Nicroli v. DEN NORSKE AFRIKA-OG AUSTRALIELINIE, ETC.

• Decision Date: 01 June 1964
• Citation: 332 F.2d 651
• Parties: Guiseppe NICROLI, Plaintiff-Appellee-Appellant, v. DEN NORSKE AFRIKA-OG AUSTRALIELINIE WILHELMSENS DAMPSKIBS-AKTIESELSKAB et al., Defendants and Third-Party Plaintiffs-Appellees, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

332 F.2d 651 (1964)

Guiseppe NICROLI, Plaintiff-Appellee-Appellant, v. DEN NORSKE AFRIKA-OG AUSTRALIELINIE WILHELMSENS DAMPSKIBS-AKTIESELSKAB et al., Defendants and Third-Party Plaintiffs-Appellees, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-Party Defendant-Appellant.

United States Court of Appeals Second Circuit.

Submitted April 6, 1964.

Decided June 1, 1964.

Di Costanzo, Klonsky & Sergi, and Robert Klonsky, Brooklyn, N. Y., for plaintiff-appellee-appellant.

Haight, Gardner, Poor & Havens, New York City (J. Ward O'Neill and Thomas F. Molanphy, New York City, of counsel), for defendants and third-party plaintiffs-appellees.

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

Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge.

This case presents the familiar tangled triangle of the longshoreman, shipowner, and stevedore, each of whom appeal from a judgment, entered in the United States District Court for the Southern District of New York by Judge John F. X. McGohey sitting without a jury, granting recovery to the longshoreman from the shipowner and awarding indemnity to the shipowner from the stevedore. We find no error, and affirm the judgment.

The plaintiff Nicroli, a longshoreman, injured his elbow when he slipped and fell on a deck coated with a fine residue of wet sugar. Nicroli was a cooper, whose task was to salvage as much as possible of the spillage which normally occurs during the unloading of a cargo of bagged sugar. This function was performed by sweeping together and rebagging sugar that had spilled on the deck, and by sewing ripped bags. However, the coopers were not able to remove all the spilled sugar from the deck with their shovels and brooms, and a thin residue of sugar granules, requiring hosing down the deck to remove, normally remained.

On the afternoon of August 13, 1956, the plaintiff swept up spilled sugar from the area of Hatch #1. Just prior to leaving work at 5:00 p. m., the plaintiff stored two brooms and six shovels at the forward side of the skid near Hatch #1. Rain fell the afternoon and evening of August 13, turning the sugar residue, which had been permitted to remain on the deck overnight, to the consistency of molasses. There were longshoremen aboard the ship as late as 9:00 p. m. the evening of August 13, but only the ship's employees remained aboard from 9:00 p. m. until 7:00 a. m. the morning of August 14, when the first gang of longshoremen arrived to straighten the skids and hatches. By the time the plaintiff came on board at 8:00 a. m., neither the skids nor the deck had been hosed down by the ship's crew or by the longshoremen; nor had any other steps, such as throwing sawdust on the deck, been taken to correct an obviously slippery condition. Plaintiff's gang was assigned to the #3 Hold, and he went to the #1 Hatch by the offshore passageway to collect the shovels and brooms which he had stored in that vicinity the day before. The offshore area of the deck was free from the melted sugar, but the plaintiff did not choose to return by that route. Instead, with six shovels and two brooms on his shoulder, Nicroli took the inshore route, a route which required him to step down from the two-foot high skid to the slippery deck. As he stepped from the skid, his foot slipped on the melted sugar, and he fell to the deck, striking his elbow on the after edge of the skid.

The plaintiff went ashore and bathed his elbow in hot water. He then returned to the ship and worked the remainder of the day. He did not work again until April of 1957 because the trauma to his elbow had so aggravated a pre-existing arthritic condition that the movement of his right arm became permanently restricted about 25-40%. Plaintiff continued to work as a cooper through the end of 1957. In January of 1958, having reached the age of 65, the plaintiff retired. His lost earnings due to the accident amounted to $4,468.64, while his medical expenses came to $368.15.

