Carabellese v. Naviera Aznar, SA

• Decision Date: 25 November 1960
• Docket Number: Docket 26165.,No. 30,30
• Parties: Michele CARABELLESE, Plaintiff-Appellant, v. NAVIERA AZNAR, S.A., Defendant and Third-Party Plaintiff-Appellee, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Westinghouse Electric International Company and Westinghouse Electric Corporation, Third-Party Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

285 F.2d 355 (1960)

Michele CARABELLESE, Plaintiff-Appellant, v. NAVIERA AZNAR, S.A., Defendant and Third-Party Plaintiff-Appellee, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Westinghouse Electric International Company and Westinghouse Electric Corporation, Third-Party Defendants-Appellees.

No. 30, Docket 26165.

United States Court of Appeals Second Circuit.

Argued September 29, 1960.

Decided November 25, 1960.

Robert Klonsky, Brooklyn, N. Y. (Di Costanzo & Klonsky, Brooklyn, N. Y., on the brief), for plaintiff-appellant.

Walter X. Connor, of Kirlin Campbell & Keating, New York City (George T. Delaney and Dominic J. Calabrese, of Kirlin Campbell & Keating, New York City, on the brief), for defendant and third-party plaintiff-appellee.

Before LUMBARD, Chief Judge, and TUTTLE^* and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

Carabellese, a longshoreman, appeals from a judgment of the District Court for the Southern District of New York dismissing his complaint against Naviera Aznar, S.A., a Spanish corporation, owner of the S.S. Monte Urquiola, after answers by a jury to special interrogatories, and from the denial of plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.

Plaintiff was injured by the fall of a heavy crate during the loading of the Monte Urquiola at Hoboken on September 28, 1955. The vessel had arrived three days earlier with 5,787 tons of cargo; an additional 1,281 tons were to be taken on. She was moored with her port side along the pier. International Terminal Operating Co., here impleaded as a defendant by the owner, conducted the loading. Seven large and heavy wooden boxes containing electrical control centers manufactured by Westinghouse Electric Corporation and packaged by Westinghouse Electric International Co., also impleaded as defendants, were among the cargo to be loaded.

Plaintiff was a holdman employed by the stevedoring company. He was part of a gang of 22 men working under a hatch boss, Sasso, in stowing cargo in the No. 2 upper tween deck. The evidence was that each Westinghouse crate contained a large steel cabinet with a number of compartments which in turn contained complex electrical apparatus; photographs would indicate that the bottom compartments were somewhat less full than those above but there was no satisfactory evidence as to how the weight was distributed among different parts of the cabinet. A Westinghouse employee in charge of shipping and export crating testified that the instructions and regular practice were to bolt the bottom of the cabinet to a wooden skid and then construct the case around the cabinet, that there was no open space at the bottom of the case but there were a few inches of open space on the sides and top, and that the boxes were marked to indicate where the loading slings were to be placed. The chief mate of the vessel, who witnessed the accident, testified that the crate that fell was plainly marked to indicate which side should be up; Sasso had likewise said this in a prior statement but denied it at the trial. We shall take it that the box that injured plaintiff measured 33 inches in width, 101 inches in height and 135 in length, and weighed 4,550 pounds.¹

The box whose fall caused the accident was to be stowed in the forward wing of the 'tween deck. The stevedores encircled it with two slings, one on the forward and one on the aft end of the draft, and then lowered it to a point on the deck somewhat to starboard of the center line. The crate was positioned so that it would rest on the surface that we take to be 33 inches in width and 135 in length, with the width facing forward. A roller was placed under the front end of the crate and the forward sling was removed. The crate was then raised by the after sling and was pushed forward by the holdmen, plaintiff among them, on the port side, and by a few on the after end.² So far there is no conflict in the evidence.

Sasso testified that the forward motion of the crate was stopped by the sling coming in contact with the coaming of the hatch, that it then became necessary to slacken the sling and that at this time the crate toppled over to port and pinned the plaintiff. He attributed the fall to the "top-heavy" character of the crate, to the failure to provide lumber or shoring for the sides of the draft, and to a list to port which he thought was occasioned by the prior loading of two of three locomotives on the port side.³ Two policemen who boarded the vessel shortly after the accident also testified they had noted a list to port. A former master called by plaintiff as an expert witness gave his opinion, in answer to a hypothetical question, that it was improper to load a case of this size and type into the place where this case was destined, since it "should be landed in an area where it needs the least handling," and that a list would be sufficient to topple it over.

