The opinion of the court was delivered by: FREEDMAN
Plaintiff was one of a stevedoring company's gang of longshoremen employed to load shipments of steel aboard the defendant's vessel, lying anchored in navigable waters. The steel was being loaded directly from gondola freight cars in which it had been shipped and which were on the pier. During the evening and early morning hours of December 27-28, 1957 the work of loading had been going on. A number of cars had been unloaded and by approximately 3:30 to 4:00 A.M. there were six cars on the pier. The first in line, Car No. 1, had been unloaded some time before and the longshoremen had just completed the unloading of Car No. 2. It was necessary to move Car No. 2 from its position under the boom of the vessel which was opposite the No. 1 hatch and to bring Car No. 3 into its place. There was no shifting engine available to move the cars. The longshoremen therefore attached the bull line from the No. 3 hatch of the vessel to three loaded cars (Nos. 4, 5 and 6) which were coupled together about 150 to 300 feet away, and by employing the bull winch and utilizing the power of the ship's engines jerked the three loaded cars forward. Using the three cars as a kind of battering ram, as plaintiff's counsel well described it, they struck Car No. 3, driving it forward so that it would bump Car No. 2 out of its position. It was necessary, of course, to bring Car No. 3 to a stop when it reached the proper position under the boom. For this purpose one longshoreman stood near the track with chocks and another, the plaintiff, was stationed at the brake of Car No. 3.
When the ship's line, drawn by the winch, pulled the three coupled freight cars into motion they struck Car No. 3 with such force that plaintiff was catapulted to the opposite side of the car and fell between it and the platform, on the side away from the vessel. Two of the wheels of Car No. 3 ran over his left leg and amputated it.
Plaintiff brought suit for his injuries, alleging negligence and unseaworthiness. The jury rendered a verdict in his favor in the amount of $ 118,000. The verdict has been attacked by defendant's posttrial motions now before us.
The basic contention of the defendant, from which stem its detailed arguments on liability, is that situated as plaintiff was at the time of the accident on a pier and, indeed, on a railroad freight car on a pier, the claim is not within the maritime jurisdiction and plaintiff could not possibly be entitled to the warranty of seaworthiness. In effect defendant claims that situs, and not status, controls. We rejected this contention at the trial. It is argued that severe doubt is cast on the correctness of the view we took at the trial by the Supreme Court's denial of certiorari in Partenweederei, MS Belgrano v. Weigel, 299 F.2d 897 (9th Cir., 1962), cert. den. 371 U.S. 830, 83 S. Ct. 49, 9 L. Ed. 2d 67, where a longshoreman driving a tractor on a dock was held not entitled to the warranty of seaworthiness. On the same day the Supreme Court denied certiorari in the Weigel case (October 8, 1962), it granted certiorari in Waterman Steamship Corporation v. Gutierrez, 301 F.2d 415 (1st Cir., 1962), cert. granted 371 U.S. 810, 83 S. Ct. 40, 9 L. Ed. 2d 53, where a longshoreman who was on a pier slipped on beans spilled from bags being unloaded from the vessel. The Court of Appeals for the First Circuit had held that in such circumstances the warranty of seaworthiness was inapplicable.
The ultimate decision of the Supreme Court in the Gutierrez case may well prove decisive in the present case. There also is now pending in this Circuit an appeal by a defendant from a decision by our Brother Wood in favor of a longshoreman in Hagans v. Ellerman & Bucknall Steamship Co., 196 F.Supp. 593 (E.D.Pa.1961), involving the same general question. Both these cases have been argued and are now awaiting decision.
We deem it desirable to render our judgment without delaying until the decisions in those two cases are announced. It is manifest that there will be an appeal from our decision in any event, and in speeding our action the litigants will be saved delay and yet have the decisions of the Supreme Court and the Court of Appeals available when the appeal in this case comes on to be heard.
Defendant contends that it is inconceivable that one who is working on a pier can be within the scope of the warranty of seaworthiness. It is, however, now well established, albeit the Supreme Court has not yet made it explicit, that the warranty of seaworthiness is not spent merely because a longshoreman, who would be entitled to its protection on board a vessel, happens to be injured on land. The caveat held out in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 100, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), has been submerged by subsequent decisions, beginning with Judge Learned Hand's opinion in Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2d Cir., 1950), cert. den. 341 U.S. 904, 71 S. Ct. 614, 95 L. Ed. 1343. It is the accepted doctrine in our court. Fitzmaurice v. Calmar Steamship Corporation, 198 F.Supp. 304 (E.D.Pa.1961); Hagans v. Ellerman & Bucknall Steamship Co., 196 F.Supp. 593 (E.D.Pa.1961), appeal pending; Litwinowicz v. Weyerhaeuser Steamship Co., 179 F.Supp. 812 (E.D.Pa.1959); see also Hagans v. Farrell Lines, 237 F.2d 477 (3d Cir., 1956), where the application of the warranty of seaworthiness appears to have been assumed. In Hagans v. Ellerman & Bucknall Steamship Co., supra, our Brother Wood held that the warranty of seaworthiness applied to a longshoreman who was engaged in unloading bags of sand from a flat truck and piling them on the pier after they had been moved about 100 feet past a door in the side of the pier building which abutted the apron. The bags had been unloaded from defendant's vessel by other members of the stevedore gang. In the Litwinowicz case plaintiffs, longshoremen, were injured while loading steel from a gondola freight car on tracks on the pier beside the vessel, as in our case. Plaintiffs were working on the railroad car when they were injured when a 'Baltimore dog' separated and the steel fell back into the railroad car, pinning the plaintiffs against the inside of the car. Our Brother Kraft held that the warranty of seaworthiness extended to the plaintiffs even though they were injured on the pier, and, indeed, as in the present case, while on a freight car. The Court of Appeals for the First Circuit in the Gutierrez case disagreed with the decisions of our court in the Hagans and Fitzmaurice cases. We are not bound by the decision in the Gutierrez case and, free as we are to consider it on its merits, we prefer not to follow it.
