Antonio Nuzzo v. Rederi, A/s Wallenco, Stockholm, Sweden, Rederi A/b Soya, and Third-Party v. Pittston Stevedoring Corporation, Third- Party

NUZZO, tiff-Appellee, Plain Antonio

REDERI, WALLENCO, STOCK A/S SWEDEN, HOLM, Defendant -Appellant, SOYA, Defendant

REDEBI A/B Third-Party Plaintiff-Appellant, CORPORA STEVEDORING PITTSTON TION, Third-Party Defendant -Appellee. 48, Docket 26992. No. Appeals States Court Second Circuit. 31, 1961. Argued Oct. 14, 1962. May Decided 29, 1962. May Submitted Rehearing In Banc Denied for Petition

June Kain, Jr., City William P. New York Gardner,

(Haight, Havens, Poor & Molanphy, City, F. Thomas New York brief), on the for defendant third- party plaintiff-appellant. Teti, City (Santo Frank A. New York Sgarlato, Jr., Brooklyn, R. Y.,N. on the brief), plaintiff-appellee. Healey, City H. Thomas New York (Monica Feury, City, & New York on the brief), third-party defendant-appel- lee. CLARK, HINCKS Before Judges.

FRIENDLY, Circuit Judge. HINCKS, Circuit Nuzzo, ‍​‌​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​​‌‌​‌​​‍longshoreman, Antonio against Rederi,

