Plaintiff, a longshoreman, brought this action under the Longshoremen’s and Harbor Workers’ Compensation Act (US Code, tit 33, § 905, subd [b]) to recover damages for personal injuries sustained when a 2,400-pound bale of burlap fell on his right foot while he was unloading cargo on the MIS Export Builder. Plaintiff was then employed by John W. McGrath Corp., the stevedore. Defendants are the owners of the ship. Witness testimony is to the effect that a hi-lo machine, brought into the hatch to assist in the discharge of the burlap bales, drove over a two by four piece of dunnage, which caused a burlap bale to fall from the hi-lo blade and to strike the plaintiff. Plaintiff was facing in the opposite direction and, therefore, had no personal knowledge of what caused the bale to fall. A co-worker of the plaintiff asserted that prior to the accident, dunnage had been left in the square of the hatch where they were working; he had complained to a ship’s mate about the condition and had been told to leave it there for the crew, which would remove it when the longshoremen gang stopped work.
Plaintiff contends that the shipowner was negligent in not removing the dunnage upon notice of the condition, thereby making them liable for injuries to plaintiff in accordance with the Longshoremen’s and Harbor Workers’ Compensation Act. Defendants argue that the shipowner had not been negligent; that under the 1972 Longshoremen’s and Harbor Workers’ Compensation Act, discussed in the majority opinion, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards; that it is the stevedore’s responsibility to provide a reasonably safe place to work; and that the shipowner has no duty to inspect or supervise the longshoring operation.
Defendants-appellants rely on Lubrano v Companhia De Navegacao Lloyd Brasileiro (575 F Supp 1541 [Haight, J.]). There, the plaintiff, a longshoreman, was in the course of unloading bags of coffee beans when he slipped on some loose beans and injured himself. The evidence also indicated that the ship’s mate had been given notice of the loose beans, and he, too, promised to have it cleaned up. Despite this, the court ruled for the shipowner.
More important, though, in its decision the court stated (supra, p 1544) that to recover, plaintiff must prove that a dangerous condition, for which defendant was responsible, caused his injury. “Liability of shipowner attaches in the event of such proof, notwithstanding that the stevedore-employer may also have been negligent. It is now clear that ‘if the stevedore and shipowner are both guilty of nonperformance of their duties, *13they may be concurrently negligent.’ Tragni v. Establissement Maritime Camille, 705 F. 2d 92, 93 (2d Cir. 1983). Concurrent negligence of stevedore and shipowner renders the latter liable for the longshoreman’s entire loss, subject only to reduction for his contributory negligence.”
This creates a question for the jury whether, considering the notice to defendant’s agent and his affirmative promise to correct the dunnage problem, the shipowner was negligent. The court, in Lubrano (supra), also states that the plaintiff must show the condition was a dangerous one, which would be a question for the jury. There it was found that the spilling of coffee beans on the deck, which could be easily pushed or swept away, was a “normal, usual, and regular occurrence”. The question here is whether a piece of dunnage can be easily pushed away. An important distinguishing factor in the Lubrano case is that there, the duty to clean up the loose beans was within the stevedore’s contractual provisions. Where this is in the contract, the longshoremen’s union does not permit the ship’s crew to go into the holds and perform the sweeping function. Therefore, it was specifically the duty of the stevedore to correct the condition, so it would have been the negligent party. In the present case, there is no such contractual provision.
In addition, the court in Lieggi v Maritime Co. (667 F2d 324, 328, n 8), stated in a footnote that “the regulations do not provide that the stevedore’s responsibility for the condition of the work spaces is exclusive. The fact that the stevedore has a duty to keep those areas clear does not prevent the shipowner from having one as well; if both the shipowner and the stevedore neglect their duties they may be concurrently negligent.”
In conclusion, it is obvious, as Special Term found, that there are a number of questions of fact: whether the dunnage created a dangerous situation or could it have been easily pushed aside, and whether there was negligence on the part of the shipowner and/or the stevedore company. The denial of the defendants’ motion for summary judgment seeking dismissal of the complaint should be affirmed.
Murphy, P. J., and Carro, J., concur with Sullivan, J.; Kupferman and Milonas, JJ., dissent in an opinion by KupferMAN, J.
Order, Supreme Court, New York County, entered on January 14, 1982, reversed, on the law, without costs and without disbursements, and defendants’ motion for summary judgment granted.