Antonio Nuzzo v. Rederi, A/s Wallenco, Stockholm, Sweden, Rederi A/b Soya, and Third-Party v. Pittston Stevedoring Corporation, Third- Party , 304 F.2d 506 ( 1962 )

HINCKS, Circuit Judge.

Antonio Nuzzo, a longshoreman, brought this action against Rederi, A/S Wallenco, for injuries he received while unloading lumber from defendant’s ship “Boheme” in New York Harbor. The undisputed testimony is that Nuzzo and three others were working in a deep tank containing only lumber. The lumber had been loaded on the West Coast and, as is the practice, it had been originally stowed in a series of “false decks.” Boards or planks were laid flat on the hold bottom lengthwise, that is to say parallel with the longitudinal axis of the hold, forming a “floor”; on top of that floor another was laid, and so on until the hold was filled. The boards varied in length, from six to twenty feet, and were mixed in other dimensions as well; there were 1 x 4’s, 1 x 6’s, 2 x 4's, and 2 x 6’s. They were tied in bundles, however, apparently of equal thickness; and these bundles were stowed so as to form the successive floors.

The fore and aft bulkheads of the tank were vertically corrugated, for strength and rigidity. Their vertical ribs were about 10 inches apart and about 10, inches thick so that each pair of ribs enclosed on three sides a space of approximately 10" x 10" x 10" and the fourth or open side of this space was about 15". The deep tank itself was 34 feet long and 28 feet wide. The hatch opening in the deck above the tank— through which, of course, the cargo must be loaded and unloaded — was 15 feet by 12 feet, and roughly in the center of the tank.

In unloading, the stowage process was reversed. Slings were lowered into the tank. The longshoremen would fill these slings, which were then raised to the deck, emptied, and lowered again. The longshoremen would first clear out a working space directly under the hatch; this space would be roughly "man height” deep. They would then “go into the wings,” that is, unload the lumber, above the level of that on which they were standing, to each side and fore and aft of the hatch. They would then successively repeat the process by removing the lumber in the center of the tank, directly under the hatch, and from this lower floor level again work out into the wings.

At a trial on issues of negligence and unseaworthiness, Nuzzo and his coworkers testified that they had gone down to man height and were working out into the wings. As Nuzzo stepped back to maneuver a bundle into position on the slings, he stepped into an empty space between the vertical ribs of the bulkhead which was “about 18 inches across and about two feet in depth,” as found by the district judge.¹ He was thrown off balance and fell backward against the bulkhead, injuring his shoulders and back. His most substantial claim was that the void space was a dangerous and unseaworthy condition within the meaning of Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). His claim of negligence was dismissed by the court for lack of evidence — a ruling not challenged by appeal.

On the issue of unseaworthiness, the trial judge, in order to expeditiously dispose of the case, made his controlling rulings from the bench at the conclusion of the case without filing any written findings or conclusions. In his colloquy with counsel he said: “The case comes down to simply whether or not you made out a case of improper stowage, and that is at the port of loading, the loading port.” And later he said: “The sole question in this case is whether or not the shipowner * * * provided a seaworthy vessel. * * * In that regard, the Court finds the issues in favor of the plaintiff against the defendant * * *The only finding of fact bearing on that issue, to which the court gave expression, was that the claimant while “reaching * * * about head high to take off the bundles from the wing in the hold, and his back being to the bulkhead or the wall, which was corrugated in shape, stepped backwards slightly, and in doing so stepped into a hole about 18 inches across and about two feet in depth. He fell backwards and struck his right shoulder against the corrugated wall of the bulkhead # #

To test the validity of the conclusion reached we turn to the evidence. In addition to the undisputed evidence recited above there was the following. Bluni, a fellow longshoreman working with the plaintiff at the time, said that he saw the hole before the plaintiff’s fall; that it had not been filled with dunnage but had been covered by a layer or floor of lumber until not more than fifteen minutes before the accident happened; that some of the lumber went “flat up against the bulkhead” and “sometimes it is short”; that “sometimes they put the top board against it, they cover it up with the hole”; and “the hole is supposed to be covered.”

