Samuel Mosley v. Cia. Mar. Adra S.A., and Third-Party v. Lipsett Steel Products, Inc., Third-Party
362 F.2d 118
2d Cir.
1966
Check Treatment

*2 assure Catoggio, in order to City Vincent A. toward another area New York cargo. (Purdy, Catoggio, an even of the Lamb & distribution York New City, chute, long brief), forty third-party feet and three five de- bottom, fendant, Lipsett top, tapering Products, wide at to the Steel feet Inc. suspended from in the hatch FRIENDLY, Before HAYS and cargo ship by means of runners FEINBERG, Judges. Circuit bridles and shackles. HAYS, Judge: workday At the on October close accident, day a load before the Mosley, longshoreman Plaintiff placed scrap metal had been employ company, Lip- of a stevedore square deck to of the ’tween hatch Products, Inc., sett third-party Steel height feet, four a partially blocking of three-and-a-half or defendant, injured loading while entry of natural Turmoil, metal on the S.S. a vessel light. operated by owned Cia. Mar. Adra S.A., appeal morning, defendant. This an The next had after shipowner from half, of been work hour and a at about piece ship, or the “a rear end transmission unseaworthiness of an area lodged tapered of a car” became held that: end of the about three feet from “these clearly to us combined seem factors n the mouth and blocked the flow of unseaworthy to establish an (Emphasis added.) condition.” Mosley, working alone on the who *3 deck, suspend told the foreman to Here, specifically the chute was loading. approached the He to within cargo put place in to of metal receive the chute, intending four or five feet of the scrap. appurtenance It was an of the “improvised to use an hook” five or six ship. presented Plaintiff evidence that length, dislodge feet in to the metal. He tapered because of the the nature of positioned possibly himself “as as I best chute, shapes and the sizes and diverse irregular could” on a deck littered with scrap, metal the were obstructions pieces scrap. attempt- While he was duty bound to occur. “The to vessel’s ing obstruction, scrap to remove the the reasonably furnish seamen tools with fit gave way; under feet fell he for their use is Mi intended absolute.” injured. and was Tankers, Inc., chalic Cleveland 364 U.S. 6, 9, 327, 81 5 L.Ed.2d 20 S.Ct. judge charged jury: The trial the (1960). “Specifically question here the The you ’tween deck was littered which have to decide whether irregular pieces with of metal under all the circumstances the tween The chief officer of S.S. Turmoil the reasonably deck permit area was fit to sonable the to reasonable ing for the chute it conditions then decide whether under all of operation in the task ditions that area was [******] But consider all the conditions and take plaintiff conditions, safety.” plaintiff was, into that was safety. assigned to consideration all of the perform obtaining, condition to going on, And here perform to him reasonably his work with the the those the with you his work Adra, S.A., kind type light- deck. have con- rea- fit testified was insufficient chets around.” This it was bined sulted in off” 'tween S.S. evidence to Cir.), deck Cir. Zeeland, the area. See with deck “dangerous”; chute; that unseaworthiness. See Ross v. lack support There area 314 F.2d 240 F.2d he refused to it “bounces” and during loading lighting was Mosley adequate situation when more than in the ’tween v. Cia. 822-823 227-228 829, lighting would that there enter because enough “rico Mar. com “fall (4th the (2d re shipowner argues The defendant portable Defendant contends that charge permitted this to consid- lighting equipment was to available “grounds er which were not established longshoremen request. on tes There is by the evidence.” But the on evidence timony equipment that such point charge each in mentioned need ship, storehouse of showing is no but there weighed separately. Mosley’s not be tention, con- this it available theory on which the case question. area on Nor was the date jury, was submitted to the was that the concerning produced evidence ade various factors mentioned each contrib- quacy and condition of electrical outlets. uted unseaworthiness the ’tween Indeed, Brown, Foreman who was area, e., i. rendered it unsuitable for charge gen loading, testified that his put. use to which it was lighting request equipment eral Krey States, In v. United upon. not acted court, 1941) re- ferring separate In number Mahnich v. Southern S.S. factors which, Co., charged, 103-104, it resulted in the charge nothing (1944) Supreme L.Ed. 561 There concerning hook used Court district court said: Mosley this court’s wih that conflicts “Nor does the fact there was Adra, Mar. opinion Cia. rope board, might sound which have S.A., supra. rig staging, been used to a safe afford excuse to the owner failure II. * ** provide one. a safe in favor The a verdict returned provide owner .the with must seaman company, the third- stevedore seaworthy appliances with which to shipowner brought party action * * * appliances work, do his safe indemnity. district set court be when and where [mwsf] furnished granted aside the the work is to be done.” (Emphasis shipowner. n. 0. v. to the *4 added.) company claims that The stevedore Unseaworthiness is not “excused because not move a di- Cia. Mar. Adra did proper equipment third-party was available but went com- rected verdict on the unused.” Skibinski v. Waterman properly S.S. plaint not and could therefore Corp., (2d 1966). 