For the defendant the chief mate testified that the Monte Urquiola had no list. He attributed the fall to an order given the men to turn the crate; he said that when they attempted to do this, the crate started to fall over and the cargo sling snapped off just before the crate struck the deck. Defendant also called an expert in stevedoring. He accounted for the fall on the basis that, since the crate had not been spotted in a direct line with the head of the boom, as the crate was moved forward the sling would exert pressure on the outboard side, which caused the crate to lean inboard and topple over. He thought the stevedore's method of loading the crate was improper, that several rollers should have been placed under the crate, and that it should then have been moved into position by crowbars.

The case was tried upon two theories of liability — unseaworthiness of the vessel and negligence of the owner. The court submitted special interrogatories to the jury. The first, which contained various sub-interrogatories, dealt with unseaworthiness, the second with negligence, and the third, to be answered if either of the first two was answered in the affirmative, with proximate cause. Further interrogatories were submitted with respect to damages, these to be answered if the jury answered in the affirmative either the question as to unseaworthiness or that as to negligence and also the question as to proximate cause. The jury answered the questions as to unseaworthiness and negligence in the negative; it did not answer those as to proximate cause or damages. We set forth in the margin the questions propounded on unseaworthiness and the jury's answers thereto.⁴

After the jury had given its answers, defendant moved for judgment against the plaintiff; this was granted. Thereafter, plaintiff moved for judgment notwithstanding the verdict or, in the alternative, for a new trial; this was denied. Although we have considered all of plaintiff's complaints, only two of the errors alleged require discussion.

1) The charge which the judge had prepared for delivery included the following:

"The plaintiff did not assume the risk of an unsafe place to work, nor is he chargeable with negligent conduct on the part of his co-employees or superiors. Indeed, plaintiff is not chargeable in this case with contributory negligence in any sense, and I charge you, as a matter of law, that plaintiff was not contributorily negligent."

When the court entertained exceptions to the charge, the following occurred:

"Mr. Klonsky for plaintiff: I had asked you if the imputation of negligence request would be granted and your Honor said yes, which meant that though the hatch boss may have been negligent or any of the co-workers of the plaintiff may have been negligent, therefore it is not imputed to the plaintiff.

"The Court: I charged that. You weren\'t listening, Mr. Klonsky, you were looking at your notes. I charged that in the very words you requested.

"Mr. Klonsky: I hope so, your Honor."

However, the stenographer's transcript indicates the above-quoted portion of the prepared charge was not in fact given.

In denying plaintiff's motion for a new trial, the judge, regretting his apparent failure to read the instructions he had prepared, concluded that the omission was not prejudicial in view of other instructions that had been given. We agree. In an early portion of his charge, the judge informed the jury that counsel for the defendant and for the plaintiff "have both stipulated that the plaintiff is not chargeable with contributory negligence, so that has taken another aspect of the case out that would normally come into it at this time." He also instructed the jury that it might find the shipowner liable either for unseaworthiness or for negligence even though the longshoremen were also responsible. These instructions seem to have disposed of two of the points intended to be covered by the inadvertently omitted charge. At no time during the trial did defendant contend that plaintiff was barred by assumption of risk or by the negligence of himself or his fellow workers. No such issues were submitted to the jury; it was asked to determine only whether the vessel was unseaworthy, whether the owner was negligent, and if so, whether unseaworthiness or negligence proximately caused the accident. The case thus appears similar to De Pascale v. Pennsylvania R. Co., 3 Cir., 1950, 180 F.2d 825, 827, where refusal to charge on assumption of risk was held not to have been prejudicial under the circumstances, and unlike Blankenship v. Ellerman's Wilson Line New York, Inc., 4 Cir., 1959, 265 F.2d 455, at page 459, where the trial judge improperly submitted the issue of assumption of risk to the jury and the Court of Appeals feared this might have led the jury to have made a negative finding with respect to unseaworthiness "on the ground that the plaintiff knowingly assumed the risk and that this action on his part rather than the failure of the ship was the cause of his injury".

2) The judge...