Ianuzzi v. South African Marine Corp., Ltd.

• Decision Date: 10 February 1975
• Docket Number: No. 466,D,466
• Citation: 510 F.2d 950
• Parties: Maria IANUZZI, Plaintiff-Appellant, v. SOUTH AFRICAN MARINE CORPORATION, LTD., Defendant & Third-Party Plaintiff-Appellee-Cross-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Third-Party Defendant-Cross-Appellee. ocket 74--1902.
• Court: U.S. Court of Appeals — Second Circuit

Page 950

510 F.2d 950

Maria IANUZZI, Plaintiff-Appellant, v. SOUTH AFRICAN MARINE CORPORATION, LTD., Defendant & Third-Party Plaintiff-Appellee-Cross-Appellant, v. INTERNATIONAL TERMINAL OPERATING CO., INC., Third-Party

Defendant-Cross-Appellee.

No. 466, Docket 74--1902.

United States Court of Appeals, Second Circuit.

Argued Jan. 7, 1975.

Decided Feb. 10, 1975.

Martin L. Katz, Brooklyn, N.Y. (Paul A Gritz, Brooklyn, N.Y., on the brief), for plaintiff-appellant.

William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens, New York City, Thomas F. Molanphy, New York City, of counsel), for defendant and third-party plaintiff-appellee-cross-appellant.

Joseph N. Cohen, New York City (Alexander, Ash, Schwartz & Cohen, Sidney A. Schwartz, New York City, of counsel), for third-party defendant-cross-appellee.

Before SMITH, OAKES and TIMBERS, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

On November 24, 1968, Mario Ianuzzi, a longshoreman in the employ of International Terminal Operating Co., Inc. (ITO), was fatally injured while working on board the M/V South African Huguenot, owned by South African Marine Corporation, Ltd. (South African). Ianuzzi's wife Maria, his administratrix, commenced this action against South African in the United States District Court for the Southern District of New York to recover damages for the death of her husband, relying on theories of negligence and unseaworthiness. South African impleaded ITO, seeking indemnity for breach of ITO's warranty of workmanlike service. At the conclusion of the evidence, the court, Richard Owen, Judge, dismissed the negligence claim for failure of proof, but submitted the unseaworthiness claim to the jury. The jury found, in response to an interrogatory, that plaintiff had failed to make out her claim of unseaworthiness, and the court entered judgment for South African in plaintiff's action on the basis of that finding. South African and ITO then agreed to submit the third-party claim to the court, rather than risk an inconsistent determination by the jury. ¹ That claim was dismissed by the court. Plaintiff appeals from the dismissal of her negligence claim, and South African has taken a protective cross-appeal from the dismissal of its third-party claim. We affirm.

I. THE PROCEEDINGS IN THE DISTRICT COURT

It is undisputed that, at the time of the accident, Ianuzzi's gang of longshoremen was engaged in loading cargo with the Huguenot's hydraulic winch system. The method employed involved the use of two separate booms, each with its own winch. One boom, called the 'up and down' boom, was positioned with its head directly over the hatch. The other, known as the 'burton' boom, was positioned over the pier. The falls (hoisting lines) from the two booms were 'married,' that is, joined together to a single cargo hook. The loading operation would start with the burton fall in a vertical position, that is, with the cargo hook hanging over the pier directly under the head of the burton boom. Once the cargo was attached to the hook, the winch operator would raise the cargo up off the pier by putting the controls for the burton winch in the 'hoist' position. When the cargo was high enough to pass over the ship's rail with sufficient clearance, the winch operator would move it horizontally to a position directly over the hatch by gradually taking in the up and down fall while simultaneously slacking off on the burton fall. With the cargo over the hatch, simply letting out the up and down fall would lower the cargo through the hatch and into the hold. The entire operation was thus accomplished solely by taking in and slacking off the falls in the proper sequence, while the booms themselves remained stationary.

According to plaintiff's witnesses, while the longshoremen were loading cars in the above manner Ianuzzi was on the Huguenot's main deck, leaning over the coaming of the number three hatch--the same hatch through which the cars were being lowered. As the winch operator was 'burtoning' a car across from the pier to the hatch, the burton winch began slacking off too quickly, causing the car to drop suddenly and swing in a downward arc. As the car swung over the hatch coaming, it supposedly struck Ianuzzi and knocked him down the hatch to the upper 'tween deck.

