
    MIRANDA v. ISTHMIAN S. S. CO.
    No. 25500.
    United States District Court, N. D. California S. D.
    July 31, 1950.
    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 longshoremen. 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.

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. 
      
      . 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.
     