was using it to climb from the deck of a tug boat to the deck of a larger ship. Although there was no unseaworthiness on the part of the ship, the Circuit Court ruled that its crew could be found negligent for failing to secure the ladder so that it would not fall.
II. Weight of evidence does not require new trial.
Plaintiff also contends that a new trial should be granted because the verdict was against the weight of the evidence. He asserts there was no testimony which contradicted his recitation of the facts and his contention about what caused his fall. In making this argument, however, plaintiff overlooks two fundamental principles: the burden of proof was upon him and matters of credibility were for the jury.
It was Nosal's burden to establish unseaworthiness by a preponderance of the evidence. The mere happening of an accident does not prove unseaworthiness: Logan v. Empresa Lineas Maritimas Argentinas, 353 F.2d 373, 377 (1st Cir. 1965). While the shipowner's duty to furnish a seaworthy vessel is absolute, seaworthiness is a relative concept and depends upon the circumstances in which the ship's condition is being questioned. The standard is not one of perfection, but of reasonable fitness for the intended purpose. This means that Nosal had the burden to show Calmar failed in its obligation to provide him with a working surface which was reasonably fit for the work involved in receiving cargo.
By an answer to a special interrogatory, the jury found the Beth Flor was seaworthy. The plaintiff had described the grease on which he fell as being too thin to measure but said it amounted to a skid mark of between two and five inches. (N.T. 31, 58). There was no showing of any other grease or defect in the hold. Obviously, the jury decided that the presence of one spot of grease, lengthened by plaintiff's fall to a smear no longer than five inches and perhaps to only two inches, and of undetermined width, did not render the ship unseaworthy. I cannot say as a matter of law the jury was wrong in reaching this conclusion.
In addition, even in the absence of contradictory evidence, a jury is not required to accept the testimony of any witness. There were certain discrepancies between plaintiff's story, that of his witness, his evidence at trial, and that given at a pretrial deposition. For example, during trial he testified the spot where he slipped was in the sunlight because the hatch was open. At deposition, he had said the hatch was closed and he could not be sure whether the spot was in shadows or shade. While such differences were not necessarily crucial, they may have been sufficient to cast a doubt upon the plaintiff's credibility.
There is no merit in plaintiff's contention that the weight of the evidence entitles him to a new trial.
III. Calmar's contingent motions.
One further matter remains. Defendant, Calmar Steamship Corporation, has filed motions for a new trial in the related indemnity actions against both stevedoring firms. Calmar's motions were contingent, however, upon the grant of a new trial to Nosal. Since his motion for a new trial must be refused, Calmar's motions will also be refused.