The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Defendant moved, at the end of plaintiff's case, for a directed verdict in its favor pursuant to Rule 50(a), F.R.Civ.P. For the reasons stated below, the motion is granted and the complaint dismissed.
Plaintiff Mario Lubrano commenced this action for personal injuries against defendant Royal Netherlands Steamship Company pursuant to the Longshoremen's and Harbor Workers' Compensation Act (LAHWCA), 33 U.S.C. § 901 et seq.
The case was called for trial before a jury on March 30, 1977. At the Court's direction the trial was bifurcated, the issue of liability being tried first, and questions of damages being held in abeyance.
Plaintiff called two witnesses on the issue of liability; himself, and Willie Joe Ashley, the stevedoring hatch boss under whose direct supervision plaintiff was working when he suffered his injury. The evidence of these two witnesses may now be summarized.
On the morning of December 27, 1972, plaintiff Lubrano reported for work on board defendant's cargo vessel CHIRON, then lying at Pier 39, Brooklyn. Plaintiff was employed by Northeast Stevedoring Company, with whom the defendant ship-owner had contracted to perform stevedoring services on board its vessels.
Plaintiff was a "holdman", a designation reflecting the fact that he performed his labors in the holds of vessels, rather than working on deck. During the morning in question, plaintiff and his particular gang of longshoremen, consisting of seven other men, were assigned to work in the number 1 lower hold of the CHIRON.
Plaintiff's immediate superior was his hatch boss, Willie Joe Ashley. Ashley directed a group of 18 longshoremen, who were assigned to work at the vessel's number 1 hatch. Ashley's immediate superior was a stevedore foreman named Pete Spano, who, as in the case of plaintiff and Ashley, was an employee of Northeast. Spano's responsibility was to supervise the activities of the Northeast longshoremen throughout the vessel.
After clearing away the number 1 hatch, plaintiff and his seven fellow longshoremen descended into the number 1 lower hold, arriving there at about 8:15 in the morning. It was intended to load a cargo of drums of tallow in the lower hold. In order to prepare the hold for the cargo, the longshoremen laid down a wooden flooring, the wood being supplied by the vessel.
After this flooring was laid down, the drums of tallow were raised from the pier and lowered into the hold, by means of the vessel's winches. These metal drums stood about 3 1/2 feet high, and contained about 55 gallons of tallow.
Tallow is a greasy, highly slippery substance. The exterior of the drums being loaded into the CHIRON were covered with tallow, and in consequence the drums were themselves slippery.
The drums were lowered into the lower hold in drafts of 6 drums each. When such a draft reached the bottom of the hold, two longshoremen would roll each drum into a wing of the hold, and then stand the drum on end. Eventually a tier of drums, covering the entire floor of the hold and filling the wings and the square of the hatch, had been arranged, the drums standing on end and next to each other.
In the course of handling these drums, the longshoremen's gloves became saturated with greasy tallow, and their shoes became covered with the substance.
It was also intended to stow a second tier of drums upon the first tier. Before doing so, it was necessary to lay a floor of dunnage upon the top of the first tier of drums. "Dunnage" consists of pieces of rough lumber or plywood. Its purpose, in the circumstances of the case at bar, was twofold: to separate the tiers of drums and so prevent the contact of "metal on metal"; and to serve as a layer upon which the longshoremen could stand, walk and work as they put the second tier into place. This latter function served as a safety factor for them, since, as noted supra, the tops of the drums were slippery with tallow, and so, after they had been working in the hold for awhile, were the soles of the longshoremen's shoes.
When the first tier of drums was in position, the longshoremen requested dunnage to be used for these purposes. Some dunnage was forthcoming, supplied by the vessel. However, as the work progressed, it became apparent that there was insufficient dunnage to construct a ...