brоught this action A/S injuries he Wallenco, received while from defendant’s Harbor. York in New “Boheme” testimony is that Nuzzo undisputed deep in a others three 5Q7 rectly hatch, lum- containing only The under this lumber. the from and tank again Coast lower floor West level into the on the work out ber and, been loaded had orig- wings. practice, had been as is the inally “false decks.” stowed a series of in negligence At a trial on issues on the planks flat were laid Boards or and unseaworthiness, co Nuzzo and his say lengthwise, tois hold bottom gone they workers testified that down longitudinal the parallel axis the height working man and were out into forming “floor”; top hold, on wings. the stepped As Nuzzo back to laid, until on was and floor another position maneuver a bundle the into on varied filled. boards the hold was slings, stepped empty space into an feet, twenty length, and six to from between the of the vertical ribs bulk well; dimensions as were mixed in other head which was “about 18 inches across 4's, 6’s, 4’s, and 2 x were 1 x 1 x and about depth,” two feet in found bundles, They how- 2 x 6’s. were tied judge.1 the district He was thrown thickness; and ever, apparently equal off balance аnd fell backward form so as to these bundles were stowed bulkhead, injuring the his and shoulders the floors. successive back. His most substantial was claim of the tank The fore aft bulkheads and dangerous space the void was a and strength vertically corrugated, for were unseaworthy condition the mean within rigidity. were ribs and Their vertical ing Inc., Racer, of Mitchell v. Trawler apart and about about inches L.Ed.2d pair ribs inches thick so that each (1960). negligence His was claim of ap- space of three enclosed on sides dismissed the court evi for lack of proximately the x 10" x 10" and 10" ruling challenged by dence—a appeal. space open was fourth or side of this On the issue unseaworthiness, deep was 34 itself about 15". tank judge, trial expeditiously in order to dis long hatch feet and wide. The 28 feet pose case, controlling made his opening tank— in the deck above rulings from the bench at the conclusion through course, which, filing any the case without written feet be loaded unloaded—was 15 findings or colloquy conclusions. In his feet, roughly center of the with counsel he said: “The case comes tank. simply down to yоu whether or not made unloading, process improper out a stowage, case of was and that Slings port is at loading, loading reversed. were lowered into port.” longshoremen tank. The And later would fill these he said: sole “The question slings, which to the this were then raised case is whether or not * * * deck, emptied, again. shipowner provided lowered a sea * * * longshoremen worthy out vessel. would first clear regard, In that hatch; space directly the Court finds under issues in favor of space plaintiff against roughly would "man the defendant * * height” deep. Thеy “go only finding would into *The then of fact bear wings,” is, lumber, issue, on that gave unload the which the court expression, above level of on was that which the claimant while * * * standing, “reaching high to each side fore and about head They wing the bundles the hatch. then suc- take off from the aft of cessively process by removing repeat hold, being and his back to the bulk wall, corrugated tank, in the center di- head or slightly the evidence from the or further into nor extended 1. Neither in- However, any meagre findings expressed hold. which were terior un- certainty orally significance, lacks bench the