*1 member, dissenting out expression of Rogers, the most serious chargeable any anti-union sentiment directed, not Company Cross against Ziolkowski, another but
employee, Szymanski, apparent union discharged. organizer who was not 8(a) (2) of the No violation of section Act, 29 U.S.
National Labor Relations (2), 158(a) C.A. § Company found to or
Cross is Upon record as a have been done. Rogers agree
whole, with Member showing the burden of discharged Company Ziolkowski Cross support union has
because
not been carried. Accordingly, National the order aside; and
Labor Relations Board is set August complaint filed
dismissed. S. MESLE
Edward CORPORATION, Ap
KEA STEAMSHIP Ceiling (Haenn Ship pellant Re fitting Corporation).
No. 12540. Appeals States Court Third Circuit.
Argued June Sept.
Decided
Rehearing Denied Nov.
Landy Lorry, Philadelphia, Pa., on appellee brief), for Mesle. Byrne, Jr., Philadelphia, Pa. T. E. (Krusen, Philadelphia, Shaw, Evans & Pa., McNulty, Jr., J. Bernard Philadel- phia, Pa., brief), appellee Ship Ceiling Refitting Corp. Haenn MARIS, Mc Before GOODRICH Judges. LAUGHLIN, Circuit Judge. McLAUGHLIN, Circuit personam appeal an This is an on brought against admiralty libel ship owner in which occurred by whereby hurts accident suffered neg- libellant resulted. ligence libel shipowner and unseaworthiness the vessel. The employer. impleaded owner libellant’s Refitting Ceiling Ship The Haenn engaged by Corporation the re- had been spondent car- to effect certain fittings pentry repairs to in the S.S. Sunion’s No. hold while the vessel Philadelphia. early afternoon at 4, 1953, Mesle, Edward an of March employee Haenn, S. and a number hold into the co-workers descended lower carriage outfitted the bulk which was assuring grain. Necessary for of underway stability engaged ship along center is the erection hold’s shifting line known as a of a device shifting The function board. surface effect board reduce the free is to resulting lateral flow of the grain following ship. each roll shifting had been construc- erecting up- by double ted three sets by consisting rights, 2" 2" 10" or eight spaced approximately planks 12" apart, 10" between which 2" feet horizontally were nailed so as boards This bulkhead was bulkhead. form a athwartships on nine braced on the star- side and nine shores Philadelphia, Mount, Pa. P. of the three sets of Thomas board side. Each Pa., Henderson, Philadelphia, uprights (Rawle & was braced three shores thus Pa., Kildare, Philadelphia, by 6" G. shores were 4" side. The Harrison on the each brief), appellant. top tier each timbers. from the ’tween extended down three Borowsky, Philadelphia, Milton Pa. coaming upright to an hatch Freedman, deck
(Abraham
Freedman,
E.
toe-nailed
down from the nails which had
below
Approximately T
board.
being
weight
shifting board,
ex-
tier
middle
this one
pull
free.
insufficient
upright
downward
from the
tended
end
angle
outboard
to where
*3
repaired
port
men then
the
side
The
to
in-
against
batten at the
a sweat
butted
they similarly attempted to break
ship. About
the
of
of a
face
frame
board
damaged
pull
and
down
shore there.
the
lower
the
middle shore
below
T
dropped
give,
men
When
did not
the
upright
to
the
paralleled it from
shore
line,
saying,
the
the foreman
“It looks
apart
are 30"
Frames
frame.
the same
going
a
like we’re
to have to knock off
depth;
out-
to their
in
18"
and are about
get
there, Ed,
up
cleat
there and knock
forming
skin
plates
the
faces the
board
off.”
one
attached.
are
of the vessel
Whereupon
up
climbed
the
libellant
by
place
secured in
shores were
The
just
point
battens at a
forward
sweat
trimming
as to butt
the
so
ends
standing
shore
of the
until was
he
shifting
upright
against
and
board
the
of the
batten to which the end
fastened,
was
shore
frame.
batten at the
other
the
the
being
some twelve feet above the
place by
in
secured
The
were
ends
Turning
the
floor of
hold.