The trial court found that the wet and melted sugar had made the deck so slippery that the ship was unseaworthy and the shipowner negligent. The court also found that the plaintiff was contributorily negligent for failing to look where he was going, and for taking, with six shovels and two brooms on his shoulder, a route which required stepping from a two-foot high skid to a slippery deck when he knew that a safe alternate route was available. The court awarded the plaintiff $6500 for pain and suffering plus his lost earnings and medical expenses, making a total award of $11,336.79; this figure was then reduced by 50% to $5,668.40 because of the plaintiff's contributory negligence. Lastly, the court found that the stevedore had breached its warranty of workmanlike service by failing to correct the dangerously slippery deck or by holding up work until the ship's employees corrected the dangerous condition. The shipowner was allowed indemnity from the stevedore for the amount of the plaintiff's judgment plus counsel fees and costs incurred in defending the suit.

I. THE PLAINTIFF'S APPEAL

We shall deal first with the plaintiff's claims that his award should be increased. The plaintiff contends that the award of $6500 for his pain and suffering was clearly inadequate. There is no merit to this claim. Plaintiff was 63 years old at the time of the accident and had a pre-existing arthritic condition in his right elbow. After soaking the elbow in water, he was able to work the remainder of the day on which the injury occurred. While there is a permanent disability impairing the functioning of his right arm, some of that impairment is attributable to the pre-existing arthritis. Under the circumstances, this court would be hard pressed to upset even a lesser amount as clearly erroneous. Compare Santomarco v. United States, 277 F.2d 255, 257 (2 Cir. 1960), where an award of $1000 for pain and suffering from head, back and hip injuries resulting from a fall on an oil slick deck was upheld.

The plaintiff also argues that the trial court's finding that the plaintiff was 50% contributorily negligent is clearly erroneous. There is no substance to this argument either. The plaintiff knew or should have known that the route he took would be slippery, and he knew that a safe route was available. Moreover, had he watched where he was going, he would have seen the dark, molasses-like sugar. In Santomarco v. United States, supra, plaintiff's damages were reduced by 50% for his contributory negligence in taking an unsafe route through an accumulation of oil on the deck. See also Ktistakis v. United Cross Navigation Corp., 324 F.2d 728 (2 Cir. 1963); Shenker v. United States, 322 F.2d 622 (2 Cir. 1963), cert. denied American Stevedores, Inc. v. Shenker, 376 U.S. 907, 84 S.Ct. 659, 11 L.Ed.2d 606. The District Court's finding of 50% contributory negligence is amply supported by the record and must be sustained.

II. THE STEVEDORE'S APPEAL

We turn next to the stevedore's challenges to its being forced to bear half the costs of the plaintiff's mishap. The stevedore's first contention is that the District Court's finding that the sugar-coated deck rendered the ship unseaworthy was erroneous as a matter of law. The argument runs, somewhat inconsistently with the repairman tack taken below, that a thin layer of sugar normally accumulates on the deck whenever a cargo of sugar is unloaded and is simply one of the risks that seamen and longshoremen must anticipate. However, the plaintiff did not fall on the sugar which was in the same condition as it spilled from the ripped bags. The record reveals that the long rain had turned it into a treacherous molasses-like substance that made the deck unreasonably slippery. It is well settled that such a dangerous condition will make a ship not reasonably fit for its intended purpose and hence unseaworthy. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Ktistakis v. United Cross Navigation Corp., supra. See also Note 76 Harv.L.Rev. 819 (1963).

The stevedore resourcefully attempts to shoehorn the plaintiff within the line of cases which hold that a seaman injured by a defective condition which was his task to remedy may not recover on the ground of unseaworthiness. E. g., Walker v. Lykes Bros. S. S. Co., 193 F.2d 772 (2 Cir. 1952); Bruszewski v. Isthmian S. S. Co., 163 F.2d 720 (3 Cir. 1947). Assuming that the doctrine of these cases is still good law,¹ the plaintiff does not fit the shoe. Though his job was to salvage as much sugar as possible by sweeping up the spillage, the uncontradicted testimony makes it clear that it was impossible to remove all the sugar with a broom and shovel. A fine residue of sugar necessarily remains unless removed by hosing down the deck. There is no evidence that the plaintiff was charged with the task of hosing down the deck, a job customarily performed by the ship's crew.

The stevedore also attacks the District Court's finding that the shipowner was negligent in failing to exercise reasonable care to provide the plaintiff with a safe place to work. It is argued that there is no evidence to show that any...