La Capria v. Compagnie Maritime Belge

• Decision Date: 05 July 1968
• Docket Number: No. 62 Civ. 2874.,62 Civ. 2874.
• Citation: 286 F. Supp. 980,1968 AMC 2642
• Parties: Giacomo LA CAPRIA, as Administrator of the Estate of Santo La Capria, Deceased, Plaintiff, v. COMPAGNIE MARITIME BELGE and William Spencer & Son Corp., Defendants. WILLIAM SPENCER & SON CORPORATION, Third-Party Plaintiff, v. TRANSOCEANIC STEVEDORING CORP., Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

286 F. Supp. 980

1968 AMC 2642

Giacomo LA CAPRIA, as Administrator of the Estate of Santo La Capria, Deceased, Plaintiff, v. COMPAGNIE MARITIME BELGE and William Spencer & Son Corp., Defendants.

WILLIAM SPENCER & SON CORPORATION, Third-Party Plaintiff, v. TRANSOCEANIC STEVEDORING CORP., Third-Party Defendant.

No. 62 Civ. 2874.

United States District Court S. D. New York.

July 5, 1968.

COPYRIGHT MATERIAL OMITTED

Sylvia Miller, New York City, for plaintiff.

Hill, Betts, Yamaoka, Freehill & Longcope, by Thomas H. Healey, New York City, for defendant, Compagnie Maritime Belge.

Perrell, Nielsen & Stephens, by John Fuhrman, New York City, for William Spencer & Son Corp.

McLaughlin, Fiscella & Biancheri, by John J. Biancheri, New York City, for third-party defendant.

OPINION

EDELSTEIN, District Judge.

This action arose out of an accident suffered by plaintiff's intestate, Santo La Capria, a longshoreman, on March 1, 1961, in the number two lower hold of the S.S. STEENSTRAETE. Defendant Compagnie Maritime Belge was the owner of the S.S. STEENSTRAETE. Defendant William Spencer & Son Corporation was the chenango or freight forwarder working a lighter which was moored at the same pier as the S.S. STEENSTRAETE. Third party defendant Transoceanic Stevedoring Corporation was the stevedore servicing the S.S. STEENSTRAETE and was also Santo La Capria's employer. Transoceanic was impleaded solely by Spencer and Spencer and Compagnie Maritime Belge cross-claimed against each other, each seeking indemnity. This court has jurisdiction under 28 U.S.C. § 1333.

It is undisputed that the accident occurred at approximately 11:30 a. m. when the deceased was struck on the back of his head and shoulder by a one-hundred pound sack of flour which fell from a pallet in the process of being lowered by a winch into the hold of the number two hatch. The preponderance of the credible evidence, considering oral testimony, depositions read into the record, and documents introduced in evidence, enables the court to reconstruct the events which led to the accident. The S. S. STEENSTRAETE was berthed at one side of Pier 14, North River, taking a cargo consisting of sacks of flour into its number two hatch. On the other side of Pier 14, Spencer was unloading sacks of flour from the Pennsylvania Railroad Lighter 440. Spencer's men were accomplishing their unloading operation by placing the sacks of flour on wooden pallets. Each pallet held twenty-four one hundred pound sacks. The sacks were in four tiers. Each tier consisted of six sacks, four of these sacks being placed side by side with their longer sides touching, and two sacks being placed with their shorter sides touching and their longer sides touching the shorter sides of the other four sacks. The first, second and third tiers were placed sack upon sack straight up, while the fourth tier was reversed to create a more stable pallet load. Each loaded pallet was then taken by a Spencer hi-lo fork lift to a designated spot on the pier. From that spot, each pallet was taken by a Transoceanic hi-lo to another spot on the pier. From this spot, a second Transoceanic hi-lo brought the pallet to the stringpiece where it was taken aboard the ship by means of the ship's gear. There is no claim that anything was wrong with the ship's gear or that the gear was other than fit and proper. At the stringpiece, a gang of four Transoceanic employees attached each pallet to the ship's gear to be hoisted aboard ship. This gang also had the task of examining each pallet load to make sure that it was a stable draft for hoisting purposes. As each draft came over the square of the hatch in which longshoremen were working, a gangwayman was assigned to shout a warning so that the men in the hatch would take cover and be out of harm's way if a sack were to fall.