Durante, another longshoreman, testified for the plaintiff that after fifteen years experience in unloading lumber,the only hole he saw was the hole into which the plaintiff fell; that this hole had been “covered until we dug out the stuff that had to be out”; that “we always find holes. We always find holes if it is not properly stored.” At this point, defendant’s counsel contended that the witness did not qualify as an expert on the subject of stowage and unsuccessfully objected to his opinion that “holes” always were found “if it is not properly stored.” However, in responding on cross-examination to the question, “It was a good lumber stow, wasn't it? But you saw it?" Durante testified: “Yes, I could say that.”

The plaintiff himself testified that he worked at unloading similar lumber from similar ships since 1953; that on the day of the accident he had worked from 8 a. m. to 5 p. m. when he fell into a hole between the cargo and the bulkhead; that the hole into which he fell was the only one he had seen; and to the question, “Up to the time that you say you fell, Mr. Nuzzo, the lumber had been stowed properly, hadn't it ?” he answered “Yes.”

A careful reading of the transcript discloses no other evidence to support the plaintiff’s case on the issue of unseaworthiness. And what appears is not enough, we think, to support the conclusion of unseaworthiness. In so holding we do not disagree with the learned trial judge that improper stowage may constitute a breach of the warranty of seaworthiness. That stowage, as well as hull and gear, is within the ambit of the warranty is well recognized in this circuit. Palazzolo v. Pan-Atlantic S.S. Corp. (Pan-Atlantic S.S. Corp. v. Ryan Stevedoring Co.), 2 Cir., 211 F.2d 277, affirmed as to the liability over of the stevedore in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133; Rich v. Ellerman & Bucknall S.S. Co., 2 Cir., 278 F.2d 704; cf. Grillea v. United States, 2 Cir., 229 F.2d 687, rehearing 2 Cir., 232 F.2d 919. See also Gindville v. American-Hawaiian Steamship Co., 3 Cir., 224 F.2d 746.

Nor does our holding rest upon the fact that the hole into which- the plaintiff stepped had been uncovered by the plaintiff himself and his “partner” but a few minutes before. That a longshoreman may recover for injuries, resulting from unseaworthiness caused by himself or his fellows has been the law of this circuit at least since Grillea v. United States, supra.

Our holding rather is that there was neither finding nor proof of facts upon which the conclusion of unseaworthiness could properly be based. The mere fact that there was at a point in the perimeter a small empty space extending two feet below the adjacent “floor” of boards was not enough by itself, as we read Mitchell v. Trawler Racer, supra, to violate the standard of reasonable fitness prescribed by that opinion. Just as the owner was under “a duty only to furnish a vessel and appurtenances reasonably fit for their intended use,” as was said in Mitchell, so the owner’s duty, with respect to the stowage of the ship, is only to furnish a stowage reasonably fit for its intended purpose. The purpose of stowage, of course, is a disposition of cargo within the vessel which will be reasonably safe and convenient both for carriage at sea and for unloading at the destination. The fact here that lumber of assorted sizes was to be fitted into a hold of fixed size made it likely, indeed inevitable, that here and there would be gaps or holes at the ends of the bundles. And that, so far as appears, none of these holes between bundles existed under the hatch where the longshoremen were continuously working, but only at the perimeter of the hold between the bundles and the bulkhead where they had little occasion to be, was a fact obviously adding to the reasonable fitness of the stow. Especially in the absence of evidence that this peripheral cavity was obscured by inadequate lighting we find no basis for holding that the stow was unsea-worthy. Certainly we are referred to no cases in which unseaworthiness is based solely upon lack of a precisely fitted “wall:to-wall” stow of the successive floors of a lumber cargo.

The problem which faces us as to the applicable standard of seaworthiness is framed by the final passage from the court’s opinion in Mitchell v. Trawler Racer, Inc., supra, 362 U.S. at 550, 80 S.Ct. at 933, where the court, in speaking of its decisions over the last 15 years, said:

“ * * * What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history.

“What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336 [75 S.Ct. 382, 99 L.Ed. 354]."

More specifically, the problem is a determination of “reasonable fitness” of stowage which shall be consistent with the admonition to maintain “a complete divorcement of unseaworthiness liability from concepts of negligence.”

