Petition — Farrell Lines, Inc. v. Canizzo

upreme Court, U. S$.

FILED

- | AUG 30 1978

M

ICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. .0.8.-358

FARRELL LINES INCORPORATED,

Petitioner,

against

ANTHONY CANIZZO, UNIVERSAL TERMINAL AND

STEVEDORING CORP., and FRANK J. HOLLERAN,

INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

George W. Sutirvan

Attorney for Petitioner

17 Battery Place

New York, New York 10004

JEFFREY V. Boxer

Litty, Suutuivan & PurcE tL, P.C.

of Cownsel

TABLE OF CONTENTS

PAGE

NN Sibir ewan nse siuasanas kerwanees 1

II och ace iakadedes coe kuteupseaeeennceas 2

Questions Presented for Review ..................-- 2

Statutory Provisions Involved .................... 2

Ee OD ORO oo ca swecanbatenesanenabess +

Reasons for Granting the Writ:

I—The decision below conflicts with the decisions of

other courts of appeals as to the standard of care

to be applied in personal injury suits under 33

SEC iCua an ccaee ke whetek sues oes do 5 7

11—The conflict in opinions between different panels

of the Second Cireuit Court of Appeals requires

intervention by this Court and exercise of its

Se NE ov disuse tsankeb neers esenes 11

I1I—The decision below raises significant and recur-

ring problems concerning the standard of care

to be utilized in New Act cases .............-... 12

ea REE uORed OE MW ORSON SEREADA ECHOES 13

Appendix:

9

Opinion of the Court of Appeals .................. la

Chmmbeen OF Che Thatrint Cort «oo. occ wececess 2la

Judgment of Court of Appeals .................... 35a

Restatement (Second) of Torts § 343-343A (1965) .. 37a

ii TABLE OF AUTHORITIES

Cases: PAGE

Anuszewski v. Dynamics Mariners Corp., 540 F.2d 757

(4th Cir. 1976), cert. denied, 429 U.S. 1098 (1977) 8

Brown vy. Ivarans Rederi A/S, 545 F.2d 854 (3d Cir.

1976), cert. denied, 430 U.S. 969 (1977) ........ 9

Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331

Es HEE 5 5 os tent liaws oanaen bad ein ee hrs 9

Chavis v. Finnlines Ltd., O/Y (4th Cir. decided May

ly EG MPOEMOE INO. 7T7-LEDO) onc ck cacnae viesces 8, 10

Cox v. Flota Mercante Grancolombiana, S.A. (2d Cir.

dec. May 10, 1978, Docket No. 77-7338) ........ 6, 8, 9,

10, 11, 12

Davison v. Pacific Inland Navigation Co., Inc., 569

ae ee A AR RO 2a choad ee eter ae ites 9

Gay v. Ocean Transport & Trading Ltd., 546 F.2d 1233

Fe Ek ok ts ib pada eee Sa eekeees 9

Hurst v. Triad Shipping Company, 554 F.2d 1237 (3rd

Cir. 1977), cert. denied, 46 U.S.L.W. 3218 (1977). 9,10

Lubrano v. Royal Netherlands Steamship Company,

oe a eM 8 ee | aOR ES 8

Marant v. Farrell Lines, Inc., 550 F.2d 142 (3d Cir.

Nis cas CEG EOS eek he Dee CEG 10

Munoz vy. Flota Mercante Grancolombiana, S.A., 553

gf ek gt Es Ja: 3 Ee ee em nee 7

Napoli v. TransPacific Carriers Corporation, 536 Fed.

ee ee A ROUT gous ence oeaerbaeu kuna 8

Riddle v. Exxon Transportation Co., 563 F.2d 1103

SE Ns RUE ESE oS ooo oe Cae heey owe a 8, 9, 10

Teofilovich vy. D’Amico Mediterranean/Pacific Line,

415 F Supp. 732 (C.DCal. 1976) .........0.600. 9

TABLE OF AUTHORITIES lii

Statutes and Rules: PAGE

Longshoremen and Harbor Workers Compensation

Act, Title 33 U.S.C.:

a eB Aree tse oRee Oe eee 2,3, 6,7

SE ors i ey wana nd opr Weis : 3

Rae Ae ee eter Shr ery eee ee 5

Other Authorities:

Restatement of Torts 2nd:

