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November 15, 1967

Daniel CLEARY, Libellant,
UNITED STATES LINES COMPANY, Respondent, v. T. HOGAN & SONS, INC., Respondent-Impleaded

Cooper, District Judge.

The opinion of the court was delivered by: COOPER


COOPER, District Judge.

 Libellant longshoreman brings this action to recover damages for personal injuries sustained by him on October 7, 1963, resulting from the alleged unseaworthiness and negligence of the S.S. Pioneer Myth.

 Respondent United States Lines Company, Inc. (hereinafter U.S. Lines), the owner and operator of the vessel on the day in question, has impleaded stevedore T. Hogan & Sons, Inc. (hereinafter Hogan), libellant's employer, seeking full indemnity by way of claim over.

 By agreement of the parties at trial, proof as to damages was not presented; it was held in abeyance and made dependent upon the outcome of the issue of liability.

 On October 7, 1963, libellant was engaged by Hogan in the operation of a hilo machine to aid in the stowing of cargo in the lower hold of #6 hatch. The hatch was divided by a wooden fence, which ran athwartship across the center of the hold (Tr. 45). Libellant was working in the forward part of the hatch (Tr. 14).

 Between 6:30 and 7:00 P.M. on the day of the injury, an uncrated bundle of four automobile chassis, bound together by steel strapping, was lowered by the up-and-down boom into the hold of #6 hatch (Tr. 21-22, 71). The chassis were stored on their sides against the fence so that the rear portion of the bundle extended into the starboard wing with the narrower front ends of the chassis in the square of the hatch (Tr. 26-27, 58). After the chassis were so stowed, libellant parked his hilo machine in the square and stood in the starboard wing - to the side of the hilo machine and in front of the chassis (Tr. 29-32). The forward part of the hatch was filled with cargo. Accordingly, while the next draft was lowered, claimant stood in the only available position of safety (Tr. 79).

 This next draft consisted of three cases, the two largest of which were estimated to measure either six by ten feet (Tr. 31) or eight by ten (Tr. 53). These cases were lowered by Weadock, Hogan's up-and-down winchman (Tr. 42). As the draft descended, the edge of the cases struck the chassis and knocked them over, pinning libellant beneath them (Tr. 80).

 Libellant's claim that U.S. Lines was negligent was not pursued at trial; no testimony was elicited which would support a conclusion that U.S. Lines breached its duty of care to libellant. Accordingly, the claim based on negligence is dismissed.

 We hold, however, that unseaworthiness of the Pioneer Myth was clearly established, and that respondent is entitled to indemnity from Hogan.

 It is well settled that the warranty of a seaworthy vessel, i.e. a ship that is reasonably fit for its intended service, extends to longshoremen as well as to crewmen. Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). Also, since the Court of Appeals for the Second Circuit decided Alexander v. Bethlehem Steel Corp., 2 Cir., 382 F.2d 963 (Aug. 1, 1967) and Candiano v. Moore-McCormack Lines, Inc., 2 Cir., 382 F.2d 961 (Aug. 1, 1967), interpreting the Supreme Court's decision in Mascuilli v. United States, 387 U.S. 237, 87 S. Ct. 1705, 18 L. Ed. 2d 743 (1967), it is clear that a ship is rendered unseaworthy when longshoremen make negligent use of seaworthy equipment. Prior to these decisions, this circuit followed a distinction laid down in Grillea v. United States, 232 F.2d 919 (2d Cir.1956), to the effect that only if the negligent act had come to rest, thus giving rise to a condition of unseaworthiness, could a libellant sustain his cause of action. If the injury was caused by the operational negligence of the longshoreman, however, the vessel was not unseaworthy.

 Although respondent-impleaded doubts whether the Supreme Court intended, in its summary disposition of Mascuilli, supra, to obliterate the distinction between operational negligence and unseaworthiness, the ultimate resolution of that issue poses no problem in the instant case. Our Circuit has clearly spoken on that score in the Alexander and Candiano cases, supra. Even without the decisions in Mascuilli, Alexander and Candiano, libellant has proved the existence of an unseaworthy condition aboard the Pioneer Myth, at the time of the injury, such as would render respondent liable under pre- Mascuilli law.

 Libellant's contention that the crowded condition of the lower hold at the time of the accident and the method of stowage of the chassis created an unseaworthy condition is without merit. Libellant, in effect, conceded at trial that the crowded condition of the hold did not amount to unseaworthiness, but rather went to the negation of contributory negligence on the part of libellant. Since no evidence was adduced that libellant was negligent in any respect, there is not before us the issue of contributory fault.

 As to the stowage of the chassis, there was conflicting testimony regarding the measurement of the base upon which they rested. While it is clear that the bundle was approximately twenty-five to thirty feet long and four to four and one-half feet high at its back end, the estimates of the width of the base varied from two to four feet (Tr. 24-25, 37, 46, 48-49, 70). Even assuming that the base was two feet wide, however, and granting that the narrower front ends of the four chassis were not touching the skin of the ship, this Court cannot hold that the method of stowage was improper. Though it is likely that flat stowage would have been more stable, this is not to say that the method actually employed was unsafe. Libellant presented no expert testimony as to custom and usage with respect ...

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