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August 1, 1960

William KNOX

The opinion of the court was delivered by: WOOD

The plaintiff is a longshoreman who was injured while unloading a cargo of burlap rolls from defendant's vessel. The jury found that the accident was caused by the negligence of the plaintiff and the other longshoremen in the manner in which they attempted to dislodge the top roll of burlap from a pyramid of rolls eight feet high. Their carelessness caused the pyramid to 'cave in,' injuring plaintiff.

The basic question presented by plaintiff's motions is whether the negligence of the longshoremen renders the defendant-shipowner liable to the plaintiff. the plaintiff contends that his negligence and that of the other longshoremen created an unseaworthy condition aboard the vessel, and/or that the shipowner was negligent in permitting the longshoremen to employ dangerous methods of handling the burlap rolls.

 Having received proper instructions by the Court on negligence, unsafe place to work, and unseaworthiness in relation to the stowage of the cargo, the jury found by answers to special interrogatories that the stowage of the cargo did not create an unsafe place to work, or render the ship unseaworthy, and that the defendant-shipowner was not negligent. The plaintiff's attorney then moved the Court to enter judgment for the plaintiff, arguing that as a matter of law the negligence of plaintiff and his coworkers rendered the shipowner liable to the plaintiff. The motion was denied and is now before us again in the form of a motion to amend the judgment in favor of the plaintiff and against the defendant-shipowner.

 We consider first the plaintiff's contention that as a matter of law the negligence of the longshoremen rendered the ship unseaworthy. We are fully aware that a ship may be found unseaworthy solely because of some negligent conduct on the part of longshoremen working aboard the ship. The plaintiff himself may be guilty of the negligent conduct which is found to have created an unseaworthy condition aboard ship. For example, in the case of Petterson v. Alaska S.S. Co. *fn2" the longshoremen apparently brought on board the respondent's ship a wooden block on which to stand while they performed their work. The block was defective and broke under the weight of the plaintiff while he was standing on it. The ship was held to be unseaworthy, and on appeal this holding was affirmed. The reason given was that a shipowner has a non-delegable duty to furnish men working on board the vessel with safe working appliances. In this case, because of the failure of the shipowner to furnish the men with such appliances, they were forced to resort to the device of the wooden block and as a result the plaintiff was injured.

 '* * * There is ample evidence to support the finding that these stevedores did no more than bring into play the unseaworthy condition of the vessel. The winch -- an appurtenance of the vessel -- was not inherently defective as was the rope in the Mahnich case. But it was adjusted by those acting for the vessel owner in a way that made it unsafe and dangerous for the work at hand. While the rigging would take only three tons of stress, the cutoff of the winch -- its safety device -- was set at twice that limit. This was rigging that went with the vessel and was safe for use within known limits. Yet those limits were disregarded by the vessel owner when the winch was adjusted. The case is no different in principle from loading or unloading cargo with cable or rope lacking the test strength for the weight of the freight to be moved.'

 It must be noted that in both the Petterson and Crumady cases the ship was held to be unseaworthy by the trier of fact. On appeal, that finding was affirmed and reason given was, in each case, that the shipowner had failed to furnish safe working appliances necessary for the work to be performed on board by the longshoremen. This is simply not the situation in the case at bar. Nowhere has it been argued that the plaintiff here was injured because of the failure of the defendant-shipowner to provide any equipment which the men needed in unloading these burlap rolls. This distinction between the case at bar and the cases discussed is vital because the seaworthiness of a ship pertains to the vessel herself, her crew and her gear or appurtenances. A ship is unseaworthy only if the vessel or her gear are not reasonably safe for the use for which they were intended; the crew is not made up of men possessing the skills and temperament of ordinary seamen; or the shipowner fails to furnish equipment necessary for the performance of ordinary shipboard work. *fn4" No matter how the evidence in the case at bar is tortured, it simply cannot fit into the accepted definition of unseaworthiness: i.e., negligent handling of properly stowed cargo does not create a flaw in the vessel, her gear, or her crew.

 Therefore, we think that as a matter of law the ship in the case at bar was not rendered unseaworthy by the negligent conduct of the longshoremen.

 At the trial we refused to either enter judgment for the plaintiff or submit such additional interrogatories to the jury. We are now presented with the same issues by plaintiff's motions to amend the judgment or to grant a new trial.

 Plaintiff's argument proceeds as follows:

 'Whether or not the shipowner had actual knowledge of the improper and unsafe methods which were being employed by the stevedoring company aboard its vessel makes no difference in considering its (shipowner's) negligence since, by operation of law, it has the affirmative duty to ascertain the methods employed by independent contractors aboard its vessel * * * during the progress of the work * * *'

 In support of this statement, plaintiff relies upon the cases of Halecki v. United New York and New Jersey Sandy Hook Pilots Association, 1959, 358 U.S. 613, 79 S. Ct. 517, 3 L. Ed. 2d 541; Aldridge v. States Marine Corp. of Delaware, 9 Cir., 1959, 265 F.2d 554; and Casbon v. Stockard Steamship Corp., ...

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