Giaraffa v. Moore-McCormack Lines, Inc.

• Decision Date: 27 June 1967
• Docket Number: No. 64 A 1224.,64 A 1224.
• Parties: Frank GIARAFFA, Plaintiff, v. MOORE-McCORMACK LINES, INC., and the SS MORMACBAY, her boilers, engines, etc., Defendant and Third-Party Plaintiff, v. ATLANTIC COAST INDUSTRIES CORPORATION, Third-Party Defendant.
• Court: U.S. District Court — Southern District of New York

270 F. Supp. 342

Frank GIARAFFA, Plaintiff, v. MOORE-McCORMACK LINES, INC., and the SS MORMACBAY, her boilers, engines, etc., Defendant and Third-Party Plaintiff, v. ATLANTIC COAST INDUSTRIES CORPORATION, Third-Party Defendant.

No. 64 A 1224.

United States District Court S. D. New York.

June 27, 1967.

Goldstein & Sterenfeld, New York City, by Herbert W. Sterenfeld and Bryan Levinson, New York City, of counsel, for plaintiff.

Browne, Hyde & Dickerson, New York City, by John H. Reilly and W. Mahlon

Dickerson, New York City, of counsel, for Moore-McCormack.

Purdy, Lamb & Cattogio, New York City, by Edmund F. Lamb, New York City, of counsel, for Atlantic Coast.

EDELSTEIN, District Judge.

OPINION

This admiralty action arose out of a fall suffered by plaintiff, Frank Giaraffa, a ship cleaner, on June 13, 1963, aboard the SS MORMACBAY. Defendant, Moore-McCormack Lines, Inc., was the owner of the SS MORMACBAY. The third-party defendant, Atlantic Coast Industries Corporation was Giaraffa's employer. The jurisdiction of this court was invoked under the general admiralty and maritime jurisdiction, 28 U.S.C. § 1333.

Frank Giaraffa, thirty years old, and employed as a ship cleaner by Atlantic Coast Industries Corporation, reported to work at the Moore-McCormack Pier 23, Brooklyn, New York, at 7:30 a. m. on June 13, 1963. Giaraffa, his foreman, Jack Mateo, and part of his work gang were assigned by Anthony Cosentino, the Moore-McCormack maintenance supervisor, to work aboard the SS MORMACBAY cleaning the No. 5 lower hold. Mateo did not testify at trial and his deposition was never taken by any of the parties. The work gang went on board the SS MORMACBAY at 8:00 a. m. Giaraffa testified that he carried on board the MORMACBAY a two-piece aluminum extension ladder, weighing 25 to 35 lbs., each section being between 12 and 16 feet in length. He added that the base of the ladder had worn edges and no safety shoes, and he recalled having taken it from a truck belonging to Atlantic Coast Industries earlier that morning. The deposition of Sven Johnson, the Moore-McCormack port captain, was partially read into evidence at the trial. Johnson deposed that he did not remember whether or not the ladder had safety shoes. He stated that he asked the Atlantic Coast men to save the ladder but the ladder was not introduced at the trial. Cosentino testified that the ladder had safety shoes, but he based his testimony upon a fleeting observation from the deck down into a hatch, a distance of approximately 35 feet. His description of the safety shoes was vague and vacillating and was elicited from him with great difficulty. Nor is it without some significance that he did not examine the ladder after the accident. Giaraffa's testimony as to the absence of safety shoes must prevail over Cosentino's since it was clear and based upon first-hand use of the ladder. Although Cosentino testified that the ladder was delivered to him that morning by Atlantic Coast, Theodore Carras, President of Atlantic Coast, testified to the contrary. The preponderance of the credible evidence leads to the conclusion that the ladder was delivered by Atlantic Coast to Moore-McCormack on June 13, 1963. Frank Giaraffa testified to the same effect, and on this point, which only affects the indemnity issue in this case, he is a disinterested witness.

Jack Mateo, the Atlantic Coast foreman, assigned Giaraffa to clean the overhead beams in the No. 5 hatch on the MORMACBAY. The extension ladder was used, with Giaraffa climbing and cleaning and another man holding the ladder. This job continued until the lunch hour break at noon. After returning from lunch at one o'clock, Mateo, Giaraffa and a third man continued to work in the No. 5 hatch.

