Ktistakis v. United Cross Navigation Corp.

• Decision Date: 07 May 1963
• Docket Number: Docket 27843.,No. 328,328
• Citation: 316 F.2d 869
• Parties: Stefanos KTISTAKIS, Plaintiff-Appellant, v. UNITED CROSS NAVIGATION CORP., Defendant-Cross Appellant.
• Court: U.S. Court of Appeals — Second Circuit

316 F.2d 869 (1963)

Stefanos KTISTAKIS, Plaintiff-Appellant, v. UNITED CROSS NAVIGATION CORP., Defendant-Cross Appellant.

No. 328, Docket 27843.

United States Court of Appeals Second Circuit.

Argued April 17, 1963.

Decided May 7, 1963.

Jacob Rassner, New York City (James Corines, and Alan C. Rassner, New York City, on the brief), for plaintiff-appellant.

Edwin K. Reid, New York City (Zock, Petrie, Sheneman & Reid, John R. Sheneman, New York City, on the brief), for defendant-cross appellant.

Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

This is an appeal by the plaintiff, Stefanos Ktistakis, and a cross-appeal by the defendant, United Cross Navigation Corporation, from a judgment entered by Judge Bonsal, sitting without a jury, in the United States District Court for the Southern District of New York. The judgment, reported in an opinion at 204 F.Supp. 293 (S.D.N.Y. 1962), awarded plaintiff damages of $40,000 in an action which invoked the court's admiralty and maritime jurisdiction.

On November 15, 1957, plaintiff, as second mate, stood his watch from midnight to 4 a. m., aboard the S.S. Genie, a vessel owned by the defendant, which was discharging oil at Port Socony, Staten Island, New York. The plaintiff was the officer in charge at the time. He alleged that at about 2:30 a. m., as he was walking under the discharge lines, which were approximately four to five feet above the deck, he slipped on an accumulation of oil covered by sawdust, and fell, landing on his lower back and sustaining severe injuries. He has undergone two operations and a third is recommended; in his present condition he is totally unfit for sea duty.

The District Court found that the accident occurred as plaintiff alleged and that it was causally related to the injuries which he suffered. These findings of fact, both of which defendant attacks, rest on the resolution of sharply-conflicting testimony; we sustain them both as not being clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954). Defendant also attacks the District Court's holding that the accumulation of oil covered by sawdust on which plaintiff slipped at 2:30 a. m., and which was found to have existed prior to midnight, rendered the ship less than reasonably fit for its intended use, Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955); Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223 (2 Cir. 1963), and provided sufficient grounds for recovery under the doctrine of transitory unseaworthiness. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed. 2d 941 (1960). We uphold this finding as clearly in accord with the governing law. Pinto v. States Marine Corp., 296 F.2d 1 (2 Cir. 1961), cert. denied, 369 U.S. 843, 82 S.Ct. 874, 7 L.Ed.2d 847 (1962); Blier v. United States Lines Co., 286 F.2d 920 (2 Cir.), cert. denied, 368 U.S. 836, 82 S.Ct. 32, 7 L.Ed.2d 37 (1961). Defendant's other contentions on its cross-appeal being without merit, we affirm plaintiff's right to recover on the grounds relied upon by the District Court.

Plaintiff's appeal challenges a single holding in the judgment below: the standard of care against which the District Court as a matter of law measured plaintiff's conduct in determining that he had been contributorily negligent. The Court's finding that plaintiff's contributory negligence was 50 per cent responsible for the accident in which he received his injuries resulted in a reduction by 50 per cent of the total amount of damages to which he would otherwise have been entitled. Dunbar v. Henry Du Bois' Sons Co., 275 F.2d 304 (2 Cir.), cert. denied, 364 U.S. 815, 81 S.Ct. 45, 5 L.Ed.2d 46 (1960); Boat Dagny, Inc. v. Todd, 224 F.2d 208 (1 Cir. 1955); Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94 n. 11, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). In commenting upon the significance of plaintiff's conduct, 204 F.Supp. at 295, 296, the District Court said:

"The plaintiff, as second mate and the officer in charge of the watch, had a duty to clean the oil spill and sawdust from the deck. He claims that he had no knowledge that the condition existed. However, as the officer in charge, it was his duty to discover

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