Santomarco v. United States
| Citation | 277 F.2d 255 |
| Decision Date | 05 April 1960 |
| Docket Number | Docket 25833.,No. 234,234 |
| Parties | Thomas SANTOMARCO, Libellant, v. UNITED STATES of America, Respondent, and American Stevedores, Inc., Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Morris Cizner, New York City, Zimmerman & Zimmerman, New York City, for libelant-appellee, Thomas Santomarco.
Walter L. Hopkins, New York City, George Cochran Doub, Asst. Atty. Gen., Cornelius W. Wickersham, Jr., U. S. Atty., Brooklyn, N. Y., Samuel D. Slade, Leavenworth Colby, Benjamin H. Berman, Attorneys, Department of Justice, Washington, D. C., for the United States.
Albert S. Commette, New York City, Garvey & Conway, New York City, for impleaded respondent, American Stevedores, Inc.
Before LUMBARD, Chief Judge, and L. HAND and LEWIS, Circuit Judges.
This is an appeal from a decree in the admiralty of the District Court for the Eastern District of New York holding the United States liable to the libellant, a longshoreman, for injuries suffered on board the ship, "Henry Gibbins," and also holding the American Stevedores, Inc. (which we shall call "Stevedores") liable to the United States for indemnity under a contract between the parties. The facts were as follows.
The ship, "Henry Gibbins," owned by the United States was being loaded in Brooklyn, her starboard side against the pier. The libellant was a longshoreman, employed by "Stevedores," and was at work as a winch operator at the forward hatch (No. 1). At some time before four p. m. that day he had been at work at an after hatch, No. 4, and had moved to the forward winch. There was a winch at hatch No. 2, that had leaked oil, either because it had been overfilled, or was mechanically injured. The oil ran from the bottom of the winch across the deck, under some pontoons temporarily placed nearby, and thence to the starboard rail. Between the winch and the nearest pontoon the oil had spread to a streak six inches wide, and it had been tracked to a greater width by the footprints of a number of persons who had passed between the winch and the pontoons during the afternoon. Earlier in the afternoon the libellant had walked through this passage on his way forward from hatch No. 4 to hatch No. 1, and at about six o'clock, wishing to get a drink of water, he again walked through it to hatch 4. On coming back with water for another workman he walked through the passage a third time, and that time he slipped on the oil and fell on the deck, injuring his head, back and left hip.
Judge Zavatt held the United States liable under the maritime law because the libellant's injuries were the result of an unseaworthy condition of the deck, but he also held that the libellant had been guilty of contributory negligence "because he proceeded through an area of known danger without reporting or acting to remove the oil from the deck." He made no finding as to whether the libellant could have avoided the spot of oil by bringing back the water on the port side. Because of the libellant's contributory negligence he reduced his recovery by fifty per cent.
The liability, so reduced, the judge imposed on "Stevedores" under its contract to indemnify the United States, which therefore became only secondarily liable. That contract provided that "Stevedores" would "hold the Government harmless from any loss * * * for bodily injury * * * of persons"; but to this engagement there were two exceptions of which only the first is relevant here. This exception absolved "Stevedores," if "the unseaworthiness of the vessel or failure or defect of gear or equipment furnished by the Government contributed jointly with the fault or negligence of the Contractor * * * and the Contractor,...
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