The opinion of the court was delivered by: EDELSTEIN
EDELSTEIN, District Judge.
This action arose out of an injury suffered by Salvatore Rapisardi on June 1, 1966, while working on board the S.S. FRABERLANGA. United Fruit Company was the owner of the vessel and third party defendant, Sam Barbara & Company, was the plaintiff's employer. The third party action against John W. McGrath Corp. has been discontinued with prejudice by stipulation of all of the parties. This court has jurisdiction over the matter in controversy under 28 U.S.C. § 1333.
Sam Barbara & Company (Barbara) had been engaged to perform demolition and other work aboard the S.S. FRABERLANGA, which, on June 1, 1966, was moored at Pier 3, New York City. Plaintiff, as an employee of Barbara, boarded the ship in the morning, and, together with a fellow employee, Vincent DeMilta, was assigned by Barbara's foreman, Eddie Collins, to work on demolishing wood partitions in the No. 2 hold on the 'tween deck. Plaintiff and DeMilta began their work at approximately 8:00 a.m.; DeMilta held a steel splitting bar
against the partition and plaintiff struck it with a steel head maul.
Both the splitting bar and the maul were tools which belonged to Barbara. The tools had been stored aboard the ship by Collins after the previous day's work, and, on the morning in question, were made available to plaintiff and DeMilta by Collins.
Plaintiff worked in the manner described for one and one-half hours until 9:30 a.m., when a metal chip parted from the splitting bar and entered his left eye, as a result of which plaintiff permanently lost all vision in his left eye. This court finds that the impact upon the eye of the metal chip was the competent producing and proximate cause of that loss, and, indeed, causation is conceded by the defendant.
It is well settled that a marine carpenter performing the ship's service is entitled to a seaworthy vessel. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143 (1954); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946); see also Jackson v. Lykes Bros. Steamship Co., 386 U.S. 731, 734 n. 4, 87 S. Ct. 1419, 18 L. Ed. 2d 488 (1967). This warranty of seaworthiness extends to the equipment which is provided to the men working on the ship and the shipowner cannot escape liability on the ground that the equipment in question was brought on board the vessel by his independent contractor. Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 (1954), aff'g. per curiam 205 F.2d 478 (9th Cir. 1953); Rogers v. United States Lines, 347 U.S. 984, 74 S. Ct. 849, 98 L. Ed. 1120 (1954), rev'g. per curiam 205 F.2d 57 (3rd Cir. 1953); Massa v. C.A. Venezuelan Navigacion, 298 F.2d 239 (2d Cir. 1962). The metal chip which injured plaintiff's eye having come from the splitting bar furnished by Barbara, this court finds that the S.S. FRABERLANDGA was unseaworthy in this respect as to plaintiff Rapisardi. Cf. Van Carpals v. The S.S. American Harvester, 297 F.2d 9 (2d Cir. 1961), cert. denied 369 U.S. 865, 82 S. Ct. 1031, 8 L. Ed. 2d 84 (1962).
Defendant argues that plaintiff was contributorily negligent. The burden of proving contributory negligence rests on the defendant, Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 528, 4 A.L.R.3d 517 (9th Cir. 1962); United States v. Smith, 220 F.2d 548, 554 (5th Cir. 1955); Giaraffa v. Moore-McCormack Lines, Inc., 270 F. Supp. 342 (S.D.N.Y.1967); but the defendant has failed to carry that burden by a preponderance of the credible evidence.
The partitions which plaintiff and DeMilta were demolishing consisted of two parallel sections of plywood about seven feet high which were secured by nails, screws, and metal brackets. Defendant first argues that plaintiff was contributorily negligent in using the maul and splitting bar, tools ordinarily used to split wood, against the metal parts of the partitions. But the credible evidence demonstrates that these partitions were of the usual kind which the Barbara Company had demolished in the past. Moreover, the method of demolition employed by plaintiff and DeMilta was an accepted one, one that had been used in the past with the full knowledge and acquiescence of their employer. Further, the plaintiff and DeMilta were working under the supervision of a foreman whose responsibilities included making sure that all work being done by his men was being done properly.
The defendant's other argument is as follows:
"When ordinarily used to split wood, splitting bars such as the bar which plaintiff and DeMilta were using to demolish the partition became duller.
"After splitting bars such as the bar which plaintiff and DeMilta were using to demolish the partition became so dull that very hard blows on the bar were required to split wood, such bars were not ordinarily used until they were sharpened.
"A reasonably experienced and prudent marine carpenter would not ordinarily use such a splitting bar to split wood after the bar became so dull that very hard blows on the bar were required to split wood. When such a carpenter knew that such a bar "had become so dull, he would see to it that the bar was sharpened before using it further."
What the court is able to discern from this subjunctive argument is that the defendant would have Rapisardi charged with contributory negligence because he had a duty to sharpen the edge of the bar if he knew it were dull. But this argument has no foundation in reality and ignores the weight of the evidence favoring the plaintiff.
Before beginning work on the morning of June 1, 1966, the plaintiff and DeMilta examined their tools and they seemed to be in satisfactory condition. While the evidence does indicate that as the morning passed the plaintiff used more force when wielding his maul, it does not show that the splitting bar at any time had become so dull that it was no longer safe for use, or, for that matter, that it needed any sharpening at all. Nor did the defendants prove that dullness, even if it were to be found, was causally related to the splintering. Moreover, plaintiff was working with the maul; DeMilta was the one who held the splitting bar against the partition, and it was DeMilta's practice to inspect the bar, not plaintiff's, in the circumstances at bar. Even if it were to be assumed that the bar had become too dull to use and that DeMilta knew or should have known of its dull condition, and even if it were to be assumed that DeMilta had a duty to sharpen the biting edge,
plaintiff, nevertheless, cannot be held responsible for a failure to act on the part of his fellow worker.
Finally, while defendant concedes that the chip which injured plaintiff's eye came from the splitting bar, it is unclear, however, from which end of the bar the chip came. Thus the chip may very well have come from the head of the bar and not its point; ...