The opinion of the court was delivered by: DUSEN
This case is now before the court on the Motion of defendant Calmar Steamship Corporation for Summary Judgment pursuant to F.R.Civ.P. rule 56, 28 U.S.C.A. (Document No. 13). Defendant Calmar alleges in its Motion that the deposition of plaintiff (Document No. 14) clearly indicates that it was not negligent, the ship not unseaworthy, and that it was in no way responsible for the accident. It also contends that the record clearly shows that plaintiff has no cause of action against it.
Defendant takes the position that state, not maritime, law governs this action and that the applicable state law bars the action. In the alternative, it contends that even if maritime law governs, it is entitled to full summary judgment, or, at least, to partial summary judgment, on the charge of unseaworthiness.
Whether or not plaintiff, a noncrew member, is entitled to be protected against unseaworthiness of the vessel depends on the nature of the work bring performed. Pope & Talbot, Inc. v. Cordray, 9 Cir., 1958, 258 F.2d 214, 218. If plaintiff had been engaged in unloading activities on the ship at the time he was injured, there is no doubt that he would be entitled to the protection of the unseaworthiness doctrine, since loading and unloading are the work of the ship's service. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 96, 66 S. Ct. 872, 90 L. Ed. 1099. So, too, if he were engaged in loading or unloading activities on the pier and was injured because of an unseaworthy condition of the vessel, its gear, appliances or appurtenances, he would have standing to bring an action based on unseaworthiness because he would be a person to whom the shipowner owed a duty in this respect.
Strika v. Netherlands Ministry of Traffic, 2 Cir., 1950, 185 F.2d 555, 557-558, certiorari denied 1951, 341 U.S. 904, 71 S. Ct. 614, 95 L. Ed. 1343; American Export Lines, Inc. v. Revel, 4 Cir., 1959, 266 F.2d 82, 86; Litwinowicz v. Weyerhaeuser Steamship Company, D.C.E.D.Pa.1959, 179 F.Supp. 812, 816; Hovland v. Fearnley & Eger, D.C.E.D.Pa.1952, 110 F.Supp. 657, 658; cf. Robillard v. A. L. Burbank & Co., Ltd., D.C.S.D.N.Y.1960, 186 F.Supp. 193; Hagans v. Ellerman and Bucknall Steamship Company, Ltd. v. Atlantic and Gulf Stevedores, Inc., D.C.E.D.Pa., 196 F.Supp. 593; Fisher v. United States Lines Co. et al., D.C.E.D.Pa., 198 F.Supp. 815. Although it may be, on the record now before the court, that plaintiff was not engaged in unloading at the time of the accident, this issue should be determined at the trial in view of the necessity of a trial on other issues in this case and of the lack of complete information in the record on this point Cf. Pope & Talbot, Inc. v. Cordray, supra; Weigel v. The M V Belgrano, D.C.Or.1960, 189 F.Supp. 103; and Valerio v. American President Lines, D.C.S.D.N.Y.1952, 112 F.Supp. 202; cf. Reed v. The Yaka, D.C.E.D.Pa. 1960, 183 F.Supp. 69, 71-75.
Defendant's contention that the unseaworthiness doctrine is not applicable as a matter of law because the injury was not caused by the vessel, its gear, appurtenances or appliances, is rejected. Plaintiff has alleged that the injury occurred because the band around the bale was defective and that this defect was caused by improper stowage which weakened this baling wire band (see Document No. 15 and Document No. 26 (Deposition of Brennan), pp. 6, 15, 19 & 32).
If the cargo were improperly stowed, the vessel was not seaworthy. Gindville v. American-Hawaiian Steamship Company, 3 Cir., 1955, 224 F.2d 746, 747. If it is determined that the injury was caused by such an unseaworthy condition and that defendant owed plaintiff the protection afforded by the unseaworthiness doctrine, plaintiff might recover on this part of his claim. Summary judgment on the unseaworthiness issue will, therefore, be denied for the reasons stated above. This determination makes it unnecessary to discuss plaintiff's other contentions, which involve a factual determination as to whether the bands themselves were part of the unloading gear since they had to be used in conjunction with the longshoremen's hooks in order to complete the unloading operation safely (see, e.g., pp. 8-9 of Document No. 26).
Also, the negligence charge may not be summarily dismissed at this stage of the proceedings. Although the physical handling of an ordinary bale or bundle is the clearest example of a detail within the special competence and peculiar responsibility of the stevedoring contractor, the testimony at the trial of this case might disclose that this was not an isolated bale, but that the bands around this bale and around other bales, stowed adjacent to lumber, being worked were defective and that defendant's agents caused and had reason to know of the defect but failed to warn plaintiff about it. Under those circumstances it is possible that a negligence claim could be upheld. Cf. Beard v. Ellerman Lines, Ltd., 3 Cir., 1961, 289 F.2d 201.
Since defendant has not shown that all material facts are undisputed and that it is entitled to summary judgment as a matter of law, its motion is denied. The certification contemplated by 28 U.S.C.A. 1292(b) is not feasible in view of the factual issues presented by this record.
Plaintiff disputes defendant's contention that there are several cases pending in this court where the legal issues (particularly injury on a pier after the cargo has come to rest upon completion of unloading) presented by this case are also involved (pp. 6-7 of Document No. 29). Defendant is at liberty to apply to the Chief Judge for an advance listing of this case for pre-trial and trial in order to get these issues decided, at which time its counsel can submit his list of such pending cases. In the pre-trial memorandum, defendant may list the factual questions it wishes decided by the jury in order to establish its alleged legal principles.