Calderone v. NAVIERA VACUBA S/A

• Decision Date: 04 April 1962
• Citation: 204 F. Supp. 783
• Parties: Salvatore CALDERONE, Plaintiff, v. NAVIERA VACUBA S/A and Republica De Cuba, Defendants. NAVIERA VACUBA S/A, Defendant and Third-Party Plaintiff, v. MAHER STEVEDORING CO., Inc., Third-Party Defendant. NAVIERA VACUBA S/A, Defendant and Third-Party Plaintiff, v. GARCIA AND DIAZ, INC., Third-Party Defendant. MAHER STEVEDORING CO., Inc., Third-Party Defendant and Fourth-Party Plaintiff, v. GARCIA AND DIAZ, INC., Fourth-Party Defendant. Salvatore CALDERONE, Libellant, v. GARCIA AND DIAZ, INC., Respondent.
• Court: U.S. District Court — Southern District of New York

204 F. Supp. 783

Salvatore CALDERONE, Plaintiff, v. NAVIERA VACUBA S/A and Republica De Cuba, Defendants.

NAVIERA VACUBA S/A, Defendant and Third-Party Plaintiff, v. MAHER STEVEDORING CO., Inc., Third-Party Defendant.

NAVIERA VACUBA S/A, Defendant and Third-Party Plaintiff, v. GARCIA AND DIAZ, INC., Third-Party Defendant.

MAHER STEVEDORING CO., Inc., Third-Party Defendant and Fourth-Party Plaintiff, v. GARCIA AND DIAZ, INC., Fourth-Party Defendant.

Salvatore CALDERONE, Libellant, v. GARCIA AND DIAZ, INC., Respondent.

United States District Court S. D. New York.

April 4, 1962.

Fisch & Kaplan, New York City, for Salvatore Calderone, plaintiff and libellant. Richard L. Fisch, Louis Kaplan, New York City, of counsel.

Kirlin, Campbell & Keating, New York City, for Naviera Vacuba S/A, defendant and third-party plaintiff. Matthew L. Danahar, Patrick J. Gilmartin, New York City, of counsel.

Alexander, Ash & Schwartz, Trial Counsel for Hanlon & Dawe, New York City, for Maher Stevedoring Co., Inc., third-party defendant and fourth-party plaintiff. Sidney A. Schwartz, Joseph Arthur Cohen, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for Garcia & Diaz, Inc., fourth-party defendant and respondent. John L. Quinlan, John B. Shields, New York City, of counsel.

WEINFELD, District Judge.

These are five actions which were tried together under an order of consolidation. All arise out of an accident in which Salvatore Calderone was injured when a Jacob's ladder, which was rigged from the m/s Bahia De Nipe to a lighter alongside, paid out as he was descending from the vessel to the lighter. Calderone was a checker employed by Maher Stevedoring Co., Inc., which was loading and unloading the vessel. He first brought suit against Naviera Vacuba S/A, the charterer of the vessel (hereafter referred to as shipowner) charging unseaworthiness and negligence. Here his claim is that a crew member was responsible for slack in the ladder which allegedly caused the accident.

Naviera Vacuba S/A impleaded Maher Stevedoring Co., Inc. as third party defendant, seeking, in the event it is held liable, indemnity based upon Maher's alleged (1) breach of warranty and (2) active or primary negligence in creating either an unseaworthy condition or an unsafe place to work.

Almost three years after Calderone commenced his civil action against Naviera Vacuba he also filed an admiralty suit based on negligence against Garcia and Diaz, Inc., respondent. Soon thereafter Naviera Vacuba S/A impleaded Garcia and Diaz, Inc. in the civil action as an additional third party defendant with Maher, and Maher impleaded Garcia and Diaz, Inc. as a fourth party defendant. These various claims rest upon allegations that one Charles Arrasate created the slack condition of the ladder and that, although he was on Maher's payroll, he was in fact the employee of Garcia and Diaz, ship's agents for Naviera Vacuba.¹

In Calderone's action against the shipowner all defendants challenge his claim that the warranty of seaworthiness extends to him. On the other hand, Calderone, as libelant in the admiralty suit, and the shipowner as the third, and the stevedore as the fourth, party plaintiff make common cause that Arrasate was the employee of Garcia and Diaz.² We first consider these status questions, since their resolution gives direction to the nature of the rights and duties of the various litigants.

The first issue is whether plaintiff, as a checker of cargo on board the m/s Bahia De Nipe was entitled to the benefit of the doctrine of seaworthiness.