The defendant argues that the doctrine of the Sieracki case that 'Historically the work of loading and unloading is the work of the ship's service, performed until recent times by members of the crew',
is founded on an erroneous conception of maritime history. For this purpose defendant proferred the evidence of a witness, Leighton Shields, as an expert in maritime history. It offered to prove by him the historical development of the practice of loading and unloading cargoes and to show from this history that such work was traditionally done, not by the ship's crew, but by longshoremen. Indeed, the offer went on to establish, by going back into early European history and even into ancient times, that the handling of cargo was not permitted to a ship's crew but was required to be done by local workers. From this defendant offered to argue to the jury that it should find as a fact that the plaintiff, working on a pier, loading cargo on to a vessel, was not engaged in the traditional work of a seaman.
This offer may be viewed in a number of aspects. It might be deemed to have tendered factual evidence to overcome a prima facie presumption of historical fact stated by the Supreme Court in the Sieracki case. It might be viewed as evidence offered by an expert to inform the court of what should be judicially noticed as historical truth, contrary to the statement of the Supreme Court in the Sieracki case. It might be viewed as factual evidence which in the absence of contradicting evidence from the plaintiff would be submitted to the jury as unchallenged although still requiring the jury's finding. We consider all these possibilities unacceptable because we regard the question as settled by the Sieracki case. As we view it the Court there laid down a guiding rule which it is our duty to apply. Individual juries may not be permitted to arrive at individual and perhaps contradictory conclusions as to what is within the traditional work of seamen after the Supreme Court has flatly announced the historical fact. See also Litwinowicz v. Weyerhaeuser Steamship Company, 179 F.Supp. 812, 818 (E.D.Pa.1959).
We instructed the jury that a longshoreman is entitled to the benefit of the warranty of seaworthiness even though he is employed immediately by someone other than the shipowner if at the time he is engaged in the service of the vessel, and that this is true whether he is working aboard the vessel or on the pier. (N.T. 1243). In determining whether he was at the time engaged in the service of the vessel the jury was charged that they should consider the work he was hired to do, what he had been doing immediately prior to the accident, what he was doing at the precise time of his injury, and what was the scope of the larger work of which his own activity was a part.
It is true that plaintiff was on the pier, in fact on a railroad freight car, at the time of the accident. He was not there, however, as a railroad brakeman, but as a longshoreman. All of the longshoremen were part of a team engaged in loading the vessel. Some happened to be on board, one at the winch, making use of the ship's engines, its winch and line, and two dragging the line from the vessel and attaching it to the three coupled, steel-loaded freight cars which were to be used as a battering ram. One was on the pier in position to put a chock under Car No. 2 after it had been bumped away from the boom. Another had to stop Car No. 3 after it had been struck by the coupled cars. That one was the plaintiff.
It seems to us that the jury had a right to find that the plaintiff was engaged in the service of the vessel as much as was the member of his gang who operated the winch or the two who fastened the bull line to the three coupled freight cars. It will not do to isolate from the over-all circumstances the fact that the plaintiff happened to be on a loaded freight car and then plead the seemingly strange extravagance that a workman on a freight car is held to be engaged in the traditional work of a seaman. In isolation such a plea may sound appealing. In the circumstances it is unfounded. Plaintiff was not a member of a railroad crew which brought a railroad freight car on to the pier. He was, on the contrary, a member of a longshoremen's gang engaged in loading a vessel, and in the course of doing so it fell to him to participate in an operation on land, but one intimately a part of the use of the ship's equipment, i.e. the bull winch and the bull line.
We hold, therefore, that the jury's verdict, which found in effect that plaintiff was engaged in the service of the vessel at the time of his injury, was fully justified by the evidence.
We therefore reject defendant's contention that the vessel's appurtenances which had to be seaworthy could include only, at the most, the bull winch and the bull line but not the loaded freight cars to which the line was attached. We left it to the jury to determine under all the circumstances whether the use of these three heavy freight cars loaded with steel, attached to the ship's line and moved by the ship's winch under the power of the ship's engines made them all one and therefore made the ship's use of them an unseaworthy appurtenance to the vessel. If this was not a reasonably safe line, with an enormously heavy battering ram at its end, then plaintiff standing on Car No. 3, prepared to brake it after it had been struck, was injured as a result of the ship's use of an unsafe and, indeed, highly dangerous ship's appliance or appurtenance.
As we view the case, therefore, it is unnecessary to look to the provisions of the Act for the Extension of Admiralty Jurisdiction, 46 U.S.C.A. § 740. If there were any question of the applicability of maritime law to the present case, the statute is enough to put it to rest. For it expressly provides that the admiralty and maritime jurisdiction shall 'extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.' The injury here was 'caused by a vessel'. See Hovland v. Fearnley & Eger, 110 F.Supp. 657 (E.D.Pa.1952), Kirkpatrick, Ch.J. Maritime law therefore applies, in the language of the Act, 'notwithstanding that such damage or injury (was) * * * done or consummated on land'. The provision may not be read, as defendant implies, in such a way as to limit it to property damage. It is expressly made applicable to personal injury caused by a vessel but ...