Bensen v. Jackson

• Decision Date: 10 February 1965
• Docket Number: Civ. A. No. 32591.
• Citation: 238 F. Supp. 309
• Parties: Thorwald BENSEN v. Thomas JACKSON, doing business as the Jackson Ocean Brand Manila Rope Company and the Thomas Jackson & Son Co., Reading, Pa.
• Court: U.S. District Court — Eastern District of Pennsylvania

238 F. Supp. 309

Thorwald BENSEN v. Thomas JACKSON, doing business as the Jackson Ocean Brand Manila Rope Company and the Thomas Jackson & Son Co., Reading, Pa.

Civ. A. No. 32591.

United States District Court E. D. Pennsylvania.

February 10, 1965.

Joseph M. Leib, Rubin & Leib, Philadelphia, Pa., for plaintiff.

Charles Robert Bernsee, Liebert, Harvey, Herting & Short, Philadelphia, Pa., for defendant.

JOHN W. LORD, Jr., Justice.

Plaintiff Thorwald Bensen, a seaman, was, on February 6, 1961, employed as a crewmember aboard the grain barge Oswego. He was then employed by the New York Elevating Company, operator of the boat. The vessel was owned by the Port of New York Authority.

In the present action, and certain previous actions instituted in the state and federal courts in New York, plaintiff claimed that while he was working on the Oswego's scaffolding a rope line broke, precipitating plaintiff to the deck below and resulting in serious and permanent personal injuries to him.

Plaintiff says that the rope line, which had broken while supporting the scaffolding, had been purchased by the Port of New York Authority (hereafter called "Port Authority"), owner of the vessel, from the defendants Thomas Jackson, etc. (hereafter called "Jackson"), and stored in its original packing until February 6, 1961, when the operator of the vessel, New York Elevating Company (hereafter called "N. Y. Elevating") placed certain fathoms of this rope in use aboard the Oswego.

This is the third or fourth action which has been instituted by this plaintiff in connection with the described incident and injury. First, plaintiff instituted an action solely against his employer, N. Y. Elevating, in the United States District Court for the Eastern District of New York. That action under the Jones Act, § 33 Merchant Marine Act of 1920, 46 U.S.C.A. § 688, alleged negligence of the employer and failure to provide a safe place to work (Defendants' Exhibit A).

It was mentioned above that three or four actions had been brought by this plaintiff. More precisely, there have been three proceedings, but the second, in a court of the State of New York, consisted of two separate causes of action. In the Supreme Court, Kings County, New York, Trial Term Part XIII, No. 158, trial was had before the Hon. Charles J. Beckinella and a jury from March 14 to March 28, 1963. The case was never submitted to the jury, however, in view of the following two developments.

The first was dismissal, on the motion of the Port Authority, of the cause of action under the Jones Act as to the Port Authority. As its reasons for granting the motion on March 25, 1963, the Court ruled that a Jones Act suit will not lie against one who is not an employer; and that there was no evidence that plaintiff had been employed by the Port Authority (Defendants' Exhibit G, pp. 4 and 5).

Rulings on motions by both defendants as to the first cause of action, unseaworthiness, and of N. Y. Elevating under the Jones Act, were reserved (Defendants' Exhibit G and certified copy of Clerk's Minutes, p. 373; Proceedings on March 25, 1963).

Meanwhile, plaintiff had on July 24, 1962, discontinued the action in the New York District Court in order to proceed in the State court proceeding described above.

Then in January of 1963, while the action in the New York Supreme Court was pending, but before it had been tried, plaintiff commenced the present suit against Jackson, alleging negligence in the manufacturing and processing of the rope in question. Defendant thereafter filed this motion for summary judgment.

After the Court's ruling on March 25, described above, the case came — a few days thereafter — to an abrupt end by settlement. Defendants' Exhibit F, set out later herein, is a photocopy of the release signed by plaintiff which provides in general language, on a stock form, that in consideration of $75,000, plaintiff released Port Authority and N. Y. Elevating, and the Grain Barge Oswego from all claims whatsoever for all time to come.

Defendants' Exhibit E is the official court reporter's certified transcript of the words spoken at the settlement, which are as follows:

"MR. FANNING counsel for N. Y. Elevating The above-entitled action is settled and discontinued without costs, disbursements or interest for $75,000 and other costs that have been made.

"The $75,000 will be fresh money of which $50,000 will be paid by the New York Elevating Company and $28,350 by the Port of New York Authority.

"THE COURT: Fresh money indicates that it is not inclusive of any outstanding liens. The only one you know about is the Workmen's Compensation Lien.