close empty agreed space trial, possible since it determine adjacent empty space wholly perimeter be- whether tween the vertical ribs bulkhead bulkhead. properly, he answered slightly, and stowed hadn't ?” shape, stepped backwards 18 “Yes.” doing about hole into a feet two inches across reading tran A careful of the his struck and depth. He fell backwards sup script discloses other evidence to corrugated against right the shoulder port plaintiff’s the the issue case on # # wall the bulkhead аppears is unseaworthiness. what And validity conclusion To test the enough, think, support the con not we In ad- turn to evidence. we the reached hold clusion of unseaworthiness. recited undisputed evidence dition the disagree we the do with learned not Bluni, following. a was the above there may stowage judge improper trial that the longshoreman with fellow warranty of a breach constitute time, he saw plaintiff said that at the stowage, seaworthiness. That as well fall; plaintiff’s hole before gear, hull warranty is within ambit of dunnage had but with had not been filled rеcognized is well cir lum- by layer or floor a been covered cuit. Palazzolo v. S.S. Pan-Atlantic minutes fifteen not more than ber until Ryan Corp. (Pan-Atlantic Corp. v. S.S. happened; some accident before the Stevedoring Co.), Cir., against up “flat of the lumber went affirmed as to the over short”; and “sometimes bulkhead” Ryan Stevedoring v. Co. stevedore they put top board that “sometimes Steamship Pan-Atlantic 124, it, up with cover 133; Rich 100 L.Ed. hole”; supposed to be “the hole Co., v. Ellerman & Bucknall S.S. covered.” 704; United F.2d cf. Grillea v. Durante, longshoreman, testi- another States, 687, rehearing Cir., 229 plaintiff fifteen fied that after F.2d 919. See also Gindville unloading lumber,- years experience in Co., Steamship v. American-Hawaiian only into hole he the hole saw was Cir., 224 F.2d 746. fell; plaintiff hole that this dug holding upon Nor does “covered out the had been until rest out”; the plaintiff al- fact had “we the hole stuff that to be into which- the always ways holes. holes if been find We find had uncovered plaintiff point, properly “partner” himself his stored.” At long abut few minutes counsel contended that defendant’s before. That a may injuries, qualify shoreman did not an on recоver for witness sulting stowage subject unsuccess- unseaworthiness caused fully himself or his fellows has his that “holes” been the law objected always of this properly at found “if it is circuit least since Grillea v. States, supra. However, responding stored.” on question, cross-examination “It Our rather is that there good stow, lumber a wasn't it? But proof was neither nor of facts ‍​‌​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​​‌‌​‌​​‍you “Yes, it?" saw Durante testified: upon which the conclusion of unsea say that.” could properly worthiness could based. mere fact that a there was at himself testified that he plaintiff empty unloading pеrimeter space a small ex lumber from at worked similar tending adjacent ships feet below the since two similar enough day had accident he worked from was not it “floor” of boards self, p. read Mitchell Trawler m. when he a hole as we to 5 fell into 8 a. m. cargo Racer, bulkhead; supra, to violate the and the standard of between prescribed by fitness which he fell hole into was the reasonable seen; only ques- opinion. as the Just owner was under and to the only ap say you duty you vessel “Up to furnish a tion, time that “a reasonably purtenances fit for fell, Nuzzo, in- had been their Mr.