about so
made
snugly
wooden cleats
with
framed
heels were hooked
that his
batten
the
by
pieces
feet
several
3"
of wood
of 2"
holding
higher
and
a
onto
batten with
length.
cleats
end the
inboard
in
On the
hand,
left
his
he wielded
with
hatchet
shifting
the
board. On
to
nailed
the
were
right
away
along
split
to
the cleat
they
sweat
nailed to
end
were
outboard
afterside of
the
the shore. No sooner
2"
were
sweat battens
These
battens.
away
had the last of
cleat fallen
running
the
than
lengths
lumber
6"
of dressed
unexpectedly slipped
end
the
of the shore
horizontally,
aft, up the sides
and
fore
off the batten at
the
the
batten was
eight
hold,
to ten inches
of the
about
frame,
in contact with
face
the
of the
L-shaped
place
apart,
held in
and
moving
enough
down, aft, and
outboard
clips
the
to the faces of
welded
metal
to come
so as
between the
verti-
frames
open
top
clips
at the
were
frames.
cally
horizontally.
the
and
battens
This
permit
the
of
removal and insertion
enough
pull
movement was
other
the
battens are
sweat battens. Sweat
end
the
from
shore loose
plates
prevention
contact with
the
by packaged
board so that
it fell
floor
of the
cargo
a nature to
hold.
upward,
outboard end thus see-sawed
harmed
the water
condenses
levering
the batten
above out
plates under certain conditions.
clip thereby catapulting
its
Mesle into
workers were as-
Mesle and his fellow
heavily,
air from
he
whence
landed
replace
signed
and
the two
to take out
severely injuring himself.
starboard
and
middle shores
bracing
upright
after
tiers
Inspection of the shore revealed that
having
shifting board,
both
the shores
ends had
its
been
toe-nailed as was
roughly the middle.
cracked at
become
been,
usual custom.
Had
the nails
held
work on
star-
doubtless
shore in
men
went to
first
place
damaged
until some force was
shore
exerted to
side to remove the
board
pull it down. The
A line was thrown around
absence of
located there.
the toe-
and
turn taken around
nails could not have been
a double
shore
discovered so
long
in
as the
Both ends
line were
were
middle.
around
questions
the shore. The
after
the ends
back to a recess
carried
alley
presented to the trial court
the shaft
hold above
of the
whether
ship’s personnel,
tugged
through
men
at the line until
them
where the
shipowners,
negligent
where it had been the
broke
the shore
happened,
permitting erection of the
the out-
shore
When this
without
cracked.
toe-nailing and whether the
the shore fell free to
end
hung
unseaworthy.
hold;
inboard end
erected
bottom
adopted
visible
judge
li
not have been
feet would
The trial
-
inspection.
adequacy
such
proposed
fact
bellant’s
snugness
cleating
shores
law,
practice
conclusions
subject
in-
disapproved
occas would have been the
court had
on another
enough
;
compliance
spection
being
assurance
inadeqate
these
ion1 as
an 46½,
perform
func-
their
Admiralty
28 U.S.C.A.
Rule
to hold
McAllister
tion.3 Under these circumstances
edict in
We have mind the
negligent
ship
States, 1954,
in not ac-
quiring
judgment
of toe-nails
notice of the lack
L.Ed. 20
require supervision
admiralty
in effect
aside unless would
not to be set
*4
placing
yet
ship’s personnel
clearly
the
over the
where
it is
erroneous. And
obviously
every
imprac-
an
independently
nail.
out
This is
set
the court has not
reviewing
con-
burden.
court
tical and
We
unreasonable
its
the
think
“
*
* *
finding
may
readily
clude
any negligence
the
court erred in
‘left with
that
trial
more
be
respondent.
a mis
firm
that
a
conviction
definite
” 2 The Sever
take has been committed.’
ance,
Having
ap-
reached this
is
Cir., 1945,
916.
