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LITWINOWICZ v. WEYERHAEUSER S.S. CO.

December 21, 1959

Bernard LITWINOWICZ
v.
WEYERHAEUSER STEAMSHIP COMPANY, Defendant and Third-Party Plaintiff, Nacirema Operating Co., Inc., Third-Party Defendant. Joseph MATYAS v. WEYERHAEUSER STEAMSHIP COMPANY, Defendant and Third-Party Plaintiff, Nacirema Operating Co., Inc., Third-Party Defendant



The opinion of the court was delivered by: KRAFT

Plaintiffs, longshoremen, instituted separate actions against Weyerhaeuser Steamship Company to recover damages for personal injuries sustained while they were engaged in loading steel beams aboard defendant's vessel. Both complaints alleged negligence and unseaworthiness.

Weyerhaeuser, in both cases, impleaded and sought indemnity from plaintiffs' employer, Nacirema Operating Co., Inc., which had contracted to perform the stevedoring services.

 Plaintiffs' actions against Weyerhaeuser were tried before a jury. Pursuant to stipulation, the third-party actions were tried to the court. Seven questions were submitted to the jury under Rule 49. On the basis of the jury's answers, and the court's findings in the third-party actions, judgment was entered for each plaintiff against Weyerhaeuser, and in favor of Weyerhaeuser against Nacirema.

 The cases are now before us on Weyerhaeuser's motions to vacate and set aside the judgments, or, in the alternative, for a partial new trial; and on Nacirema's motions to amend the judgment, to amend the findings, to make additional findings, etc., under Rules 52 and 59.

 The facts developed at the trial may be briefly stated. On June 18, 1956, the George S. Long, owned and operated by Weyerhaeuser, was docked at Pier 27 North, on the Delaware River, Philadelphia. Plaintiffs were members of a gang engaged in loading steel H-beams aboard the vessel through the No. 2 hatch. The beams were in a railroad gondola car on tracks on the pier beside the vessel. They were 10-inch beams, 30 feet long, and were arranged in 7 tiers, 12 beams to a tier. Each beam was nested into the one above and below.

 The accident happened as the first draft was being broken-out of the car. The draft consisted of six beams and was being taken from the middle tier. One of the Men placed the 'dog' in position, the draft was raised on signal and the plaintiffs placed the chocks under the beams. As the draft was being lowered upon the chocks, the dog 'flew off' releasing the beams, which fanned out as they fell and pinned both plaintiffs against the inside of the railroad car.

 There was expert testimony that the 'Baltimore dog' was neither deigned nor intended to lift six beams of such size and was thus being used for a purpose for which it was not intended. Moreover, there was testimony that the 'dog' was in a defective, unsafe condition in that its horizontal lip was bent downward about 15 degrees and its vertical shaft was bent out of line about 15 degrees.

 In its answers to the interrogatories, the jury found: (1) The 'Baltimore break-out dog', in the condition in which it was at the time of the accident, was not a reasonably safe, suitable and proper appliance for the use to which it was then intended to be put; (2) that fact was a substantial factor in causing the plaintiffs' injuries; (3) Weyerhaeuser, under the circumstances which existed at the time of the accident, used reasonable care in keeping the vessel secured to the dock by its mooring lines; (4) plaintiffs used reasonable care under the circumstances which existed immediately before they were injured. The jury assessed the total damages of the plaintiff Litwinowicz in the amount of $ 65,000, and of the plaintiff Matyas in the amount of $ 75,000.

 The jury's findings establish that the plaintiffs' injuries were the result of the unseaworthiness of the vessel and its appliances. Weyerhaeuser's principal contention is that since the plaintiffs were injured while they were in the gondola car on the pier, which is but an extension of the land, they were bound to pursue the remedies afforded by the local law. We do not concur in this view. The decisions, we think, hold that the wrong, arising as it did out of a maritime status or relation, is cognizable by the maritime law.

 Plaintiffs rely both upon the general maritime law and upon the Admiralty Jurisdiction Extension Act, 46 U.S.C.A. § 740, which provides in pertinent part that:

 'The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.'

 Weyerhaeuser vigorously challenges the constitutionality of the Act. Since the issue before us may be disposed of on other grounds, we do not reach the question of constitutionality and refrain from any opinion thereon. Rescue Army v. Municipal Court of Los Angeles, 1947, 331 U.S. 549, 67 S. Ct. 1409, 91 L. Ed. 1666. It is to be noted, however, that the Act has been held constitutional on at least two occasions. United States v. Matson Navigation Co., 9 Cir., 1953, 201 F.2d 610; American Bridge Co. v. The Gloria O, D.C.E.D.N.Y.1951, 98 F.Supp. 71.