5Q9 Mitchell, every use,” that will weather tended as was said respect duty, withstand conceivable storm or the owner’s sea, every imaginable peril ship, to furnish reasonably stowage reasonably intended fit for its a vessel suitable stowage, purpose. purpose her service. Boudoin intended course, within Bros. reasonably safe [75 354]." the vessel which will be carriage at and convenient both for sea specifically, problem More de- and for the destination. termination of “reasonable fitness” of The fact hеre that lumber of assorted with which shall be consistent hold fixed sizes was to fitted into of a complete “a admonition to maintain inevitable, likely, size made it indeed liability divorcement of unseaworthiness gaps that here and or there would be negligence.” concepts from of holes at ends of the And bundles. We think the clue the solution is to to that, appears, so far as none these be found in to the cited reference Bou existed between bundles under the doin v. Bros. S.S. Co. In that longshoremen hatch where the were con- case, gives Judge approval the court to tinuously working, per- but at reasoning language Learned Hand’s and imeter of the hold the bundles between Tankship Corp., in Keen v. Overseas and the bulkhead where had little Cir., 515, a which was case in be, obviously occasion to was a fact add- volving charge a of unseaworthiness be ing to the reasonable fitness of the stow. cause in its crew awas seaman with a Especially in the absence of evidence proclivity for assault. Hand there cavity peripheral that this was obscured “Applied seaman, had said: to а by inadequate lighting we find no basis warranty is, a not that the seaman is holding the stow was unsea- competent contingencies; meet all to worthy. Certainly we are referred equal but is and cases in which unseaworthiness based seamanship ordinary men solely upon precisely lack of a fitted calling.” 194 F.2d at This test stow of the successive “wall:to-wall” Douglas quoted by Justice cargo. floors of a lumber opinion in Boudoin. He there further problem (348 339, p. 384) p. which faces said: us as applicable standard of seaworthiness “We see no reason draw a line passage framed the final gear between the and on court’s in Mitchell v. Trawler ship's person- the one hand and the Racer, Inc., supra, 362 U.S. nel on the other. A seaman with a S.Ct. at court, speak- where the assaulting proclivity may, people ing of years, its decisions over the last 15 indeed, deadly be a more risk than said: rope a with weak strand or a a hull “ * * * What evolved has is a problem, with a latent defect. The complete divorcement of unsea- many aspects law, as with concepts worthiness from degree. Was the assаult negligence. To hold now otherwise within the usual and would be just to erase more than a calling? standards Or is it page history. with a a seaman wicked a disposition, sug- propensity to evil a con- “What has been said not to savage gest obligated duct, vicious and nature? a that the owner is former, it ship. is one furnish If it is an accident-free every duty only absolute, duty the sea crew but a risks of savage appurte- If has a the seaman takes. to furnish a vessel nature, reasonably then be- their in- vicious fit for nances perilous place.” (Emphasis comes usе. The standard is tended fitness; supplied.) perfection, reasonable “diligence” essentially speaks (60 p. 740) F.2d approved was the test Thus g., citations, “prudence.” Wa Its e. test applied a similar pragmatical. We McDaniels, Railway States, Cir., bash 454, Co. v. Poignant v. United 605, make it retrial 595, when remanded concepts predicated clear it was the vessel whether on the issue of negligence Boudoin equipment usual provided been abjure. Mitchell we are admonished to ly in other And vessels. found similar holding and dicta survive affirming of Whether its of our decisiоns holdings Supreme these recent evi direct unseaworthiness may be, is unclear. However Court cus pertinent “usual dence as that unseaworthiness tomary Eller Rich Cf. standards." working ra sults from the absence S.S. Co., supra; Reddick man & Bucknall reports dio on a sea Lighterage Line, Inc., to receive weather v. McAllister going tug, Hooper, denied, does T. J. cert. 229; not follow results that unseaworthiness 3 L.Ed.2d from lack of an wall-to-wall unbroken su Palazzolo v. Pan-Atlantic flooring at each successive level pra. Fruit And v. United see Martin 347; lumber stow. Cir., Co., v. F.2d Fatovic 2 272 Stoom Nеderlandsch-Ameridaansche Here, there was no concealed de Cir., vaart, Maatschappij, 2 fect, condition, indeed no unusual in a Co., 188; Salem v. United States Lines stow, which, pro lumber pensity because of its Cir., granted, 121, 293 F.2d cert. injury, obviously to cause was 62, 811, 82 But 7 L.Ed.2d 21. S.Ct. general prac at variance with maritime ‍​‌​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​​‌‌​‌​​‍Bay Troupe Chicago, D. see v. & G. here, problem tice. The was said of 253, 260. Transit 234 F.2d problem Boudoin v. Bros. many are doubtless cases There Co., supra, p. causing injury condition p. 385, degree”; was “one of it was or, because of hid was so unusual somе whether the stow was “within the usu defect, unapparent clearly den gerous dan or customary al and standards of toas warrant the conclusion calling.” judge As to that the made no trier, even unseaworthiness finding. plain He found that the absence direct evidence it that was “stepped slightly, tiff backward and in customary "within the usual and doing stepped into a hole about 18 comparable standards” maritime ac inches across two feet tivity. Carpals Van Cf. v. S.S. American depth. fell He backward struck his Harvester, Cir., 297 F.2d cert. deniedright corrugated shoulder Carрals, 1962, U. S . Co. Van Lines v. ** * bulkhead.” For lack of a find 1031; States, Grillea v. ing jn that such a hole a lumber stow supra. See also Gindville v. American- with the “usual and was odds cus Steamship supra.2 Hawaiian It is tomary calling,” standards of the Cir., Hooper, in The J. T. true conclusion of hold the unseaworthi Transp. cert. denied 60 F.2d Eastern erroneous, and ness reverse. And since Barge Corp., v. Northern Co. 662, support insufficient we find evidence to was it had been made we such a pertinent pre of a held absence dismiss. direction mand usage will neces vailing custom or complete absence of more finding of unseaworthi sarily preclude a pre impossible for us findings makes case, will remem be But ness. divergence cisely long locate bered, before was decided judge learned cases. Its and Mitchell Boudoin plaintiff’s port 224 F.2d verdict. though case, the stow was even In this 2. obviously dan- was sup- expert evidence to gerous,

