The opinion of the court was delivered by: KRAFT
In this longshoreman's action the defendant admits that, during the unloading operation at or about 6:00 p.m. on April 15, 1966, the preventer wire attached to the after midship boom on the port side parted at No. 6 hatch.
The plaintiff alleges in his complaint "that at or about 11:00 p.m., on or about April 15, 1966, - a wire broke and to avoid being struck by the same, the plaintiff was caused to fall to the deck, sustaining injuries hereinafter set forth." No claim is made that the wire actually struck the plaintiff.
The plaintiff, at argument on his motion for summary judgment, expressly limited his application to a request for determination by the Court that the preventer wire was unseaworthy.
Clearly, this record presents factual issues whether the same wire broke again at 11:00 p.m., and, if so, whether the subsequent break caused the plaintiff to be injured in the manner complained of.
However, under Fed.R.Civ.P.56(d) the Court "shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted."
Accordingly, we enter the following
Now, this 19th day of March, 1968, it is determined that:
1. the preventer wire attached to the after midship boom on the port side at the No. 6 hatch parted at or about 6:00 p.m.;
3. whether the same wire parted again at 11:00 p.m. and caused the plaintiff to suffer injury and in the manner of which he complains are facts which are controverted, in good faith, by the defendant.
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