We think the clue to the solution is to be found in the cited reference to Boudoin v. Lykes Bros. S.S. Co. In that case, the court gives approval to Judge Learned Hand’s language and reasoning in Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, which was a case involving a charge of unseaworthiness because in its crew was a seaman with a proclivity for assault. Judge Hand there had said: “Applied to a seaman, such a warranty is, not that the seaman is competent to meet all contingencies; but that he is equal in disposition and seamanship to the ordinary men in the calling.” 194 F.2d at 518. This test was quoted by Justice Douglas in the opinion in Boudoin. He there further (348 U.S. p. 339, 75 S.Ct. p. 384) said:

“We see no reason to draw a line between the ship and the gear on the one hand and the ship's personnel on the other. A seaman with a proclivity for assaulting people may, indeed, be a more deadly risk than a rope with a weak strand or a hull with a latent defect. The problem, as with many aspects of the law, is one of degree. Was the assault within the usual and customary standards of the calling? Or is it a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature? If it is the former, it is one of the risks of the sea that every crew takes. If the seaman has a savage and vicious nature, then the ship becomes a perilous place.” (Emphasis supplied.)

Thus the test approved was essentially pragmatical. We applied a similar test in Poignant v. United States, 2 Cir., 225 F.2d 595, when we remanded for retrial on the issue of whether the vessel had been provided with the equipment usually found in similar vessels. And in other of our decisions affirming a finding of unseaworthiness there was direct evidence as to the pertinent “usual and customary standards." Cf. Rich v. Ellerman & Bucknall S.S. Co., supra; Reddick v. McAllister Lighterage Line, Inc., 2 Cir., 258 F.2d 297, cert. denied, 358 U.S. 908, 79 S.Ct. 235, 3 L.Ed.2d 229; Palazzolo v. Pan-Atlantic S.S. Corp., supra. And see Martin v. United Fruit Co., 2 Cir., 272 F.2d 347; Fatovic v. Nederlandsch-Ameridaansche Stoomvaart, Maatschappij, 2 Cir., 275 F.2d 188; Salem v. United States Lines Co., 2 Cir., 293 F.2d 121, cert. granted, 368 U.S. 811, 82 S.Ct. 62, 7 L.Ed.2d 21. But see Troupe v. Chicago, D. & G. Bay Transit Co., 2 Cir., 234 F.2d 253, 260.

There are doubtless many cases in which the condition causing the injury was so unusual or, because of some hidden or unapparent defect, so clearly dangerous as to warrant the conclusion of unseaworthiness by the trier, even in the absence of direct evidence that it was not "within the usual and customary standards” of comparable maritime activity. Cf. Van Carpals v. S.S. American Harvester, 2 Cir., 297 F.2d 9, cert. denied U.S. Lines Co. v. Van Carpals, 1962, 82 S.Ct. 1031; Grillea v. United States, supra. See also Gindville v. American-Hawaiian Steamship Co., supra.² It is true that in The T. J. Hooper, 2 Cir., 60 F.2d 737, cert. denied Eastern Transp. Co. v. Northern Barge Corp., 287 U.S. 662, 53 S.Ct. 220, 77 L.Ed. 571, it was held that the absence of a pertinent prevailing usage or custom will not necessarily preclude a finding of unseaworthiness. But this case, it will be remembered, was decided long before the Boudoin and Mitchell cases. Its opinion speaks (60 F.2d p. 740) of “diligence” and “prudence.” Its citations, e. g., Wabash Railway Co. v. McDaniels, 107 U.S. 454, 2 S.Ct. 932, 27 L.Ed. 605, make it clear that it was predicated on concepts of negligence which in Boudoin and Mitchell we are admonished to abjure. Whether its holding and dicta survive these recent holdings of the Supreme Court is unclear. However that may be, from a holding that unseaworthiness results from the absence of a working radio to receive weather reports on a seagoing tug, as in The T. J. Hooper, it does not follow that unseaworthiness results from lack of an unbroken wall-to-wall flooring at each successive level in a lumber stow.

