Lopez v. Oldendorf, s. 162-164

• Decision Date: 09 December 1976
• Docket Number: Nos. 162-164,D,s. 162-164
• Parties: Benito LOPEZ, Plaintiff-Appellee, v. Egan OLDENDORF, Defendant and Third-Party Plaintiff-Appellant and Appellee, International Terminal Operating Co., Inc., and Hoffman Rigging and Crane Service, Inc., Third Party Defendants-Appellants and Appellees. Benito LOPEZ, Plaintiff-Appellee, v. Egan OLDENDORF and Hoffman Rigging & Crane Service, Inc., Defendants-Appellants and Appellees. ockets 76-7208, 76-7211 and 76-7212.
• Court: U.S. Court of Appeals — Second Circuit

Page 836

545 F.2d 836

Benito LOPEZ, Plaintiff-Appellee, v. Egan OLDENDORF, Defendant and Third-Party

Plaintiff-Appellant and Appellee,

International Terminal Operating Co., Inc., and Hoffman

Rigging and Crane Service, Inc., Third Party

Defendants-Appellants and Appellees.

Benito LOPEZ, Plaintiff-Appellee, v. Egan OLDENDORF and Hoffman Rigging & Crane Service, Inc.,

Defendants-Appellants and Appellees.

Nos. 162-164, Dockets 76-7208, 76-7211 and 76-7212.

United States Court of Appeals, Second Circuit.

Argued Nov. 19, 1976.

Decided Dec. 9, 1976.

Robert Klonsky, Brooklyn, N.Y. (DiCostanzo, Klonsky & Cutrona, Brooklyn, N.Y.), for plaintiff-appellee.

Victor S. Cichanowicz, New York City (Cichanowicz & Callan, New York City), for defendant and third party plaintiff-appellant and appellee.

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

Robert S. Blanc, New York City (Hill, Betts & Nash, New York City), for third party defendant-appellant and appellee.

Before WATERMAN and MULLIGAN, Circuit Judges, and POLLACK ^*, District Judge.

MULLIGAN, Circuit Judge.

On October 21, 1968, International Terminal Operating Co., Inc. (ITO), a stevedoring company, and Hoffman Rigging & Crane Service, Inc. (Hoffman), the owner and operator of a shoreside crane hired by ITO, were engaged in unloading a cargo of steel beams from the M/V Jobst Oldendorf, a vessel owned by Egan Oldendorf. The vessel was tied up with her portside inshore and her starboard side offshore. Prior to the arrival of the longshoremen, the ship's personnel removed the lashings and chocks which had secured the stow. The Hoffman crane, operated by Leo Hogan, was driven onto the pier alongside the hatch of the vessel and received instructions from an ITO signalman.

The accident which occasioned this litigation occurred with the removal of the first draft. The plaintiff Benito Lopez and three other longshoremen secured the first draft with chains and attached them to the cargo hook of the crane. The ITO signalman then instructed Hogan merely to hoist the hook with the cargo attached. Instead, Hogan raised the boom of the crane, causing the draft to drag from the offshore side over to the inshore side. The draft struck and dislodged a beam which fell over and onto Lopez's leg.

Lopez brought suit in the United States District Court for the Southern District of New York, Hon. Inzer B. Wyatt, District Judge, against Oldendorf, alleging both unseaworthiness of the vessel as well as negligence. Oldendorf impleaded ITO, Lopez's employer, and Hoffman, seeking indemnity from both. Hoffman and ITO cross-claimed against each other, seeking both indemnity and contribution. During the trial, Lopez was permitted to amend his complaint to sue Hoffman directly for negligence. The action by Lopez against Oldendorf was tried to a jury. All claims among Oldendorf, ITO and Hoffman, as well as Lopez's action against Hoffman, were tried to the court. Counsel for all parties participated in the jury trial of the Lopez action against Oldendorf.

In the jury trial, a special verdict was returned on February 10, 1976 which provided: a) Lopez failed to establish his claim of unseaworthiness against Oldendorf, b) Lopez did establish his claim of negligence against Oldendorf, c) Lopez's total damages amounted to $365,000, and d) Lopez was 15% contributorily negligent. Because of the last finding, Lopez's recovery was reduced to $310,250. The court then undertook the resolution of the remaining issues. Because of its employee's 15% contributory negligence, ITO was held to have breached its warranty of workmanlike service and was obligated to indemnify Oldendorf. Hoffman was held liable to Lopez for the negligence of Hogan in operating the crane. The final judgment made Oldendorf and Hoffman jointly and severally liable. If Oldendorf paid the judgment, it was to recover 50% from both ITO and Hoffman. If Hoffman paid, it was awarded 50% contribution from ITO. Oldendorf was denied counsel fees, and all other cross-claims were dismissed. The various arguments raised on appeal are considered seriatim.

Oldendorf makes two arguments for reversal of the judgment against it. It first contends that there was insufficient evidence to submit the case to the jury, citing Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960) for the proposition that a ship owner is not required to provide an accident-free vessel. This is a correct statement of the law, but the court's charge to the jury included this qualification. The factual issue was whether the lashings and chocks had been removed prior to the accident, and if they were, whether this constituted unseaworthiness or negligence. The resolution of this question, upon which there was conflicting evidence, was well within the classic function of the jury.

Oldendorf also contends that the verdict was fatally inconsistent in finding that this act, although not rendering the vessel unseaworthy, was nonetheless negligent. In this circuit we have held that every effort must be made to reconcile such apparently contradictory findings, Henry v. A/S Ocean,512 F.2d 401, 405-06 (2d Cir. 1975). Moreover, although the issue here is close, Oldendorf waived any claim of error on this ground when it failed to challenge that portion of the charge which instructed the jury...