346 F.2d 481 (2nd Cir. 1965), 212, Albanese v. N. V. Nederl. Amerik Stoomv. Maats.

Docket Nº:212, 29155.
Citation:346 F.2d 481
Party Name:Anthony ALBANESE, Plaintiff-Appellee, v. N. V. NEDERL. AMERIK STOOMV. MAATS., Defendant-Appellant and Third-PartyPlaintiff-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-PartyDefendant-Appellee.
Case Date:June 15, 1965
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 481

346 F.2d 481 (2nd Cir. 1965)

Anthony ALBANESE, Plaintiff-Appellee,

v.

N. V. NEDERL. AMERIK STOOMV. MAATS., Defendant-Appellant and Third-PartyPlaintiff-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-PartyDefendant-Appellee.

No. 212, 29155.

United States Court of Appeals, Second Circuit.

June 15, 1965

Argued Dec. 3, 1964.

Page 482

Robert Klonsky, Brooklyn, N.Y. (Philip F. DiCostanzo, Brooklyn, on the brief), DiCostanzo, Klonsky & Sergi, Brooklyn, N.Y., for plaintiff-appellee.

Edmund F. Lamb, New York City (Purdy, Lamb & Catoggio, William E. Fay III, New York City, of counsel to Schaffner & Furey, New York City, on the brief), for defendant-appellant and third-party plaintiff-appellant.

Joseph Arthur Cohen, New York City (Alexander, Ash & Schwartz, and Sidney A. Schwartz, New York City, on the brief), for third-party defendant-appellee.

Before FRIENDLY and SMITH, Circuit Judges and BLUMENFELD, District judge. [*]

SMITH, Circuit Judge.

Albanese, a longshoreman in the employ of stevedore International Terminal Operating Co., Inc., injured by monoxide gas fumes while working in the hold of the vessel M. S. Schiedyk, owned by N. v. Nederl., brought action for damages against the shipowner, which impleaded I.T.O. as third party defendant. After trial to the jury in the United States District Court for the Southern District of New York, Irving Ben Cooper, Judge, judgment was entered on verdict in favor of plaintiff against N. V. Nederl. and in favor of the stevedore dismissing the third party complaint, and N. V. Nederl. appeals. We find error in the charge on the principal action and on the claim over, and reverse and remand for new trial.

Plaintiff was a member of a gang of longshoremen working in the lower No. 2 hold of the Schiedyk. From 8:00 a.m. to 10:45 a.m. on the day of plaintiff's injury a gasoline powered hilo owned by I.T.O. was working in this hold. About 10:45 a.m. a second gang began to work in the after half of the upper 'tween deck of No. 2 hold, employing a second hilo. The ship had a ventilating system often used when hilos were working in the holds, which was not turned on on the day in question prior to plaintiff's injury. It was raining and a hatch tent partly covered the upper hatch opening. The hatch between the 'tween deck and the lower hold was partly covered with hatch

Page 483

boards. I.T.O. had portable blowers at the pier, none of which were in use at No. 2 hold. There was evidence that about 10 or 15 minutes after the second gang entered the hold, men complained of fumes from the hilos and the winch operator and signalman at the hatch asked a ship's officer to turn the blowers on. There was evidence that a few moments later the hatch boss told the ship's officer to turn the blowers on or the men would walk out, and that the ship's officer said to keep on working, that he would turn the blowers on. When Albanese collapsed sometime between 11:15 and 11:30 a.m. the blowers had not been turned on and the men left the hatch.

If the hatch bosses some time between 10:55 a.m. and 11:05 a.m. asked a ship's officer to turn on the ship's ventilating system and he agreed to do so, a finding of defendant's negligence would be justified. The charge, however, allowed the jury also to find against the defendant on the basis of negligence (as distinguished from unseaworthiness) even if it did not have actual knowledge of an unsafe condition in the hold, if the jury determined that such a condition existed for a sufficient length of time to charge the shipowner with notice of it and the shipowner did not act to prevent injury. This was erroneous, for...

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