Ktistakis v. United Cross Navigation Corp.

• Decision Date: 13 April 1962
• Citation: 1962 AMC 2694,204 F. Supp. 293
• Parties: Stefanos KTISTAKIS, Plaintiff, v. UNITED CROSS NAVIGATION CORP. and Carras (U.S.A.), Ltd., Defendants.
• Court: U.S. District Court — Southern District of New York

204 F. Supp. 293

1962 AMC 2694

Stefanos KTISTAKIS, Plaintiff, v. UNITED CROSS NAVIGATION CORP. and Carras (U.S.A.), Ltd., Defendants.

United States District Court S. D. New York.

April 13, 1962.

Harry Edelstein, Haverstraw, N. Y., for plaintiff.

Zock, Petrie, Sheneman & Reid, New York City, for defendants, Edwin K. Reid, New York City, of counsel.

BONSAL, District Judge.

The plaintiff was the second mate aboard the S. S. GENIE, a vessel owned by the defendant United Cross Navigation Corporation. On November 14th and 15th, 1957, the GENIE was discharging oil at Port Socony, Staten Island, New York. Shore discharge lines were connected to the ship's manifold discharge lines by means of two metal flanges which were bolted together with a gasket inserted between them. Under this coupling, and on the deck of the ship, were placed large tubs as a precautionary measure to collect any oil which might drip from the connection.

The plaintiff, as second mate, stood his watch from midnight until 4 A.M. on November 15th and was the officer in charge at that time. Plaintiff alleges that at about 2:30 A.M. he was walking aft and as he passed under the discharge lines, slipped on an accumulation of oil covered by sawdust, and fell, landing on his lower back. The lines were approximately four to five feet above the deck. At the time the accident occurred there was evidence that the ship was down at the stern by reason of the discharge from the forward tanks.

Plaintiff has undergone two operations and a third is recommended. In his present condition he is totally unfit for sea duty.

Four questions present themselves: (1) Did the accident occur as the plaintiff alleges? (2) Was this accident due to the unseaworthiness of defendant's vessel? (3) If the answers to these two questions are in the affirmative, then was the accident the proximate cause of the plaintiff's injuries? (4) Was the plaintiff contributorily negligent, and, if so, to what extent?

There is a sharp conflict in the testimony as to whether the accident ever happened. Markos Makrinos, a shipmate of the plaintiff, who was on watch with him, stated in a deposition taken in April 1961 that he only saw the plaintiff slip, but did not see him fall. In an attempt to impeach this testimony, a written statement of Makrinos, purportedly made before a Notary in Greece in August 1958, was offered. In this statement Makrinos is said to have told substantially the same story as the plaintiff.

Plaintiff testified that shortly after the accident the ship's cook massaged his back to relieve the pain, and wrapped him in a towel.

No entry was made in the ship's log concerning the accident either by the plaintiff as second mate or by anyone else. The plaintiff says it was not proper for him to make such an entry but that he did report it to the Captain. A witness for the plaintiff, who has been going to sea since 1929 and has a master's license, stated that a mate never puts an entry into the log concerning his own injury. There was no testimony from the Captain, but the Chief Officer of the GENIE, Kostas Diakogianis, who is still in the employ of the defendant, states in his deposition that he, as Chief Officer, received no report and made no entry.

Various other conflicts in the evidence developed during the course of the trial including whether the plaintiff saw the oil and sawdust before he slipped. Even if the plaintiff did, it would not relieve the defendant of liability for unseaworthiness of its vessel. It would, however, make the plaintiff contributorily negligent and thereby reduce the amount of his recovery.

Many of the inconsistencies in the evidence may be explained by the plaintiff's lack of knowledge of English. This necessitated the use of different Greek interpreters at the depositions prior to trial and at the trial. Also, a number of the witnesses are still in the employ of the defendant. After consideration of all the evidence I find that the plaintiff did suffer an accident aboard the GENIE on November 15, 1957, and that the accident was caused by a mixture of sawdust and oil on the deck of the GENIE.

This brings us to the second question, which is whether the accident was caused by the unseaworthiness of the vessel. Plaintiff's expert witness, Capt. John Robertson, testified that it is common practice to spread sawdust over an oil spill as an absorbent. However, once this is done, it is good seamanship to remove the saturated sawdust from the deck as soon as possible as it represents a double hazard — the danger of fire or of someone slipping.

The presence of this oil covered with sawdust created a condition aboard the GENIE which was not normal under a standard of reasonable fitness. Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955). Colon v. Trinidad Corp., 188 F.Supp. 97 (S.D.N.Y.1960). A seaman "is not absolutely entitled to a deck that is not slippery. He is absolutely entitled to a deck that is not unreasonably slippery". Colon, supra, at p. 100.

Since Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960) it has been clear that a condition of transitory unseaworthiness has been sufficient grounds for recovery. The recent cases in this Circuit of Blier v. United States Lines Co., 286 F.2d 920 (2d Cir. 1961) and Pinto v. States Marine Corp., 296 F.2d 1 (2d Cir. 1961) have aided in defining the limits of this concept. In Pinto the Court held that the trial judge's charge on transitory unseaworthiness correctly stated the law. The trial judge had charged that, "mere momentary presence of oil in the area" in which the seaman fell "does not in and of itself render the vessel unseaworthy". 296 F.2d at p. 3.

However, if we accept the plaintiff's testimony that no oil was spilled and sawdust spread over it during his watch, it is clear that at 2:30 A.M. when the plaintiff slipped and fell, the unseaworthy condition was not one of a "mere momentary" nature. If there was oil on the deck covered with sawdust at 2:30 A.M., and no oil was spilled or sawdust spread from midnight on, it is reasonable to believe that the condition existed prior to midnight.

The plaintiff advanced alternate theories to explain the presence of the oil. It was there either because someone had been careless in emptying one of the tubs or the tubs had been...