152 F.2d
4
parent
judgment,
the
if it is
be
that
to
finding
duty
affirmed,
rest on
of ex-
A
must
the
owed
the
unseaworthy
It
position
istence of an
condition.
was
exer
to one in Mesle’s
maintaining
simply
preliminarily
suffices
to note
that
care in
cise
reasonable
originally
shipowner’s duty,
premises
the
only
owed
busi
in a condition safe for
maintaining
regard
seamen,
a vessel
for the
to
invitees with due
ness
seaworthy
appurtenances
calling
purposes
presence
in hull
ex-
of such
for
furnishing
duty
tends to shore-side workers
was the
invitees.
specific
short
reasonably
providing
a time
to
vessels services which in
a
one of
duty
specialized
activity
economic
in which work.
to
safe
usually
Pope
one,
rendered
the crew.
however. Lake
not an
is
Hawn, 1953,
Steamship Co.,
406,
Talbot v.
346
74
2
U.S.
v. Standard Fruit &
duty
Shipping
Here,
202,
1950,
S.Ct.
98 L.Ed.
Seas
354.
Cir.,
F.2d
Sieracki, 1946,
or his Co.
328 U.S.
have been met had Mesle
would
employer’s
representative
(cid:127)There
an elusiveness
actual notice of the
or
servants had
its
an omnisufficient definition.
But
judg-
was
fact
not toe-nailed
order
articulate our
standard
respondent
presume
think that
can
attempt
nor do we
we must
ment
with,
fairly
imposed
no
constructive
definition of the term sufficient at least
(cid:127) The
of toe-nails
purposes
absence
tice thereof.
for the
this case.
already
apparent, as has
not
quite apparent
was
is
It
that whether or
position.
cleats were in
noted,
once
appurtenance
is “in fit
condition
* * *
completed
if the
structure
Thus even
voyage
for
the incident
by ship’s personnel
inspected
had been
usually
perils
the sea”4 is
an irrel-
custom,
is
de-
indeed
evancy.
“(t)he concept
It is said that
Cir.,
City,
1941, 122
1.
The Plow
3. The evidence shows that Coast Guard
require
cleating,
regulations
but do not
toe-nailing.
mention
States, supra,
v. United
2. McAllister
page
page
S.Ct. at
dictionary
U.S.
8
4. From a
definition of “sea-
,
Oregon
quoting
States
State
worthy”.
Society,
326, 339,
1952, 343 U.S.
Medical
690,
ably
Yet
intended
fit
liability
safety
im-
many personal
activity;
is
great
of that
examination
aof
posed
comply
this
injury
of unsea
failure
cases which claims
making
duty,
vessel
presented
termed one
leads to
worthiness were
category
seaworthy.6
The other
is
of two
conclusion
those cases are
general
actually supplied
equipment
categories,
fit
both which
doing
proves
shipowner,
ship’s work
owner for
incapable
definition. One is where the
performing
knowledge
having
its function
construc
or
—actual
designed.7
occur,
activity
the manner
which it
certain
tive—that
Co., 1944,
Crumady
64 S.Ct.
Fis
Hendrik
v. The Joachim
Pope
Talbot,
ser,
Crawford v.
249 F.2d
Inc.,
Cir., 1953,
784; fitting
in which
6. Some cases
Arias,
Fletero v.
ground
permitted
Strand,
Cir., 1953,
267; Kulukundis v.
proved
that unseaworthiness had been
*5
202 F.2d
Read v. United
1922,
Packing
Sandanger,
Carlisle
Co. v.
Cir.,
758;
1953,
3
Cement,
201 F.2d
The Diamond
255,
475,
927;
259
L.Ed.
U.S.
42 S.Ct.
66
738;
Cir., 1938,
9
95 F.2d
The
York and New
Halecki v. United New
Cir., 1937,
Scandrett, 2
H. A.
87 F.2d
Jersey Sandy
Ass’n, Cir.,
Hook Pilot’s
2
708;
1932,
States,
Cir.,
United
2
Ives v.
1958,
708;
United
251 F.2d
Buch v.
201;
Light
Henry
58 F.2d
Gillen’s Sons
States,
Cir., 1955,
165;
2
220 F.2d
erage
Fernald,
1923,
Cir.,
v.
2
294 F.
Bentley
Cir.,
Co.,
v. Albatross S.S.
3
520;
1918,
21;
Colusa, Cir.,
The
9
248 F.
Pope
1953,
270; Hawn
&
203 F.2d
v.
