Grasso v. Lorentzen

• Decision Date: 21 March 1944
• Citation: 56 F. Supp. 51
• Parties: GRASSO v. LORENTZEN, Director of Shipping, etc.
• Court: U.S. District Court — Southern District of New York

56 F. Supp. 51

GRASSO v. LORENTZEN, Director of Shipping, etc.

District Court, S. D. New York.

March 21, 1944.

Jacob Rassner, of New York City, for libelant.

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

GODDARD, District Judge.

This is a suit in admiralty to recover damages for personal injuries sustained by the libelant.

The libellant Grasso was a stevedore in the employ of the Northern Dock Company, contracting stevedores engaged in loading cargo on the S. S. Torvanger, which was docked at the New York State Pier at the foot of Columbia Street, South Brooklyn. On May 15, 1942, about 10:45 in the forenoon, Grasso was working in No. 2 hold with several other stevedores shifting large crates containing tanks for the Army, which had been lowered into the hold from a lighter alongside the ship. To move the crates into position a cable leading from the winch on the upper deck, operated by the stevedores, was used. This cable passed through a snatch block which was located near the corner of the hold, so that when power was applied to the cable it pulled the grate into the position desired. The snatch block was fastened to a "strap" which passed around one of the ship's upright iron beams. The strap consisted of a wire rope an inch in diameter, six feet long, with a loop at each end into which a hook on the snatch block was hooked. The strap was passed around the upright beam near the top and was held in place by an iron gusset plate which was fastened to the upright at a sharp angle. In the process of moving one of the crates the strap broke, the snatch block fell striking Grasso and injuring him. Shortly after this happened the strap was examined and it was found that the strap had broken near the middle; that for about a distance of some six inches each way from the break the strands were rusted all the way through and that this portion was brittle and weak.

Although respondent contends to the contrary, the evidence is convincing that this strap was the ship's property and that the stevedores found it hanging on a beam in the hold when they began this work. The evidence also established the fact that it was customary for stevedores to furnish their own gear including straps and they did in this instance supply straps, but those working in the hold, seeing this strap, used it and had been using it for some fifteen operations before it broke.

Respondent urges that acceptance "of compensation under an award in a compensation order filed by the Deputy Commissioner" was proved and constitutes a bar to this action; it also denies that any negligence of the respondent was the proximate cause of libelant's injury.

The file of the Deputy Commissioner covering the case supplemented by an agreed statement of facts is included in the record. From these, it appears that Northern Dock Company, Grasso's employer, carried compensation insurance with the Travellers Insurance Company hereinafter referred to as Travellers; that at the end of the second week of disability the first seven days being exempt, 33 U.S.C.A. § 906(a), Travellers paid Grasso the first payment of compensation in accordance with the Longshoremen's and Harbor Workers' Compensation Act. Having received a report from its examining physician that Grasso would be able to resume light work on August 4, 1942, Travellers certified under date of August 4th that it had paid $214.29 compensation and would make no further payments. On August 3rd Grasso reported to the Commission that he was still unable to work and protested the stopping of his compensation. The Commission had Grasso examined again and notified Grasso and Travellers to attend a conference on September 14th. A memorandum of this conference with the action taken was prepared by the Claims examiner and placed in the Commission's files, and a copy was sent to Grasso and the Travellers. It reads as follows:

"File #65-166 "September 17, 1942 "Memorandum of Informal Conference "Re: Santo Grasso v. Northern Dock Company

"Date of Conference: September 14, 1942

"Purpose of Conference: Consideration of extent of disability

"Appearances: Claimant present. Mr. Markey representing the employer and carrier.

* * * * * *

"Claimant, a longshoreman, met with an accidental injury on May 15, 1942 when as he was stowing freight aboard a steamship afloat in New York harbor, a cable snapped and struck him in the back causing him to fall a distance of about five feet off the top of a lead of cases. He sustained shock, fracture of the ribs on the right side, and pleurisy.

"Treatment was rendered in accordance with Section 7(a) of the Act, and claimant was discharged as able to resume his work on July 29, 1942. Compensation has been paid for temporary total disability from May 15, 1942 to July 28, 1942 inclusive, a period of 10-5/7th weeks at $20 per week in the sum of $214.29.

"On August 14, 1942, claimant was examined at the U.S. Marine Hospital and in the examination and report, the opinion was expressed that he needed further treatment and was unable to resume his usual work. At the conference claimant alleged total disability to date. He has since been re-examined by the carrier's physician, and further treatment will be furnished by the carrier.

"It is recommended that additional compensation be paid for temporary total disability from July 29, 1942 to September 14, 1942—6-6/7th weeks at $20.00 per week— in the sum of $137.14. The case is continued for re-examination of disability by the attending physician.

"D. B. O'Keeffe "DBO:MB Claims Examiner

"cc Claimant and carrier."

At this conference the Claims Examiner for the Commission recommended that additional compensation be paid up to that date amounting to $137.14, which the Travellers paid, notifying the deputy commissioner that no further payments would be made until Grasso established lack of earning power. On November 16th Grasso was notified to appear for a further physical examination. However, when on December 4th another conference was set for December 17th Grasso's lawyer notified the Commission that Grasso "has elected to sue a third party" and a notice of election on the prescribed form dated December 17th was subsequently filed.

Respondent contends that the memorandum of September 17th followed by payment to and acceptance by Grasso of the additional compensation recommended in that memorandum constituted "acceptance of such compensation under an award in a compensation order filed by the deputy commissioner" under the Longshoremen's and Harbor Workers' Compensation Act. The pertinent sections of the Longshoremen's and Harbor Workers' Act, as amended June 25, 1938, 33 U.S.C.A. § 933(a) (b) is set forth in the margin below.¹

Before the 1938 amendment, the Act provided that "acceptance of such compensation shall operate as an assignment to the employer of all right of the person entitled to compensation to recover damages against such third person." 44 Stat. 1440. But the Congressional history of the amendment adopted in 1938 clearly indicates that the purpose of the amendment was to provide that the...