Before STALEY and FORMAN, Circuit Judges, and LANE, District Judge.
This is a diversity action in which James Hagans (Hagans), a citizen of Pennsylvania, sued Ellerman & Bucknall Steamship Company, Ltd. (Ellerman), a corporation of England, in the United States District Court for the Eastern District of Pennsylvania, alleging that it owned and operated the Steamship "City of London" engaged in foreign commerce; that on July 1, 1957, the vessel was moored at Pier 98, South Wharf, Philadelphia, Pennsylvania; that Atlantic & Gulf Stevedores, Inc. (Atlantic), a corporation of Pennsylvania, was engaged in discharging a cargo of bags of sand from her; that he, Hagans, in the course of his duties as an employee of Atlantic, was working on the pier assisting in the discharge of the said cargo when he was injured by reason of the negligence of Ellerman and the unseaworthy condition of the "City of London" for which he claims damages in excess of the jurisdictional amount.
Ellerman answered Hagans denying liability and filed a third party complaint against Atlantic, claiming indemnity for any award that might be made to Hagans against it.
Trial was had to a jury during which Hagans sought to show that the "City of London" was berthed as set forth in his complaint pursuant to arrangements made by Norton, Lilly & Company, Inc., as agents of Ellerman, for the purpose of discharging a cargo of 571 tons of sand in 11,441 multiple ply paper bags of approximately 100 pounds each. Arrangements were also made by Norton, Lilly & Company, Inc. for a gang of regular longshoremen to discharge the cargo subject to a contract between Ellerman and Atlantic. It consisted of 22 men. Eight worked in the hold of the ship piling approximately 24 bags into each of several canvas slings; three men operated winches elevating the slings out of the hold over the side of the vessel and two men, stationed on the apron of the pier, saw to the deposit of each sling load of bags as it came over the side on to a four wheeled flat truck. Thereupon a man hooked a tow motor to the truck and pulled it into a large warehouse building on the pier. He entered through a door on the south side of the building adjacent to the narrow apron of the pier and proceeded to a point about 100 feet inside the building along its north wall. Here the remaining eight longshoremen were divided into four pairs, a pair to a truck. Working separately, each man of a pair unloaded the sling on a truck by piling the bags of sand on the floor in tiers five bags high. On arrival at the place where the bags were being stacked, the operator of the two motor detached it and picked up an unloaded truck with its empty sling. He returned to the side of the vessel where the empty sling was lowered to the hold and the procedure was repeated.
On July 1, 1957, the day in question, Hagans was one of a pair engaged in unloading the trucks. The operation was commenced at 9:30 a.m. and at about 10:30 a.m., he was in the act of grasping a bag when his foot slipped on sand on the floor, causing his body to twist resulting in an injury to his back.
The cargo of sand for Philadelphia was stowed beneath 300 tons of bagged sand, consigned to New York, and discharged there first. There was testimony that on arrival the Philadelphia cargo was covered with loose sand and that there were many broken bags. In piling the bags in a sling the broken bags were placed on top. Loose sand fell out of the sling load as it was moved, all along the way to the point where the bags were taken from the trucks to be stacked. Here loose sand fell on to the floor from the broken bags and the tops of those that were unbroken. The broken bags were taken from the sling loads and placed on the stacked bags for recoopering.
The issues posed at the trial were submitted to the jury in six interrogatories. The questions and the answers by the jury were as follows:
"1. Was the plaintiff performing a service of the ship in connection with the discharge of cargo from the S.S. 'City of London' at the time he suffered his injury?
"2. If your answer to No. 1 is yes, answer the following question. If the answer is no, you need not answer any further questions.
"(a) Was the unseaworthiness of the vessel or of the stowage of the cargo a substantial factor in causing the plaintiff's injuries?
"(b) Was the defendant's negligence in failing to furnish plaintiff with a safe place to work a substantial factor in causing his injuries?
"3. If your answer to any part of No. 2 is yes, answer the following question; otherwise, you need not answer any of the remaining questions.
"Was there negligence on the part of the plaintiff which was a contributing factor in causing his injuries?
"4. If your answer to No. 3 is yes, state to what extent expressed in terms of percentage his own negligence contributed to his injuries.
"5. State in what amount you assessed the damages suffered by the plaintiff without regard to any percentage for contributory negligence provided in the foregoing question, that is question No. 4.
$12,500 plus medical expenses
"6. If you do not find in favor of the plaintiff as against the defendant, you need not answer the following question:
"(a) Do you find that the Atlantic & Gulf Stevedores, Inc. performed their services in connection with the discharge of the ship's cargo in a reasonably safe and workmanlike manner?
"(b) If your answer is no, was their failure to perform the work in a reasonably safe and workmanlike manner a substantial factor in causing the plaintiff's injuries?
Judgment was entered in favor of Hagans against Ellerman in the amount of $12,500 plus medical expenses of $573.65 and in favor of Ellerman against Atlantic in the same amounts. Ellerman filed a motion for judgment notwithstanding the special verdict and for judgment in accordance with the motion it had made for a directed verdict. Ellerman then moved to vacate and set aside the judgment or in the alternative for a new trial.*fn1
Atlantic also moved to set aside the jury's findings as to it and for entry of judgment in its favor or in the alternative for a new trial as to the cause of action by Ellerman against it.