Thompson Towing Wrecking
&
Ass’n v.
Cir., 1952,
(where
Talbot, 3
place.
undoubt-
The crack in the shore
customary methods,
in fact was
edly
capability,
if that
but
reduced
here;
unseaworthy.
establishing
used
was therefore
relied
to be
shore, libellant’s
unseaworthiness of the
compel
The cases which we feel
very
correcting
engagement
de-
(cited
6)
result
natively
alter-
footnote
make
fect would
it obvious
neg-
rested
seaworthy
was not
warranted
ligence.
they
is, however,
respect.
v. Isthmian
in that
Bruszewski
concept
not. Thus
unsea-
did
Co., Cir., 1947,
F.2d 720.
S.S.
attempted
worthiness
must, therefore,
first
be one of the
case
by distillation from those cases
articulate
category.
applied
sup-
and have
here
evolved to
has
analysis
thus
in its final
.The
recovery amounting
imposi-
to the
shipowner had
is reduced whether
chiefly by
liability,
reli-
tion
absolute
duty meaning that he
—
*6
closely
supporting
on cases
al-
ance
regard-
liability
imposed
be
would
concept
lied
which
here
referred
resulting
negligence
any harm
for
to' as the second
of unseaworthi-
supply toe-nail-
thereof —to
from breach
already
ness. Those cases
reached
had
ing
un-
and
the shore.8 Cumulative
imposing
liability
absolute
testimony
contradicted
for unseaworthiness.
invariably
manner
in a
erected
were
required
already
of nails before
insertion
It has
been intimated that
positioned. Al-
required
engaged
libellant
in re
since
was not
cleating
noted,
though,
very
alone medying
as has been
defect which caused his
applicable
injury,
warranty
under
Coast
sufficient
of seaworthiness
regulations
regulations,
respects
those
Guard
of the structure in
other than
only
adequacy
calling
of the
repair
concerned
with the
continued to run
preventing
move-
excess
structure
to him. Bruszewski v. Isthmian S.S.
cargo
They do
Co., supra, consequently
sea.
ment
does not control
safety
purport
with the
to be concerned
See
v. American-
this case.
Gindville
erecting
engaged
personnel
or tear-
Co., Cir.,
1955, 224
Hawaiian S.S.
F.
ing
But
the structure.
down
2d 746.
Borgersen
213;
Tawmie,
ly
negligence
F.2d
v. Skibs
as one
are The
Abu, D.C.E.D.N.Y.1957,
792;
Cricket,
156 F.
A/S
282;
Supp.
61;
Garrison v. United
The Birken
F.Supp.
C.N.D.Cal.1954,
D.C.E.D.Pa.1930,
head,
D.
Co.,
Greig, D.C.S.D.Ala.1920,
S.S.
D.C.
Daniels v. Pacific-Atlantic
Burton
D.N.Y.1954;
F.Supp. 96;
Henry
Fiske,
Adam
E.
D.C.Mass.
F.
B.
Corp.,
D.C.E.D.Pa.
v. Gulf Oil
been the contractor who Appeals United States Court shoring. ed the Eighth Circuit. Stevedoring Ryan See Pan-At Co. v. Nov. Corp., 1956, lantic S.S. no There is
evidence as to the existence
relationship. judgment in favor of libellant impleaded respondent affirm-
ed. Rehearing
On Petition for
PER CURIAM.
Recovery was here affirmed on
ground of unseaworthiness. Since there impleaded respond-
was no evidence of responsibility particular
ent’s
condition, party complaint the third *7 necessarily it dismissed. opinion ques- did discuss the not
tion of whether the had failed provide per- a safe to work in
mitting employ stevedore removing
method used it shore. lack was because discussion ground urged
sole hav- method foreseeably been unsafe have been toe-nailed. view, proximate
In that cause would
still been un- the existence of the
seaworthy condition. Since consid- charge
ered it unreasonable to defect,1
owner with notice of that
implicit opinion even more unreasonable to so
charge the stevedore. rehearing petition will be de-
nied. since the opinion in this case was filed. Filipek Lines, Cir., 1958, reported
1. See v. Moor e-McCormack