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Pastore v. Gyogyo

argued: January 9, 1978.



Adams, Biggs and Weis, Circuit Judges.

Author: Weis

WEIS, Circuit Judge.

A discarded cigarette butt, a pile of frozen lamb, and a slipping ladder, are the unlikely ingredients of this maritime personal injury case. We conclude that they are sufficiently connected by the circumstances to justify a jury's finding legal causation between a smoldering fire and the plaintiff's fall from a ladder. Accordingly, we affirm a judgment in favor of the plaintiff against a shipowner, and vacate a judgment n.o.v. in favor of a stevedore on an indemnification claim.

Plaintiff Pastore, a fireman employed by the City of Philadelphia, was injured while fighting a fire aboard the M/V Juyo Maru docked at the Packer Avenue Marine Terminal in Philadelphia on December 14, 1971. He filed suit charging negligence by the defendant shipowner, Taiyo Gyogyo, K.K., which in turn joined the stevedore, Lavino Shipping Company, as a third-party defendant on a claim of indemnity, and the City of Philadelphia on allegations of joint liability.

At trial, the district judge directed a verdict in favor of the city, and submitted the remainder of the case to the jury. In response to special interrogatories, the jury found the shipowner was negligent, Pastore was fifteen percent contributorily negligent, the stevedore breached its warranty, and its breach was a proximate cause of the accident. Damages were fixed at $75,000.00. After argument on post-trial motions, the trial judge entered judgment n.o.v. in favor of the stevedore, and denied defendant shipowner's requests for a new trial and judgment n.o.v.

The evidence at trial was that the M/V Juyo Maru, with a cargo of frozen meat from Australia, arrived at the Packer Avenue Terminal early on December 13, 1971. Within hours, longshoremen employed by the stevedore, Lavino Shipping Company, began discharging that part of the cargo destined for Philadelphia. The carcasses were individually wrapped in vinyl and cheesecloth which were flammable. After seeing one of the longshoremen smoking in the hold, the chief mate ordered the cigarette extinguished and reported the incident to a Lavino foreman. The complaint was repeated later in the day when a similar infraction occurred. On the following morning, a smoldering fire was discovered in the hold and a number of crew members were overcome by smoke. About an hour after the fire was detected, an alarm was received at plaintiff's fire station and the men promptly responded. As commanding officer of the unit, plaintiff rode the first of three fire trucks to the dock. When he arrived, police were assisting one of the stricken crew members from the ship.

After one of the firemen had placed a ladder into No. 1 hatch, plaintiff began to descend. Once he had put both feet on the rungs, the heel of the ladder slipped out of position and the plaintiff fell some distance to the lower deck. The ladder had been positioned on what appeared to be part of the deck below but was actually a tarpaulin or a piece of plywood covering some of the frozen cargo which had been moved there the preceding day. Members of the crew and some of the longshoremen were present on the main deck as the ladder was placed in position but no one warned the firemen that the frozen cargo was stacked on the deck below.

Plaintiff's expert witness testified that a ship's officer should have met the firemen at the gangway and advised them of the nature of the cargo as well as other pertinent conditions about the ship. He also opined that the ship was unseaworthy. In addition, there was testimony from other witnesses that American cigarette butts were found in the hold in the area near where the longshoremen had been working on the previous day.

In ruling on the post-trial motions, the trial judge concluded there had been sufficient evidence of the shipowner's negligence to sustain the jury's verdict in favor of the plaintiff, and there was enough in the record to support the finding that the stevedore's employees had caused the fire. However, the court held that the plaintiff's accident was not a foreseeable consequence of the stevedore's breach and consequently entered judgment in its favor. The court also determined that the city, as the plaintiff's employer, was not liable as a tortfeasor and refused to alter the directed verdict entered in its favor.

The shipowner asserts it is entitled to a new trial or judgment n.o.v. because the record does not support a finding of negligence against it. The testimony revealed that the fire engines approached the ship with sirens sounding and it was not contended that the arrival of the firemen went unnoticed. However, no ship's officer met them and although a number of crewmen were in the vicinity of the hatch, they did not caution the plaintiff about the hazardous support for the ladder. The crew was aware that the cargo had been stacked on the lower deck and was deceptive in appearance because of the tarpaulin covering it. Therefore, the issue was whether the shipowner had fulfilled his obligation to exercise reasonable care for the safety of those lawfully aboard his vessel. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 3 L. Ed. 2d 550, 79 S. Ct. 406 (1959). The jury could find that the failure to warn under the circumstances amounted to a breach of that duty.*fn1

The shipowner also contends that it was prejudiced by testimony of plaintiff's expert describing conditions which in his opinion made the vessel unseaworthy. That doctrine was not applicable as the trial judge later ruled and he charged the jury only on negligence. However, much of the expert's testimony was relevant to the issue of negligence as well and would have been admissible on that basis. The shipowner, therefore, was not unduly prejudiced since the jury was instructed only that it could find liability on the basis of negligence, and unseaworthiness was not discussed in the charge. We conclude, therefore, that the trial judge properly refused the motions of the defendant for judgment n.o.v. and for a new trial.

In attacking the judgment n.o.v. in favor of the stevedore, the shipowner argues that the jury was entitled to find a causal connection between the stevedore's negligence in starting the fire and the mishap which befell plaintiff. At trial, the judge charged the jury that it could hold Lavino liable if its breach "was a proximate cause of the happening of the accident . . . not only that the breach of warranty played a substantial factor in bringing about the injury to the plaintiff, but also that the injury was either a direct result or a reasonably probable consequence of that breach of warranty."

The shipowner's claim for indemnity was based upon a breach of the stevedore's warranty to perform its functions in a safe and workmanlike manner. Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp., 350 U.S. 124, 100 L. Ed. 133, 76 S. Ct. 232 (1956). It was for the jury to determine whether carelessness in smoking and disposing of cigarette butts in the vicinity of a cargo with a combustible covering is a safe and workmanlike performance. We need not review in detail the evidence which the district court found adequate to justify the jury's belief that the stevedore caused the fire. There was enough to support its finding ...

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