Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
The plaintiff, Leighton Beard, brought this civil action, founded upon the diversity jurisdiction of the District Court,*fn1 against the defendants, Ellerman Lines, Ltd. and The City Line, Ltd. ("Ellerman"), to recover damages for personal injuries sustained in the course of discharging cargo from the latter's vessel, S.S. "City of Calcutta". Beard was a longshoreman in the employ of Atlantic and Gulf Stevedores, Inc. ("Atlantic"), a concern performing stevedoring services for the vessel. Beard's complaint alleged unseaworthiness and negligence. Ellerman joined Atlantic as third-party defendant, alleging in its third-party complaint that Beard's injuries were the result of Atlantic's negligence in discharging the cargo and in using devices which were "dangerous and improper" in doing so. Ellerman sought indemnity from Atlantic, under their contract, in the event it was held liable to Beard.
The case was tried before a jury, terrogatories, in favor of Beard in his action against Ellerman, and against Ellerman in its third-party action against Atlantic. In its answers to the interrogatories the jury found the "City of Calcutta" was unseaworthy and negligent, and Atlantic without fault with respect to the accident which resulted in Beard's injuries. The District Court entered judgment in accordance with the jury's special findings in favor of Beard against Ellerman and in favor of Atlantic against Ellerman in the third-party proceedings. It later*fn2 denied Ellerman's alternative motions to set aside the verdict in Beard's favor or for a new trial.
Ellerman has appealed, asserting in sum that the evidence failed to establish unseaworthiness or negligence on its part; that the jury's finding that Atlantic was not negligent is inconsistent with its finding of negligence against Ellerman since if there was any negligence it was that of Atlantic; and that Ellerman is entitled to indemnity from Atlantic as "a matter of law", if we find that the record sustains a finding of negligence in the discharge of the cargo.
The District Court did not file an opinion and it is necessary for that reason to set forth the facts in some detail:
On July 1, 1955, the "City of Calcutta" docked at a pier in Philadelphia. In its cargo were bales of burlap which had been loaded aboard in India. The bales each contained 30 to 40 bolts of burlap, enclosed in a burlap covering. Each bale, weighing between 1,000 to 1,200 pounds, had been compressed under tremendous pressure and circled with four parallel one-inch steel bands fastened together with a patented clip or buckle. Sixty-three tons of the bales, consigned to New York, were stowed in the forward end of the hold, which, by reason of the shear of the vessel, extended out halfway into the square of the hatch; and 100 tons of the bales, consigned to Philadelphia, were stowed toward the after end of the deck. The bales were stowed on their flat in tiers to the same height, and there was no separation between them except for their markings.
Atlantic's longshoremen started discharging the cargo at about 1:30 P.M. They used what are known as bale or burlap hooks which consist of a metal ring to which six lengths of manila rope are attached. At the opposite end of each rope there was a special flat metal hook. Two of these hooks were inserted under two bands of each of three bales by four longshoremen, two on each side of the bales, and a fifth man put the ring on the cargo hook at the joined ends of the runners from the cargo winches and gave the signal for the draft to be hoisted. The draft was then moved out into the square of the hatch under the hammer of the boom, which was positioned over Philadelphia bales, and hoisted out of the hold, across the ship and then lowered onto the pier.
The first of the bales were removed from the center of the hatch and then the bales were moved out from the wings one row or tier at a time. The New York bales were not touched. There was enough space between the top tier of bales and the underside of the 'tween deck for the longshoremen to walk into the wings, and as a draft was hoisted they retreated into them.
At about 4:30 P.M. (three hours after the unloading had begun) when two tiers of the Philadelphia cargo had been discharged, a draft of three bales was attached to a set of burlap hooks by the longshoremen. These bales were in a row in the offshore wing under the coaming with approximately 12 feet of space above. As the draft, in the course of its hoisting, neared the coaming of the main deck hatch the middle bands of one of the bales broke and when the entire weight of the bale was placed upon the other band it too broke, and the bale dropped onto the New York bales, bounced off, bounded across one-half of the hatch, then some 20 to 25 feet astern of the after coaming, and struck Beard, pinning him against the after bulkhead.
Beard was taken to the hospital where his right leg was amputated, first below the knee and shortly thereafter above the knee. He was 41 years old at the time.
The facts, as stated, are not in dispute, nor is there any question presented here with respect to the amount of the jury's award of damages to Beard.
There was considerable testimony at the trial, expert and otherwise, that it was the custom in Philadelphia to use bale hooks in discharging bales similar to the type here involved, known as "gunnies"; that the Safety Rules for the safe handling of cargo, prepared by the Philadelphia Marine Trade Association, and used by stevedore personnel in Philadelphia, approved this procedure.
There was also testimony, by way of deposition of Donald Quinn chief officer of the "City of Calcutta" that Quinn had observed the manner in which the vessel's cargo of bales of wool as well as the bales of burlap were being discharged by Atlantic's men and that "they were going very quickly"; that Quinn had told one of Atlantic's men "with a bit of authority" that he thought the use of bale hooks in discharging the bales of wool "was a dangerous way of discharging" and that he was informed "it was the custom of the port". Quinn also said that he had "explained" to Atlantic's men that "in India they get wire slings and put them around the bales so that each individual bale has a wire around it, and as they hold it tight, the wire tightens around it."
Quinn, however, did not direct Atlantic's men to discontinue their method of discharging the bales. There was expert testimony that the chief mate is responsible for the safety of personnel engaged in cargo operations and that his authority outranks the stevedore boss.
An expert metallurgist who had tested steel bands similar to those used here testified that in his opinion the particular bands on the bale that broke and struck Beard had "something wrong with the materials".
The foregoing presents the factual situation as presented to the jury.
On this appeal Beard contends that the jury's finding of unseaworthiness is amply supported for these reasons:
"Ellerman had actual and constructive knowledge that the burlap bales would be hoisted out of the hold by use of hooks inserted under the bands of the bales", and, "It was therefore charged with the absolute duty of supplying bands to permit that activity to be accomplished in reasonable safety"; in the instant case "the bands were inadequate", and the burlap bales created an unseaworthy condition because they were not capable of "being handled for the purpose of loading and discharge" by the bale hook method customary in Philadelphia.
Beard further contends that the jury's finding of negligence on Ellerman's part was supported by the testimony that Ellerman had failed to provide him with a "safe place to work" in that (1) Ellerman breached its duty "to use reasonable care to ascertain the methods and manner in which the work was done and to forbid the use of a method which was hazardous to his [Beard's] safety" and the failure of the chief mate to take effective measures to prevent an unsafe method of discharging the burlap bales constituted negligence; further (2) Ellerman's "failure to discharge the New York bales in that port rendered the place of work unsafe and the defendant negligent", inasmuch as had the New York bales been dischargd in New York the bale which had dropped would "normally strike a flat surface and roll or bounce but a few feet", while ...