5H 1962; 9, 1962, May 15, believe, Richter how- affirmed plausible to It is below. ever, Industries, Inc., of a Mathiasen’s Tanker being that, without benefit 494; Hooper rulings, Terminal transcript his when he made Steamship Co., 2 by plaintiff's coun- may misled hаve been Co., supra. argument repeatedly Salem v. Lines as- United States on final sel who defendant-shipowner’s serted that with a direc- Reversed remanded testified own witness had tion to dismiss. gap plaintiff had or hole into which dangerous condition” “was a CLARK, Judge (dissenting). Circuit unseaworthy.3 making stowage This to me clear case case seems Such, however, expert’s tes- was not It well affirmance. tried timony. plainly expressed belief He distinguished the most judges, of American stowage that in the of lumber such long work, experienced in trial every are “the cоndition on Chief cuit, Murrah of the Tenth Cir- world," that he “wouldn’t by designation sitting below. His dangerous”; that he had consider it findings and conclusion of unseaworthi- up never seen such holes blocked ness open reason of the ship. judge Of course the trial holes left in the of the lumber obliged expert’s accept supported are well in- record and urged testimony. if, plaintiff's But carp- deed seem rather inevitable. Some counsel, testimony he took the as evi- “meagre” is had as to the character unseaworthy lumber, dence of an stow of findings. findings But should transcript shоws he fell into error. geared to judge reflect the case as the it, decision,4 saw note, broadly not Our to some in artificial of standard perfection; needless line with those made several recent cases in this cir here do perfectly merely this cuit that because are of an more than ade- aboard, quate accident to simple the set forth neces the is not and stark fact, unseaworthy. actually sarily Ezekiel Volusia recited three times in the opinion, Steamship plaintiff, engaged while in his task stepped Pinto v. of lumber, Statеs Marine denied, doing cert. backwards in (1962); Royal into a Puddu v. hole “about Netherlands 18 inches Steamship across and depth.” 303 F.2d 752 two feet in (January 3, 1962), rehearing do not impressed wonder my de banc this February 20, 1962, granted April nied brothers so that impelled felt thus types apparently cargo, eases, bales, bags, 3. Counsel had in mind the wit- of Keeler, spaces high (Em- to ness be an officer of the stow.” executive phasis position large supplied.) Indeed, company plaintiff’s in a stevedore coun- objected way up question sel had who had to worked his from thе bot- because Keeler, it true, tom was not of the confined business. to the of lum- expert's testimony, ber. therefore, had testified to "a custom in Port of * * * ports responsibility of a New York custom or and in other for cover- ing respect coverage “sufficiently to holes (the to these it make stowage) whereby seaworthy” covering only holes” ‘‘the the holes vague meaningless discharging as taken care of to be steve- but did not apply cargoes. “responsibility dore” has even to who lumber to see the holes or whatever is uncoverеd * * * defendant-shipowner the men third-party in it are sufficiently complaint sought to malte sea- had to covered recover over worthy, stevedoring company any continue to work in to that com- recov- (Emphasis supplied.) plaintiff. partment.” ery appeal But covered plain by ruling dismissing makes it the context reference to also the below the ac- prior question (which just plain- been tion over. Our inquiry repeated) to a tiff’s claim the owner makes coverage respect unnecessary pass upon custom with to the dismissal thеse holes other the action over. “in carriage erupting view that the valve was fault- But I do understand to it. reiterate necessary less. why they back from draw conclusion. Moreover, prejudicial practi- this has cal results. It means in substance aof clear seem For this would a workman has no chance of controvert- ship unsea- renders hazard which worthy. industry view, a solid has that what Stowing lumber been done natural and large way other leave business, produce unless he out- can chiefly cargo, wise flat surface ranking experts testify in his behаlf. hold, prac areas of the the remoter expect It is unreal to this. Outside injury. tically an invitation to the not fees inconsiderable item of unloading operations course normal expense, obviously difficult, it will if longshoremen required to walk were impossible, competent wit- secure cargo, perfectly it was about on predictable testify against nesses to their own busi- one that at some questions safety ness. The both of at sea the holes them injure fall into necessarily and of risk distribution will clear, Liability seems as himself. be subordinated to the сonclusion that instance, of the unex as in the case good what for the common carrier plained exploding where we of a valve good for, business must be or at ac- least finding excusing cently reversed a cepted by, injured by those odd condi- liability. Carpals v. S. Van shipboard. tions on The more natural Harvester, Cir., American S. conclusion should be defendant U. Co. denied S. Lines certiorari transport way must (and Carpals, 369 U.S. Van even defendant's admitted there 8 L.Ed.2d 84. ways covering holes), then majority over- But the injury bear risk of to human findings ruling appears below beings. negligence concepts into ‍​‌​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​​‌‌​‌​​‍reintroduce