The opinion of the court was delivered by: FEINBERG
FEINBERG, District Judge.
This is an admiralty action for personal injuries by plaintiff Carmelo Candiano against Moore-McCormack Lines, Inc. ("Shipowner"), owner of the ship on which Candiano was working when injured. Shipowner impleaded John W. McGrath Corporation ("Stevedore"), employer of Candiano and stevedore for Shipowner.
Plaintiff was hit by a falling hatch beam weighing about a ton while working in the lower hold of the "S. S. Mormachawk" shortly after midnight, on the morning of February 18, 1961. The ship was at its berth at the 23rd Street Pier in Brooklyn. Shipowner denies liability and contests the alleged damage; Stevedore, while also arguing against plaintiff's recovery, does not strenuously contest its obligation to indemnify Shipowner if the latter is liable to plaintiff. Plaintiff's viable theory of recovery at this stage is unseaworthiness; a negligence count was dismissed during trial without objection.
Plaintiff, as part of a gang of carpenters, was chocking cargo in the lower hold of No. 3 hatch on the night in question. The accident occurred while longshoremen, also employed by Stevedore, were engaged in placing a steel hatch beam on No. 3 tween deck hatch preparatory to covering up the hatch prior to sailing. While the steel hatch beam was being placed athwart tween deck hatch No. 3 and was suspended over the square of the hatch, a hook inserted into the opening at one of the ends of the hatch beam became dislodged and the beam fell into the lower hold. The heavy beam struck plaintiff and knocked him down. Plaintiff was rendered unconscious by the blow and injured severely, as discussed more fully below, and was taken out of the hold and off the ship by stretcher and transferred to a hospital.
The basis of plaintiff's claim is that the ship was unseaworthy because the device used to lower the hatch beam was not reasonably fit for its intended use. All parties agree that the longshoremen used a pontoon bridle to secure the beam to the cargo falls (or hoist rope). The bridle consisted of four equal lengths of wire; each had at one end a pontoon hook and was attached at the other end to a common ring. One hook was inserted into a hole at one end of the twenty-foot long hatch beam and another hook was attached at the other end; the remaining two hooks were looped up and placed into the common ring. Plaintiff claims that a different type of bridle - a toggle beam bridle - was the proper appliance for lowering a steel hatch beam. The distinguishing feature of a toggle bridle is that at one end a metal bar rather than a hook is attached to a length of chain; by passing the chain and metal bar through the hole of a hatch beam and then positioning the bar properly, the hatch beam is prevented from falling off the bridle. Plaintiff argues that if a toggle beam bridle had been used instead of a pontoon bridle, the hatch beam could not have been dislodged and it would not have fallen. Accordingly, plaintiff argues that an improper and unsafe appliance was used, thereby rendering the ship unseaworthy. Shipowner claims that the pontoon bridle was reasonably fit for its intended purpose and, in any event, toggle bridles were supplied by the ship and made available to Stevedore.
There is little doubt that the lowering mechanism utilizing the pontoon bridle, as it was actually used by the longshoremen, was unsafe and therefore unfit. The evidence shows that the hook that became dislodged had not been fully brought through the hole in the hatch beam and made secure to the standing part of the bridle. Shipowner's claim that the pontoon bridle was reasonably fit is based upon the proposition that had this operation been performed, the hatch beam would have been secure. Shipowner thus argues that the longshoremen's failure to properly secure the beam was "operational negligence," so that no unseaworthiness had as yet resulted. The cases in this circuit do make a distinction between operational negligence and an unseaworthy condition negligently created,
denying the ship's liability in the former case. The difficulty lies in defining when negligent conduct ends and an unseaworthy condition begins. In Grillea v. United States, 232 F.2d 919, 922 (2d Cir. 1956), Judge Learned Hand stated:
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 those in which some intermediate step is to be taken as making the ship unseaworthy. Nevertheless, it is necessary to separate the two situations, even though each case must turn on its particular circumstances.
In Puddu v. Royal Netherlands S.S. Co., 303 F.2d 752, 756 (2d Cir.) (per curiam in banc), cert. denied, 371 U.S. 840, 83 S. Ct. 67, 9 L. Ed. 2d 75 (1962), Judge Hays, in a concurring opinion stated (303 F.2d at 757):
The difficulty with the concept of unseaworthiness arises from the fact that while the authorities hold that there is liability without fault, there is no case which holds that there is absolute liability. The situation demands, then, that without regard to fault, we fix a point short of absolute liability. But logical coordinates for fixing a point, such as the time during which a particular condition continues to exist, are entirely lacking. Time is obviously irrelevant since notice to the shipowner is of consequence only if his liability is limited by fault. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed.[2d] 941 (1960).
Perhaps the best that can be done is, like Judge Hand in Grillea v. United States, 232 F.2d 919 (2d Cir. 1956), to take as the starting point a condition of reasonable fitness for intended use, to consider this condition as impaired by the conduct or process which is the subject of litigation, and to call the resulting condition "unseaworthiness." The conduct or process by which the fitness is changed to unfitness is not then to be classified as itself constituting unseaworthiness.
A ship is not unseaworthy because it has glass in a window which might be broken. The injuries of a seaman who negligently breaks such a glass are not the result of unseaworthiness, nor are the injuries of a seaman who is cut by the falling glass. But injury incurred in stepping on the broken glass does result from unseaworthiness.
The rule is far from satisfactory, but it has the virtue of being possible, though not easy, of application, and of having behind it the authority of a great judge. The situation itself does not permit the formulation of a really satisfying rule.
This distinction was recently re-affirmed in Norfleet v. Isthmian Lines, Inc., 355 ...