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August 24, 1964

Salvatore MISTRETTA, Libelant,
S.S. OCEAN EVELYN, her engines, hull, tackle, cargo and her appurtenances thereof, Ocean Transportation Co., Inc., and Maritime Overseas Corp., Respondents, v. The UNITED STATES of America, American Stevedores, Inc., Respondents-Impleaded.

The opinion of the court was delivered by: ROSLING

ROSLING, Distirct Judge.

Motion of respondent Ocean Transportation Co. (Ocean) for summary judgment in its favor and against libelant (Mistretta) dismissing the libel pursuant to Rule 58(b) of the Rules of Practice in Admiralty and Maritime Cases (Admiralty Rules) is denied. Cross-motion of libelant for summary judgment in favor of libelant and against Ocean on the issue of liability, and setting the action for trial for assessment of damages is likewise denied.

Motion of Ocean as respondent-third-party claimant pursuant to Admiralty Rule 58(b) insofar as it seeks summary judgment in the form of an interlocutory decree under Ocean's impleading petitions against American Stevedores, Inc. (Stevedore) and United States of America as respondents-impleaded in the event that summary judgment dismissing the libel were to be awarded said respondent is not passed upon as moot; and insofar as such motion seeks summary judgment declaring, in the event that the motion for judgment dismissing the libel is denied, that the impleaded respondents are and shall be liable to Ocean in the amount of any recovery which may be had by libelant against Ocean as well as in the full amount of said respondent's reasonable attorney's fees and costs and expenses in defending the libel is denied without prejudice. Such issue is reserved for disposition at the trial of the action.

 Libelant and respondent declare in their opposing papers a specious *fn1" agreement as to the facts, but are dissident in their view as to what inference of liability should be drawn from what is thus undisputed. For the purposes of the libelant-respondent motion and cross-motion what follows may accordingly be taken as evidentially established:

 On the morning of November 26, 1962 Mistretta, a carpenter with about seven or eight other carpenters reported to the No. 4 lower hold (hold) of the S.S. Ocean Evelyn for the purpose of installing shoring or braces between Army conex boxes. These were to be loaded in the hold by longshoremen in the employ of Stevedore, under its stevedoring contract with Ocean, owner-operator of the vessel. *fn2" A conex box is a rectangular metal container about seven feet high, by six feet wide and eight feet long used for the shipment of Army *fn3" cargo. During the morning hours conex boxes had been lowered into the hold by the ship's cargo gear. They were then detached from the ship's cargo falls and moved into the sides of the hold by a hi-lo machine owned by Stevedore and operated by one Scadding, a Stevedore employee. The port, starboard and aft sections or wings of the hold had been stowed by the longshoremen. The forward wing was almost completely stowed with boxes, but a space remained underneath the forward coaming of the 'tween deck hatch opening for the stowage of another conex box.

 Mistretta's job had been to carry shoring lumber from a pile in the hold to the carpenters there. Shortly after 1:00 P.M. a conex box was lowered into the hold. Scadding, intending to push the container against another as part of the stowing procedure, backed his hi-lo against a corner of the box which had just been lowered. Mistretta at the moment had been positioned at the far side of the box and was thus invisible to the operator. Crushed against the adjacent box through such maneuver, libelant received the injuries for which this suit is brought.

 Scadding testified upon his deposition that he had no one to guide or direct his movements nor to warn him of danger to other persons in the area incident to his operation of the hi-lo, although he could not see over the box into the space where Mistretta was. A second witness, Salzano, testified, however, in a somewhat conflicting version that there was another longshoreman guiding Scadding in certain of his procedures.

 No ship's officers or crew members were in the hold at any "relevant" time and none issue any directions or instructions to any of the longshoremen or carpenters working in the hold. "[The] lighting was concededly *fn4" adequate and the flooring of wood upon which the hilo was operating in no way contributed to the accident. No ship's gear was involved in or contributed to Mistretta's injuries."

 Summary judgment is a useful tool when the factual basis for its functioning is clear and incontrovertible. *fn5" It does not lend itself effectively to the resolution of a claim of negligence when negligence is to be deduced as an inference from an agglomeration of evidence, not even, when, as here the opposing parties announce agreement as to what is established by the evidence and disagree only as to the legal conclusion they would have the court draw as to whether negligence is demonstrated vel non. *fn6"

 Where the suit is brought in admiralty the caveat of that court lest a too brisk efficiency in adjudication frustrate justice is even stronger than that which the appellate courts issue. Admiralty Rule 58 authorizing summary judgment first came into effect in 1961, long after Fed.R.Civ.P. 56 with which it is in pari materia was enacted. The admiralty summary judgment provision, moreover, impinges upon a trial procedure wherein the traditional rule requires the Judge presiding to hear the evidence through to completion of the trial before essaying to decide the issues.Admiralty favors thorough inquiry and exposition in the ascertainment of facts. At 3 Benedict on Admiralty (6th Edition) ยง 406, p. 112 the author notes that "A motion to dismiss at the close of libelant's case is ordinarily not entertained unless the claimant also rests." Supporting this view are Bull et al. v. New York & Porto Rico S.S. Co., 167 F. 792 (2d Cir. 1909), cert. denied 214 U.S. 526, 29 Sup.Ct. 704, 53 L. Ed. 1068; The Persiana, 158 F. 912 (S.D.N.Y.1907); and Martin Marine Transp. v. United States, 66 F. Supp. 673 (D.C.E.D.Pa.1946).

