Caputo v. US Lines Company

• Decision Date: 02 January 1963
• Docket Number: No. 153,Docket 27663.,153
• Citation: 311 F.2d 413
• Parties: Michael CAPUTO, Plaintiff-Appellee, v. U. S. LINES COMPANY, Defendant, and Third-Party Plaintiff-Appellant, and IMPARATO STEVEDORING CORPORATION, Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

311 F.2d 413 (1963)

Michael CAPUTO, Plaintiff-Appellee, v. U. S. LINES COMPANY, Defendant, and Third-Party Plaintiff-Appellant, and IMPARATO STEVEDORING CORPORATION, Third-Party Defendant-Appellee.

No. 153, Docket 27663.

United States Court of Appeals Second Circuit.

Argued December 3, 1962.

Decided January 2, 1963.

Kirlin, Campbell & Keating, New York City, for defendant-appellant, Joseph M. Cunningham, Vernon S. Jones and Henry J. O'Brien, New York City, of counsel.

Monica & Feury, New York City, for third-party defendant-appellee, Joseph P. Feury and Thomas H. Healey, New York City, of counsel.

Jacob D. Fuchsberg, New York City, for plaintiff-appellee.

Martin N. Leaf, New York City, for Caputo.

Before SWAN and FRIENDLY, Circuit Judges, and DIMOCK, District Judge.

DIMOCK, District Judge.

This is an appeal by defendant and third-party plaintiff, United States Lines Company, hereinafter the shipowner, from a judgment which awarded $70,000 to plaintiff upon the verdict of the jury and which dismissed its third-party complaint against third-party defendant, Imparato Stevedoring Corporation, hereinafter stevedore.

The action is one brought by a longshoreman to recover for personal injuries sustained when his foot broke through a thin panel of a packing case while he was taking part in the unloading of a cargo of wooden cases and open crates from the SS American Ranger. Defendant was the owner and operator of that vessel. Third-party defendant was the stevedore contractor which was unloading the vessel pursuant to a contract with the United States of America. The shipowner filed a third-party complaint claiming indemnity from the stevedore.

The action by the longshoreman against the shipowner was tried to a jury. The third-party action was tried to the trial court alone. The trials were simultaneous except that the court, over objection by the shipowner, took additional expert testimony after the trial before the jury.

The principal point raised by the appeal is the shipowner's contention that the issue of the shipowner's right to indemnity was concluded in the shipowner's favor by the verdict of the jury and that the trial court therefore erred in dismissing the shipowner's third-party complaint.

The court made formal findings to the effect that the longshoreman was caused to fall when his foot broke through a thin veneer case which contained a board which was apparently sound but was in fact latently defective and that the sole cause of the longshoreman's accident was the latent defect.

It is the shipowner's contention that the issue of the existence of a latent defect was not submitted to the jury and that the jury's verdict for the plaintiff was based solely upon the longshoreman's claim that the cargo was improperly stowed in that no dunnage was used.

The point is crucial. The testimony was that the allegedly dangerous condition of the stowage was obvious and that the stevedore nevertheless went ahead with the work. This would constitute a breach of the stevedore's warranty to the shipowner of safe performance of the work and render the stevedore liable for indemnity. De Gioia v. United States Lines Company, 2 Cir., 304 F.2d 421. On the other hand, if the accident was caused by a latent defect in the packaging of the cargo, there would have been no breach of the stevedore's warranty and no obligation to indemnify the shipowner. Ignatyuk v. Tramp Chartering Corp., 2 Cir., 250 F.2d 198.

The longshoreman's counsel in his opening made no claim of a latent defect in the packaging of the cargo. He said that the longshoremen found the cargo in a topsy-turvy condition without any dunnage to brace the cargo or to supply a walk-way. He added, "We don't say that it was proper or improper to package this merchandise in these kinds of crates. We have no concern. As far as we are concerned, they could put it in cardboards, but we do say if this kind of merchandise is being shipped, then a certain kind of dunnage should also be provided."

Counsel for the shipowner in his opening said, "Well, if there was no dunnage in this cargo it was improperly stowed. Let's stop all the questions about that."

The longshoreman plaintiff testified that the cargo was unstable and that the wobbling of a packing case caused him to step on a panel of veneer which otherwise would not have been used as a place to stand on and that the panel gave way and caused his injury. There was no testimony that the insubstantial character of the veneer was not apparent. Indeed, one of the witnesses who was working with the longshoreman said that he thought plaintiff did not see the thin veneer or forgot about it.

The shipowner introduced evidence that the cargo was properly secured by dunnage.

The court charged that the plaintiff claimed:

"that he did not have a safe place to work, that through the failure of the shipowner to properly stow the cargo and to furnish dunnage, a case on which he was standing tilted, causing him to lose his balance and put his foot through the thin veneer-like plywood covering on the case on which he was standing; that he twisted and fell using the case he was using as support, and sustained injury."

And the court added immediately:

"The defendant denies there was lack of dunnage, and denies that the accident occurred under the circumstances the plaintiff claims. If you find that the accident did not occur in the manner claimed by the plaintiff, your verdict should be for the defendant."

The court's description of plaintiff's claim in its charge limited the claim to the failure to stow the cargo...