The opinion of the court was delivered by: BECKER
This is an action for damages for personal injuries suffered by a longshoreman when he was struck by ship's dunnage which was alleged to be improperly banded and which slid off a forklift truck which was being driven along the pier during cargo operations. After a lengthy trial on the issue of liability, the jury returned answers to 18 special interrogatories. From those answers we molded a verdict for the defendant, and it is that decision which is challenged in plaintiff's post-trial motion.
The case requires that we further refine, in a novel factual situation, and in the wake of the decision in Victory Carriers v. Law, 404 U.S. 202, 30 L. Ed. 2d 383, 92 S. Ct. 418 (1971), the shoreside limits of the maritime jurisdiction, which by Act of Congress, 46 U.S.C. § 740 (the Admiralty Extension Act of 1948), "shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land."
The facts surrounding the plaintiff's accident were developed at length at trial. They may be briefly summarized as follows. Plaintiff was a longshoreman employed by the third party defendant Atlantic & Gulf Stevedores, Inc. ("Atlantic & Gulf"), and on the day of the accident was working in connection with the cargo operations of the defendant's vessel, the S.S. Executor. Between 8:00 and 9:00 a.m., several hours before the accident, the plaintiff's co-employees discharged from the ship several drafts or loads of dunnage, that is, assorted lumber which every ship has in its hold and which is used, inter alia, to separate cargo or make a floor to support it. Dunnage used on a ship is the property of a shipowner. The drafts of dunnage were lifted out of the hold and onto the pier by means of lumber bridles, which are two straps each having a choker device which pulls the strap tight when the load is lifted. When the dunnage was landed on the pier the lumber bridles were removed and the dunnage sat unbanded on the pier.
That afternoon it became necessary to move some of the dunnage to another place on the pier. To accomplish this, the plaintiff's co-employee, Elton Grogans, lifted a stack of dunnage on the forks of a chisel (a forklift truck) and drove the chisel along the pier. The stack of dunnage being moved by the chisel was approximately three or three and a half feet high, consisting of perhaps a few hundred sticks of lumber each about an inch thick, four to eight inches wide, and six to ten feet long. As the chisel passed near the plaintiff, a few sticks of dunnage slid off the unbanded stack to the side, striking the plaintiff and causing his injuries. The cargo operations were being performed by Atlantic & Gulf under the direction of its foremen and gang bosses. While there was testimony by plaintiff's expert, Captain William Ash, that the Master of the vessel "is in charge of cargo operations on a merchant vessel," there was no evidence that any of the vessel's personnel exercised any such control or that they were even present or in any way involved in the cargo operations in question.
Because of the complexity of the legal issues involved in the case and the variety of theories of recovery, we submitted to the jury 18 special interrogatories which addressed all of the critical facts which might affect the outcome. In this way we would be able to mold a verdict regardless of what legal principle might ultimately control. In its answers to those special interrogatories, which are attached to this Opinion as an appendix, the jury found facts which may be summarized as follows:
1. The dunnage striking the plaintiff was the property of the vessel and was the same dunnage that had been removed from the vessel earlier in the day by the third-party defendant's employees and placed upon the pier.
2. The stevedore did not employ an improper shipside method of operation in discharging the dunnage from the ship. "Shipside" means up until the time the dunnage was released from the ship's tackle onto the pier. (The interrogatory from which this finding stems was captioned "Unseaworthiness -- Shipside method of operation.")
3. The shipowner was not negligent in failing to supply proper equipment to the stevedore or in failing to eliminate an improper shipside method of operation by the stevedore in connection with the discharge of the dunnage from the ship. (The interrogatory from which this finding results was captioned "Negligence -- Shipside.")
4. The method of operation used by the stevedore in handling the dunnage on the pier after it left the ship's tackle was improper, i.e., negligent or unsafe, because the stevedore did not secure the dunnage or make it fast, and this improper method of operation was a proximate cause of the plaintiff's injury. (The interrogatory from which this finding emanates was captioned "Shoreside -- Method of Operation.")
5. The shipowner was negligent in failing to eliminate the stevedore's improper method of handling the dunnage on the pier after it left the ship's tackle and this negligence was a proximate cause of the plaintiff's injury. (The interrogatory from which this finding stems was captioned "Negligence -- Pierside.")
6. The driver of the chisel was not negligent, either in picking up too much dunnage on his forks or in his method of driving the chisel on the pier.
7. The plaintiff was not contributorily negligent.
8. The stevedore breached its warranty to the shipowner to perform its job in a reasonably safe, competent, and workmanlike manner, or it was negligent in the manner in which it performed its job.
We did not submit to the jury the question of whether the dunnage was an appurtenance of the ship. The evidence was uncontradicted that the dunnage had been removed from the ship to facilitate cargo operations and that it was destined to return to the ship at the end of the day. Accordingly, we informed counsel that it was our ruling that the dunnage was and remained an appurtenance of the ship while it was on the pier. Nor was there any dispute about the fact that the dunnage was fit for its intended purpose until the time it left the ship's tackle when it landed on the pier. Until that time the dunnage was securely banded by the lumber bridles -- indeed, plaintiff's witness Rutter testified that the dunnage was "tight and beautiful" when it left the ship. And the jury found that there was no improper handling of the dunnage until after it was released from the ship's tackle on the pier.
As the special findings of the jury indicate, we could have molded the verdict in favor of the plaintiff on only two theories: first, that the improper pierside method of operation by the stevedore in handling the dunnage on the pier rendered the ship unseaworthy; and second, that the shipowner's negligent failure to eliminate the stevedore's improper pierside method of operation breached a duty of care owed by the shipowner to the plaintiff.
