Opinion
Herbert Resner (Gladstein, Andersen, Resner & Sawyer) of San Francisco, Cal., for libelant.
John H. Painter (Bronson, Bronson & McKinnon) of San Francisco, Cal., for respondent.
McCOLLOCH, District Judge.
Libelant, a member of a longshore gang, was working in the hold of a vessel. The gang was stowing pipe for shipment to Saudi Arabia. A section of pipe, when laid down, started to roll. All of the gang escaped injury except libelant.
The claim was made that the ship was unseaworthy, because on a list at the time of the accident.
There was no negligence here, indeed the situation was not unusual; ships are bound to list as they are loaded and unloaded. Nevertheless, I feel the question whether (under the modern decisions) unseaworthiness existed, is closer than counsel appears ready to concede. However, the question has never been ruled, and I don't think that I as a trial judge should take so radical a step.
There are several considerations that specially influence me: libelant is not a sailor, and thus not free to criticize his working conditions, the consideration that was stressed by Judge Augustus Hand. The H. A. Scandrett, 2 Cir., 87 F.2d 708. As a longshoreman, libelant and his gang were free (1) to lay the pipe down in a safer place; (2) to call for correction of the danger- as the gang did after the accident; (3) to quit work, so long as the danger existed. Lastly, and it is of importance, compensation has been provided for longshoreman. This followed, as I recall, Holmes' decision in the Haverty case, International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157.
I am not thinking of assumption of risk. I recognize that is 'out' in seamen's claims for personal injury, and I assume that includes longshoremen.
It is recognized that Sieracki (Sieracki v. Seas Shipping Co., 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099) was an unusual holding, and I do not believe it is for a trial judge to broaden the application of the decision to the extent here asked of me.
Respondent may submit findings and form of decree.