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February 26, 1971

Lewis McNEIL

Troutman, District Judge.

The opinion of the court was delivered by: TROUTMAN

Libellant, a longshoreman, brought suit against defendant shipowner seeking to recover damages for personal injuries allegedly sustained as a result of defendant's negligence and breach of the warranty of unseaworthiness. Presently before the Court is defendant's motion for summary judgment. Having reviewed the record, we find no dispute as to the material facts which are as follows:

 Libellant, Lewis McNeil, is a longshoreman employed by third-party defendant, Independent Pier Company. He was so employed on September 29, 1967, at Pier 55 South wharves, Philadelphia, where defendant's ship, the S/S HAVSUL was berthed. Libellant's injuries occurred when the "squeeze lift" truck he was operating struck an undetermined object on the pier shed floor. As a result of striking this object the steering wheel spun and a knob attached thereto struck and injured libellant's wrist.

 Libellant's job in the longshoring gang was to operate the "squeeze lift" truck in the confines of the warehouse or pier shed. His specific responsibility in the operation was to lift and transfer certain cases from pallets owned by Independent Pier Company to pallets owned by defendant. The squeeze lift truck was owned by Independent Pier Company and it supervised the work.

 Libellant himself did not go aboard defendant's vessel to physically place the cartons on shipboard. However, other longshoremen in the same gang using fork lift trucks transferred the pallets which libellant loaded from the pier to the ship's side. Thereafter, the ship's tackle lifted the cargo aboard for storage and ultimate sea carriage.

 Defendant contends that the doctrine of unseaworthiness cannot extend to libellant on the instant facts. We must at the outset recognize that certain basic principles are well estabblished. It is basic that a shipowner is liable to indemnify a seaman for injuries caused by the unseaworthiness of his vessel or its appurtenant appliances and equipment. The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760 (1903). The same protection afforded to crew members is extended to longshoremen engaged in the ship's service doing traditional seamen's work. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946); McKnight v. N.M. Paterson & Sons, Ltd., 286 F.2d 250 (6th Cir. 1960). This is true whether the accident caused by the vessel's unseaworthiness occurs away from the ship on the pier. Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S. Ct. 1185, 10 L. Ed. 2d 297 (1963).

 Defendant contends that it did not employ libellant, did not control the situs of the work and did not supply or control the instrumentality directly involved in libellant's accident. Defendant argues that it, therefore, has no responsibility because in such circumstances no justification exists to extend the warranty of unseaworthiness to libellant.

 Defendant's contentions have been thoroughly discussed and rejected by the decided cases. The doctrine of unseaworthiness is neither limited by conceptions of negligence or contract, but is a form of absolute duty owing to those who perform the traditional work of seamen. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944); Seas Shipping Co. v. Sieracki, supra, 328 U.S. at 95, 66 S. Ct. 872.

 The work of loading and unloading the ship is, as a matter of law, work in the ship's service performed until recent times by members of the ship's crew. Thompson v. Calmar S.S. Corp., 331 F.2d 657, 659 (3rd Cir. 1964); Hagans v. Ellerman & Bucknall S.S. Co., 318 F.2d 563 (3rd Cir. 1963). The shipowner cannot nullify the protections given by the doctrine of unseaworthiness by contracting out his operations to intermediary employers. Seas Shipping Co. v. Sieracki, supra, 328 U.S. at 96, 66 S. Ct. 872, 878. The duty cannot be delegated. "That the owner seeks to have [the work] done with the advantages of more modern divisions of labor does not minimize the worker's hazard and should not nullify his protection." Id.

 Defendant contends that no gear of the ship was involved and, therefore, the ship cannot be held accountable by any application of the doctrine of unseaworthiness. However, the shipowner's warranty of seaworthiness is not limited to an unsafe condition created by the actual physical agencies of the vessel itself, Gutierrez, supra, but extends to equipment supplied by the stevedore which is used in the ship's service. Alaska Steamship Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798 (1954), affirming per curiam 205 F.2d 478 (9th Cir. 1953); Rogers v. United States Lines, 347 U.S. 984, 74 S. Ct. 849, 98 L. Ed. 1120 (1954) reversing per curiam 205 F.2d 57 (3rd Cir. 1953); see Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 84 S. Ct. 748, 11 L. Ed. 2d 732 (1964) and Spann v. Lauritzen, 344 F.2d 204 (3rd Cir. 1968). In the instant case, therefore, the shipowner cannot be exonerated from liability by the mere fact that the "squeeze lift" truck involved here was owned by Independent Pier Company rather than by defendant. Law v. Victory Carriers, Inc., 432 F.2d 376 (5th Cir. 1970); Deffes v. Federal Barge Lines, Inc., 361 F.2d 422 (5th Cir.), cert. denied sub nom Continental Grain Co. v. Deffes, 385 U.S. 969, 87 S. Ct. 503, 17 L. Ed. 2d 433 (1966).

 If in the instant case libellant was in the ship's service engaged in the loading process, the warranty of seaworthiness extends to him. We must, therefore, decide whether under the instant facts libellant was engaged in the process of loading the S/S HAVSUL.

 Defendant asks that we characterize libellant's job as a mere transfer of materials from the place on the pier warehouse to another place within the warehouse.

 Defendant relies principally on Drumgold v. Plovba, 260 F. Supp. 983 (E.D. Va. 1966) where the Court, for the purposes of defining the scope of the seaworthiness rule, adopted a narrow definition of the terms "loading" and "unloading" in two related cases before it. The Court held that loading does not begin until the cargo is actually in the process of being physically moved from the stevedore's truck to the ship's deck. Likewise, as to unloading, the Court held that the process of unloading terminates after the cargo is at rest on the pier awaiting removal to another area. We cannot subscribe to Drumgold or to the narrow characterization urged by defendant. The more prevalent view which is well supported by authoritative case law is to define the term loading in a realistic, pragmatic and non-ritualistic manner. In our own district, Judge Kraft expressed this view on facts similar to those now before the Court. In Byrd v. American Export Isbrandtsen Lines, Inc., 300 F. Supp. 1207 (E.D. Pa. 1969) libellant, a longshoreman, was injured while engaged in moving cargo by means of a forklift machine from one point on the dock to another point nearer the vessel. On defendant's motion for summary judgment, Judge Kraft held that libellant was involved in operation of loading the vessel at the time of the injury. Faced with arguments similar to those raised here by defendant and in Drumgold, the Court noted that:

"[Defendant] unduly delimits the term 'loading' to the actual transfer of the cargo from the front of the pier to the vessel. The backing [of the forklift truck] to the intended cargo and the endeavor to attach the tow rope between the two vehicles were concomitant and ...

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