Waterman and Moore, Circuit Judges, and Tyler, District Judge.
William Norfleet and David Lane appeal from an adverse judgment in the United States District Court for the Southern District of New York after the jury returned a verdict in favor of the Isthmian Lines, Inc. Because of certain erroneous and confusing instructions given by the trial judge at the instance of counsel for the appellee, we reverse and remand for a new trial.
On December 16, 1958, appellants, longshoremen employed by the Whitehall Terminal Corporation in Norfolk, Virginia, were working aboard the vessel S.S. Steel Apprentice owned by the appellee. On the day in question the vessel was berthed at Pier 1, Army Base, in Norfolk. That morning while the appellants were working in the No. 5 hatch 'tween deck area, a padeye or collar attached to the jumbo boom of the S.S. Steel Apprentice broke, and as a result the rigging on the jumbo boom and part of the fractured padeye fell into the 'tween deck area of No. 5 hatch. Appellants testified that some portion of this rigging or the padeye struck them and caused them to sustain personal injuries for which they seek to recoup damages.
Originally, appellants had asserted claims of unseaworthiness of the vessel and negligence on the part of the agents of the vessel. During the course of the trial, however, appellants through their counsel withdrew their claim of negligence. Thus, the case was submitted to the jury at the close of the evidence only upon the theory of breach of warranty of seaworthiness.
On this appeal, appellants raise a number of arguments to the effect that the trial judge erred in issuing instructions based upon rules of negligence and in failing to properly answer a request by the jury, after it had retired for deliberations, for specific instruction on certain principles of law. Appellants also urge here that the verdict was against the weight of the evidence; more particularly, they assert that a metallurgist called by the appellee gave evidence which can only be construed as standing for the proposition that the padeye in question was not reasonably fit for its obvious intended purpose and thus was unseaworthy.
Although we do not accept appellants' contentions with respect to errors in the charge precisely as stated in their briefs and oral arguments, we do agree for reasons to be indicated hereinafter that particularly a supplemental instruction issued by the trial judge at the instance of the appellee without doubt caused confusion in the jury's mind and effectively misstated controlling law which was relevant to the jury's deliberations.
To put our reasoning in perspective, it is necessary to state certain additional facts which were brought to light during the trial. From the evidence, the jury could have found that on the morning of December 16, 1958 the longshoremen employed by the stevedore commenced work at or shortly after 0800 with the loading of nine ton Army trucks. Prior to the accident which took place sometime between 1030 and 1100 hours, several of these trucks had already been loaded by means of the jumbo boom heretofore mentioned. This boom was a thirty ton jumbo or heavy-lift boom based upon and pivoting from a position on the deck at the center line of the vessel. It functioned, of course, to swing out over the pier to pick up cargo and then to swing cargo in position over the hatch. The boom was activated or moved in the desired direction by working lines or guides moved by inshore and offshore winches. It was appellants' contention at trial that for five or ten minutes prior to the alleged accident the jumbo boom had not been moved or put in operation. More particularly, they contended that the boom was in place over No. 5 hatch when suddenly the collar or padeye at the peak or head of the boom broke with the resulting fall of the rigging on the boom. But there was other testimony in the case from which the jury could have found that the activating winches attached to the boom were in operation and that the offshore winchman failed to "slack off" as the inshore winchman was hauling, thereby creating a "tight-lining" with resultant extreme pressure on the boom padeye and causing or contributing to the breaking of the padeye.
Turning first to the supplemental instruction most heavily attacked by appellants, it seems clear that substantial error was committed by the trial judge when, just after his principal charge was completed and at the insistence of defense counsel, he informed the jury:
"If you find that the steamship company did not supervise or control the longshoremen, rather that the work was conducted solely by the longshoremen themselves, you must find that the defendant did not violate its duty to provide the longshoremen with a safe place to work unless a defect was patent."
This instruction, in effect, amounted to a resurrection of the now extinct doctrine of "relinquishment of control." Admittedly, the "relinquishment of control doctrine" was at one time applicable as a defense by steamship companies who were sued by longshoremen for breach of the warranty of seaworthiness. E.g., Mollica v. Compania Sud-Americana de Vapores, 202 F.2d 25 (2 Cir. 1953); Lynch v. United States, 163 F.2d 97 (2 Cir. 1947); Lauro v. United States, 162 F.2d 32 (2 Cir. 1947); Grasso v. Lorentzen, 149 F.2d 127 (2 Cir. 1945). This, however, is no longer so.
The basis of the former doctrine of relinquishment of control was that the liability of a shipowner to a longshoreman was essentially a question of negligence, i.e., that the shipowner had satisfied his duty to provide a seaworthy ship if he had made a diligent inspection. Grasso v. Lorentzen, 149 F.2d 127 (2 Cir. 1945). Since the decision in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), however, the longshoreman has been accorded the same protections as a seaman. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413 (1959); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960); Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 (1954). And the liability of the shipowner to the seaman for injuries resulting from unseaworthiness does not depend on negligence. It is absolute and non-delegable. See Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946); Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 (1954). Consequently, the same standard -- an absolute duty without regard to negligence -- is owed to a longshoreman by the steamship company in an action for breach of the warranty of seaworthiness. This court held in Grillea v. United States, 232 F.2d 919 (2 Cir. 1956), that longshoremen themselves could render a ship pro tanto unseaworthy and make the vessel owner liable for injuries to one of them. See also, Rogers v. United States Lines, 347 U.S. 984, 74 S. Ct. 849, 98 L. Ed. 1120 (1954); Alaska S.S. Co. v. Petterson, supra; Crumady v. The Joachim Hendrik Fisser, supra.
In Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 (1954), the Supreme Court affirmed a judgment holding the shipowner liable for injuries caused by defective equipment temporarily brought on board by an independent contractor over which the owner had no control. That decision, thus, is specific authority for the proposition that the shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability.
The trend in maritime law, which is to increase the rights of maritime workers and not to limit them, was recently illustrated in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960). In Mitchell, the Court held that a "transitory" unseaworthy condition, one which is temporary rather than permanent in nature, comes within the scope of the unseaworthiness doctrine, even though the owner had no notice of its existence. Under prior law, notice was necessary ...