The opinion of the court was delivered by: WOOD
Plaintiff William Knox on December 20, 1957, instituted the above action claiming that defendant United States Lines Company, owners and operators of the S.S. 'American Builder', were responsible to him in damages for the negligent operation of the ship and for its unseaworthiness. On March 24, 1958, T. Hogan Corporation, employers of plaintiff, was joined as a third-party defendant. Subsequently, the case went to the jury on special interrogatories resulting in a verdict in favor of the original defendant.
Following the denial of a motion for a new trial and judgment n.o.v. (opinion filed August 1, 1960, D.C., 186 F.Supp. 668), an appeal was taken. On June 21, 1961, the United States Court of Appeals for the Third Circuit, 294 F.2d 354 filed its opinion sustaining the denial in part but remanding the cause 'for a partial new trial limited to the issue of possible unseaworthiness caused by the manner of breaking down the stowage and any third-party liability resulting therefrom.'
After a pre-trial conference held on October 16, 1961, counsel agreed to waive trial by jury and to permit the Court to decide the issues based on the record of the prior trial and further argument, reserving, as aforesaid, the issue of damages for jury trial at a later date, if necessary. The issues were limited to:
1. Whether the seven or eight foot 'V' dug out in the stowage by the longshoremen constituted an unseaworthy condition; namely, as the condition of the stow existed at that time, was the ship reasonably safe for the purposes for which it (the ship) was intended.
2. Whether the plaintiff was contributorily negligent and if so, what percentage of the fault was his.
An appropriate Order was entered on November 8, 1961, and listed for argument on November 14, 1961. Due to unavoidable delays, final argument was held on January 4, 1962, after which recommended findings of fact and conclusions of law were filed by all parties in interest on all matters before us for disposition.
1. The Court has jurisdiction over the parties and subject matter of this controversy.
2. On July 26, 1957, the plaintiff was injured while working aboard defendant's vessel, the S.S. 'American Builder' which was then in navigable waters and docked in the port of Philadelphia.
3. At the time of the accident plaintiff was employed by third-party defendant T. Hogan Corporation to assist in discharging a cargo of heavy rolls of burlap from the No. 5 lower hold of the ship.
4. The rolls of burlap were of various sizes ranging in length from five to twenty feet, in diameter from two to four feet, and in weight from 1000 to 1500 pounds.
5. Plaintiff and his fellow workers started in the No. 5 lower hold between 9:15 and 9:30 a.m. and began by discharging the rolls of burlap stowed fore and aft in the center of the hatch.
6. The method of stowage of the rolls of burlap was safe and proper and in that respect the vessel was seaworthy.
7. Plaintiff and three fellow longshoremen discharged the rolls in such manner as to create a V-shaped cut downward into the stow, which opening at the time of the accident was six or seven feet deep.
8. Plaintiff and his co-workers could just about reach the top roll from their position at each end of the tiers. Plaintiff stood at one end and his three co-workers stood at the other end to dislodge a roll so that it would fall down the slanting surface of the stow. In order to do so, plaintiff crowded his body into a narrow ...