Cataldo v. A/S Glittre, A-15999.

• Decision Date: 24 October 1941
• Docket Number: No. A-15999.,A-15999.
• Citation: 41 F. Supp. 555
• Parties: CATALDO v. A/S GLITTRE et al.
• Court: U.S. District Court — Eastern District of New York

41 F. Supp. 555

CATALDO v. A/S GLITTRE et al.

No. A-15999.

District Court, E. D. New York.

October 24, 1941.

David M. Fink & Jacquin Frank, of New York City, for libelant.

Haight, Griffin, Deming & Gardner, of New York City (J. Ward O'Neill and Edgar R. Kraetzer, both of New York City, of counsel), for respondent.

Callaghan, Stout & Nova, of New York City (Barnett J. Nova, of New York City, of counsel), for respondent impleaded.

MOSCOWITZ, District Judge.

This is a libel by Filadelfo Cataldo against A/S Glittre, owner of the m/s Fernbank, for injuries sustained by libelant during the course of his employment as a longshoreman engaged in unloading said ship. The libelant's employer, Turner Universal Terminals, Inc., has been impleaded by the ship owner as a party defendant.

The claim of the libelant is set forth in the libel as follows: "Fifth: That on or about the 17th day of February, 1940, while the libelant was lawfully on the Steamship `Fernbank' and assisting in the unloading of cargo from the said Steamship `Fernbank', suddenly, without any fault on his part and wholly and solely through the carelessness and negligence of the Steamship `Fernbank', its officers and employees, and through the carelessness and negligence of the respondent, A/S Glittre, its officers, agents, servants, employees and crew, libelant was caused to be precipitated from the ship on to the dock, as a result of which he was severely and permanently injured. That the respondent was reckless, careless and negligent in failing to furnish the libelant with good, proper and secure ways, works, means and appliances; in failing to furnish the libelant with good, proper and secure guy lines, and the said respondent did actually furnish the libelant with worn, defective and dangerous equipment used in the discharge of the cargo, and the equipment furnished was insufficient for the purposes intended, so that the said guy line broke, and the respondent, its officers, agents, servants, employees and crew had actual knowledge of the defective condition of the equipment so furnished for the purpose of unloading the cargo but failed to repair same or replace same with good, proper and sufficient equipment, and the libelant was not furnished with a good and safe place in which to work, as a result of all of which he was caused to be injured." In essence the alleged negligence appears to consist in the ship supplying defective equipment.

The respondent in its petition sets forth the basis of its impleader as follows:

"That the negligent acts or omissions complained of in the libel and which libelant alleges were the acts and omissions of respondent are the negligent acts or omissions of said Turner Universal Terminals, Inc., and not those of respondent or the s/s Fernbank, her owners, agents, servants or employees.

"That if libelant was injured as alleged in the libel, said injury was caused by the negligent acts or omissions of the said Turner Universal Terminals, Inc., and was not caused by the negligent acts or omissions of respondent, by virtue of which the said Turner Universal Terminals, Inc., is solely liable to the libelant for the damages alleged in the libel, or is primarily liable therefor, or is liable to indemnify the petitioner for any damages which may be decreed against it."

In essence the basis of the petition is that the acts and omissions alleged in the libel are the acts and omissions of libelant's employer and not of the ship owner.

The question before the Court is whether the impleaded-respondent's exceptions to the respondent's petition are to be sustained. Two...