360 F.2d 539 Cir. Moore, 5 n. See make an 0. motion. v. (2d ed. Practice 50.08 Federal f[ longshore “[T]he owner warrants to * * * place men in a safe to which all of the evi At the conclusion cargo.” handle v. sought Carabellese Naviera dence, Lipsett dismissal of Steel Aznar, S.A., 355, 285 F.2d 359-360 party complaint: the third 1960), denied, 872, Cir. 365 cert. ground proof no there is "on the that L.Ed.2d 5 862 third-party failed defendant that the ample support There was evidence to the properly perform contract to its jury’s finding *» place that the Mos where * * ley assigned to work was unsafe. stated: Cia. Mar. Adra’s counsel argues Defendant also that the dis- Honor, its “Your defendant renews the trict court “submitted the to the case complaint and to motion dismiss jury on issues other than those defined ground on the for a verdict directed by pre-trial and limited order. on that the evidence insufficient pre-trial simply The order indicated that any jury go these on which to the of “all of issues fact and law to be in raised this issues have that been raised at the second trial this action added.) (Emphasis case.” previously have been raised at the first.” although am- motion, somewhat This biguous, preserved Mar. Adra’s Cia. Mosley’s proof involved substan right motion. an n. o. v. make tially the same factors on both trials. 50(b) any To requirement Rule extent that there was The varia tion, Procedure,1 properly the district of Civil court modified of the Federal Rules pre-trial pre pursuant order motion must Rule that a directed verdict any harsh in Calendar Rules the United cede an n. o. motion v. where, Especially as States District Court for the circumstances. Southern involved, here, parties District of York. where New three are party judgment, 50(b) entry days 1. Rule a of the Federal Rules of after Civil 10 part: Procedure verdict reads relevant has for a directed who moved “ Judgment any (b) may Motion for the verdict Notwith- move to have standing judgment aside Verdict. entered thereon set Whenever a in accordance motion for a directed verdict to have entered made at verdict; directed close of all his for a the evidence is denied with motion any granted, returned such or if a reason is not or party, jury days has court after the is deemed to have submitted the within 10 judg- may jury subject discharged, move action to the to a later been legal questions motion for his with determination ment accordance raised Not motion. later than a directed verdict.” 122

n theattention of the which, hopefully, defendant’s counsel for a third trial in plaintiff, primary- jury given is focused on may charge. his proper a be De adversary, and spite expressed where there are com- views last Skibinski v. plications which must Corp., attend a trial Waterman S.S. F.2d type, (dissenting agree a such (1966) motion that made opinion), as I narrowly, go counsel should not be so read was entitled to to the n asto penalize lighting; client rather inadequate but should the issue of al light purpose though be read in generally the cases to this cited just, speedy Federal point light Rules to “secure the supply concerned failure to inexpensive every .and ing night, determination of Compania at v. Mollica Sud- (cid:127)action.” Vapores, Americana 202 F.2d de (2 Cir.), Cia. Mar. Adra a memorandum in (1953); 97 L.Ed. 1384 Ross .support expressly o. its n. motion Zeeland, v. S.S. 822-823 pointed out to the court district (4 properly 1957), could motion a directed verdict had been have found had cre that the stevedores Lipsett made. Steel its memorandum perma ated on October opposition 14 condition of (cid:127)of dispute did not this claim. night nent Lipsett #5 fact did Steel not take exception hatch. Cf. Robillard A. L. Burbank & suggests to the n. o. v. motion Co., (S.D.N.Y.1960). F.Supp. that Cia. Mar. Adra’s directed verdict *5 Whether the form the chute af accepted covering motion was as the in- any forded demnity "basis for a issue. decidedly question unseaworthiness is On the merits of the n. o. v. ; pointed able we have to no been motion, judge “any the trial ruled that configuration evidence that its de seaworthy obtaining condition parted norm, tap from the and the by ’tween deck area was created ering pur a useful have served must * * stevedore A stevedore com falling decelerating pose pany indemnity is liable for if it creates jury permitted However, to find unseaworthy condition, or if it fails only not on these ac- unseaworthiness eliminate a known risk an created type “the counts but on basis other. Glittre, See Mortensen v. 348 A/S going operation and on” “the F.2d Lip- 385 Since re- and of the deck”—activities condition rigged sett furnished and being currently created sults aspects (cid:127)controlled all other relevant employer, Lipsett, loading, it in the work would have to find company perform. stevedore liable can hard- hired to Metal warranty for a breach of its of work ly so as leave a be loaded See, g., manlike service. e. Italia Societa entirely spick span; Lipsett if ex- per Navigazione Oregon Azioni di v. messiness, permissible limits of ceeded Stevedoring Co., 315, 318-324, 376 U.S. negligence not to the to its but went 84 (1964); S.Ct. 11 L.Ed.2d 732 ship. Morales Cf. seaworthiness Crumady Fisser, v. Joachim Hendrik 358 City Galveston, 370 U.S. v. 423, 428-429, 79 S.Ct. L.Ed. (1962). In 8 L.Ed.2d (1950); Ryan 2d Stevedoring Co. granting ship’s motion Corp., Pan-Atlantic S.S. recog- against Lipsett, judge n. o. 133-134, L.Ed. lighting might nized absence unseaworthiness,” yet only be “the his Affirmed. permitted instruction find against ship only permis- FRIENDLY, Judge (dissent- on that ing); ground impermissible sible but on ones. applied prior regretting Deeply The same rule of our law necessity, see I sending no requires alternative to this case decision back a new trial.