The particular draft from which the sack of flour fell was approximately the thirtieth to be taken aboard the S.S. STEENSTRAETE at hatch number two that morning. Several Transoceanic employees testified that they were far from satisfied as to the condition of the pallet loads of flour which they were handling the morning of the accident. They objected to Spencer's method of tiering the sacks of flour on the pallets, three tiers of sacks bag upon bag and a fourth tier with its bags reversed as to those bags in the tiers below. Plaintiff, Spencer and Transoceanic each called an expert witness to testify as to the proper method of loading sacks of flour on wooden pallets. A careful study of this expert testimony and an evaluation of the background and demeanor of the three experts impels to the conclusion that the best and safest method of tiering the sacks on the pallets would have been to reverse each tier and that a method of tiering in which only the third and fourth tier were reversed might also be safe and proper, but that the method used by Spencer in which only the fourth tier was reversed was not a safe and proper method of tiering. Although Spencer introduced testimony to show that it often tiered sacks of flour on pallets by reversing only the fourth tier, such testimony does not establish that the method was a safe one. See Texas & Pac. Ry. Co. v. Behymer, 189 U. S. 468, 470, 23 S.Ct. 622, 47 L.Ed. 905 (1903); City of New York v. McAllister Bros., Inc., 299 F.2d 227 (2d Cir. 1962); Santomarco v. United States, 277 F.2d 255 (2d Cir.), cert. denied American Stevedores, Inc. v. United States, 364 U.S. 823, 81 S.Ct. 59, 5 L.Ed.2d 52 (1960); Empire-Park Square Lumber Co. v. Manhattan Lighterage Corp., 252 F.2d 165 (2d Cir. 1958); Petition of Skibs A/S Jolund, 250 F.2d 777 (2d Cir. 1957), cert. denied, Skibs A/S Jolund v. American Smelting & Refining Co., 356 U.S. 933, 78 S.Ct. 773, 2 L.Ed.2d 763 (1958); Troupe v. Chicago, D. & G. Bay Transit Co., 234 F.2d 253 (2d Cir. 1956); Gulisano v. American Export Lines, Inc., 212 F.Supp. 809 (S.D.N.Y.1962). This unstable method of tiering caused a sack to fall from its pallet and that sack struck Santo La Capria.

Since the trial in this case, the Second Circuit has decided Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, rehearing denied 386 F.2d 444 (2d Cir. 1967), cert. denied, 390 U.S. 1027, 88 S. Ct. 1416, 20 L.Ed.2d 284, April 22, 1968, and Alexander v. Bethlehem Steel Corp., 382 F.2d 963 (2d Cir. 1967).

These cases hold that the operational negligence of the stevedore can render a vessel pro tanto unseaworthy. By allowing unstable pallet loads of flour to the hoisted aboard the S.S. STEENSTRAETE the stevedore rendered the vessel unseaworthy in respect to Santo La Capria.

Compagnie Maritime Belge was also guilty of negligence. A ship owner owes a business guest or other invited person a safe place to work. United New York & New Jersey Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959); The M/V Tungus v. Skovgaard, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959); Connolly v. Weyerhaeuser Steamship Co., 236 F.2d 848 (2d Cir. 1956), rev'd on other grounds sub nom. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958). The load from which the sack fell was approximately the thirtieth load of the morning. The vessel's officers either had actual visual notice of, or had ample time to observe, if indeed they did not, the improperly tiered loads coming aboard ship. A ship's hold with unstable pallet loads coming overhead is not a safe place to work.

Plaintiff's claim against Spencer is based upon the allegation that Spencer tiered the sacks of flour improperly on the pallets. While originally, in his trial memorandum, plaintiff based his theory of recovery both on negligence and the breach of an alleged warranty of workmanlike service which plaintiff claimed Spencer owed to the ship, it now appears from its noninclusion in plaintiff's post-trial memorandum, that this latter ground has been abandoned. In any event, as will be discussed later in this opinion, this alleged warranty of workmanlike service running from Spencer to the ship does not exist. Plaintiff cites no cases for the proposition that Spencer is liable to him and thus brushes over the possibility that Spencer may have owed no duty to guard plaintiff's deceased from improperly tiered pallet loads of flour. If Spencer had no such duty, it is not liable. See Prosser, Torts § 53 (3d ed. 1964). The preponderance of the credible evidence clearly indicates that Spencer's obligation with regard to the flour ended when the Spencer hi-lo placed the flour on the pier. From that point, Transoceanic had the duty to guard those who might come in contact with the flour from physicial harm. In addition, it is basic Hornbook law that mere negligence is not enough to establish liability. Such negligence must be the proximate cause of the harm which befalls the injured. See Prosser, op. cit. supra, § 52. In the case at bar, the preponderance of the credible evidence leads to the conclusion that the failure of Transoceanic to perfom its job properly was the proximate cause of Santo La Capria's injury. If Transoceanic had properly checked the pallet loads, the improperly tiered flour would not have been hoisted aboard the S.S. STEENSTRAETE and the accident would not have occurred.

The above discussion of proximate cause in no way negates this court's finding that the S.S. STEENSTRAETE's unseaworthiness and Compagnie Maritime Belge's negligence were the proximate cause of Santo La Capria's accident. It must be remembered that Transoceanic's operational negligence caused the ship to be in an unseaworthy condition and made the lower hold of the number two hatch an unsafe place to work.

As noted earlier in this opinion, Compagnie Maritime Belge and Spencer have cross-claimed against each other. Compagnie Maritime Belge bases its claim for indemnity upon the breach of Spencer's alleged warranty of workmanlike service. A warranty of workmanlike service in maritime law runs from...