Lauricella v. United States
| Decision Date | 29 November 1950 |
| Docket Number | No. 24,Docket 21679.,24 |
| Parties | LAURICELLA v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Eugene Pelcyger, Brooklyn, N. Y., for appellant; William L. Standard and Louis R. Harolds, New York City, of counsel.
Irving J. Saypol, U. S. Atty., and Kirlin Campbell Hickox & Keating, New York City, for appellee; Walter X. Connor and Vernon Sims Jones, of New York City, of counsel.
Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.
This is a suit in admiralty to recover for personal injuries sustained by a hatch foreman in the employ of a stevedoring company which was under contract with the United States to load stores into a troop ship, while docked at Pier 20 in the East River on October 11, 1945. The case was tried before Judge Bright who reserved decision but died before determining it. By stipulation of the parties the record made before Judge Bright was submitted to Judge Hulbert for decision. He wrote an opinion (unreported), made findings of fact, and dismissed the libel on the ground that the libellant had failed to sustain the burden of proving "by a fair preponderance of the credible evidence" negligence on the part of the United States.1 The appeal seeks reversal of this conclusion. Fundamentally decision must turn on the credibility of witnesses; and we are as well able to pass upon credibility as was Judge Hulbert who neither saw nor heard the witnesses.2
There is no dispute at to the happening of the accident to Lauricella. He fell from the 'tween deck of No. 1 hatch into the hold. The first mate of the vessel had removed a hatch cover, 30 inches in width by 48 inches in length, above the ladder leading from the 'tween deck into the hold and had left it off in order that the fresh water tanks in the hold might be inspected to see whether they were leaking. Lauricella descended the companion way ladder from the port side of the deck to the 'tween deck of hatch No. 1 in search, as he says, of a piece of rope to use in connection with the sling or net by which the stores were being laden into hatch No. 4. When he reached the bottom of the ladder he turned to the right and started walking across the hatch. After taking several steps he tripped over something and fell through the opening, which he had not noticed, made by the removal of the hatch cover. He testified that there was enough light in the 'tween deck to see clearly and that he did not watch where he was placing his feet.
Relying upon Badalamenti v. United States, 2 Cir., 160 F.2d 422, the appellant contends that the facts above stated, without more, prove negligence on the part of the shipowner. In that case the shipowner was held liable to a stevedore who went in search of a rope in an unlighted portion of the lower 'tween deck and fell into an open hatch adjacent to the one in which he was working and only about 50 feet distant therefrom. The basis of that decision, 160 F.2d at page 425, was that "it was reasonable to foresee" that the stevedores "might have occasion to go to parts of the deck that were not lighted in pursuit of their calling." That principle is inapplicable here. The stores were to be loaded only in hatch No. 4 which was far removed from hatch No. 1; and the stevedoring company, not the ship — unlike the vessel involved in the Badalamenti case — was to furnish such rope as was needed for the work to be done by the stevedores. Under these circumstances we do not think the shipowner could reasonably anticipate that a stevedore would go to the 'tween deck of hatch No. 1 "in pursuit of their calling." The shipowner owed the stevedores, as invitees or business visitors, the duty to provide a reasonably safe place in which to do their work.3 But that duty is confined to those parts of the ship to which the "invitee" may reasonably be expected to go. His status as a business visitor is lost if he goes elsewhere, for he then becomes no more than a licensee or perhaps even a trespasser. See Bollinger v. Gotham Garage Co., 2 Cir., 155 F.2d 326; Pryotely v. New York C. & St. L. R. Co., 6 Cir., 28 F.2d 868. Hence recovery in the case at bar must depend upon the libellant's testimony that the first mate told him to go to hatch No. 1 to get a rope. Indeed the principal contention on appeal is that Judge Hulbert erred in not accepting this testimony.
Pier 20, owned by the City of New York, consisted of a one story shed, the sides of which were only two feet from the stringpiece. The stores were brought by trucks into the shed. The roof of the shed was in a dilapidated condition with a hole therein about 6½ feet wide by 19 feet long between the steel beams...
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