 The libelant's claim of unseaworthiness of the vessel, as well as of general want of care in carrying forward the lading operations present questions of liability as affected by less than complete transfer of control from the shipowner to the stevedore. As pertinent precedents are investigated by the court, it encounters warnings of shoal waters ahead. In Robillard v. A. L. Burbank, & Co., *fn7" Circuit Judge Friendly, sitting by designation as a District Court Judge, dealt with the subject of unseaworthiness as it touched a longshoreman's cause of action against a shipowner.The latter had contracted with a stevedore employer for his services. In the excerpt quoted from the opinion in the footnote below the opening sentences remark that "[it] would have been a bold man who would have asserted fifteen years ago that a longshoreman, working on land, might recover from a shipowner on a warranty of seaworthiness for an injury caused by a dangerous condition created on the ship by the active negligence of his own employer. However, binding authority seems to have forged each link in a chain leading to this, to me, still surprising conclusion." *fn8"

 Further on in the course of the judge's progress report concerning the metamorphoses of judicial attitude in the period he mentions, one comes upon the observation, intimidating to the unduly venturesome, that Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 , affirming per curiam the Ninth Circuit's decision, 205 F.2d 478, had the effect of "(invalidating) many of the Second and Third Circuit decisions on 'relinquishment of control' as applied to unseaworthiness on which defendant here relies." *fn9" The shipowner's obligations, whatever the ever-expanding dimension current decisional law may assign to them, are generally non-delegable, regardless of the owner's surrender of control of his vessel to another. *fn10" In Grillea v. United States, *fn11" Judge Hand, writing for the Court of Appeals remarked that "it is at times hard to say whether a defect in hull or gear that arises as a momentary step or phase in the progress of work on board should be considered as an incident in a continuous course of operation, which will fasten liability upon the owner only in case it is negligent, or as an unfitness of the ship that makes her pro tanto unseaworthy."

 Citing, as illutrative, Mollica v. Compania Sud-Americana de Vapores *fn12" wherein the shipowner was held liable to a longshoreman for the vessel's unseaworthiness - (the hold in which the longshoreman, employee of an independently contracted stevedore, was injured was unsafe as insufficiently lighted) - Judge Hand continues with a comment that "[it] would be futile to try to draw any line between situations in which the defect is only an incident in a continuous operation, and thoes in which some intermediate step is to be taken as making the ship unseaworthy." The distinguished jurist, nevertheless, proceeds to make the delineation which he finds necessary for the purposes of the appellate review. What was reviewed, however, was a judgment entered after a trial below where evidence with the full panoply of trial procedure present and operative had been adduced and sifted by the court before it made its determination. The award of a judgment on affidavits alone is contraindicated when so distinguished a jurist is constrained to use such expressions in the evaluation of facts and the inferences to be drawn therefrom as "hard to say" and "futile to try to draw any line."

 Seas Shipping Co. v. Sieracki, supra, and Pope & Talbot v. Hawn *fn13" as prelude to Alaska Steamship Co. v. Petterson *fn14" made difficult enough the judicial task of determining after trial where that line should be placed which Judge Hand found so difficult to fix in Grillea, supra. Puddu v. Royal Netherlands Steamship Co. *fn15" cited by Ocean in its brief in support of the thesis that "[negligent] use of seaworthy equipment by longshoremen does not in legal contemplation render the vessel unseaworthy and cast the owner in damages," is not helpful to respondent's position nor encouraging to the court in its search for guiding precedent. The affirmance, originally be a panel, and later, after some uncertainty en banc, was in each instance by a divided court. It rested narrowly on the ground, routinely announced, that the appellant had failed to satisfy the Court of Appeals that "the findings below are clearly erroneous." Such basis for affirmance of a determination by the court below after plenary trial is amply supported by precedent. But it provides no sure foundation for the grant of summary judgment.

 Greater illumination is cast by the dissent of Judge Clark in Puddu. Dissenting opinions unless constituted by a reversal on further appeal as the decision of the court ordinarily have no precedential force. Reference is, therefore, made not for its value as authority, but for its usefulness in the disclosure of the divergence of view among the membership of this circuit's bench on the relevant subject of claims of unseaworthiness and of the derivative jural consequences. Confronted with uncertainty up above, one should be the more hesitant to make summary dispositions at a district court level. *fn16" A final counsel against precipitate pretrial adjudication is to be found in two Third Circuit cases, freshly decided, which may or may not embody the current thinking of the Second. That uncertainty itself urges upon this court that a trial of the issues is the preferable and more prudent procedure. The cases are Thompson v. Calmar Steamship Corp., 331 F.2d 657 and Ferrante v. Swedish American Lines, 3 Cir., 331 F.2d 571, both opinions being filed in April of this year. These cases carry forward almost to this very moment the exposition which Judge Friendly included in his opinion in Robillard v. A. L. Burbank, & Co., supra, and evidence a continuing and burgeoning implementation of the Sieracki philosophy that the owner "is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost."

 Supporting citations in the Third Circuit cases referred to are as recent as Gutierrez v. Waterman, 373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 2d 297 , decided May 13, 1963. When the ultima Thule of liability will be reached and what configuration it will then display, none now can say. In the meantime a trial rather than a summary judgment would appear the more likely avenue to a just result.

 Settle order on notice.

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