Cannella v. United States, 138
| Decision Date | 18 January 1950 |
| Docket Number | Docket 21523.,No. 138,138 |
| Citation | 179 F.2d 491 |
| Parties | CANNELLA v. UNITED STATES. |
| Court | U.S. Court of Appeals — Second Circuit |
Irving H. Saypol, U. S. Atty., Tompkins, Boal & Tompkins, New York City, Arthur M. Boal, New York City, for appellant.
Before L. HAND, Chief, Judge, SWAN and CLARK, Circuit Judges.
This is an appeal from a decree in the admiralty in a suit against the United States under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., to recover for personal injuries suffered by the libellant, a longshoreman, while on board a ship, of which the United States was "bare-boat charterer." The libellant also sued the owner at law, but the complaint was dismissed. We reversed that judgment on April 27, 19491; but, instead of pursuing the remedy so opened to him, the libellant brought to trial this suit, which was already pending. The evidence, except for the testimony of the libellant himself, consisted of the record of the testimony, already taken in the action, which was read to the judge. He found that libellant's story was true: that is, that one rung of a Jacob's ladder broke, as he was going up from a lighter alongside the ship; and that this showed that the ladder was unseaworthy at the time when the stevedoring gang came on board. The only question on this appeal is whether this finding was "clearly erroneous," under Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., a test which we have applied as well in the admiralty as in other civil suits.2
We need not say how we should have decided that question, if the judge had not seen the libellant and heard him tell his story; particularly if he had not twice gone out of his way to declare that the libellant impressed him as truthful. It must be owned that taken on the bare record, that story is not altogether convincing. One of the libellant's witnesses, Clark, was so seriously discredited as to make his testimony utterly valueless. On the other hand, Di Simone, the foreman, swore directly that he saw one rung broken a short while after the libellant fell; and he was not impeached. It is true that on the same night that he fell, the libellant told a person who came to the hospital to take his statement that he had slipped, and said nothing about a broken rung; and that this statement was not taken by a claim agent, but on behalf of the libellant's employer, who was not liable for his injury. Nevertheless, it is not altogether surprising that at that time and place he should not have mentioned the break; indeed, he may not then have known what caused him to slip. For the respondent the witness, Cappolla, a fellow longshoreman, swore that he went up the ladder soon after the libellant and...
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...doing seaman's work if the injury was caused by an unseaworthy condition present when the charter was made. Cannella v. United States, 2 Cir. 1950, 179 F.2d 491, 1950 A.M.C. 858; Grillea v. United States, 2 Cir. 1956, 229 F.2d 687, rehearing, 2 Cir. 1956, 232 F.2d 919. See also, Gilmore & B......
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