Appeal from judgment entered in the Eastern District of New York, Anthony J. Travia, District Judge, confirming report of a magistrate and dismissing complaint of a lasher and marine carpenter who sought damages for injuries sustained while unlashing pipes stowed on the main deck of a vessel, the issues on appeal being the correctness of the findings below that the vessel was not unseaworthy and that plaintiff's negligence was the sole cause of his injuries.
Kaufman, Chief Judge, Smith and Timbers, Circuit Judges.
On this appeal from a judgment entered November 7, 1974 in the Eastern District of New York, Anthony J. Travia, District Judge, confirming the report of a magistrate and dismissing the complaint of a lasher and marine carpenter who sought damages for injuries sustained while unlashing pipes stowed on the main deck of a vessel, the issues are whether the findings below that the vessel was not unseaworthy and that plaintiff's negligence was the sole cause of his injuries were clearly erroneous. We hold that they were. Accordingly, we reverse and remand for a new trial.
The following facts, as proven at a non-jury trial before a magistrate on the issue of liability*fn1, are substantially undisputed, except as otherwise indicated.
On August 17, 1970, John H. Marchese was employed as a lasher and marine carpenter by Court Carpentry & Marine Contractor Co., Inc. (Court Carpentry). He was injured that day while working aboard the S.S. Mormacglen which was owned and operated by Moore-McCormack Lines, Inc. (shipowner).
The vessel, a large ocean going steamer, lay moored at Pier 23rd Street Terminal in Brooklyn. She had come from Brazil. She had on deck as cargo four long steel pipes which had been loaded and lashed to the deck in Brazil. They were each 20 feet long and 4 feet in diameter. Three of the pipes were stowed on wooden sleepers. The fourth was on top of two of the other pipes, those nearest No. 5 hatch. The length of all of the pipes ran fore and aft between the hatch coaming and the vessel's solid steel bulwark or rail. The deck sloped toward the bulwark. There was about 18 inches of space between the pipes and the hatch coaming and about the same space between the pipes and the bulwark.
The pipes were secured with lashing wires in three places. One lashing was at each end of the pipes and one was in the center. The lashings went over the pipes from the bulwark to the coaming. Each lashing was secured to the deck with a turnbuckle attached to a padeye. The end of the lashing which passed through the eye of the turnbuckle was clamped with two clips. Each clip was held in place by two bolts and nuts.
At about 9 A.M. on August 17, Marchese was directed by a snapper (assistant foreman), also employed by Court Carpentry, to unlash the pipe cargo at No. 5 hatch on the inshore side. He was told to work quickly because a longshore gang was standing by waiting to unload the cargo. He started at the forward end of the pipes near the bulwark. Using a ratchet wrench, he released two of the three lashing wires by removing the nuts from the clips which held together the ends of the lashing wires.*fn2 He was working on the third lashing wire at the after end of the pipes, having loosened the first nut from the clip, when the pipes shifted and pinned him against the bulwark. Immediately before the pipes shifted, he had been working in the 18 inch space between the pipes and the bulwark, with his back toward the bulwark. He sustained injuries to his knees and back for which he sought damages in the district court.
It is undisputed that the pipes as stowed had neither chocks nor crib to hold them in position. They were held in position only by the lashing wires. It also is undisputed that before releasing the lashing wires Marchese did not look to see if the pipes were chocked or otherwise held in position.
The magistrate found that the vessel was not unseaworthy and that the sole cause of Marchese's injuries was his own negligence. The district court confirmed the magistrate's report. From the judgment dismissing his complaint, Marchese appeals.
We turn first to the finding that the vessel was ...