SN I boys oooh vse en ness 5, 7, 8, 9, 10

I fa sed W009 05 855 oo oe eRe ee cS 10

House Report No. 1441 (Education and Labor Com-

mittee) U.S. Code Congressional and Adminis-

trative News; 42nd Cong. 2d Sess. Page 4698

6 RAG aoe re Pr yr rr ere rer re ree wl:

In THE

Supreme Court of the United States

OCTOBER TERM, 1978

«

FarreLL Lines INCORPORATED,

Petitioner,

against

AnTHONY Canizzo, UntversaL TERMINAL AND STEVEDORING

Corp., and Frank J. Houveran, INc.,

Respondents.

,%

vr

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Farrell Lines Incorporated, prays that a Writ

of Certiorari be issued to review the decision of the United

States Court of Appeals for the Second Cireuit decided

June 2, 1978.

Opinions Below

The Opinion of the Court of Appeals in Farrell Lines

Incorporated v. Anthony Canizzo, Universal Terminal and

Stevedoring Corp., and Frank J. Holleran, Inc., is not yet

officially reported and appears in the Appendix. The

Opinion of the United States District Court for the South-

ern District of New York is not officially reported and

appears in the Appendix.

Jurisdiction

The Decision of the United States Court of Appeals for

the Second Circuit was entered on June 2, 1978. The de-

cision affirmed a finding by the District Court of vessel

liability and reversed and remanded for a redetermina-

tion of damages. A stay of the mandate was granted

on July 6, 1978 on consent of all parties pending the filing

of this petition. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1). Jurisdiction in the District

Court was invoked by virtue of 28 U.S.C. 1333 and the

case was tried without a jury pursuant to F.R. Civ. P. 38(e).

Questions Presented for Review

1. Under the 1972 Amendment to 33 U.S.C. 905(b), ean

a vessel owner be found liable for injuries to a longshore-

man caused by an unsafe condition which the vessel owner

could assume would be remedied by the independent con-

tractor even though a crew member may have acquired

knowledge of it?

2. Is a finding which imputes liability to a vessel owner

based on the probability that a crew member should have

seen a potentially unsafe condition, which could have been

remedied by the independent contractor, clearly erroneous?

3. Was the dismissal of the indemnity and contribu-

tion claims against the contractors in this case clearly

erroneous?

Statutory Provisions Involved

Unitep States Cope; Tirte 33 § 905(b).

In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover damages

en

Dishes coerce

SN A Rs eRe EDR RL Se

eS i On a ER

3

by reason thereof, may bring an action against such vessel

as a third party in accordance with the provisions of sec-

tion 933 of this title and the employer shall not be liable

to the vessel for such damages directly or indirectly and

any agreements or warranties to the contrary shall be

void. If such person was employed by the vessel to pro-

vide stevedoring services, no such action shall be per-

mitted if the injury was caused by the negligence of

persons engaged in providing stevedoring services to the

vessel. If such person was employed by the vessel to

provide ship building or repair services, no such action

shall be permitted if the injury was caused by the negli-

gence of persons engaged in providing ship building or

repair services to the vessel. The liability of the vessel

under this subsection shall not be based upon the warranty

of seaworthiness or a breach thereof at the time the injury

occurred. The remedy provided in this subsection shall

be exclusive of all other remedies against the vessel ex-

cept remedies available under this chapter. As amended

Oct. 27, 1972, Pub.L. 92-576, § 18(a), 86 Stat. 1263.

§ 941(a)

Every employer shall furnish and maintain employment

and places of employment which shall be reasonably safe

for his employees in all employments covered by this chap-

ter and shall install, furnish, maintain, and use such de-

vices and safeguards with particular reference to equip-

ment used by and working conditions established by such

employers as the Secretary may determine by regulation

or order to be reasonably necessary to protect the life,

health, and safety of such employees, and to render safe

such employment and places of employment, and to pre-

vent injury to his employees. However, the Secretary may

not make determinations by regulation or order under this

section as to matters within the scope of title 52 of the

Revised Statutes and Acts supplementary or amendatory

thereto, the Act of June 15, 1917 (ch. 30, 40 Stat. 220),

as amended or section 1333(e) of Title 43.

