The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
Plaintiff Salvatore Lubrano brought this action to recover for injuries suffered on December 16, 1972 while he was working as a longshoreman on the M/V ITAPUCA, owned by defendant Companhia de Navegacao Lloyd Brasileiro ("Brasileiro").The suit was commenced in state court and removed here by defendant on the ground of diversity. Plaintiff's jury demand was stricken for the reasons stated in the Court's opinion of December 13, 1983, familiarity with which is assumed. Following bench trial, the Court enters the following Memorandum Opinion as its findings of fact and conclusions of law.Rule 52(a), F.R.Civ.P.
On the day of plaintiff's injury the ITAPUCA was discharging a cargo of bagged coffee beans at Pier 10, Brooklyn. This was Brasileiro's regular pier in New York harbor. Its vessel frequently carried cargoes of bagged coffee beans. Brasileiro had entered into a stevedoring contract with Pittston Stevedoring Corporation ("Pittston") to load and discharge Brasileiro vessels in the port. That contract is in evidence at DX B. Plaintiff Lubrano was an employee of Pittston.
Plaintiff boarded the ITAPUCA for work at 8:00 a.m. on December 16, 1972. Plaintiff was a member of a gang of longshoremen headed by a hatch boss named Circolone. Plaintiff was a holdman. A holdman, as the name implies, works in the holds (or hatches) of the assisted vessel, handling cargo. A longshoreman gang also includes deckmen. Deckmen run the winches, and give hand signals from the vessel's gangway to the winch operators and to other longshoremen working cargo on the pier.
The coffee beans were stowed in loosely woven bags of burlap-like material. Each holdman is equipped with a cargo hook. To discharge a bag of coffee beans, two holdmen approach the bag, one at each end. Each holdman inserts his hook into the bag. They then lift the bag on to a wooden pallet. When a full draft of bags has been assembled on the pallet, a longshoreman driving a hi-lo machine picks the pallet up and places it in the square of the hatch. Wires from the winch on deck are then attached, and the pallet is lifted up out of the hold, and swung over the side of the vessel to the pier.
The construction of the bags and the manner in which they are handled inevitbly give rise to some spilling of coffee beans in the holds of the vessel and on deck. Coffee beans are valuable. Efforts are accordingly expended to retrieve spilled coffee beans. Brasileiro and Pittston dealt with the subject in the stevedoring contract. Article III(j) generally obligates Pittston to supply coopering services. Article III(j)(2)(b) specifically provides that Pittston is to be responsible for:
". . . sewing bags in holds, on deck, platforms, and wharf; also sweeping up and bagging in holds, on deck, platforms and wharf. Discharge of all spills and sweeps on the ship to be made at intervals during the operations and at the termination of the working hatches."
Plaintiff and his gang were working the No. 3 hold on the ITAPUCA. Cargo had been discharged at least during the previous day. When the longshoremen began work on December 16, the tween deck was free of cargo. The remaining bags of coffee beans were in the wings and aft end of the lower hold. The gang resumed discharging the cargo in the manner described above.
Work continued past the usual quitting time of 5:00 p.m. As the daylight appearing through the open hatch faded, illumination was supplied by two or three artificial lights fixed in the ceiling of the lower hold. The remaining cargo in the No. 3 lower hold was completely discharged without incident. At about 5:45 p.m., the gang undertook to lift the hi-lo out of the hold by means of the ship's winches. The hi-lo was to be lifted by four wires attached to the corners of the machine. The hi-lo was positioned in the center of the hatch square to facilitate its elevation. Lubrano affixed one of the lifting wires to a corner of the machine. He walked across the steel deck, without incident, in order to approach the machine and secure the wire. According to his testimony, he then backed away from the hi-lo, keeping his eyes upon it. This he described as good safety procedure when a heavy object is about to be swung up into the air. He took two steps backwards. He then felt his left foot begin to slip out from under him. To save himself from falling, plaintiff reached out and grabbed the hi-lo or the lifting wire he had just affixed; the evidence is not clear on the point. But plaintiff's submission as to the mechanics of the accident is that, as lifting strain was applied to the wire, his left thumb became caught between the wire and the machine and was injured.
Plaintiff further alleges that he was caused to slip by stepping upon loose coffee beans.
The injury to plaintiff's thumb caused him to miss fifteen weeks' work. He lost wages in the amount of $3,000. He also claims past and future pain and suffering.
Plaintiff adduced evidence in support of three alleged faults on the part of the vessel. First, it is said that the loose coffee beans on the steel deck of the lower hold created a dangerous condition in which the longshoremen were required to work. Second, it is said that the ship's winch servicing the No. 3 hold was defective in that it did not generate lifting power in its lowest gear setting. The winch did not function until it was placed in the second setting, at which point it operated at a more accelerated rate than would have been the case in lowest gear.Third, it is said that the artificial lights rigged in the ceiling of the lower hold were inadequate.
Plaintiff called as a witness Joseph Tanzi, a fellow longshoreman and member of the gang working the No. 3 hatch on the day in question. Tanzi was a deckman. As such, he alternated between giving hand signals from the gangway and operating the winch. Tanzi testified that during discharge, he heard complaints from the holdmen about the presence of loose coffee beans. The holdmen asked that the coffee beans be cleaned up. Tanzi first communicated this fact to the hatch boss, Circolone.Circolone responded that he would have to go to the dock and see if the stevedore foreman had someone to send into the hold to attend to the coffee beans. Thereafter -- the time would appear to be about mid-afternoon -- Tanzi spoke to an individual who he identified as a ship's mate. Tanzi made that identification by the individual's "beige" uniform. Tanzi quoted himself as saying to the mate that there were loose coffee beans that should be swept up. Tanzi also complained about the crane, stating that the "first point [gear] won't take." The mate, according to Tanzi's evidence, responded that he would take care of these things.
According to plaintiff's evidence, nothing was done about either complained-of condition ...