Siderewicz v. Enso-Gutzeit O/Y
Siderewicz v. Enso-Gutzeit O/Y
Opinion of the Court
As the case comes to this court, it involves a longshoreman’s claim against the shipowner for injury through the alleged unseaworthiness of a vessel which he was helping to unload.
The first issue is whether a prima facie case was made that the technique of unloading was improper. If so, a jury question of unseaworthiness has been presented; the Supreme Court reiterated in Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971), that a ship’s unseaworthy condition could arise from an improper method of loading her cargo, and an improper method of unloading falls into the same class. Gutierrez v. Waterman S.S. Co., 373 U.S. 206, 211-215, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Atlantic & Gulf Stevedores Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962).
Plaintiff’s proof on this point is not uncontroverted, but there was clearly enough to go to the jury. One witness testified that “two hooks have always been the rule,” that it is customary to hook each bale, and that it is not usual for the hooks to drag when there are only eight bales. Another testified that eight bales is the “standard procedure,” that “[w]hen the draft is landing with the nine [bales], you have problems with the hooks” “[b]ecause the hook that contains the lifting apparatus has to be dropped lower to take the rope sling off * * and that when hooks drag along the dock that is a competent producing cause for the hooks catching. Plaintiff’s own evidence was that the custom and usage was to use eight bales with two hooks to the bale; that it is a dangerous practice to use nine bales; and that if you do use nine bales “[y]ou have to lower the cargo hooks down around two more feet * * * ” or “from 2 to 3 feet more than you normally do.”
There was, indeed testimony supporting that cast of the facts, but there were also statements (in part by the same witnesses) which could mean that the hooks had not yet been gathered up off the pier but were still dragging on, or almost touching, the floor, even though held together by plaintiff.
On both of these issues, unseaworthiness and proximate causation, the jury could reasonably find either way, and a direction for defendants could not properly be made. See Baker v. Texas & Pacific Ry. Co., 359 U.S. 227, 228-229, 79 S.Ct. 664, 3 L.Ed.2d 756 (1959); Brady v. Southern Ry. Co., 320 U.S. 476, 479-480, 64 S.Ct. 232, 88 L.Ed. 239 (1943); Berke v. Lehigh Marine Disposal Corp., 435 F.2d 1073, 1075 (2d Cir. 1970); Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir. 1970); Julian J. Studley Inc. v. Gulf Oil Corp., 407 F.2d 521 (2d Cir. 1969). Accordingly, the case must be retried.
Reversed.
. Plaintiff’s additional claim of negligence was dismissed by consent after the close of all the evidence. Also by consent, Boise-Griffin Steamship Co., Inc., the shipowner’s agent in the United States, was dismissed as a defendant.
. Previously, another judge had denied plaintiff’s motion for summary judgment, saying “genuine issues ns to material facts are present, including the defendants’ claim that plaintiff’s negligence was the sole or a contributory cause of the accident.”
. The recent decision in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383, does not affect the present ease. That was a “pier-side accident [s] caused by a stevedore’s pier-based equipment” (92 S.Ct. 421); here, the harm was caused by unloading gear operating from the ship, a type of injury which the opinion in Victory Carriers distinguished (see 92 S.Ct. 423-427).
. In addition, plaintiff relied on a portion of the Safety and Health Regulations for Longshoring (29 CFR § 1504.81(e), formerly 29 CFR § 9.81) providing: “Bales of cotton, wool, cork, wood pulp, gunny bags or other similar articles shall not be hoisted into or out of the vessel by their straps unless the straps are of sufficient strength to support the weight of the bale, and two hooks, each in a separate strap, are used.” Since there was enough live testimony to take to the jury the issue of improper unloading technique, we do not now decide the bearing of this regulation or whether it would, if relevant, be enough by itself to show unseaworthiness.
. If putting nine bales in the draft made the vessel unseaworthy, the shipowner would not be saved from liability because it may have been negligent of the Steve
. We refer to the evidence of Bartnicki at App. 16-18 and 41 and plaintiff at App. 77-78 which can bo understood as saying that in that specific instance the hooks were still dragging or- close to the pier. The apparently conflicting testimony on which appellees rely can possibly be read as referring to a general practice of a longshoreman’s gathering the hooks up in his arms before they are returned to the vessel, rather than to the actual and precise events at the time of this accident.
. Plaintiff also contends that the dock area was unsafe, and by the same token the vessel unseaworthy, because the dock failed to have a plywood cover or some other device to prevent the snagging of hooks. Appellees answer that this question was not properly raised in the trial court, and in any event the shipownei does not warrant the seaworthiness of the pier (see fn. 3, supra). Since we order a new trial on other grounds, we leave this matter open, without passing upon either of defendants’ points.
Reference
- Full Case Name
- Robert SIDEREWICZ v. ENSO-GUTZEIT O/Y, Finn Lines, Ltd., O/Y, and Boise-Griffin Steamship Co., Inc., and Third-Party v. CONNECTICUT TERMINAL CO., Inc., Third-Party
- Cited By
- 3 cases
- Status
- Published