 In O'Donnell v. Great Lakes Dredge & Dock Co., 1943, 318 U.S. 36, 63 S. Ct. 488, 490, 87 L. Ed. 596, the court held that a seaman injured ashore by the owner's negligence had an actionable claim under the Jones Act, 46 U.S.C.A. § 688. It interpreted the phrase, 'in the course of his employment', as extending beyond his work on the ship, and supported the power of Congress to deal with transactions ashore, not only as part of its power to regulate interstate commerce, but under its power 'to make laws which shall be necessary and proper to carry into execution powers vested by the Constitution in the government or any department of it, Article I, § 8, cl. 18, including the judicial power which, by Article III, § 2, extends 'to all Cases of admiralty and maritime Jurisdiction." Left open was the question whether a longshoreman could sue his employer in the same circumstances.

 That issue was raised three years later in Swanson v. Marra Bros., Inc., 1946, 328 U.S. 1, 66 S. Ct. 869, 90 L. Ed. 1045, a suit by a longshoreman against his employer under the Jones Act for injuries received ashore, where the plaintiff had sought and received state compensation benefits. Recovery was denied solely on the ground that Congress, by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. 901 et seq., has restricted the liability of the employer to compensation, but plaintiff's status as a seaman was recognized.

 The precise question before us was presented in Strika v. Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F.2d 555, certiorari denied 1951, 341 U.S. 904, 71 S. Ct. 614, 95 L. Ed. 1343. There a longshoreman sustained injuries on a pier when a pontoon being lifted onto the vessel by the ship's winches, booms and falls fell on him when one of the bridle rings slipped from the hook to which it had been attached. In sustaining a recovery against the shipowner, the court reviewed the O'Donnell and Swanson cases in some detail. Speaking of the plaintiff in Swanson, the court said (185 F.2d at page 557):

 'The Court recognized that he was a 'seaman' within the Act, having so held twice before; and it did not intimate that, had there been no Longshoremen's and Harbor Workers' Compensation Act, the same reasoning which had supported a 'seaman's' recovery in (O'Donnell) would not have supported a longshoreman's.'

 In Strika, as here, the defendant argued that a breach of the obligation to furnish a seaworthy vessel is a tort and that the maritime law had no jurisdiction over such a breach occurring on land. The court's answer seems to us conclusive (185 F.2d at page 558):

 'We should have found this a serious obstacle, were it not for O'Donnell v. Great Lakes Dredge & Dock Co., supra, and the ratio decidendi of Swanson v. Marra Brothers, Inc., supra; but those decisions appear to us to settle it that such a tort, arising as it does out of a maritime 'status' or 'relation', is cognizable by the maritime laws whether it arises on sea or on land. For it seems to us to follow, if Congress has power to impose liabilities in favor of seamen for lapses of care on shore, that Congress at least would have power to impose a similar liability when the lapse is in furnishing a seaworthy ship. It is true that Congress has not intervened as to seaworthiness; yet there is no more reason to circumscribe more narrowly the duty, which The Osceola, supra, *fn1" established as part of the maritime law, than the Constitution circumscribes the power of Congress, for both in the end are based upon the same provisions. *fn2" Moreover, we find confirmation for this in the 'obligation' of 'maintenance and cure' of a seaman injured on shore, for that is concededly quite as entirely the creature of the maritime law as the 'obligation' to furnish a seaworthy ship. For these reasons, although we have been unable to find a decision holding that a seaman, injured ashore by unseaworthy ship's gear, can recover, we have no doubt that he could; and, if a seaman can, we see no reason to question the ability of a longshoreman also to recover, for that follows from the reasoning of Seas Shipping Co. v. Sieracki, supra, *fn3" especially when it is read with the opinion in Swanson v. Marra Brothers, Inc., supra, *fn4" Public Law 695 of June 19, 1948, 46 U.S.C.A. 740, has now probably laid all such doubts, but we think that it was not necessary in order to support a recovery in this particular situation.' (Emphasis supplied.)

 The question has not been expressly adjudicated in our own Circuit. However, in Hagans v. Farrell Lines, Inc., 3 Cir., 1956, 237 F.2d 477, plaintiff longshoreman was on the pier assisting in the unloading of the vessel, when a draft of coca beans being lowered from the ship fell on him as the result of an unseaworthy condition of the winches on the vessel. Judgment for the plaintiff was affirmed on appeal. The questions considered on appeal did not include whether the warranty of seaworthiness extended to plaintiff, but it seems clear that the court assumed that it did.

 The Strika case has been followed or cited with approval in several recent cases. Pope & Talbot, Inc. v. Cordray, 9 Cir., 1958, 258 F.2d 214, 216; Valerio v. American President Lines, D.C.S.D.N.Y.1952, 112 F.Supp. 202; Revel v. American Export Lines, Inc., D.C.E.D.Va.1958, 162 ...


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