Shortly before 1:30 p. m., Capt. Johnson, Cosentino's superior in the Moore-McCormack chain of command, instructed him to have the coamings and gutters of the aft starboard and port deep tanks in the No. 2 hatch cleaned. This job was to be completed by 5:00 p. m. on the same day. Cosentino went to the No. 5 hatch and called down to Mateo to send Frankie up. Giaraffa climbed out of the No. 5 hatch and met Cosentino at the No. 2 hatch where Cosentino explained what Giaraffa was to do. He then told Giaraffa to get the ladder from the No. 5 hatch. Giaraffa went back to the No. 5 hatch where Mateo was still working. He told Mateo that he needed the ladder for a job in the No. 2 hatch. Mateo asked him whom he was taking to assist him and Giaraffa said no one. Giaraffa threw a line down to Mateo in the No. 5 hatch and Mateo tied onto it the ladder and the cleaning gear Giaraffa needed. Giaraffa then pulled up the ladder and his gear and took them to the No. 2 hatch.

When Giaraffa arrived at the No. 2 hatch, he began his task with the aft starboard deep tank. The floor of the deep tank was made of steel. He placed the ladder with one end on the floor and the other end balanced underneath the hatch cover hinge. He proceeded to test the ladder by standing on the lower rungs and shaking the ladder. He did not lash the ladder. He then climbed up the ladder and cleaned part of the gutter. Using the same climbing procedure two more times, he was able to clean one side of the coaming. He cleaned the other three sides of the coaming from the top of the deep tank without the need of the ladder. It was then approximately 2:45 p. m., and Giaraffa had one more deep tank coaming to clean. He lowered the ladder and his gear into the aft port deep tank and set his ladder against the hinge of the hatch cover. He again tested the ladder by standing on the lower rungs and shaking it. He then climbed up the ladder and began to clean. The ladder slipped from under him and he fell, sustaining serious injury.

Frank Giaraffa's claim of negligence and unseaworthiness is based upon two points—that the work he was performing needed more than one employee, and that the ladder was unsafe in that it had no safety shoes. Giaraffa testified that he asked Cosentino for an anchor man to hold the ladder but Cosentino testified that no such request was ever made. In any event, no anchor man was provided. It is not disputed that good safety practice required either that an anchor man be provided or that a portable ladder be lashed when in use. Whereas Cosentino testified that there were numerous places where the ladder could have been lashed, Giaraffa testified that he was not aware of any such place. It is undisputed that there were no pad eyes for lashing in the deep tank and that Cosentino did not indicate any alternative lashing places to Giaraffa. 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 ground sub nom. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958). Moore-McCormack breached its duty to Giaraffa, who as a ship cleaner fell within the protected class, when Cosentino sent Giaraffa to work alone in the deep tank. Since Giaraffa was given no anchor man, the deep tank was not a safe place to work. Although the consequence might have been avoided if Cosentino had told Giaraffa where to lash the ladder, he failed to do so.

The MORMACBAY was unseaworthy in respect to Frank Giaraffa. A ship owner's warranty of seaworthiness runs in favor of one who is performing the ship's service. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Frank Giaraffa, a ship cleaner, was performing the ship's service and was thus entitled to a seaworthy vessel. He did not get one. "The concept of seaworthiness * * * contemplates that a ship's hull, gear, appliances, ways, appurtenances and manning will be reasonably fit for its intended purpose." NORRIS, Maritime Personal Injuries § 27 at p. 63 (1959). See also Amador v. A/S J. Ludwig Mowinckels Rederi, 224 F.2d 437, 440 (2d Cir.) cert. denied 350 U.S. 901, 76 S.Ct. 179, 100 L.Ed. 791 (1955). The ladder used by Giaraffa was not fit for its intended purpose. The ladder had no safety shoes. This defect rendered use of the ladder extremely hazardous. Even if the ladder had safety shoes, it would still not have been fit for its intended purpose since it was not secured. An unsecured ladder has previously been held to have rendered a vessel unseaworthy. See Reid v. Quebec Paper Sales & Transp. Co., 340 F.2d 34 (2d Cir. 1965). The fact that Atlantic Coast supplied the ladder is irrelevant. See Petterson v. Alaska S.S. Co., 205 F.2d 478 (9th Cir. 1953), aff'd 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). The ladder was not secured in that it was neither lashed into a fixed position nor held firmly in place by an anchor man. The failure to provide an anchor man to secure the ladder rendered the MORMACBAY unseaworthy on an additional ground. On May 8, 1967, the Supreme Court faced the following question: "Whether a vessel is unseaworthy when its officers assign too few crewmen to perform a particular task in a safe and prudent manner." Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482. The court answered Yes. In the case at hand, since Giaraffa was not shown where and how to lash the ladder, which was already less than properly fit since it had no safety shoes, an anchor man was needed to secure it. One was not provided. Too few men were thus assigned the task of cleaning the deep tank and the vessel was unseaworthy.

The failure to provide a safe, secure ladder for which Moore-McCormack is accountable both in negligence and unseaworthiness, was the proximate cause of Giaraffa's fall. When the unsecured ladder came down, Giaraffa came down, and his injuries arose.

Moore-McCormack and Atlantic Coast both argued that...