The Supreme Court held in the landmark case of Seas Shipping Co. v. Sieracki,³ and later reiterated in Pope & Talbot, Inc. v. Hawn,⁴ that the duty imposed upon a shipowner to supply a seaworthy vessel extends not only to immediate crew members, but to all who perform ships' services traditionally rendered by seamen. Whether the plaintiff comes within "the range of this humanitarian policy"⁵ depends upon the nature of his work and its relationship to the ship and to the historic doctrine of seaworthiness.⁶

Plaintiff was employed by Maher, the stevedoring company. His duties were to check cargo delivered to and from the vessel against the ship's manifest, to verify the name, type, weight and measurement of shipments — in sum, to make sure that the right cargo was received or delivered. On the day of the accident he did his usual job. To perform his duties it was necessary for him to board the ship and also to enter upon the lighter. The accident occurred when the plaintiff was proceeding from the vessel to the lighter to check a delivery of cargo.

Counsel have not cited, nor has independent research by the Court disclosed, any case in which the precise point has been decided.⁷ A master who had followed the sea in various capacities for forty-three years testified that since 1918 mates and seamen have checked cargo delivered to and from vessels against ships' manifests. These activities were not limited to cargo on the vessel, but included cargo on the dock and also on barges tied up alongside a vessel. He testified that a checker determines whether cargo received from lighters is correct, and if so, a receipt is issued by the vessel, and if incorrect, he notes the shortage; that he checks general cargo for cubic content, weight, measurement and damage. The checker's duties also encompass verification of deliveries directly from shore to ship by truckers and the issuance of receipts; also the obtaining of receipts when the vessel unloads cargo to lighters or others. This witness further testified that to this day these functions are discharged by some mates and seamen, although since about 1936 or 1937 the service has been performed by shoreside checkers such as the plaintiff. No witness was called by any of the defendants to challenge this testimony.

Upon all the evidence, I am satisfied that plaintiff, as a checker of cargo in the loading and unloading of the shipowner's vessel, was performing a type of work that traditionally was carried on by members of a ship's crew and that his activities were so related to the vessel as to entitle him to the protection of the warranty of seaworthiness.⁸ Calderone's work was an integral part of loading and unloading the vessel as much as that of any of the stevedores who physically handled the cargo. In the performance of his duties he was exposed to the same risks as any member of the stevedore's force. "His need for protection from unseaworthiness was neither more nor less than that of the stevedores then working with him on the ship * * *. All were subjected to the same danger. All were entitled to like treatment under law."⁹

The protection against unseaworthiness has been withheld from shorebased workers in instances where the vessel was not in maritime service, was undergoing a complete overhaul or extensive repair and was not in the control of the owner or operator.¹⁰ But there can be no doubt that under the rationale of Sieracki whenever a vessel is in active maritime service and the shorebased worker is engaged in the ship's service performing seaman's work, whether directly related to loading and unloading the cargo or otherwise, he is entitled to protection against unseaworthiness.¹¹ Labels are of no consequence;¹² the essential question is whether plaintiff is doing a seaman's job for the ship. As Judge Medina put it — "There is nothing talismanic about the phrase `loading and unloading.'"¹³

We next consider the status of Arrasate.

In substance, Calderone, as libelant, and the third and fourth parties plaintiff allege that Arrasate was at the time and place of the accident either a general, special or ad hoc employee of Garcia and Diaz, Inc.¹⁴ They, of course, have the burden of proof on this issue.

Arrasate was employed as a harbor master and maintenance man. His duties included placing lighters and barges in proper position alongside vessels for loading and unloading purposes, which was usually done by shifting the lighter or barge from hatch to hatch of the vessel as operations progressed. Arrasate had been on Maher's payroll since March 1957 and all through 1958, the year of the accident. Despite this, Maher's contention (supported by plaintiff) is that Arrasate was not its employee — that he was carried on its payroll only as an accommodation for Garcia and Diaz, who reimbursed Maher for all payments made to or on behalf of Arrasate. Maher's president testified that his corporation exercised no control, supervision or direction of Arrasate in the performance of his work; that at all times he was subject to the control of, and took orders from, Louis Suarez, allegedly the pier superintendent of Garcia and Diaz. Suarez and the officers of Garcia and Diaz categorically denied these contentions. Their position was that Arrasate was one of the personnel engaged by Maher to carry out its obligations under the stevedoring contract with Naviera Vacuba, for which Garcia and Diaz acted as ship's agents; that the reimbursement of Maher for wages paid to Arrasate was in accordance with the contract and in substance no different from similar charges made for other personnel engaged in servicing the vessel computed at nontonnage rates, instead of at tonnage rates as was the case of the longshoremen who did the physical loading and unloading.

Garcia and Diaz's witnesses disputed that Suarez was the superintendent of the pier and claimed he was a coordinator who functioned at various piers to see that vessels for which Garcia and Diaz acted as agents were adequately serviced. Arrasate, called by the plaintiff, gave contradictory testimony as to his employment, finally testifying that he did not know whether he was working for Maher or Garcia and Diaz.

Out of the conflict of testimony certain facts clearly emerge. Under the stevedoring contract Maher, when it could be done without tugs, was obligated to shift lighters into working position after...