Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
Plaintiff Klimaszewski sued the Pacific-Atlantic Steamship Company, Inc. for injuries sustained in an accident which took place during the loading of the defendant's vessel, the "Jeremiah S. Black," at a pier in Philadelphia on May 2, 1952. Klimaszewski was a longshoreman employed by the Jarka Corporation of Philadelphia, a stevedoring contractor. He was a member of a group of men who were working on a barge. On this barge were four piles of steel beams 43 feet to 50 feet in length and weighing about one ton each. The men on the barge, following a routine for each load, chained several of the beams together after which they were hoisted from the barge by means of two winches, swung over one of the hatch openings in the vessel and then lowered into the hold. The operation had proceeded for a substantial part of a working day when one of the cables which pulled up the load slipped causing the bundle of beams to swing out of its usual course. The plaintiff was struck by the swinging draft and badly hurt.
Klimaszewski recovered a verdict in the trial court and the defendant appeals. Since the verdict was in plaintiff's favor we may take it, and the defendant concedes, that there was evidence from which it could have been found that the cause of the slipping cable and therefore the accident, was a loose becket or bolt in the winch to which the cable had been fastened.The winch was part of the ship's equipment.
The plaintiff's case was based upon the two usual claims: (1) unseaworthiness, and (2) negligence.
The jury was given a series of specific interrogatories to answer. One of the answers exonerated the plaintiff's employer, Jarka Corporation, from any carelessness. Jarka, which had been joined by defendant as a third-party defendant, is therefore, out of the case at this time. Other interrogatories put directly to the jury the questions of seaworthiness and negligence in these words:
"Did the plaintiff sustain injuries which were caused either in whole or in part by -
"(a) any failure of the defendant to provide plaintiff with a safe and seaworthy vessel and safe appurtenances, equipment or appliances, and to keep them in a safe and seaworthy condition?
"(b) any negligence on the part of any of the officers, agents or employees of the defendant?"
The jury answered both of these questions in the affirmative thus finding both unseaworthiness and negligence.
We do not have any doubt that on these facts and on this finding a case of liability is made out. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099, extended protection from injuries due to unseaworthiness to longshoremen in the course of unloading a vessel.This case does not take us one inch further than that because here the job being done was loading the ship. It is almost precisely like Alaska S.S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798, affirming per curiam, 9 Cir., 1953, 205 F.2d 478. In both Petterson and this case that which caused the injury was a piece of ship's equipment. But in the Petterson case the court had to go further than we do here because the block which broke may have been brought on by a stevedoring company and made a part of ship's equipment by incorporation, according to the court.Our own decision in Gindville v. American-Hawaiian S.S. Co., 3 Cir., 1955, 224 F.2d 746, is likewise in point, although there we had to consider a more difficult question than here, namely, what constituted unseaworthiness. There the unseaworthiness consisted in improper stowing of the cargo. Here it is part of the regular loading equipment.
The district judge gave an instruction on "unseaworthiness" which appellant's counsel concedes was correct as between the ship and a seaman. He says, however, it is inapplicable to a longshoreman.The cases which we have just cited prove the contrary.
The appellant complains about the court's instruction on assumption of risk. This question need not trouble us either. As in Gindville, we say here that one need only refer back to Secony-Vacuum Oil Co. v. Smith, 1939, 305 U.S. 424, 59 S. Ct. 262, 83 L. Ed. 265, to get the rule with regard to the application of the doctrines of assumption of risk and contributory negligence in a maritime case. The extension of the rule stated in the Socony-Vacuum case to longshoremen is shown in Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202, 98 L. Ed. 143, and the Gindville case, supra. The new decision of the Sixth Circuit in Imperial Oil, Ltd. v. Drlik, 234 F.2d 4, certiorari denied, 1956, 352 U.S. 941, 77 S. Ct. 261, 1 L. Ed. 2d 236, is squarely in point with just about every issue raised in this case. A longshoreman does not assume the risk of negligence or unseaworthiness and this is so whether his action is based on negligence or unseaworthiness.
Defendant also complains, without merit, of a charge that a longshoreman does not assume the risk involved in obeying orders. A seaman does not assume that risk. Darlington v. National Bulk Carriers, Inc., 2 Cir., 1946, 157 F.2d 817; Reskin v. Minnesota-Atlantic Transit Co., 2 Cir., 1939, 107 F.2d 743; Kangadis v. United States, D.C.S.D.N.Y.1954, 121 F.Supp. 842. To hold a longshoreman completely barred because he voluntarily obeyed a dangerous order would be inconsistent with the recent trend assimilating the rights of longshoremen to those of seamen. At most, unwarranted obedience to an obviously dangerous order would be negligence which would mitigate damages. Compare Haddock v. North Atlantic & Gulf S.S. Co., D.C.D.Md.1948, 81 ...