Rosa v. A/SD/S Svendborg
| Decision Date | 03 October 1968 |
| Docket Number | No. 64 AD 831.,64 AD 831. |
| Citation | 1969 AMC 524,291 F. Supp. 84 |
| Parties | Giuseppe ROSA, Plaintiff, v. A/S D/S SVENDBORG, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Muscio, Camarda & Scibilia, Brooklyn, N. Y., for plaintiff.
Mendes & Mount, New York City, for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff is a longshoreman who in April 1961 was employed by Universal Terminal & Stevedoring Corporation. Plaintiff's employer had a contract with the owner of the defendant vessel, the A/S D/S Svendborg to unload cargo from the ship's hold at a pier in Brooklyn, New York, on April 26, 1961. At approximately 8:30 A.M. on that date, plaintiff and other members of his gang descended the number two hatch and commenced unloading coffee which had been stowed in that hold. The hatch had been covered by six wooden hatch covers. Each cover was eight feet long, one and a half feet wide, and "three fingers thick". There was a thick metal stripping around the edges of each hatch cover. Iron handles also were attached to each cover to facilitate lifting.
When plaintiff and his fellow employees came aboard ship at 8:00 A.M., their first task was to remove the hatch covers and place them on deck. Finding space on deck for the hatch covers was a problem. There had been stowed on deck alongside hatch number two other cargo, i. e., huge tree trunks. They had been stowed on deck at a port prior to the Port of New York. These logs occupied all of the space between the hatch coaming and the railing of the ship on the inshore side. The longshoreman, consequently, placed the covers in a space on the deck at the aft end of the hatch. This was a space just large enough to accommodate three of the covers, placed one on top of the other, on the inshore side and three on the offshore side.
The tree trunks were to be unloaded at a port subsequent to the Port of New York. They had not been covered in any way and had been exposed to the weather, including rain, for several days prior to April 26, 1961. These tree trunks were so large in circumference that, although the hatch coaming extended above the deck several feet, the trunks extended above the hatch coaming by at least a foot. The hatch coaming is an iron structure which forms the perimeter of the hatch and is approximately four or five feet above the main deck.
The placement of the tree trunks on the deck between the hatch coaming and the railing made it impossible for the signalman to walk on the deck between the hatch and the railing in the performance of his duties with relation to the winch operator, the men in the hold and the men on the dock. No catwalk had been constructed over this deck cargo as is the practice under such circumstances. Consequently, the longshoremen decided to improvise. Several of the 120 pound hatch covers were placed across the tree trunks by the signalman and other deckmen in lieu of the customary catwalk.
Since these hatch covers had not been secured in any way, they created a particularly hazardous condition with relation to the men working in the open number two hatch.
This hazard was exacerbated in this case by the fact that the winch operator, in operating the Burton winch, was required to cause the cargo sling to transverse the unsecured hatch covers in returning the empty sling to the hold. The sling was attached to the cargo hook. Each time the winch operator returned this wire sling from the dock, which he was forced to bring in very low, the empty sling touched the tree trunks. The necessity for the low return of the sling resulted from the fact that the sling when empty did not have sufficient weight to cause the Burton fall to descend properly into the hold. Therefore, the winch operator was obliged to bring the sling in low so as to facilitate the descent of the fall into the hold. If he did not bring in the sling low, it would remain dangling in the air due to the fact that the winches on this vessel were somewhat old and the worn rope in the block would get stuck. On one or two occasions when the sling remained suspended, the signalman walked on the hatch covers on top of the tree trunks and grabbed the fall with his hands and assisted its return to the hatch. It was during the course of operating the winch under the foregoing conditions that the sling on one occasion caught on one of the hatch covers and caused it to slip and fall into the hold where plaintiff was working.1
Plaintiff was struck on the head by the falling hatch cover, rendered unconscious, and removed in that state to a hospital in Brooklyn. Plaintiff remained in the hospital from April 26, 1961 to May 20, 1961.
As a result of the accident, plaintiff suffered a moderately severe cerebral concussion. He had a small laceration, ½ centimeter, at the vertex of the scalp. Although there was tenderness of the scalp, there was no fracture and no subdural hematoma. He also suffered a contusion of the left side of the skull. He sustained a contusion and sprain of the right shoulder and the cervical region (neck). He suffered the effects of the concussion which are referred to medically as a post concussion syndrome, i. e., amnesia as to events surrounding the accident, headaches, dizziness, and an unsteady gait. The latter symptoms were noted in the hospital record. The injury to plaintiff's right shoulder has left him with a permanent defect. He also has continued to have intermittent headaches and dizziness (resulting from a disturbance of the balancing mechanism of the ears) which are permanent residuals of the cerebral concussion which he suffered. Plaintiff also sustained a slight hearing loss which is not disabling as far as his work as a longshoreman is concerned.
After his discharge from the hospital, plaintiff continued to receive treatment for the injury to his neck and shoulder. He did not return to work until November 27, 1961. When he returned to work, he was assigned somewhat lighter duties on the dock for about a year, without any diminution in pay, before returning to the hold. Upon returning to the hold, he...
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Fleming v. American Export Isbrandtsen Lines, Inc., 177-178
...formula have specifically established the income that the plaintiff would have earned but for his injury. See Rosa v. A/S D/S Svendborg, 291 F.Supp. 84, 87 n. 3 (S.D. N.Y.1968); Candiano v. Moore-McCormack Lines, Inc., 251 F.Supp. 654, 661 (S.D.N.Y.1966), aff'd, 382 F.2d 961 (2d Cir. 1967),......