In the case at bar, the accident did not occur on the ship nor did it involve any part of the vessel's usual gear or appurtenances as those terms are generally understood. And conscious of the teaching of Victory Carriers, Inc. v. Law, supra, not to extend the historic boundaries of maritime law, we are unwilling to accept the plaintiff's contention that the spreader became part of the ship's equipment because it was provided by the vessel's owner.
The spreader was shore side equipment under the control of the stevedore which was not attached to, stored on or transported by the vessel. The character of the equipment does not change nor does it become part of the ship's usual gear or appurtenances merely because it was supplied to the stevedoring contractor by the owner of the vessel being loaded. Therefore, under the circumstances presented here, the spreader cannot be used as a basis for invoking maritime jurisdiction.
Moreover, even assuming the spreader was part of the ship's usual gear, a claim of unseaworthiness cannot be predicated on the isolated personal negligent acts of the plaintiff's fellow longshoremen. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 27 L. Ed. 2d 562, 91 S. Ct. 514 (1971). The injury here resulted from the operational negligence of the crane operator or the tractor trailer driver or both. In any event, it is clear that their conduct did not in any way create a condition which rendered the vessel unseaworthy.
The plaintiff's alternate theory of liability is based on the testimony of the master of the vessel that in his opinion it was "not safe for a man to ride continually on that spreader", but since the ship's equipment was not involved, he made no move to stop it.
Northern Metal Company was an independent stevedoring contractor. The plaintiff, the crane operator and the driver of the tractor trailer were all employees of Northern Metal and were acting under the direct supervision of Northern Metal's foreman. None of the ship's personnel were involved in the loading process and plaintiff is unable to point to any breach of duty or actionable conduct on their part which in any way directly contributed to plaintiff's injury.
There can be no question that the proximate cause of the plaintiff's injury was the striking of the spreader by the tractor trailer after the crane operator had lowered the spreader "a little too low". These are acts over which the master of the vessel had absolutely no control and under the circumstances, his failure to act did not constitute negligence.
AND NOW, to wit, this 1st day of August, 1974, it is hereby
ORDERED that defendant's Motion for Summary Judgment against the plaintiff be GRANTED
ORDERED that plaintiff's Motion for Summary Judgment must be DENIED
ORDERED that defendant's Motion as third party plaintiff for Summary Judgment against third party defendant is also DENIED.
BY THE COURT:
JOSEPH L. MC GLYNN, JR. J.