Willie Lee Shephard v. S/s Nopal Progress, Defendants-Third Party v. t.smith and Son, Inc., Third Party

497 F.2d 963
CourtCourt of Appeals for the Third Circuit
DecidedOctober 7, 1974
Docket73-2031
StatusPublished
Cited by6 cases

This text of 497 F.2d 963 (Willie Lee Shephard v. S/s Nopal Progress, Defendants-Third Party v. t.smith and Son, Inc., Third Party) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willie Lee Shephard v. S/s Nopal Progress, Defendants-Third Party v. t.smith and Son, Inc., Third Party, 497 F.2d 963 (3d Cir. 1974).

Opinions

AINSWORTH, Circuit Judge:

This suit involves a claim for damages of a longshoreman against a ship and its owner, for personal injuries sustained while unloading the vessel. Appellant, Willie Lee Shephard, a longshoreman employed by T. Smith & Son, Inc., was injured on July 14, 1968 while unloading cargo from the M/S NOPAL PROGRESS, owned and operated by A/S Sobral at the port of New Orleans. He filed suit against the ship and its owner under the Jones Act1 and general maritime law, alleging negligence and unseaworthiness. Defendant A/S Sobral in turn filed a third-party claim for indemnity against the stevedoring company, T. Smith & Son, Inc.2 The Jones Act claim was subsequently dismissed and the case proceeded to trial before a jury. At the conclusion of plaintiff’s evidence, the trial court sustained defendants’ motion for a directed verdict against plaintiff, based on his finding that the accident was caused solely by the operational negligence of plaintiff’s co-workers. Trial of the third-party complaint against T. Smith & Son, Inc. was stayed by the court pending the outcome of this appeal by Shephard.

Appellant contends that the trial court was in error in granting a directed verdict inasmuch as there was evidence showing that the accident and resultant injuries were caused by the unseaworthinss of the vessel and/or the negligence of A/S Sobral in failing to provide a safe place to work, both of which questions should have been resolved by the jury. We disagree. We find that a directed verdict in favor of defendants was proper and affirm.

On July 14, 1968, T. Smith & Son was discharging a cargo of frozen meat from the No. 3 hold of the M/S NOPAL PROGRESS in the Mississippi River at New Orleans. The cargo was contained in packages which were numbered to distinguish the types of meat. Warm air meeting the refrigerated air caused a foggy or hazy condition to prevail which decreased visibility in the hold. The operation consisted of separating the different packages and loading them on to pallet boards which were lowered by derrick into the refrigerated hold. The pallet boards were taken up from the hold by the use of spreader bars which fit on each side of the pallet board. Four men were working each pallet board, two to each side. After the spreader bars were unhooked by the men the foreman would signal the derrick-man, who would then signal the winch operator to pull up on the load. Two crews of longshoremen were working inside the No. 3 hold. At approximately 2 a. m., plaintiff was hit behind the right ear by a spreader bar and the attached hook when the spreader bar was prematurely released from the pallet board. The accident caused the injuries to plaintiff which form the basis of this complaint.

[965]*965Appellant contends that the overcrowded and foggy refrigerated hold constituted unseaworthiness and an unsafe working place, and that by permitting such a condition to exist the shipowner was guilty of negligence, which negligence and unseaworthiness were proximate causes of the accident.

It is a familiar and well-established rule that it is the shipowner’s obligation to furnish seamen and longshoremen performing seamen’s work a seaworthy vessel, including seaworthy appurtenances and equipment, as well as a safe place to work, and this obligation extends to the area where the loading and unloading operations are performed. Mahnich v. Southern S. S. Co., 321 U.S. 96, 102, 64 S.Ct. 455, 458, 88 L.Ed. 561 (1944); Strachan Shipping Company v. Alexander, 5 Cir., 1962, 311 F.2d 385, 386; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Equally familiar is the rule that the warranty of seaworthiness owed by the shipowner extends to the gear of the stevedore as well as that of the ship. Alaska Steamship Company v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). Appellant does not contend, however, that any of the stevedore’s hoisting or loading gear nor the ship’s gear to which it was attached was defecfive or malfunctioning. The testimony was unanimous to the contrary.3 Instead appellant attributes his injuries to the fog and crowded conditions in the hold.

Although there was evidence that the No. 3 hold was crowded, this condition cannot be attributed to the shipowner. It was the stevedore’s decision to use two gangs instead of one. The unloading operation was performed and supervised solely by the stevedoring company. We have held that the mere fact “that the area in which a longshoreman may be obliged to work is cramped or confining does not render the area unsafe as a matter of law.” Wilson v. Societa Italiana de Armamento (Sidarma), 5 Cir., 1969, 409 F.2d 484, 485. Despite the fact that two gangs were working the hold, there was no evidence connecting a crowded condition to the accident, nor was there evidence that such a condition interfered with the usual procedure of lowering or hoisting the gear and cargo or attaching or disengaging the spreader bars.

There is no dispute that the No. 3 hold was filled with vapor or fog because of the frozen cargo. However, there is likewise no dispute that this was normal arid expected.4 More importantly, there [966]*966is nothing in the record to show that the fog in any way caused the accident. Appellant places great emphasis on the fact that the haze limited visibility within the hold and that the men had difficulty in separating the packages of meat by identifying numbers. Nevertheless the two holds situated above the No. 3 hold had been unloaded prior to the accident. There is no evidence or indication of mistake having been made by the longshoremen in selecting the wrong packages for loading. Despite the fog, visibility was adequate to enable Elson Jones, a longshoreman working in the No. 3 hold, to observe from a distance of 15 to 17 feet that at the time of the accident one of the spreaders had been disengaged from the pallet board and that Shephard’s spreader was still attached.

In order to prevail plaintiff must show that either the unseaworthiness of the vessel or the negligence of the shipowner proximately caused his injury. This plaintiff failed to do. We have reviewed the entire transcript and the record and find no evidence that either the crowded condition of the hold or the fogginess produced by the frozen cargo proximately caused the accident. On the other hand, there is convincing evidence that the accident and resultant injuries were solely and proximately caused by the operational negligence of employees of the stevedore company. The record shows that immediately prior to the accident empty pallets had been lowered into the hold. Appellant and his three co-workers were in the act of disengaging the spreader bars from a pallet board when the accident suddenly occurred, obviously because of the lack of coordination among the men.

On cross-examination plaintiff was asked:

Q. Mr.

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497 F.2d 963, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willie-lee-shephard-v-ss-nopal-progress-defendants-third-party-v-ca3-1974.