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MORTON v. BERMAN ENTERPRISES

February 27, 1981

John MORTON, Plaintiff,
v.
BERMAN ENTERPRISES, INC., Defendant



The opinion of the court was delivered by: NICKERSON

MEMORANDUM AND ORDER

In this case the jury returned a verdict against defendant shipowner for $ 664 as maintenance and cure and $ 110,600 as damages. Defendant has moved under Rule 50(b) of the Federal Rules of Civil Procedure for judgment notwithstanding the verdict or in the alternative under Rule 59 for a new trial.

 Responding to special interrogatories the jury found that defendant was not negligent, that the ship was unseaworthy causing injury to plaintiff, and that plaintiff was not himself negligent.

 Plaintiff, a tankerman on defendant's oil tanker, testified that on September 21, 1977 he had his hands under a thirty foot oil hose of some six hundred to one thousand pounds and was maneuvering it in an effort to furnish sufficient slack to enable the men on a dock to fit the hose's flange to a manifold. The hose was suspended at three places by slings hanging from hooks, each attached to a block and fall attached in turn to a boom. The hooks were open, were not spring loaded, and had no mousing. Plaintiff testified that as he was handling the hose it came down at the middle suspension point, carrying him to the deck and causing his injuries.

 Defendant makes several contentions. It urges that plaintiff's testimony was demonstrably false because physically impossible. The argument is that no matter how the hose was handled its weight would have maintained the eye of the sling in the open hook, which was intact after the alleged occurrence. But the jury was free to believe plaintiff and to infer that the motion of the hose caused the eye of the sling to come off the hook.

 Defendant also asserts that there was no proof of unseaworthiness because in ten years on defendant's vessels no similar slings had come off open hooks. Even if it be assumed that the jury so found, it does not follow that the vessel was seaworthy as a matter of law.

 The test is whether the vessel and its equipment are "reasonably fit" for the purpose to which they are to be put. Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213, 83 S. Ct. 1185, 1190, 10 L. Ed. 2d 297 (1963). The fact that defendant had not experienced a similar occurrence in the past is not conclusive. Even the general practice is not the measure. Indeed, "there are precautions so imperative that even their universal disregard will not excuse their omission." The T.J. Hooper, 60 F.2d 737, 740 (2d Cir. 1932), cert. denied sub nom. Eastern Transp. Co. v. Northern Barge Corp., 287 U.S. 662, 53 S. Ct. 220, 77 L. Ed. 571 (1932).

 A rational assessment of whether the open hooks were reasonably fit would take into account a variety of considerations, including the likelihood and seriousness of the risk, the availability and cost of safer equipment, and the inconvenience, if any, of using it.

 According to the testimony, spring loaded hooks, costing no more than five or six dollars, and hooks with mousing were in widespread use. Either type would have retained the sling in place. Defendant does not claim that such hooks would have posed operating problems or that the slings were required to be removed from the hooks at frequent intervals. In fact, the evidence was that the slings were more or less permanently suspended on the hooks.

 The chance of a sling coming off an open hook may not have been great given the weight of the hose. But such an eventuality was by no means impossible, and the seriousness of the injury likely to be inflicted in the event of a fall is obvious.

 Taking into account all these factors and assuming evidentiary facts most favorable to plaintiff, the court cannot deem the open hooks seaworthy as a matter of law.

 Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223 (2d Cir.), cert. denied, 375 U.S. 835, 84 S. Ct. 52, 11 L. Ed. 2d 65 (1963), on which defendant relies, has no bearing on the issue. There the plaintiff, in an effort to extricate metal lodged in a chute and blocking the free flow of scrap, took a large piece of iron fashioned at each end into a round shape or hook, fastened it on the metal, and pulled. As he did so, his feet slid, the hook slipped off, and he fell.

 The Court of Appeals held that there was no proof of unseaworthiness because there was no showing that the improvised instrument belonged to the ship, and, even if it did, there was no evidence that it was defective, improperly designed, or otherwise unfitted for its intended use. At most plaintiff proved it slipped while he was using it.

 The decision is hardly persuasive authority here where plaintiff contends, among other things, that the hooks were improperly designed and ...


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