majority saying any- Actually unseaworthiness, over- and thus law thing negligent than other throw, by kind of covert counterrebel- stowage job, e., i. one which is rea- liability lion, of absolute laid the rule circumstances, sonable under the can v. in Southern S.S. down Mahnich constitute unseaworthiness ? Or at most 455, 561, 96, 64 S.Ct. 321 U.S. cargo carriage properly that stowed Sieracki, Shipping v. 328 Co. and Seas regardless seaworthy, what risks 1099, 872, 85, 90 L.Ed. presents ? life and limb The funda- recently reaffirmed in v. Mitchell mental rationale unseaworthiness as Racеr, 539, Inc., 362 Trawler liability ship- an absolute is that Moreover, 926, 4 L.Ed.2d 941. S.Ct. injuries owner must bear the loss of defense, here ship’s erected rule into a by hazards. caused unavoidable Seas distressing law, applied me seems as Sieracki, supra, Shipping Co. 328 U. v. quite pernicious facts and in its 85, 872, 94, L.Ed. S. 1099. that, possibilities. It is future as shown “reasonably If fit for their intended use” expert witness, by professional its majority read here is to be done, as has stowage; customary is usual and and it shipowner will avoid “likely, inevitable,” indeed prove that he exercised can whenever type gaps of this have care. reasonable Judge contrary Thus, Murrah’s holes. may be drawn below, conclusions question Similar what sound view a hazard does not good out of taken constitutes unseaworthy unless it given render the over to court and hands divergence from usual and represents under industry practices are whose If it is cus- standards. departure; in new seems a This attack. have con- hazardous the trade to instance, in tom did not Carpals, Van shipboard, we to are conclude industry by ditions on bound hold ourselves consequence inverted a logic incurred curious reason the loss regarded by the in such hazards is be borne two cases generally jured my longshoreman as In or stevedore? brothers Second Circuit . pressing Hooper, The T. 740, of unseaworthiness J. doctrine Transp. to making are undesirable taken denied Eastern extremes certiorari overruling, Barge doubtful, v. Co. Northern Judge Judge L.Ed. decision Hand’s landmark are, Hooper Learned Hand stated: “There dis- And the conclusions case. doubt, Supreme courts seem to covered tionary cau- cases where make Court's general calling practice remarks in Boudoin ** diligence against ground proper pressing standard *. of unsea- beyond prudence equal Indeed in most cases reasonable worthiness seamen prudence; strictly is in fact ordinary common men calling calling measure; degree its never whole men some are to —“All may lagged adoption unduly irascible,” have To etc.—are remarkable. of new and available devices. It never conclude that limitation this natural may tests, persua set industry acceptance its own however forces methods usagеs. stowage, sive be its Courts must no matter how dan- * * gerous say required end may be, what is See me seems to a self- Troupe Georgian Chicago, fallacy. v. Duluth & demonstrated Bay 260; Transit ISo am proceed convinced we should T., King, Cir., June Inc. Judge on the Murrah, standards set Hooper, T. J. upon rather than set those the indus- Judge negli spoke Hand terms try. opin- note that the end of his gence; law entire trend of the ion Hincks calls the roll of the Hooper unseaworthiness since The T. J. reinforces, cases year in which we have this decided erodes, rather than the con against seamen in the course of what ultimately clusion that the courts seems to attempt me an to cut down set the standards. scope Supreme Court’s doc- trine Although of unseaworthiness. im- significant It majority pressive point view, in favor of one expansive interpretation its of “reason quite roll complete, is not for there ably pri fit for their intended use” relies See, were some cases the trend. marily actually holding opposite on cases nearly more here, Van Car- to its decision here. This is true not pals v. S.S. Harvester, supra, American Inc., Racer, of Mitchell v. Trawler see also Massa C. A. Venezuelan 362 4 L.Ed.2d Navigacion, 239; 2 Cir., 298 F.2d Usiak appeals’ holding reversal of a court of that slime on the rail did not render the Barge v. New York Tank 2 299 DeLima v. Trinidad unseaworthy, vessel also of ma Cir., 2 really 302 F.2d 585. It jority’s apparently support, chief Bou bitterly unfair to describe the contested Co., doin v. 336, Bros. holding cases cited as ship neces- not 382, 99 S.Ct. L.Ed. where sarily “merely unseaworthy because of appeals’ the Court reversed a court of aboard.” Here cases an accident findings dеcision to court restore district resulting injury from some serious unseaworthy that a vessel was because ship’s operation; ques- failure belligerent characteristics of an only to the extent of tion was my other ap seaman. I find brothers' Moreover, responsibility. ‍​‌​‌​‌‌​‌‌​‌‌​‌​‌​‌‌‌‌‌‌​‌‌‌‌‌‌‌‌‌​‌​​​‌​​‌‌​‌​​‍ship’s I think proach prime illustration of the dan disputable hardly that the facts make gers reading negative extensive im exonerating extreme a more case plications affirmation, into an however limiting respon- zone its narrowly they may it. construe There any sibility than of those citеd. logic practical is no per rule or of doing-. justifies which suasion Here affirm. My plaintiff. broth- Rehearing tion this one for Petition On me, ers, have for reasons not clear CLARK, HINCKS Before teachings accepted not Judges.