Here, there was no concealed defect, indeed no condition, unusual in a lumber stow, which, because of its propensity to cause injury, was obviously at variance with general maritime practice. The problem here, as was said of the problem in Boudoin v. Lykes Bros. S.S. Co., supra, 348 U.S. p. 340, 75 S.Ct. p. 385, was “one of degree”; it was whether the stow was “within the usual and customary standards of the calling.” As to that the judge made no finding. He found only that the plaintiff “stepped backward slightly, and in doing so stepped into a hole about 18 inches across and about two feet in depth. He fell backward and struck his right shoulder against the corrugated * * * bulkhead.” For lack of a finding that such a hole jn a lumber stow was at odds with the “usual and customary standards of the calling,” we must hold the conclusion of unseaworthiness erroneous, and reverse. And since we find insufficient evidence to support such a finding if it had been made we remand with a direction to dismiss.

The absence of more complete findings makes it impossible for us precisely to locate our point of divergence from the holding of the learned judge below. It is plausible to believe, however, that, being without benefit of a transcript when he made his rulings, he may have been misled by plaintiff's counsel who on final argument repeatedly asserted that the defendant-shipowner’s own expert witness had testified that the gap or hole into which the plaintiff had stepped “was a dangerous condition” making the stowage unseaworthy.³ Such, however, was not the expert’s testimony. He plainly expressed the belief that in the stowage of lumber such holes are “the customary condition on every ship in the world," that he “wouldn’t consider it dangerous”; that he had never seen such holes blocked up on a lumber ship. Of course the trial judge was not obliged to accept the expert’s testimony. But if, as urged by plaintiff's counsel, he took the testimony as evidence of an unseaworthy stow of lumber, the transcript shows he fell into error.

Our decision,⁴ we note, is broadly in line with several recent cases in this circuit holding that merely because of an accident aboard, the ship is not necessarily unseaworthy. Ezekiel v. Volusia Steamship Co., 2 Cir., 297 F.2d 215; Pinto v. States Marine Corp., 2 Cir., 296 F.2d 1, cert. denied, 82 S.Ct. 874 (1962); Puddu v. Royal Netherlands Steamship Co., 2 Cir., 303 F.2d 752 (January 3, 1962), rehearing in banc denied February 20, 1962, granted April 9, 1962, affirmed May 15, 1962; Richter v. Mathiasen’s Tanker Industries, Inc., 2 Cir., 297 F.2d 494; Hooper v. Terminal Steamship Co., 2 Cir., 296 F.2d 281; Salem v. United States Lines Co., supra.

Reversed and remanded with a direction to dismiss.

1 . Neither from the evidence nor from the meagre findings which were expressed only orally from the bench at the close of the trial, is it possible to determine whether the empty space was wholly between the vertical ribs of the bulkhead or extended slightly further into the interior of the hold. However, any uncertainty on this point lacks significance, since it is agreed that the empty space was adjacent to the perimeter of the bulkhead.

2 . In this case, even though the stow was such that unloading was obviously dangerous, there was expert evidence to support the plaintiff’s verdict. 224 F.2d 746, 748.

3 . Counsel apparently had in mind the witness Keeler, an officer of high executive position in a large stevedore company who had worked his way up from the bottom of the business. Keeler, it is true, had testified to "a custom in the Port of New York and in other ports * * * with respect to the coverage of these holes” whereby ‘‘the covering of the holes is taken care of by the discharging stevedore” who has the “responsibility to see that the holes or whatever is uncovered by the men working in it * * * are covered sufficiently to malte it seaworthy, to continue to work in that compartment.” (Emphasis supplied.) But the context makes it plain by reference to the prior question (which had just been repeated) that the inquiry was as to a custom with respect to the coverage of these holes “in the carriage of other types of cargo, eases, bales, bags, for there to be spaces in the stow.” (Emphasis supplied.) Indeed, plaintiff’s counsel had objected to the question because it was not confined to the stowage of lumber. The expert's testimony, therefore, of a custom or responsibility for covering holes “sufficiently to make it (the stowage) seaworthy” was not only so vague as to be meaningless but did not even apply to lumber cargoes.

4 . The defendant-shipowner by third-party complaint had sought to recover over from the stevedoring company any recovery by the plaintiff. The appeal covered also the ruling below dismissing the action over. Our disposition of the plaintiff’s claim against the owner makes it unnecessary to pass upon the dismissal of the action over.