Before CLARK, FRIENDLY and MARSHALL, Circuit Judges.
This is an appeal by the defendant, Cia. Mar. Adra, S.A., and the third-party defendant, Lipsett Steel Products, Inc., from a judgment of $80,000 entered in favor of the plaintiff, Samuel Mosley, in the United States District Court for the Southern District of New York after a trial before Judge Cooper and a jury.
Mosley is a longshoreman who was injured on October 15, 1956, while engaged in loading a cargo of scrap metal aboard the foreign flag ship S.S. Turmoil, which lay moored in Port Newark Bay, N.J. He brought suit against Adra, owner and operator of the vessel, alleging in his complaint two causes of action, one based upon negligence and the other upon unseaworthiness. Adra then filed a third-party complaint against Lipsett, the stevedoring contractor which employed Mosley, seeking indemnity from Lipsett for any recovery which Mosley might have. Cf. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956). At the close of plaintiff's case, the trial judge directed a verdict in favor of Adra against Mosley on the cause of action based upon negligence. He declined to direct a verdict on the cause of action based upon unseaworthiness, however, and that issue was submitted to the jury. The jury returned a general verdict of $80,000 in favor of Mosley against Adra on the original complaint and in favor of Adra against Lipsett for indemnity in the same amount on the third-party complaint.
Adra appeals from plaintiff's judgment on the original complaint, urging in the alternative that if the judgment is affirmed, the judgment on the third-party complaint awarding it indemnity against Lipsett also be affirmed. Adra also contends that the trial judge erred in refusing to amend its judgment against Lipsett to include an award for counsel fees, disbursements, and costs required for the defense of the case. Lipsett appeals from the judgments on both the original complaint and on the third-party complaint. Mosley, relying upon his judgment on the unseaworthiness count, has not appealed from the action of the trial judge in directing a verdict against him on the negligence count.
Because Mosley was working alone in the 'tween deck at the time he was in jured and because both Adra and Lipsett rested at the conclusion of plaintiff's case without putting in any evidence of their own, the description of the accident which was before the jury came solely from Mosley. He testified that his job in the 'tween deck was to direct the placing of a steel chute after each "shot" of scrap metal was dumped down it; when one area of the 'tween deck became filled with scrap metal, he would direct the chute toward another area in order to insure an even distribution of the cargo. At the close of the day prior to the accident, a load of scrap metal had been placed in the square of the hatch of the 'tween deck to a height of three-and-a-half or four feet, partially blocking the entry of natural light into the 'tween deck.
Mosley reported for work the following morning at his usual hour of shortly before eight o'clock, set up the chute, and participated in the completion of the first shot. The accident occurred at nine-thirty or ten o'clock during the loading of the second shot. At the time, Mosley testified, there was neither natural light at the spot where he was injured nor artificial light anywhere in the 'tween deck. An expert witness for the plaintiff testified that it was the custom and practice for merchant vessels to carry portable lights as part of their normal equipment and to use them in the 'tween deck when the natural light was not sufficient. There was no evidence that the S.S. Turmoil possessed such lights or that, if it did, Mosley asked that they be installed or turned on.
During the course of the loading of the second shot, a piece of metal - thought by Mosley to be "a piece of rear end of some sort of a car transmission" - became lodged or wedged about three feet from the mouth of the chute, blocking the free flow of scrap metal. Mosley was standing at the time about twenty feet from the chute. He told the foreman to suspend the loading operation so that he could free the obstructing piece of metal. Then, he said, he "reached in the back of me, which I have a hook" that he intended to use in clearing the chute. The hook was not introduced into evidence; Mosley described it as a large piece of iron, like a pipe, threequarters of an inch thick and five or six feet long, fashioned at each end "into a round shape, in the order of a walkingcane handle" - "one this way, one out." He said it was not a manufactured instrument, but had been picked up out of the scrap metal and improvised into its present form. No evidence was introduced as to who owned the hook or who furnished it to Mosley.
Equipped with the hook, Mosley approached to within four or five feet of the chute and stationed himself on pieces or "portions" of scrap metal that had been loaded on the deck, attempting to make sure that he had "the very best [footing] I possibly could" under the circumstances. Then, he told the court, "I taken my hook, fastened it around the top of this metal, and I went to pull upon this hook in order to remove this piece of metal out of there, but in so doing, pulling as hard as I did, my feet begin to slip, and as I started to slip the hook slipped off and I fell." He said his feet were caused to slip by the "metal that I was standing upon on deck." Because of the absence of light, Mosley said, the 'tween deck was dark and "I couldn't see anything there," including the metal that was underfoot.
"Mosley: Well, first when you are working under something, you cannot see, you would take and set your feet as best you possibly can, whatever you are standing on.
"The Court: Yes, I know, but he [counsel] wants to know on this particular occasion how did you set yourself.
"Mosley: I set myself on this particular occasion, as best I could with the footing, with the metals under my feet, to get a proper leverage, so as to have a foundation to stand upon to pull this steel out.
"In standing upon scrap metal in the area in which you cannot see, you can't get no proper - say how you are standing. You are trying to make your foot as secure as you possibly can. Therefore I cannot say my feet was on here or there or what."
He admitted that he "definitely" knew that he was standing on "some sort of scrap" and could feel it under his feet. But he did not try to scrape any of the metal away, he said, because "you can't scrap much metal away" and "to scrape all that metal out of there ...