FRIENDLY, Circuit perforce and I must dissent. slight the facts differences in PER CURIAM. generally impor- the two cases are rehearing denied. for Petition ; anything, they present tant if show stronger plaintiff’s position than tó Judge (dissenting). CLARK, Circuit finding Salem’s. There the for opinion. separate I dissent plaintiff by jury; an here Rehearing Banc On Petition experienced judge giving persuasive rea- Judge, LUMBARD, Chief Before difficulty lack sons. The^e MOORE, WATERMAN, CLARK, railings platform nest crow’s KAUFMAN, FRIENDLY, SMITH, was, anything, easily perceivable less Judges. MARSHALL, Circuit HAYS and than were the lumber in the ship’s testimony hold. Hence PER CURIAM. necessary would seem somewhat more and useful Salem than here. But concuring, judges the active All of Supreme did the Court hold that Judge J. Judge except CLARK error, there was “no let alone manifest grant, the who vote to SMITH JOSEPH having error, jury decide without the rehearing petition denied. in banc experts”; aid of it also said: “Nor (dissenting CLARK, Circuit expert testimony customary would equiрpage re- petition for denial essential, be Cir., Pure Oil Co. v. re- hearing hearing application and of the Snipes, 60, 71; nor, 293 F.2d banc). offered, even if would it have concluded herein, Shortly our after decision questions neg- of unseaworthiness or Supreme Salem decided case of Court citing ligence,” cases, including several Lines States Hooper, Cir., The T. J. reversing decision repudiated my opin- brothers in their F.2d 121. Court's 1119, 1122, ion.1 1123 note 6. support expert testimony absence my It is true that did brothers failed contention that upon testimony base decision railings safety provide de- or other although expert, they defendant’s recit- platform did not crow’s vices at a nest approvingly. ited But did base de- finding jury’s to a bar a sea- upon cision sup- “insufficient evidence” to injuries unsea- man for caused port a that “such a hole a lum- ship. Since our deci- worthiness ber stow was at odds with the ‘usual and on a like of tes- sion was based timony absence ” calling,' standards of the show lumber stow- 506, 510, a test in itself age gaping holes, here with into one appropriate negligence more than to plaintiff stepped, was im- Judge Murrah, unseaworthiness. how- proper, the basis of our decision has expressly ever, had held that decision was eliminated. thus been Hence rehear- experts, trier, not for him for, my judgment, petitioned hesitancy in unseaworthi- bring necessary quite holding, the Salem Under ness. Supreme Court's view of line with case. conclude discriminatory prevent ac- law might City arise unseaworthincss later case Morales still 1. The cargo ship’s loading Galveston, “or the touch does not method stowage.” issue, its but concerned a defect manner existing before it was loaded. however, expressly did, note that Court

Case Details

Case Name: Antonio Nuzzo v. Rederi, A/s Wallenco, Stockholm, Sweden, Rederi A/b Soya, and Third-Party v. Pittston Stevedoring Corporation, Third- Party

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 26, 1962

Citation: 304 F.2d 506

Docket Number: 26992_1

Court Abbreviation: 2d Cir.