This version of the accident was supported by the testimony of Coppola, the winch operator; Garofala, the hatch boss; and Scotto, the gangwayman. ² Coppola did not actually see the car strike Ianuzzi, but he testified to the fact that the car swung erratically. Garofala was on the upper 'tween deck at the time of the accident, and it was his testimony that as he looked up he saw Ianuzzi leaning over the coaming, being struck by the car, and falling through the hatch. Scotto, who was on the main deck giving signals to Coppola, said that as the car swung he turned and ducked, and that as he did so he saw the car strike Ianuzzi and knock him down the hatch. ³

In order to fix liability on the shipowner under this factual theory, plaintiff of course had to establish that the car swung because of winch malfunction, rather than solely because of operator error. ⁴ In order to meet this burden, plaintiff produced an expert witness, Ferenczy, who testified regarding the operational characteristics of the Huguenot's hydraulic winches. The winch controls operated by Coppola were remote controls; that is, they were not located directly on the winches, but rather were connected by a hydraulic system to the manual controls on the winches themselves. ⁵ Movement of the remote control would exert pressure at one end of an enclosed volume of hydraulic fluid within the system. Since the fluid is noncompressible, any pressure exerted at one end of the system would be transmitted at full strength throughout the system; thus, at the manual end, the pressure would be equal to the pressure exerted at the remote end. The manual control, therefore, would move to reflect exactly the movement of the remote control by the winch operator. If the remote control were moved five degrees, for example, the manual control would respond by moving five degrees.

The key to proper operation of a hydraulic system such as this is the non-compressibility of the hydraulic fluid. If a compressible substance, such as air, were allowed to enter the system, then the pressure exerted at the remote end would be absorbed, at least in part, in the compression of the air. The result would be that the manual control, rather than following the remote control exactly, would lag behind it to a degree dependent on the amount of air in the system. Thus, is the remote control were moved five degrees, the manual control would respond by moving perhaps only two or three degrees.

It was Ferenczy's expert opinion that, if the swooping of the car occurred as Coppola testified, the cause would have been air in the remote system. ⁶ According to Ferenczy, the winchman would move the remote handle a small amount at first, but would not get the desired result; he would then subconsciously move the handle even further, and when the system finally responded it would do so too quickly. ⁷ Apparently, plaintiff relied essentially on this opinion to establish her claim of unseaworthiness. With regard to negligence, she attempted to show that South African had notice of this defect in the winch through the testimony of Coppola, who had complained about the operation of the remote control handles to the ship's personnel, and of Scotto, who had relayed to the ship's personnel several complaints about the handles by Coppola and other winch operators. The evidence was undisputed, however, that the complaints by the winch operators had to do with 'stiffness' in the handles. South African produced two experts of their own, Napolitano and Wheeler, who testified that air in the remote system would not have resulted in stiffness in the handles, but rather in loose, 'mushy' operation. Ferenczy himself had to agree that stiffness would not result from an air pocket, making the testimony in that regard uncontradicted. In addition, it was Coppola's testimony that he did not experience any trouble with the handles at the time of the accident, that his earlier problems did not recur at the time of the accident, that the accident occurred when the burton slackened all at once, and that this particular problem had not occurred prior to the accident. The district court, therefore, refusing to permit plaintiff to equate 'stiffness' in the handles with 'looseness' or 'mushiness,' held that plaintiff had failed as a matter of law to prove that whatever defect (if any) that caused the accident was a defect of which South African had notice; thus, it dismissed plaintiff's negligence claim.

The claim of unseaworthiness still presented a jury issue, however, but the case was hardly as clear as it might have appeared from a consideration of plaintiff's evidence alone. South African and ITO claimed that the accident did not occur as theorized by plaintiff at all. In their version, Ianuzzi was not killed by a fall from the main deck to the upper 'tween deck; rather, they presented evidence indicating that he was on the upper 'tween deck all the time, and that he was killed when a carpenter named Andre (employed neither by South African nor ITO) ⁸ dropped a piece of lumber through the number three hatch onto Ianuzzi's head. According to Andre, he was passing lumber down to the upper 'tween deck where it was being used by other carpenters to chock the cars that were being loaded. He would lean over the hatch coaming, holding out the lumber vertically in such a way that the ends of the boards extended about two feet over his head. When he got the 'all clear' signal from a carpenter below, he would release the lumber, allowing it to drop straight down in its vertical position. He testified that, as he was leaning over the coaming with one load of lumber, preparing to drop it, the boards...