OPINION OF THE COURT
BIGGS, Circuit Judge.
The appeal at bar is from a suit brought by Carroll, a longshoreman employed by Nacirema Operating Co., Inc., against Frontera Compania Naviera, S. A., the original defendant and the third-party plaintiff, for injuries sustained by him while unloading the S.S. Batis. Frontera brought Nacirema Operating Co., Inc., upon the record as a third-party defendant. The case was tried with a jury and a verdict was entered in favor of Carroll and against Frontera in the amount of $120,000. In the third-party action the verdict was rendered in favor of Nacirema and against Frontera. Judgments were entered accordingly. Frontera moved to vacate the judgments against it for judgment n. o. v., or in the alternative, for a new trial.
The operative facts are well set out in the opinion of the court below, 258 F.Supp. 747, 749 (1966), as follows: "At the time of the accident plaintiff was forty-seven years of age and was employed as a longshoreman in the capacity of a forklift operator. At the trial
The question immediately arose as to what was the proper method of stowing drafts of packaged lumber aboard ship. Nacirema's expert witness, Hopen, testified that any open space or void between the drafts of lumber should be filled in at the loading port before the top boards of adjacent drafts were butted together to form the floor. This, Hopen stated, enables the longshoremen at the port of discharge to rely on the floor's solidity and to unload cargo without having to move steel plates from place to place in the hold as unloading progresses. Frontera's expert witness, Keeler, stated that the proper method of loading permits voids between the drafts of lumber to remain unfilled and the top boards of adjacent drafts to be butted together, thus necessitating longshoremen at the port of discharge to shift plates constantly to cover all areas where the drafts come together in order to prevent breakthroughs. This was really the gist of the controversy between Frontera and Nacirema.
Special interrogatories were submitted to the jury and are set out in note 2 below.
The parties submitted numerous requests for charge. Frontera complains of a number of the requests made by Carroll and read by the trial judge to the jury. In our opinion, Frontera tries to exact too strict a standard. Frontera correctly points out that it is the law that while the duty of the shipowner is absolute to furnish a vessel and appurtenances reasonably safe for their intended use, the standard is not perfection, but reasonable fitness, citing Mitchell v. Trawler Racer, Inc., supra. The trial judge in what may be described as his general charge correctly defined the liability of the shipowner in respect to the ship and its equipment in relation to the stevedore. Frontera seems to insist, however, that the language of the general charge should have been incorporated in each of the specific requests submitted by Carroll and read to the jury. We cannot agree. It follows therefore that Carroll was entitled to recover against Frontera.
The substantial issues in the instant case arise in respect to the rights of Frontera against Nacirema. Frontera insists that Nacirema's requested charges 2 and 5 as submitted by the trial judge to the jury are improper because the words "reasonable, cursory, visual" were inserted before the word "inspection". The charges are set out below.
Frontera itself requested a charge, Charge 10, which was amended by the addition of the word "reasonably" and the phrase "by vision" and by striking therefrom the language indicated in the footnote, so that the line of the charge read in pertinent part: "If you believe that Mr. Carroll continued to work under conditions such as improper placement of plates and failure to reasonably inspect by vision the area in which he worked * * *."
An examination of the "trial notes" of the trial judge shows only longhand notations, written in pencil in the handwriting of the trial judge, on the requests for charge made by the respective parties. There is nothing conclusive as to the consent of the respective parties as to Charge No. 10 as requested by Frontera and as amended and submitted by the trial court to the jury or as to Requests Nos. 2 and 5 requested by Nacirema and as submitted by the trial court to the jury. In a futile attempt to determine whether or not the parties to the suit agreed that the charges in question were to be given as suggested by the trial judge from his notes and as set out in his opinion quoted above, the Clerk of the Court, as directed by the Court, communicated with counsel for the parties and asked them to inform the court as to whether or not they had agreed to the charges as given. These communications are made part of the record in this court. Frontera asserts that it did not agree to the charges as given. In view of all the circumstances we cannot assume that there was an agreement by all the parties as to the charges as given. In so stating we do not reflect on the court below or on counsel. Years have passed between the time of the trial and the present. Memory fades and is always deceptive. We must proceed on the basis that there was no agreement as to the charge respecting
We therefore turn, in the absence of an adequate supporting record as to the alleged consent of the parties to the charges as given, to a consideration of Charges 2 and 5, as set out in note 3, supra. The record is replete with references to the examinations of the lumber that were made, or should have been made, albeit sometimes in an oblique fashion.
It seems on the present record that the examination would have to be a visual one for the portion of the tier of lumber which broke and through which Carroll's forklift fell was under the deck of the ship and it would be unreasonable to require other than a visual examination for a complete examination apparently could not have been effected without actual unloading of most of the lumber. As to this, our last observation, upon remand, the court below should develop further the issue of examination and our observation is not to be considered binding upon the court below or upon the parties. In our opinion, on the present record if the court below had charged that the examination was to be a visual examination of a kind which might be expected reasonably to disclose a danger lurking in the tier of lumber on which as a floor Carroll was operating his forklift the charge would have been sufficient. Absent such a charge, it is necessary to order a new trial insofar as Frontera and Nacirema are concerned. It is clear, however, that the judgment in favor of Carroll must and will be affirmed. The judgment against Frontera in favor of Nacirema on the third-party action will be reversed and the case remanded for a new trial of the third party complaint with the direction to proceed in accordance with this opinion.
"5. If you find as a fact that a defect existed in the stowage of cargo which defect was not discovered or could not have been discovered by the employees of the stevedore upon reasonable, cursory, visual inspection of the work area, then your verdict upon the claim of the shipowner for indemnity based upon the contention that the stevedore knew or should have known of the defect in the stowage of cargo should be for the third-party defendant stevedore."
We have italicized the words which amended the original request.
We have shown in the foregoing quotation in brackets the words stricken from Request No. 10 of Frontera and the words, italicized, as added by the trial judge and submitted to the jury. The dichotomy between Charge No. 10 as submitted by Frontera and Charge Nos. 2 and 5 as requested by Nacirema and submitted to the jury by the trial judge is immediately apparent. See note 3, supra, second paragraph. The two charges, both given to the jury, are clearly inconsistent.