JOSEPH S. LORD, III, District Judge.
On September 29, 1961, the SS "Concordia Fonn", carrying a cargo of baled licorice consigned to MacAndrews & Forbes, was being unloaded at the MacAndrews & Forbes pier in Camden, N.J. The unloading procedure was as follows:
Two twenty-two man gangs of longshoremen, employed by the stevedoring firm of Murphy Cook Co., brought the cargo from the hold of the vessel over the side to a landing stage. From there, the bales of licorice were loaded on railroad flat cars which were on tracks on the pier. Each bale weighed about 350 pounds and about 200 bales per hour were discharged from each of the two holds. As the railroad cars, which were owned by MacAndrews & Forbes, were filled they were pulled on the tracks by an engine, also owned by MacAndrews & Forbes, to a warehouse situated on shore at the end of the pier. The operator of the engine was a MacAndrews & Forbes employe. Thereafter, the movement of the bales was done by employes of Murphy Cook under contract with MacAndrews & Forbes.
Upon reaching the warehouse, the bales were unloaded by fork lift trucks to the floor of the warehouse from where they were stacked. In order to raise the bales for stacking the men in the warehouse used a procedure in which a pulley or block is hung to a rafter by what has been termed a "hanger rope." A line fed through the pulley has a set of tongs attached to one end while the other is would around a "hold and turn motor." Daniel's job was to hook on the tongs (similar to ice tongs) to the draft and signal the operator of the motor to raise the draft so that other Murphy men working on the piles of bales could stack them. Daniel was injured when the hanger rope broke, causing the block to fall and strike Daniel in the chest. The hanger rope was owned by MacAndrews & Forbes but it had been given to Murphy's men who spliced the rope for use in this operation. The block or pulley used was owned by Murphy Cook.
Licorice is a perishable commodity, subject to damage by rain and it was therefore necessary to have it under cover. The pier was inadequate to contain the bales as they were unloaded, and, in addition, there would not have been enough room for them in the warehouse unless they were stacked.
Murphy Cook had agreed with MacAndrews & Forbes to supply the longshoremen who worked on the ship and on the landing stages immediately adjacent to the ship, and also the men working in the warehouse. As to the former, the ship had agreed with MacAndrews & Forbes to make an allowance against the freight bill for the costs which MacAndrews & Forbes incurred to Murphy Cook. No such allowance was made for the men working in the warehouse, and defendant had nothing to do with that arrangement.
Plaintiff's suit against the vessel is based solely on an asserted breach of the warranty of seaworthiness which plaintiff claims extends to him. We left it to the jury to determine whether plaintiff was engaged in unloading the vessel and hence covered by the warranty. The jury found for the plaintiff in the amount of $10,000. Defendant has moved for judgment notwithstanding the verdict, or in the alternative, for a new trial.
This case presents the problem of whether the already broad coverage of the warranty of seaworthiness should be further extended. It can no longer be questioned, of course, that a longshoreman engaged in the service of the vessel is entitled to the benefits of the warranty. Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). However, this broad statement of the rule is but a starting point for the solution of particular cases. Lurking within it are unexplored areas of liability or non-liability whose borders are difficult of exact discernment. The best starting place is at the beginning, i.e., the basis of the warranty of seaworthiness. In Reed v. Steamship Yaka etc., et al., 373 U.S. 410, 83 S. Ct. 1349, 10 L. Ed. 2d 448 (1963), the Court referred to the holding in Sieracki which extended the warranty to longshoremen and said at page 413, 83 S. Ct. at page 1352:
"* * * In doing so, we noted particularly the hazards of marine service, the helplessness of the men to ward off the perils of unseaworthiness, the harshness of forcing them to shoulder their losses alone, and the broad range of the 'humanitarian policy' of the doctrine of seaworthiness, which we held not to depend upon any kind of contract. * * *"
Thus, it would appear that originally the warranty evolved because of the peculiar differences between shore work and sea work, it being thought that the hazards involved in the two were different and hence required different modes of protection. The longshoreman, so long as he is doing ship's work, has now become the beneficiary of the doctrine originally devised for the protection of his seagoing brothers.
It has been frequently stated that the work of unloading is ship's work, traditionally performed by members of the crew, and that a longshoreman engaged in unloading is entitled to the benefit of the warranty. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946); Crumady v. "Joachim Hendrik Fisser," 358 U.S. 423, 79 S. Ct. 445, 3 L. Ed. 2d 413 (1959). The longshoreman who is working in the hold hooking on to cargo, or the longshoremen working on deck guiding it or operating the cargo winches pose no real problem. Nor is there any longer a problem where a longshoreman, a member of the same gang working aboard the ship, is incidentally on shore doing a job that is part of an unbroken sequence of getting the cargo from ship to shore.
Plaintiff argues that because of the large number of bales of licorice unloaded per hour in relation to the small capacity of the pier, the perishable nature of the cargo, the necessity of removing the cargo to a covered repository, and the need to stack the bales in that repository, plaintiff was participating in the unloading of the ship. We think, however, that merely to characterize uncritically plaintiff's work as part of "unloading" and therefore to hold that he must be covered by the warranty misses the boat. To so hold would be to impose a semantic liability, and the logic of words must give way to the logic of reality. It is necessary to examine what part plaintiff's work played in the unloading process. In Crumady v. "Joachim Hendrik Fisser", 358 U.S. 423, at page 426, 79 S. Ct. 445, at page 447, 3 L. Ed. 2d 413 (1959), the Court said:
"We held in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S. Ct. 872, 877, 90 L. Ed. 1099, 1106, 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, Inc. 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. 872, at page 878). * * *"