The Trial Court gave consideration to motions of both Ellerman and Atlantic in a memorandum,*fn2 pursuant to which it entered an order denying all of the motions by both parties. Ellerman and Atlantic appealed from the judgments found against each of them.
Ellerman first asserts that Hagans's cause of action does not amount to a maritime tort - one arising within the admiralty or maritime jurisdiction. It submits that it is the locality or situs of the "substance and consummation of the wrong which determines whether the matter is a maritime tort. * * *"*fn3 It argued that this accident occurred a hundred feet away from the vessel in a building on a pier; that the pier is an extension of land beyond the admiralty jurisdiction and that the law of the State of Pennsylvania applies to causes of action arising thereon.*fn4
Ellerman complains that the Trial Court erroneously created a brand new concept when it held that Hagans was entitled to recover under the general maritime law because of his status in performing a service to the ship. At best, it contended, "where admiralty and maritime jurisdiction exists and the wrong thus qualifies as a maritime tort, the status of the injured may assume significance in determining his rights under that jurisdiction. But the injured's status never has determined the basic question of whether jurisdiction exists."*fn5
Ellerman specifically took issue with the reliance the Trial Court placed on the annotation following Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413 (1959), as found in 3 L. Ed. 2d 1769, and the answer of the jury to Interrogatory No. 1 in applying the general maritime law.*fn6
Fundamentally it must be conceded that the Supreme Court has never held a longshoreman not on board a vessel to be within the maritime jurisdiction and thus entitled to the protection afforded by the maritime tort doctrines.*fn7 However, an analysis of decisions commencing with Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946) leads us to the conclusion that the Trial Court did not err when it held that it is the plaintiff's status, or relationship to the vessel which entitles him to the maritime tort protections.
In Crumady v. The Joachim Hendrik Fisser, supra, 358 U.S. at 426-427, 79 S. Ct. at 447-448, the Court makes concise reference to the decisions reflecting the expansion of the doctrines of seaworthiness for the protection of longshoremen equally with that afforded seamen when performing "the ship's service". It said:
"We held in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95 [66 S. Ct. 872, 90 L. Ed. 1099] that stevedores, though intermediately employed, are, when performing 'the ship's service,' entitled to the same protection against unseaworthiness which members of the crew doing the same work would receive. And see Pope & Talbot v. Hawn, 346 U.S. 406 [74 S. Ct. 202, 98 L. Ed. 143]. The work of loading and unloading is historically 'the work of the ship's service.' Seas Shipping Co. v. Sieracki, supra, [328 U.S.] at 96 [66 S. Ct. at 878].
"This protection against unseaworthiness imposes a duty which the owner of the vessel cannot delegate. Seas Shipping Co. v. Sieracki, supra, [328 U.S.] at 100 [66 S. Ct. at 880]. Unseaworthiness extends not only to the vessel but to the crew (Boudoin v. Lykes Bros. Steamship Co., 348 U.S. 336 [75 S. Ct. 382, 99 L. Ed. 354]) and to appliances that are appurtenant to the ship. Mahnich v. Southern S.S. Co., 321 U.S. 96 [64 S. Ct. 455, 88 L. Ed. 561.] And as to appliances the duty of the shipowner does not end with supplying them; he must keep them in order. Id., [321 U.S.] at 104 [64 S. Ct. at 459]; The Osceola, 189 U.S. 158, 175 [23 S. Ct. 483, 47 L. Ed. 760]. The shipowner is not relieved of these responsibilities by turning control of the loading or unloading of the ship over to a stevedoring company. It was held in Grillea v. United States [2 Cir.], 232 F.2d 919, that stevedores themselves could render a ship pro tanto unseaworthy and make the vessel owner liable for injuries to one of them. And see Rogers v. United States Lines, 347 U.S. 984 [74 S. Ct. 849, 98 L. Ed. 1120]; Alaska S.S. Co. v. Petterson, 347 U.S. 396 [74 S. Ct. 601, 98 L. Ed. 798]. * * *"
The decision in Sieracki to extend the absolute liability protection of the unseaworthiness doctrine was based upon the consideration that the stevedore was "in short, a seaman because he is doing a seaman's work and incurring a seaman's hazards," and he should be entitled to the protection of doctrines "[Derived] from and shaped to meet the hazards which performing the service imposes * * *." The concept that one engaged in the "service of the ship" is entitled to the same protection as a seaman was restated in Pope & Talbot v. Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143 (1953). That case involved a carpenter injured aboard a vessel when there to repair a grain spreader utilized in loading a cargo of grain, and the Court in describing the breadth of the Sieracki decision as applied to Hawn said: "Sieracki's legal protection was not based on the name 'stevedore' but on the type of work he did and its relationship to the ship." (Emphasis added.) 346 U.S. at 412-413, 74 S. Ct. at 207. Six years later in a case involving the employee of a specialist subcontractor injured while aboard the vessel cleaning the ship's generators with carbon tetrachloride the Court held he was not entitled to the protection of the absolute liability maritime tort doctrine only because he was not performing traditional ship's crew work. United New York and New Jersey Sandy Hook Pilots Ass'n v. Halecki, 358 U.S. 613, 617-618, 79 S. Ct. 517, 3 L. Ed. 2d 541 (1959).
In Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2 Cir. 1950), cert. den. 341 U.S. 904, 71 S. Ct. 614, 95 L. Ed. 1343, a longshoreman injured by reason of the unseaworthiness of the ship's gear, while ashore, was nevertheless held to have an action cognizable under the maritime law. In reaching such a conclusion the Court of Appeals of the Second Circuit stated:
"* * * [The] defendant argues that since an action upon such an implied warranty is only a tort, the maritime law can have no jurisdiction over a breach of it occurring upon land; that being, of course, an accepted constitutional limitation upon maritime law. We should have found this a serious obstacle, were it not for O'Donnell v. Great Lakes Dredge & Dock Co., supra, [318 U.S. 36, 63 S. Ct. 488, 87 L. Ed. 596] and the ratio decidendi of Swanson v. Marra Brothers, Inc., supra; [328 U.S. 1, 66 S. Ct. 869, 90 L. Ed. 1045] but those decisions appear to us to settle it that such a tort, arising as it does out of a maritime 'status' or 'relation', is cognizable by the maritime law whether it arises on sea or on land. For it seems to us to follow, if Congress has power to impose liabilities in favor of seamen for lapses of care on shore, that Congress at least would have power to impose a similar liability when the lapse is in furnishing a seaworthy ship. It is true that Congress has not intervened as to seaworthiness; yet there is no more reason to circumscribe more narrowly the duty, which The Osceola, supra, [189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760] established as part of the maritime law, than the Constitution circumscribes the power of Congress, for both in the end are based upon the same provision. [Article III, § 2] Moreover, we find confirmation for this in the 'obligation' of 'maintenance and cure' of a seaman injured on shore, for that is concededly quite as entirely the creature of the maritime law as the 'obligation' to furnish a seaworthy ship. For these reasons, although we have been unable to find a decision holding that a seaman, injured ashore by unseaworthy ship's gear, can recover, we have no doubt that he could; and, if a seaman can, we see no reason to question the ability of a longshoreman also to recover, for that follows from the reasoning of Seas Shipping Co. v. Sieracki, supra, [328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099] especially when it is read with the opinion in Swanson v. Marra Brothers, Inc., supra, [328 U.S. 1, 66 S. Ct. 869, 90 L. Ed. 1045] Public Law 695 of June 19, 1948, 46 U.S.C.A. § 740, has now probably laid all such doubts, but we think that it was not necessary in order to support a recovery in this particular situation." (Footnote numbers omitted.) 185 F.2d at 558. See also Robilaard v. L. L. Burbank & Co., Ltd., 186 F.Supp. 193 (S.D.N.Y. 1960).
Ellerman, however, contends that the foregoing cases are inapposite to the instant one for the reason that each either involves a longshoreman injured aboard the ship or, if ashore, the injury was caused by the gear, equipment or appliance on or attached to the ship.
Ellerman also points to two cases recently decided in which shore based workers were held not to be entitled to recover for unseaworthiness. The first is Partenweederei, M.S. Belgrano v. Weigel, 299 F.2d 897 (9 Cir. 1962) cert. den. 371 U.S. 830, 83 S. Ct. 49, 9 L. Ed. 2d 67 (1962). In this case the libellant, an employee of a stevedore, was operating a tractor pulling a railroad car loaded with lumber along the track on a pier to a point where the lumber could be reached by the ship's gear. He was struck by one of the ship's booms which fell because of a defective appliance. After noting that "liability arises not from the place of injury but from the nature of the work being performed." (299 F.2d at 902), the Court of Appeals of the Ninth Circuit held that he had not sustained his burden of showing that the nature of the work performed by him was of the type traditionally performed by seamen. It found that his work was solely on the dock in a preliminary operation separated from the work of loading lumber on the vessel.
In the second case, Waterman S.S. Corp. v. Gutierrez, 301 F.2d 415 (1 Cir. 1962), cert. granted 371 U.S. 810, 83 S. Ct. 40, 9 L. Ed. 2d 53 (1962)*fn8 the Court of Appeals of the First Circuit had before it circumstances involving a longshoreman at work on a pier engaged in unloading bags of beans from the vessel. He slipped on the apron of the pier, due to beans that had spilled and sustained injuries. Concededly the basic facts bear a similarity to those in the case at bar. The Court of Appeals held that the District Court, 193 F.Supp. 984, erred in overruling a defense of laches; that there was no proof of unseaworthiness and that if, indeed, there was unseaworthiness, there had been a failure of proof connecting it with libellant's injury. It was further held, among other things, that the libellant was only in the ship's service in the broadest sense and that he was not entitled to the protection of the absolute liability doctrine ...