; four wire lines of equal length, known as 'legs', each extending down from a corner of the 'spreader'; two bridle bars made of steel and aluminum, each of which had attached to it two metal protuberances known variously as 'plugs', 'flanges', 'prongs' or 'tongs' (which will be referred to herein as 'tongs'). The wire 'legs' were attached to shackles at the respective ends of the bridle bars. The pallet bridle was connected to a winch aboard the vessel by means of a ship's cable.
5. The 'pallets' measured approximately 5 feet 6 inches in length by 3 feet 4 inches in width. The top and bottom of each pallet were identical -- each consisting of a series of parallel slats. The top and bottom of each pallet were separated by four horizontal wooden 'cross pieces'. Two 'cross pieces' served as interior supports. One was located at each end of the pallet. Each end cross piece had two apertures known as 'pallet holes' into which the tongs of the pallet bars are inserted when a pallet loaded with cargo, a draft, was to be lifted from the dock to the ship.
Loaded pallets were brought to the side of the ship by means of a hi-lo owned and operated by the third party defendant and were placed upon a platform which consisted of two pallets superimposed one above the other. This platform was so used for the convenience of the four man gang of longshoremen who were to hook up the pallet bridle to the draft or loaded pallet.
7. The pallet bridle was hooked up to the draft by inserting the two tongs of one pallet bar into the two pallet holes at one end of the pallet and the two tongs of the other pallet bar into the two pallet holes at the other end of the pallet. Each member of the four man gang inserted one tong into one pallet hole. During the hookup operation, therefore, two members of this gang stood at one end of the platform and the loaded pallet and two members of the gang stood at the other end.
8. At about 11 P.M. on February 24, 1955, a hi-lo owned and operated by the third party defendant placed upon the two-pallet platform a pallet loaded in an even manner with approximately 36 cases of lube oil cans in cartons weighing about one ton.
9. The plaintiff and one, Gambardella, a member of the gang, stood at the aft end of the pallet (will reference to the ship). The two other members of the gang, Di Meo ...