Before BIGGS, Chief Judge, KALODNER, Circuit Judge, and KRAFT, District Judge.
The seven civil actions from which the present eight appeals arise were brought by six longshoremen and the administratrix of the estate of a deceased longshoreman. They stem from a maritime accident aboard the S.S. "Atlantico" on February 14, 1952, in which the six were injured and the seventh killed while the ship's cargo was being discharged at Philadelphia, Pa.The vessel was owned and operated by A. Garcia y Cia., Ltda. (Garcia), the defendant. The longshoremen were employees of Jarka Corporation of Philadelphia (Jarka), a stevedoring company, which Garcia had engaged, as an independent contractor, to unload the cargo. Garcia brought in Jarka as a third-party defendant in each case, but that unresolved litigation is not now before this court.
With the district court's approval, all parties stipulated that the suit of Seawright, one of the longshoremen, would be tried, that the jury's findings in that case would be decisive of the question of liability in all, and that, if Garcia was determined to be liable in Seawright's action, the other suits would be separately tried on the damage issues only. In the Seawright case the jury answered special interrogatories submitted by the trial judge and rendered a general verdict for the plaintiff which was moulded to conform to the answers to the interrogatories. The amount of damages in each of the other cases was thereafter stipulated by the parties and judgments accordingly entered. Garcia's renewed post-trial motions to vacate the judgments, set aside the verdicts and to enter judgments in its favor were denied, except in one particular, by the district court, as were its motions for new trial. Six of these appeals by Garica*fn1 present wholly common questions, while its seventh appeal*fn2 presents not only those questions but others which are akin to those in the single plaintiff's appeal*fn3 by the administratrix.
Appeals 11,995 to 12,000 and, in Part, 11,994.
Viewing the evidence in the light most favorable to plaintiffs, as we must after the verdict in Seawright's favor, the facts may be summarized as follows: The S.S. "Atlantico" had been loaded by Cuban longshoremen at Sagua, Cuba, under the supervision of the ship's officers. The bags of sugar, weighing about 100 pounds each, were stowed on their flat sides, one stop the other, with the long dimension forward and aft. They were piled in thwartship tiers in the vessel's lower No. 2 hold, which was approximately 51 feet long and 39 feet wide. Each tier ran completely across the hold and was about 25 to 30 feet high. The method of stowage, if properly employed, was an acceptable method of stowing bagged cargo.
Two methods of discharge of the cargo were available. By one method, which was not used, a space could be created near the center of the hatch by the removal of several levels of bags. From this space longshoremen could work out to the perimeter of the hold and, by such removal, reduce the cargo to the level of the space initially created and then, by repetition of this operation, continue removal to the bottom of the hold. Because of the necessity of dragging the outer portions of the cargo across other of the cargo to the center of the hatch, this method had recognized inherent dangers both of injury to longshoremen and of damage to cargo.The other method, which was used, was to begin the removal of cargo at the middle of the forward half of the hold, instead of at the middle of the entire hold, and to discharge the cargo to the bottom of the forward half before discharge of the after half of the cargo was begun. This method had previously been employed to discharge the same type of cargo from the same hold of this ship on a number of occasions.
When No. 2 hatch was uncovered the longshoremen were ordered by their employer to unload the forward half of the hold first. The longshoremen were unable to note anything defective or significant about the stowage either when they began the discharge or during the unloading prior to the accident. Shortly before 6:00 P.M. nearly all cargo in the forward half of the hold had been discharged. At that time the bags stowed in the after half of the hold, about 30 to 35 bags high, faced the eight men then in the hold. Without warning, a large number of bags from the front and top of this facing tier fell and engulfed the men, injuring six and killing the seventh.
The tier of bags behind the partially fallen tier was then visible.This second tier contained numerous bags which were on their sides or ends, or were canted or otherwise irregularly placed, in contrast with the even stow of the face tier. After the decedent and the injured had been removed the hatch was covered. It was discovered, on the morning following, that more bags in the tiers had fallen during the night. The cargo thus exposed, and that exposed during the subsequent unloading, disclosed bags on their sides, ends, and canted, as well as open spaces between bags.
The ship passed through severe weather, enroute from Cuba, which caused her to pitch, toss and roll, but Jarka was not advised of this or of its probable effect on the stowage, nor was Jarka informed by the ship's officers about the manner or condition of original stowage.
The collapse of the face tier resulted from the manner of its stowage, the duty to supervise which, at the port of origin, was upon the ship's officers.
Plaintiff's actions were based on Garcia's alleged negligence and the alleged unseaworthiness of the vessel. The jury found Garcia negligent and also found each plaintiff 2% contributorily negligent. Garcia asserts that it is entitled to judgment despite the Seawright verdict because of the jury's answer to the first interrogatory.*fn4 Garcia insists, first, that this answer must be interpreted to mean that the vessel was not unseaworthy and that the stowage of the cargo was neither unsafe nor improper. Such an interpretation would ascribe to the answer a more exact meaning than it warrants. The question, which the jury answered in the negative, did not, unfortunately, ask whether the stowage was safe and proper or whether the ship was seaworthy. As the question was phrased it is impossible, of course, to determine whether the jury found that the vessel was not unseaworthy or whether it found that it was unseaworthy but that the unseaworthiness was such as not to be a contributive factor to the accident.
The jury's affirmative answer to the second interrogatory established, consistently with the general verdict, that Garcia was negligent and that its negligence contributed to the accident. Garcia contends, secondly, that the answer to the first interrogatory firmly establishes either that the vessel was seaworthy or that, if it was unseaworthy, its unseaworthiness was not a contributing factor to the accident, and that there is no independent evidence, unrelated to the propriety and safety of the stowage, upon which a finding of negligence of Garcia could be predicated. With this interpretation and contention we do not, on this record, agree.
The trial judge instructed the jury that the plaintiff's claim was predicated "on the negligence of the defendant and unseaworthiness of the ship." He properly defined negligence and, in that connection, instructed the jury upon the defendant's duty "to use reasonable care ...