The opinion of the court was delivered by: LASKER
Plaintiff longshoreman brings this action to recover damages for personal injuries sustained by him on October 28, 1964, resulting from the alleged negligence and unseaworthiness of the SS. BEERSHEVA. Defendant ZIM ISRAEL NAVIGATION CO., LTD. (hereinafter Zim Israel), the owner and operator of the vessel on the day in question, has impleaded stevedore JOHN W. McGRATH CORP. (hereinafter McGrath), plaintiff's employer and stevedore for Zim Israel. Zim Israel denies liability under the negligence and unseaworthiness theories; McGrath, while also arguing against plaintiff's recovery, does not contest its obligation to indemnify Zim Israel if the latter is liable to plaintiff.
On October 28, 1964, plaintiff was engaged as a dockman by McGrath in the unloading of cargo from Hatch No. 2 of the SS. BEERSHEVA which was docked at Pier 32, North River, New York. Throughout the unloading operations, plaintiff was standing on a skid, or temporary landing platform, which extended from the loft or second story of Pier 32, North River, opposite Hatch No. 2 of the SS. BEERSHEVA. Plaintiff and a co-worker, Morin, were to disengage the slings from drafts of plywood after these drafts were landed on the skid by the ship's winches and boom apparatus.
The accident occurred between 2:00 and 2:30 P.M. on the day in question. After the draft of plywood came to rest on the skid, the plaintiff and Morin each removed one of the slings from the draft. Since the sling is a piece of wire cable with a loop at both ends, it could be removed from the draft by detaching one loop from the cargo hook while leaving the other loop in place. Although there was testimony to the effect that sliding the entire sling out from underneath the draft, without removing either loop, is the preferred procedure, this method was not employed.
As the plaintiff and Morin each held the unfastened loop end of one of the slings, the winch operator commenced to take in the cargo runners and cargo slings. It is unclear as to whether Morin dropped his loop to the floor of the skid following the upward thrust of the winch or previous to that exertion of the upward force. As will become clear later, however, an exact determination on this issue is not crucial. After Morin's loop hit the floor of the skid it appears to have dropped into a crack of approximately two to three inches between the skid and the pier loft. The most plausible explanation for what actually caused the accident is that Morin's loop, after having entered the crack, rotated in such a manner that when pulled upward by the winch it could not exit smoothly through the crack. Accordingly, the upward pull of the winch on the loop caused it to dislodge the skid from the pier loft. As a result of the dislodging of the skid, the plaintiff was precipitated to the concrete stringpiece or apron on the ground level of the pier, some twenty feet below. Plaintiff sustained fractures of the left ankle and facial bones, and was taken to Beekman Downtown Hospital for emergency treatment.
The basis of plaintiff's claim is that the BEERSHEVA was unseaworthy in that the skid and the unloading slings were not reasonably fit for their intended service. It is well established by now that the warranty of a seaworthy vessel extends from the shipowner to longshoremen as well as to crewmen, if the longshoreman is performing the type of work traditionally done by seamen. Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). A longshoreman injured on the dock can recover for the unseaworthiness of the vessel where his injury was caused by an unseaworthy condition of the vessel. Gutierrez v. Waterman S.S. Corp., 371 U.S. 810, 83 S. Ct. 40, 9 L. Ed. 2d 53 (1963); Robillard v. A. L. Burbank & Co., Ltd., 186 F. Supp. 193 (S.D.N.Y., 1960). However, where it is alleged that unseaworthiness was caused by a mechanism not literally a part of the ship, the mechanism must be shown to have been an "appurtenance" of the ship. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960).
The skid here was not an appurtenance of the SS. BEERSHEVA. In Fredericks v. American Export Lines, 227 F.2d 450 (2d Cir., 1955), the Court of Appeals held that a skid, similar to the one before this court, was not a part of the ship, and thus not subject to the duty of seaworthiness. It should be noted that Judge Medina considered the fact that the skid played an essential role in the unloading process, but this was not considered controlling. Eight years later, the Court of Appeals considered again the question of what constitutes an appurtenance to a ship such as to render the ship subject to a claim of unseaworthiness. In Forkin v. Furness Withy & Co., 323 F.2d 638, 641 (2d Cir., 1963), Judge Friendly stated:
"Equipment maintained on a pier to establish connection with a ship is not an 'appliance appurtenant to the ship' or part of the ship's 'gear,' at least until it has been affixed."
