New York & Porto Rico SS Co. of New York v. Lee's Lighters

• Decision Date: 02 December 1930
• Docket Number: No. 10265.,10265.
• Citation: 48 F.2d 372
• Parties: NEW YORK & PORTO RICO S. S. CO. OF NEW YORK v. LEE'S LIGHTERS, Inc.
• Court: U.S. District Court — Eastern District of New York

48 F.2d 372 (1930)

NEW YORK & PORTO RICO S. S. CO. OF NEW YORK v. LEE'S LIGHTERS, Inc.

No. 10265.

District Court, E. D. New York.

December 2, 1930.

Hatch & Wolfe, of New York City (Carver W. Wolfe, of New York City, of counsel), for libelant.

E. C. Sherwood, of New York City (Henry Bogert Clark, of New York City, of counsel), for respondent.

CAMPBELL, District Judge.

This suit is brought in admiralty to recover money paid by the libelant in satisfaction of the judgment obtained against it in the Supreme Court, County of Kings, plus expenses arising out of an injury to one Frank Amato, occurring on February 6, 1919, on board the respondent's lighter Alexander Lee, due to an alleged defective fall, on the lighter.

I find the following facts:

The libelant is a corporation duly organized and existing under and by virtue of the laws of the state of New York.

The respondent is, and was at all the times hereinafter mentioned, a corporation organized and existing under and by virtue of the laws of the state of New York, and engaged in the lighterage business, and having property within the Eastern District of New York, to wit, certain lighters.

On or about the 6th day of February, 1919, the respondent, its agents, servants, and employees, contracted and agreed to and did furnish to this libelant, the said lighter Alexander Lee, its machinery and equipment and crew in consideration of certain hire, to be used in connection with the unloading of the cargo of the libelant's vessel Coamo, then lying at Pier 35, borough of Brooklyn, city, county, and state of New York.

On or about the 26th day of February, 1919, one Frank Amato was in the employ of the libelant as a stevedore, and while so employed, went aboard the lighter Alexander Lee, in connection with the discharging of the steamship Coamo, for the purpose of assisting in placing on the lighter bags of sugar which were being unloaded from the deck of the steamship Coamo by the tackle of the lighter Alexander Lee and landed on said lighter.

The winch boom fall and hook which were used in lifting the cargo from the deck of the steamship Coamo and placing it on the lighter were furnished by the respondent with the lighter, and the same were being operated by an employee of the respondent.

The stowage of said lighter was laid out by her captain.

The stevedoring work was performed by employees of the libelant, and the lighter and stevedores were working under the direction of an employee of the libelant, who was in charge thereof.

The lighter had been at work discharging the steamship Coamo on February 5, 1919, and for about one and one-half hours on February 6, 1919, before the said Frank Amato was injured.

The fall furnished by the respondent with said lighter was a rusty, old, and kinky cable, in a defective, improper, unsuitable, and unsafe condition when it was delivered to the libelant, and the condition of the said fall was not caused by any act of the libelant.

On or about the 6th day of February, 1919, between 9:30 and 10 o'clock a. m., while the said Frank Amato was at work upon the said lighter, he sustained severe bodily injuries due to the defective, worn, improper, unsuitable, and unsafe condition of a certain fall and hook, which were part of the tackle of the lighter Alexander Lee.

Thereafter, one Vito Amato, as committee of the person and property of Frank Amato, an incompetent, brought action in the Supreme Court, Kings County, against the libelant demanding judgment in the sum of $75,000 as damages for the injuries which he received as hereinbefore recited; that after a trial before a jury a verdict was rendered against the libelant in the sum of $12,000, in favor of said Vito Amato, as committee of the person and property of Frank Amato, an incompetent, and judgment was entered thereon for the sum of $12,000 and costs in the sum of $140.46, a total of $12,140.46, which this libelant paid on the 31st day of October, 1924, after a unanimous affirmance of said judgment by the Appellate Division, Second Department, together with $229.73 costs on appeal.

Prior to the trial of said action, libelant gave to the respondent written notice that the case would be tried in the near future, and notifying it to come in and defend the action, and in the event of the failure of the respondent to do so, that this libelant would hold the said respondent responsible for the costs and expenses of the action, together with any judgment this libelant was compelled to pay therein, which notice was totally disregarded by the respondent.

On the facts found, the respondent having had notice of the suit and reasonable opportunity to come in and defend, and having failed to do so, the judgment is conclusive as to the liability of the defendant in the original action. Chicago v. Robbins, 2 Black (67 U. S.) 418, 17 L. Ed. 298; Robbins v. Chicago City, 4 Wall. (71 U. S.) 657, 18 L. Ed. 427; Washington Gaslight Co. v. Dist. of Columbia, 161 U. S. 316, 16 S. Ct. 564, 40 L. Ed. 712; Oceanic Steam Navigation Co. v. Campania Transatlantica Espanola, 144 N. Y. 663, 39 N. E. 360. But the whole record may be examined to ascertain the subject-matter of the controversy and fix the scope of the thing adjudged. Russell v. Place, 94 U. S. 606, 24 L. Ed. 214; Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195; Freeman on Judgments, § 273.

An examination of the record in the state court action shows as follows:

The complaint alleged that the injury "was caused solely through and by reason of the carelessness and negligence of the defendant and of the said person in its employ, entrusted by it with and exercising superintendence and vested with authority to direct, command and control the said Frank Amato * * * in the performance of his work, and by reason of a defect in the condition of the ways, works, machinery, plant and equipment of the said defendant, which had not been discovered or remedied owing to the carelessness and negligence of the said defendant, and of the person above referred to, in carelessly and negligently causing and permitting the work to be done in an unsafe and defective and improper manner; * * * in carelessly and negligently causing and directing him to work in an unsafe and dangerous place; and in otherwise failing and omitting to take proper and suitable precautions for his safety and those lawfully at work at the said place; and in otherwise carelessly and negligently failing and omitting to see to it that proper and suitable tools and appliances were furnished in the performance of the said work for the proper carrying on of the said work * * * in carelessly and negligently failing and omitting to promulgate and...