James Thompson v. Calmar Steamship Corporation , 331 F.2d 657 ( 1964 )

HASTIE, Circuit Judge, with whom WILLIAM F. SMITH, Circuit Judge, joins

(dissenting).

Under this decision “unseaworthiness” becomes a liability-imposing word without rational meaning or conceptual scope.

Heretofore, to me at least, unseaworthiness has signified some unfit, unsound or unsafe condition of a vessel or its gear or equipment. A vessel may be unseaworthy because of a structural defect, or because it is improperly manned ■or because its equipment is defective or inadequate in some way. But, as I understand the facts in this case, the vessel .and its gear were not defective in any way. The winch and cable, part of the ship’s gear, involved in this accident, were sound and worked perfectly. The trouble was that stevedores, not in the ■employ of the ship, negligently undertook to move one railroad car from its unloading position on the pier alongside the ship by bumping it with a train of ■oncoming cars. They used the ship’s winch and cable to put the bumping cars in motion. This procedure may well have been active negligence by the stevedores, but it involved no structural or operational defect of the gear, and no unfitness to move cargo carrying cars. If a ship is to be liable for any negligence of a stevedore or any other third person in misusing its gear, I think the court should say so and should offer some justification other than an anomalous characterization of the gear as unseaworthy.

I think the Supreme Court has never ■supported a finding of unseaworthiness which could not be rationalized as involving some structural or functional unfitness of vessel or gear for its intended use. If any decision of an inferior court :goes as far as this one, we certainly are not obligated to follow it.

Unable to find any satisfactory rationalization for this decision or to comprehend its scope, I fear that the bar and the maritime community will find that our ruling leaves confused and doubtful the question of the ship’s liability in many situations, in which it heretofore has seemed clear that no liability existed. Does this decision mean that when a pilot negligently maneuvers a ship against a bridge or a pier, the steering apparatus is unseaworthy? If a stevedore negligently allows tackle to fall to the deck injuring someone, is the gear unsea-worthy? If one passenger injures another by carelessly using some sports equipment supplied by the ship, is this equipment unseaworthy? If it seems rdiculous to apply the concept of unseaworthiness to such cases as these, I think the incongruity lies not with the choice of examples but with the present decision which seems to embrace all such situations.

In my judgment, there should be a rehearing of this appeal before the court en banc to permit full consideration whether we wish to make this puzzling extension of liability without fault and, if so, to provide a rationalization of our ruling and some definition of its scope.