279 F.2d 186 | 1st Cir. | 1960
Lead Opinion
This is an action brought by a longshoreman injured in the port of Boston while engaged in loading a vessel owned by the defendant. The loading operations were in the sole control of a stevedoring company, plaintiff’s employer.
There was no conflict in the testimony. On the morning in question the vessel was simultaneously loading and unloading cargo. The plaintiff was at the bottom of one of the number 2 hatch “tanks.” The hatch was serviced by two winches. The after winch was engaged in discharging canned goods, and the forward one in loading rolls of printing paper. The cargo in each instance was carried on boards. The boards for paper were 5' wide and 8' long, suspended from two slings, or lanyards, fastened on the sides at points somewhat in from the corners. The can boards were suspended from the ends. We will call these boards, for want of a better term, sideboards and end-boards, respectively. Although the record is not altogether clear, apparently for as long as any witness could remember it was customary in the port of Boston to use side-boards for loading rolls of paper of this type, and end-boards for various other purposes. There was no evidence of any previous failure. These particular rolls were about 2y2 in diameter and S' long. Five rolls, as was “the usual custom in the port of Boston,” were placed upon a board — a layer of three, and on top of that, a layer of two. Nets permanently attached to each end of the board served, when tied across one to the other, to keep the rolls from rolling off. Longitudinal slippage of the rolls was contained by the sling, or lanyards, from which the board was suspended on each side.
The loading equipment of the vessel consisted of a fixed derrick, or pole, from which two booms were suspended, one stationed inshore, and the other “offshore,” over the hatch. There was a winch, with a separate control for each boom. Movement of the cargo from shore to ship was effected by taking up on the offshore falls and slackening on the inshore. The winch was electric, with three speeds each way. Prior to the accident some thirty loads had been brought aboard without incident. Three longshoremen who were on deck at the time
The defendant having had nothing to do with the loading of the vessel, liability depends upon proof of defective or improper equipment. The only testimony as to the winch came from the third witness, the winchman. He stated that “it was beautiful.” He added that it ran “a little faster than usual.” When asked what he meant by this he said he was referring to high speed only. He did not characterize this speed as excessive, but repeated that the winch was “beautiful.” Even if this speed could be thought to be a defect, the witness was not asked, and there was no testimony from which it could be gathered, what speed or speeds the winch had been operated in with respect to this particular load. For all that appears, high speed was used only when the board was light. Nor was there any suggestion that it was unusual for a load to swing a little or tip a little, or that the rate of speed, in high or otherwise, had been the cause of such movement. Although the burden upon a longshoreman to establish causation is not heavy, there must be some evidence that whatever might be claimed to be a defect in the vessel had some connection with the occurrence. The defendant, on this record, could not be charged simply because high speed on this winch was faster than on some others.
The plaintiff’s contention, which is purely counsel’s suggestion, as no witness so testified, is that so-called end-boards would have prevented this accident, and that the vessel was accordingly unseawoi oiy. There are two answers to this. In the first place, if the lanyards had been at the ends instead of at the sides of the board, there would have been no protection against end-wise slipping of the rolls. The nets were there to guard against roll-offs. The board was not defective simply because the longshoremen who loaded it neglected to do so in the proper fashion. Secondly, even if it could be found that end-boards rather than side-boards should have been used, the choice of side-boards was the stevedore’s. There was no evidence of unavailability of end-boards. If anything, the record suggests the contrary. A vessel is not unseaworthy simply because the improper type of equipment was used by someone unless, also, it appears that the proper type was unavailable. In the ice cream case, of which plaintiff makes much, the waiter’s use of a knife was forced upon him by the absence of the proper tool. Ferguson v. Moore-McCormack Lines, 1956, 352 U.S. 521, 522, 77 S.Ct. 457, 1 L.Ed.2d 511.
Before concluding, we wish to speak of the pleadings. Except for an admission that the defendant was a foreign corporation doing business in Massachusetts, and an allegation of lack of knowledge as to the citizenship of the plaintiff, the defendant’s answer denied every allegation in the complaint. F.R.Civ.P. 11, 28 U.S.C.A. provides in part, “The signature of an attorney constitutes a certificate by him that he has read the pleading; [and] that to the best of his knowledge * * * and belief there is good ground to support it. * * * For a wilful violation of this rule an attorney may be subjected to an appropriate disciplinary action.” It is diffi
Judgment will enter affirming the judgment of the District Court.
. This company was named as a third party defendant, but did not participate in the appeal, and is not referred to in this opinion as a defendant.
. No witness was called who had loaded the board, or who had seen it being loaded.
. Boards are stevedore’s property. We assume, without deciding, that the obligation of seaworthiness applies to equipment such as this, if used for performing a regular ship’s function, even though not customarily ship’s property. Cf. Considine v. Black Diamond S.S. Corp., D.C.D.Mass.1958, 163 F.Supp. 107.
. In his brief plaintiff states that the nets were only 2 feet long. There is no testimony from anyone as to the length of the nets. A photograph in evidence demonstrates them to be approximately 5 feet long, even when not stretched taut. We could not say that they could not go to the top of the top layer. There was no direct testimony that they could, or could not, but the fact that the winch-man spoke of noticing that the nets were only over the bottom rolls and that the top rolls were free indicates that this was not customary.
Rehearing
On Petition for Rehearing.
Plaintiff has filed a petition for rehearing, citing the case of Rich v. Ellerman & Bucknall S.S. Co., Ltd., decided by the Court of Appeals for the Second Circuit a day after the instant case, 278 F.2d 704. In Rich the stevedores loading the ship left some of the stow a “dangerous working platform” in the hold, which gave way when the plaintiff longshoreman stepped on it. The decision that a portion of the ship may be made unseaworthy by an act of a stevedore presents no novel principle. Grillea v. United States, 2 Cir., 1956, 232 F.2d 919. It is quite another step to say, as plaintiff does, that because a stevedore may have made negligent use, or negligent choice,
The petition for rehearing is denied.
While we held that the jury might have found that the rolls were inadequately made fast to the board, the statement iu our opinion about negligent choice of a wrong type of board was cumulative, only. Our primary holding as to that aspect of the case was that there was no evidence warranting a finding that it was the wrong type of board.