"MR. FANNING: Yes.

"Mr. QUINLAN Counsel for Port Authority: And Holy Family Hospital.

"MR. FANNING: There is no bill from them. As far as the plaintiff is concerned, that is the amount.

"THE COURT: In other words, it is net.

"MR. FANNING: As far as he is concerned. As far as the liens are concerned, we haven't any notice of it and we wouldn't pay it anyway.

"THE COURT: All right, gentlemen."

Defendants say, in their Motion for Summary Judgment, that the record speaks for itself and that there are no material questions of fact which are reasonably open to dispute. They contend that, as a matter of law, the plaintiff who has been once compensated cannot recover again for the same injury; that the release is general and bars further claims arising out of the same occurrence; and that the general rule as to release of joint tort-feasors applies.

Notwithstanding a number of counter-arguments and affidavits of plaintiff's counsel in the New York proceedings, the Court is constrained to agree with defendant. That conclusion can best be explained by first considering plaintiff's contentions.

He says, first, that

"The New York Court, having found that there was no fault, negligence or misconduct on the part of the shipowner in causing, creating or contributing to the rope breakage, was considering granting relief to those defendants under the appropriate Federal Act dealing with limitations of liability (48 U.S. C. § 183) meaning 46 U.S.C. §§ 181-195. Plaintiff, therefore, on advice of counsel, accepted an offer of $75,000 from the shipowner and the elevating company, and gave those defendants at that time an Admiralty Release. The sum only partially compensated the plaintiff for the serious injuries from which he was suffering. Plaintiff and his counsel at all times regarded the settlement as only partial compensation. By looking to the prime tortfeasors, plaintiff expected to make up the difference that he believed he was entitled to. * * *"

The answers to these contentions, and decision on the motion, require discussion of the following aspects of the case:

1. The quoted contentions of the plaintiff;

2. The effect of plaintiff's supporting affidavits;

3. Authorities relied upon by plaintiff; and

4. The controlling principles and authorities.

The foregoing points will be treated seriatim under abbreviated captions.

I. Contentions of Plaintiff

The quoted contention first states that the New York Court found that there was no negligence or misconduct on the part of the shipowner, Port Authority. The ruling of that Court, heretofore quoted, to the contrary simply decided that there was no evidence of employment to support a Jones Act Action. Exhibit G from the reporter's notes and the certified copy of the Clerk's docket show that ruling on all other motions was reserved.

Plaintiff says that the New York Court was considering a grant of Limitation of Liability under 46 U.S.C.A. §§ 181-195. Elsewhere, in the second affidavit, he states that under statute as well as applicable case law, both defendants in the New York action were entitled to set up this defense in their answer. In support, the affidavit refers to a 1956 case for the proposition that the bare-boat charterer or operator as well as the owner may claim the statutory exoneration as an affirmative defense. Petition of National Bulk Carriers, Inc., 143 F.Supp. 46 (S.D.N.Y.1956). There is no necessity to quarrel with the stated proposition, for reasons to follow. It is noted, however, that the cited case was concerned exclusively with a motion to transfer. If by inference it supports the stated proposition, it scarcely may be regarded as definitive.

Affiant explains that he argued, in the New York proceedings, that the right to limitation was invested solely in an admiralty court, citing Langnes v. Green, 282 U.S. 531, 51 S.Ct. 243, 75 L.Ed. 520 (1931). He tells of testimony by one expert at the trial that the Oswego was worth $4,000, and by another "stating a slightly different evaluation." He makes clear, however, that the application of the Limitation of Liability statute was hotly contested, and that the value of the Oswego was never fixed at trial.

Affiant goes on to say that the threat of limitation of liability induced the $75,000 settlement, which plaintiff at all times regarded as only partial compensation.

It is perhaps not unfair to notice the apparent paradox. When limitation of liability to the value of the vessel (here about $4,000) is a serious threat, it is unusual for defendants to settle for a disproportionate total of $75,000. Further, the contention that the payment in settlement was regarded by plaintiff as partial compensation is scarcely surprising, since such payments are almost by definition the result of a compromise between the claims of the respective parties. More difficult for plaintiff to answer is the rather settled proposition that the subjective intent of the releasor has no legal effect. Dura Electric Lamp Co. v. Westinghouse Electric Corp., 249 F.2d 5, 7 (3rd Cir. 1957), contains the following comment by the late Judge Goodrich:

"* * * This affidavit does not claim that the company was lured into making this settlement. It simply says that it was not the intention of the president to release all claims against other conspirators. We think this

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