Plaintiff apparently has seized upon this language and has attempted to show the requisite connections. He points to a "save-all" net which was connected on one side to the ship's railing, and on the other side to the outboard edge of the skid. He also points to the use of a "house-fall" (a wood block attached to the face of the pier above the skid) as establishing a connection between the ship and the pier (including the skid).
While the presence of the "save-all" net and the "house-fall" is uncontroverted, we hold that they were not sufficient to transform the skid into an appliance or appurtenance of the SS. BEERSHEVA. See Penoro v. Rederi Aì Disa, 376 F.2d 125 (1967). The skid was obviously a permanent and integral part of the pier, and the mere fact that it was removable does not distinguish this case from Fredericks or Penoro. The court is of the opinion that the dictum in Forkin, supra, and the holding in Di Salvo v. Cunard Steamship Co., 171 F. Supp. 813 (S.D.N.Y., 1959), are not apposite here because the character of the equipment involved in those cases differed materially from that used here. The portable conveyor belt in Forkin and the passenger baggage chute in Di Salvo, when attached to a ship, are more intimately connected with the ship than is a skid and are regularly used in the industry literally to connect ships and docks for unloading purposes. The court is aware that in other Circuits the duty of seaworthiness has been liberally extended to include various equipment used in the unloading procedure. See Spann v. Lauritzen, 344 F.2d 204 (3d Cir., 1965); Huff v. Matson Navigation Co., 338 F.2d 205 (9th Cir., 1964). In this Circuit, at least in relation to the skid in question, the Fredericks case still controls. The holding made with relation to the skid applies as well to the alleged unseaworthiness of the steel "shoe" of the skid and the manila rope which bound the inboard corners of the skid to the pier.
Plaintiff further contends that Zim Israel breached its warranty of seaworthiness, since the cargo slings were not reasonably fit for their intended use. Although these slings were owned and maintained by McGrath, the warranty of seaworthiness has been extended to cover equipment brought aboard the vessel by the stevedore. Alaska Steamship Co. v. Petterson, 346 U.S. 914, 74 S. Ct. 272, 98 L. Ed. 410 (1954); Rogers v. United States Lines, 347 U.S. 984, 74 S. Ct. 849, 98 L. Ed. 1120 (1954). Plaintiff alleges that the cargo slings were unseaworthy because of the swaged fittings on the end of the sling which formed the loop referred to previously. This metal swaging presented an edge which was raised approximately 1/4" away from the surface of the steel cable of the sling. This court is not persuaded that this raised edge rendered the sling unseaworthy. A demonstration conducted in court showed that, even when this edge did catch onto an opposing surface, only a slight pressure was required to pull it free. The court finds that this 1/4" edge did not dislodge the skid in question, which weighed in excess of one ton. Further, there was adequate expert testimony to the effect that a spliced collar which was the only alternative to the swaged collar mentioned, had as many potential dangers as the swaged collar, if not more.
However, although the cargo sling involved in the accident was not rendered unseaworthy on structural grounds, the negligent use of the sling by McGrath's employees did render it unseaworthy. It is now clear in the Second Circuit that a ship is rendered unseaworthy when longshoremen make negligent use of seaworthy equipment. Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, rehearing den. 386 F.2d 444 (2d Cir., 1967), cert. den. 390 U.S. 1027, 88 S. Ct. 1416, 20 L. Ed. 2d 284; Alexander v. Bethlehem Steel Corp., 382 F.2d 963 (2d Cir., 1967). These two cases represent this Circuit's interpretation of the Supreme Court's per curiam opinion in Mascuilli v. United States, 387 U.S. 237, 87 S. Ct. 1705, 18 L. Ed. 2d 743 (1967). In Candiano, supra, Judge Moore, in his opinion, stated (386 F.2d at 448):
"Negligence would appear to create unseaworthiness from the very moment of the act. The words "reasonably fit" and "reasonably suitable" lose all significance if the happening of the accident in and of itself is regarded as an ...