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June 1, 1966

Ismael MORALES, Libelant,
DAMPSKIBS A/S FLINT and Willy Kubon Engen and Sabre Shipping Corporation, Respondents, v. JOHN W. McGRATH CORPORATION, Respondent-Impleaded

The opinion of the court was delivered by: PALMIERI

PALMIERI, District Judge.

 Preliminary Statement

 This is a suit by a longshoreman for personal injuries arising out of a shipboard accident which occurred during the discharge of cargo. The libelant longshoreman was part of a work gang engaged in the removal of cargo from the lower hold of No. 5 hatch of a merchant vessel, the S/S Sabre Purpose. When this hatch was first opened for the beginning of discharge operations, the cargo was listed and cases containing nuts and bolts were broken open with nuts and bolts spilled over the cargo. No. 5 lower hold contained cargo consisting of lumber, plywood, and bales as well as kegs and cases of nuts and bolts. Some of the kegs containing nuts and bolts were lying on their sides. The nuts and bolts were relatively small, many of them being smaller than one-quarter of an inch. Some of this spilled cargo had fallen into crevices between other stowed cargo. The situation was called to the attention of the mate of the vessel as well as the boss stevedore and their instructions were to continue work but to be careful. Pursuant to these instructions and in accordance with customary rules applicable to this situation, the nuts and bolts were picked up as they were exposed by the removal of cargo, put into an empty box and then sent to a cooper on the dock. Several boxes of spilled nuts and bolts were sent up before the accident occurred.

 Just before the accident occurred the libelant was attempting to fasten a hook of the bridle to a corner of the loaded pallet so that the loaded pallet, after being properly fastened to the bridle by him and the other members of the work gang, could be hoisted out of the ship. In doing this, libelant stepped off the pallet and placed his foot into an area that had momentarily before been cleared of cargo, slipping on some loose nuts and bolts. This caused him to fall and to sustain the injuries for which the action was brought. The nuts and bolts were small and were approximately the same color as the deck or floor of the vessel to which they fell. It appears probable that the nuts and bolts which caused libelant's fall had slipped from adjoining crevices, when the small area was being cleared just prior to the accident and just before the bridle was lowered in order to hoist the loaded pallet.

 The libelant was compelled to keep the bridle under close observation as it was coming down the hatch in order to escape being struck by it, and, once it was within grasping distance, libelant had to hook it immediately to his corner of the pallet because, if left swinging, the bridle could injure the other workmen who were present and working with the same bridle and pallet. Accordingly, there was no occasion for Morales to look down and to see the nuts and bolts on the floor of the hold before he put his foot down while attempting to affix the bridle hook.

 The findings and conclusions which follow are intended to demonstrate that the libelant is entitled to recover damages for his injuries from the respondents and that the third-party action must be dismissed because the proof fails to establish any basis for liability on the part of the stevedore.

 The request of libelant for prejudgment interest has not been allowed because he was afforded prompt medical attention without expense to himself and because he was paid compensation benefits for the post-accident period of disability which entailed absence from work.

 Findings of Fact

 1. On October 11, 1962, the respondents owned, operated and controlled a certain merchant vessel known as the S/S Sabre Purpose. The respondents were and still are foreign persons and corporations organized under the laws of Norway.

 2. At all times hereinafter mentioned, the respondent-impleaded was a stevedoring contractor (hereinafter referred to as the stevedore), was and still is a domestic corporation duly organized and existing under and by virtue of the laws of the State of New York.

 3. On the 11th day of October, 1962, the said vessel was moored at Pier 20, Staten Island, in the City of New York, within the navigable waters of the United States, for the purpose of discharging cargo by virtue of an agreement between respondents and its agents, and the stevedore.

 4. Libelant was employed as a longshoreman by the stevedore which was engaged in discharging cargo from the vessel.

 5. Libelant boarded the vessel of the respondents shipowners for the purposes of discharging said cargo and was so engaged at the time of his accident.

 6. During the course of the discharge operations, libelant was caused to slip on nuts and bolts which had accumulated on the floor of the hold, thereby causing the ...

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