Caldarola v. Moore-McCormack Lines, Inc.

• Decision Date: 23 July 1946
• Parties: CALDAROLA v. MOORE-McCORMACK LINES, Inc., et al.
• Court: New York Court of Appeals Court of Appeals

295 N.Y. 463

68 N.E.2d 444

CALDAROLA

v.MOORE-McCORMACK LINES, Inc., et al.

Court of Appeals of New York.

July 23, 1946.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Peter Caldarola against the Moore-McCormack Lines, Inc., impleaded with Gerda Eckert and Thor Eckert, Jr., partners, doing business under the firm name of Thor Eckert & Company, to recover for injuries allegedly sustained by plaintiff while working as a longshoreman engaged in unloading cargo. From a judgment in favor of the impleaded defendants, entered April 9, 1946, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department, 270 App.Div. 563, 61 N.Y.S.2d 164, which reversed, upon questions of fact and law, a judgment of the Supreme Court in favor of plaintiff and against the impleaded defendants, entered in New York County upon a verdict rendered at a trial term, McNally, J., and which dismissed the complaint, the plaintiff appeals.

Affirmed. Abraham M. Fisch and Sidney Schiffman, both of New York City, for appellant.

Raymond Parmer and Vernon Sims Jones, both of New York City, for respondents.

DESMOND, Judge.

Plaintiff, a longshoreman, was injured while working on the deck of a steamship moored at a New York City pier, by reason of the breaking of a cargo boom which was part of the ship's gear and which, the jury held, was defective. Plaintiff was not a member of the ship's crew but was an employee of an outside stevedoring contractor. The vessel was owned by the United States. Plaintiff sued defendants-respondents Eckert, alleging and attempting to prove that those defendants were so much in possession and control of the ship, at the time of the accident, as to make them responsible to third persons lawfully on board, for injuries caused by unsafe conditions on the ship. The jury found for plaintiff but the Appellate Division reversed upon the facts and law, and dismissed the complaint.

Defendants were not charterers of the vessel nor did they physically operate it. Plaintiff's contention that defendants had a duty to him, to keep the ship in repair, was based on the terms of a ‘General Agency Contract’ made between defendants and the United States and covering this and other ships, plaintiff relying also on certain governmental ‘Regulations' which supplemented and amplified that contract. By the contract and the regulations defendants were appointed agents ‘to manage and conduct the business of’ those ships. The Appellate Division held that nothing in the arrangements between defendants and the United States made defendants any more than managers of certain aspects of the ship's ‘business' and that defendants were not operators of the ship or responsible to third persons for its condition. Accordingly, held the Appellate Division (270 App.Div. 563, 566, 61 N.Y.S.2d 164, 166), any failure by defendants to perform such duties as were assigned to them by the United States in connection with repairs to the ship, was ‘strictly nonfeasance’ for which defendants were answerable to their principal, the United States, but not to plaintiff. The Appellate Division cited and applied Cullings v. Goetz, 256 N.Y. 287, at page 290, 176 N.E. 397, at page 398, where Chief Judge Cardozo wrote: ‘Liability in tort is an incident to occupation or control.’

We are in full agreement with the Appellate Division's conclusions and the reasons therefor as stated in its opinion. There would be no occasion for writing this opinion were it not for plaintiff's reliance on the decision of the United States...