nevertheless failed to provide the men with appropriate ladders. As a result, the longshoremen erected scaffolding made from the same second-class boards as were being used for the wall. The scaffold broke under the weight of the libellant, injuring him. The court, acting as trier of the facts, specifically found that the respondent was or should have been aware that the custom was to use second-grade lumber in erecting the wall and scaffold. Based on that finding, the court concluded that the shipowner had been negligent in failing to use due care in furnishing the libellant with a safe place to work.
The Casbon case is readily distinguishable from the case at bar. In the case at bar there is no evidence from which the trier of the facts could have found that defendant-shipowner was or should have been aware that the longshoremen were attempting to unload the burlap rolls in a dangerous fashion. There was no evidence that the longshoremen's method of breaking down the pyramid of rolls was the customary method. There was no equipment, such as the ladder in the Casbon case, with which the defendant-shipowner could have provided the longshoremen which would have changed their method of handling the rolls. Therefore, we think that the jury could not have found the defendant-shipowner responsibly negligent in permitting or authorizing the method used by the longshoremen.
Finally, we come to the Aldridge case. In that case the plaintiff's decedent had been a longshoreman engaged in loading cargo aboard the defendant's ship. Dunnage bound by steel bands was being loaded into the hold where decedent was working. The longshoremen had asked the ship's officers for cutters with which to cut the steel bands binding the dunnage. When the ship's officers failed to supply such tools, the longshoremen devised the following method of breaking the bands: They inserted the winch hook under the bands and allowed the weight of the dunnage upon the hook to break the bands. This procedure was followed for several hours, when a heavy timber broke loose from a load of dunnage and fell upon the plaintiff's decedent. In the trial court, the complaint was dismissed for failure to state a claim upon which relief could be granted. On appeal, this dismissal was reversed and the case remanded for trial. The Circuit Court, relying on the Halecki case, said (265 F.2d 556):
'It was for the triers of fact to determine whether the defendants were responsibly negligent in permitting or authorizing the method or manner of (their) use.'
But the court added:
'Had the facts here been developed through a pre-trial conference, or on trial, the degree of knowledge which the ship's officers had * * * that a less safe method was in use, would have been made apparent for evaluation for the judge and jury.' At pages 556, 557 of 265 F.2d
As we understand the law, the factors necessary in order to find a shipowner responsibly negligent for a dangerous condition created aboard ship by an independent contractor is no different than the factors necessary to find any other property-owner negligently responsible for a dangerous condition on his property similarly created. That is to say, before the trier of fact may find such property-owner negligent, there must be evidence from which the trier of fact could conclude that the owner knew or should have known of the existence of the dangerous condition. In the case at bar, there was no evidence whatsoever from which the jury could have concluded that the defendant-shipowner knew or should have known that the longshoremen were engaging in this dangerous practice, assuming of course that they were, since the act which caused the plaintiff's injury was an instantaneous thing.
In conclusion, we comment on the case of Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (decided May 16, 1960). In that case plaintiff sued the shipowner under the Jones Act, 46 U.S.C.A. 688, alleging unseaworthiness and negligence. The ship had just come back from a fishing voyage and her rails were covered with slime from the fishermen dragging the catch across the rails. The judge charged the jury that they should find for the plaintiff only if they found that the slime had been on the rails for a reasonably long period of time so that the shipowner could have removed it. The issue on appeal was whether or not, with respect to so-called 'transitory unseaworthiness,' the shipowner's liability is limited by concepts of common law negligence.
The Supreme Court reversed the trial court and held that a shipowner's liability for unseaworthiness is completely independent of his duty to exercise reasonable care, and that 'notice' is not necessary to a finding of permanent or transitory unseaworthiness of the vessel. In its opinion, the court stated, we think significantly, the following:
'What has been said is not to suggest that the owner (of the ship) is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use.' (Emphasis supplied.)
Plaintiff interprets this case as doing away with accepted notions of the need for finding notice in order to find negligence. We think it is clear, however, that the court was speaking in the Mitchell case of unseaworthiness only when it stated that a finding of notice was not necessary to a finding of permanent or transitory unseaworthiness.
We will not discuss separately plaintiff's complaints about our failure to read certain of plaintiff's points for charge and our reading of certain of defendant's points, since our reasons for so doing should be apparent from the foregoing discussion. However, we do note that through oversight we neglected to instruct the jury that the defendant-shipowner, a corporation, was responsible for the actions of its employees. We think that this oversight clearly did not amount to prejudicial error.
And now, to wit, this 1st day of August, 1960, It Is Hereby Ordered, for all of the foregoing reasons, that plaintiff's motion to amend the judgment, or in the alternative for judgment N.O.V., or in the alternative for a new trial is hereby denied.