Falletta v. Costa Armatori
| Decision Date | 05 April 1973 |
| Docket Number | No. 597,Dockets 72-1946,72-2034 and 72-2035.,598 and 599,597 |
| Citation | 476 F.2d 316 |
| Parties | Anthony FALLETTA, Plaintiff-Appellant-Appellee, v. COSTA ARMATORI, S.p.A. GENOA, Defendant and Third-Party Plaintiff-Appellant-Appellee, v. UNIVERSAL TERMINAL & STEVEDORING CORP., Third-Party Defendant-Appellant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward D. Lory, Brooklyn, N. Y. (Paul A. Gritz, Brooklyn, N. Y., on the brief), for plaintiff-appellant-appellee.
Michael D. Martocci, New York City (Yamada & Martocci, New York City, on the brief), for defendant and third party plaintiff-appellant-appellee.
Albert S. Commette, New York City (Brown, Quencer & Commette, New York City, on the brief), for third party defendant-appellant-appellee.
Before SMITH, FEINBERG and MANSFIELD, Circuit Judges.
We have here a familiar longshoreman-shipowner-stevedore legal battle; what is somewhat unusual, however, is that all three parties appeal from the judgment of the trial court.1 After a non-jury trial in the United States District Court for the Southern District of New York, Judge Lawrence W. Pierce held, first, that defendant Costa Armatori S.p.A. Genoa, owner and operator of the vessel Paola Costa, was liable to plaintiff Anthony Falletta on theories of unseaworthiness and negligence; that plaintiff had been contributorily negligent to the extent of ten per cent in causing the accident, reducing his award to approximately $5,855; and finally, that as a result of plaintiff's contributory negligence, his employer, Universal Terminal & Stevedoring Corp., was required to indemnify the shipowner. As indicated, none of the parties is happy with this result.
Plaintiff-longshoreman was injured while cargo was being unloaded from the ship. He was struck in the head just above the right eye by a free-swinging "burton boom lazy guy" — in Judge Pierce's less esoteric term, a steel wire. The impact knocked plaintiff down and he injured his shoulder. Plaintiff was left with a scar over his eye and, as the judge found, "a permanent partial loss of use of the right arm."
On appeal, both plaintiff and his stevedore employer claim that the judge erred in holding plaintiff contributorily negligent. The stevedore has an even greater interest than plaintiff in establishing that proposition. The finding of contributory negligence cost plaintiff only $650 (reducing by ten per cent his damages of approximately $6,500). But in the shipowner's action against the stevedore, based upon the latter's breach of warranty of workmanlike service, plaintiff's contributory negligence became the sole basis for holding his employer, the stevedore, liable for the full amount of plaintiff's recovery ($5,855), as well as for such incidental items as counsel fees.2 By contrast, while not denying its own negligence, the shipowner claims that the finding that plaintiff was only ten per cent contributorily negligent was clearly erroneous. How much more would have been correct the shipowner does not squarely say, except to assert that plaintiff's "own negligence substantially contributed to the cause of the accident."
The difficulty with this theory is that a number of longshoremen were working on the hatch in full view of the ship's crew when the latter began to disengage the jumbo boom and negligently unshackled the burton boom lazy guy. If plaintiff could see the deck crew some distance away, as the judge emphasized, they obviously could see him. The judge assumed as much and also concluded that the crew members "should have warned plaintiff prior to commencing the concededly potentially dangerous unrigging operation." Under the circumstances here, plaintiff could not properly be regarded as negligent. As we noted under somewhat different circumstances in Sheehan v....
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Klarman v. Santini, s. 900
...See Williams v. Pennsylvania Railroad Company, 313 F.2d 203, 212-213 (2 Cir. 1963). As we pointed out in Falletta v. Costa Armatori, 476 F.2d 316, 317 at n. 1 (2 Cir. 1973), the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act also eliminated stevedore indemnity to......
- Grand Jury Proceedings No. 84-4, In re, s. 85-2109
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Addison v. Bulk Food Carriers, Inc., 73-1362.
...§§ 905(b), 906(b)-(d), 907(a)-(i), 910(f)-(h) (Supp. II, 1972), amending 33 U.S.C. §§ 905-907, 910 (1970); Falletta v. Costa Armatori, 476 F.2d 316, 317 n. 1 (2d Cir. 1973); Bell v. Isthmian Lines, Inc., 363 F.Supp. 156, 159 (M.D.Fla.1973). Thus, the injured longshoreman lost a theory of re......