For the reasons expressed in this Opinion, the law does not sustain either of plaintiff's theories, and we will deny the plaintiff's motion to remold the verdict in his favor.
II. Did the Stevedore's Improper Pierside Method of Operation Render the Ship Unseaworthy?
Plaintiff's first claim against the shipowner is that this accident is governed by federal maritime law, which includes the shipowner's warranty of seaworthiness. That doctrine is in essence "that things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used." Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213, 10 L. Ed. 2d 297, 83 S. Ct. 1185 (1963). This warranty of seaworthiness runs to longshoremen engaged in cargo operations, as well as to seamen. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946). By virtue of the Admiralty Extension Act of 1948, supra, maritime law governs not only accidents occurring on navigable waters, but also injuries "caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land."
However, maritime law, including the warranty of seaworthiness, does not apply to all accidents occurring during cargo operations. In Victory Carriers, Inc. v. Law, 404 U.S. 202, 30 L. Ed. 2d 383, 92 S. Ct. 418 (1971), the Supreme Court held that maritime law did not apply to an accident on the pier in which a longshoreman driving a cargo-laden forklift, owned by the stevedore, was injured by a defective protection rack on the forklift which came loose and fell on him. On the other hand, the Victory Carriers decision reaffirmed the Court's holding in Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 10 L. Ed. 2d 297, 83 S. Ct. 1185 (1963), that maritime law does apply when a longshoreman is injured on the pier by defective cargo containers, which are appurtenances of the ship, that were defective before they left the ship. The issue before us is whether this case is controlled by Victory Carriers or by Gutierrez. We have concluded that Victory Carriers controls.
The most notable cases in the area, including those relied upon by the plaintiff, are all inapposite. In Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3d Cir. 1963), the plaintiff was working in the pier shed unloading bags of sand from trucks onto which they had been placed by the ship's tackle, when he slipped on sand that had leaked onto the floor. Just as in Gutierrez, the evidence was that the sandbags were already leaking before they were removed from the ship's hold. In Thompson v. Calmar Steamship Corp., 331 F.2d 657 (3d Cir. 1964), cert. denied, 379 U.S. 913, 13 L. Ed. 2d 184, 85 S. Ct. 259 (1964), the plaintiff was standing at the brake of a freight car containing cargo about to be loaded aboard the vessel. The ship's tackle was used to pull three other loaded cars into motion so that they would strike the plaintiff's car and thereby move it into proper position for loading. Thompson is thus distinguishable from the case at bar because the ship's tackle caused the injury while it was being improperly used. In Spann v. Lauritzen, 344 F.2d 204 (3d Cir. 1965), cert. denied, 382 U.S. 938, 15 L. Ed. 2d 348, 86 S. Ct. 386 (1965), the plaintiff was injured by a defective piece of equipment owned by the stevedore and located on the pier but which was being used to unload the cargo from the ship. Our case is different because the dunnage was not being used as equipment in the direct unloading of the cargo.
The Supreme Court's opinion approves the approach of "[reliance] upon the gangplank line as the presumptive boundary of admiralty jurisdiction except for cases in which a ship's appurtenance causes damage ashore," 404 U.S. at 214 n. 14. The Court examined the facts before it and found the absence of "the typical elements of a maritime cause of action": Was the plaintiff injured by "equipment that was part of the ship's usual gear or that was stored on board"; was the equipment that injured him attached to the ship; was the equipment under the control of the ship or its crew; and on which side of the gangplank did the accident occur? All of these typical elements were lacking in Victory Carriers; here we find only the first is present, and that only in attenuated fashion, since the dunnage was serving no function while it was being stored on the pier. The other elements are conspicuously absent.
Furthermore, the Court specifically held that the fact that the plaintiff in Victory Carriers was engaged in a very general sense in the process of unloading the cargo, historically a seaman's task (and noted as such on this record by Captain Ash), did not automatically entitle him to the benefit of the unseaworthiness remedy. Instead, said the Court, where the injury takes place on the pier, such as in Gutierrez, the plaintiff can recover only if his injury is caused by an appurtenance of the ship in such a way that the injury can be held to be an "injury, to the person . . . caused by a vessel on navigable water" within the language of the Extension Act. We cannot hold here, as plaintiff asks us to, that plaintiff's injury was "caused by a vessel on navigable water," since the dunnage was not on board or attached to the ship at the time; it was in seaworthy condition when it left the ship (the jury expressly so found) and until the time came for it to be moved from one place to another on the pier where the accident took place; and the ship's crew was in no way responsible for its handling after it left the ship's tackle. Thus for the reasons stated we conclude that Victory Carriers does not authorize recovery by the plaintiff in this case for unseaworthiness.
To afford the plaintiff here an unseaworthiness remedy, we would have to expand admiralty jurisdiction beyond the furthest point to which the Supreme Court has extended it, which is the Gutierrez case. For, as we have seen, the case before us lacks two elements present in Gutierrez which contributed to the link in that case with the maritime jurisdiction: the fact that the cargo containers were defective while still on board the ship, and the related fact that the shipowner had an opportunity to repair the cargo containers while they were still under his control. Plaintiff in essence asks us to hold that the maritime jurisdiction applies even without these two elements. This we are unwilling to do. Just last term, the Supreme Court, in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972), reiterating its approach in Victory Carriers, warned that "in determining whether to expand admiralty ...