4

Statement of the Case

On January 12, 1973, petitioner’s vessel the SS AFRICAN

Comer, was berthed at Pier 5, Port Authority, Brooklyn,

New York. The vessel was loading cargo. Respondent

Universal, an expert independent contract stevedore, was

employed by Farrell to load various hatches of the vessel.

Respondent Holleran, an expert independent lashing and

carpentry contractor, was employed by Farrell to provide

separate lashing and carpentry gangs to secure and lash

the cargo loaded by Universal. Both Universal and Hol-

leran provided their own employees, foremen and equip-

ment to perform their respective work. Canizzo was

employed by Holleran in one of the carpentry gangs.

The loading commenced at approximately 8:00 A.M. on

that day. Respondent Canizzo was working in various

hatches between 8:00 and 5:00 P.M. Between 1:00 and

1:30 P.M. locomotives were loaded by Universal on the

inshore and offshore sides of the No. 6 hatch. The steve-

dores left a walkway on either side of the locomotives.

There were no potentially unsafe conditions in either area

prior to the time when the locomotives were loaded and

in fact immediately afterwards. A lasher employed by

Holleran claims that he observed an area of erease, with

wires on top of it, in the walkway adjacent to the inshore

locomotive after 1:30 P.M.

At 5:15 P.M. Canizzo was traversing the area between

the locomotive and the inshore hatch coaming. As he

walked between the two, he stated ‘‘after I took a few

steps [ slid and I stumbled and I tried to get my balance,

| couldn’t, and I fell over on my hands and knees, hurt-

ing my right hand and my left leg.’’ After the accident

he observed grease on his overalls and that ‘‘there were

a few wires there with grease on them and cluster lights

with the wire hanging, you know, all messed up.”’

%

5

‘

®:

5

At the time of this alleged accident, the contractors were

performing loading and securing work in the hatch and

on the locomotive. Their employees were working in the

area all day.

There was no testimony that the vessel’s crew placed

cluster lights in that area or had anything to do with

the grease, although an inference was drawn by the Dis-

trict Court from conflicting and speculative testimony that

a member of the crew placed the cluster lights there.

The District Court found the vessel negligent because

the crew member, by placing the cluster lights in the area

on top of other wires and grease, contributed to the po-

tentially unsafe condition. It also found that the unidenti-

fied crew member who placed the cluster lights should

have seen the grease. The basis of the finding of vessel’s

liability was Restatement of Torts (Second) 343-343A.

(37a)

William Davis, the superintendent of the stevedores,

and Jack Holleran, the owner/president of Holleran, both

testified that if any debris or grease accumulated in their

working area their men would clean it up. Davis indicated

that his men kept the walkway clear. In fact, he was there

as late as 4:30 in the afternoon during that day and made

sure that the walkway was clear. If grease had accumulated

on the site of the accident, the responsibility for removing

it or warning workers about it rested primarily on these

independent contractors who had assumed this function.

As indicated in the dissent filed by Judge Friendly, the ship

“would therefore certainly not have been negligent if it

merely failed to discover the existence of the grease within

the hours this assertedly accumulated.”

Under traditional principles, namely the contractors’

warranty to perform their work in a workmanlike fashion,

and compliance with safety and health regulations for long-

shoring, 29 C.F.R. 1918.19(¢), requiring slippery conditions

to be eliminated as they occur, the responsibility for this

6

potentially unsafe condition remained with the contractors.

Thus, even if we accept the lower Court’s finding that an

unidentified crew member should have seen the grease,

there was no reason to think, as noted by Judge Friendly,

that the independent contractors, who were primarily re-

sponsible for the safety of their workers, would not take

care of the problem as they were bound to do. Certainly,

at the very least, the vessel’s indemnity and contribution

claim against the contractors should have been sustained.

While Holleran was entitled to the 905(b) statutory im-

munity from suit, the cause of action against it, in the in-

stant case, was based on the fact that it employed both a

lashing and a carpentry gang with separate foremen,

workers and tools. Because of the negligence of the lash-

ers, which resulted in an injury to a carpenter, Holleran

could not claim the statutory immunity. The immunity from

suit granted to employers under section 905(b) only covers

the situation where the negligence of fellow workers causes

an injury, not every worker engaged in providing a service

to the vessel, i.e., those engaged in the same service being

provided to the vessel.

The lower Court found Farrell liable and dismissed the

cross-claim against co-defendants Universal and_third-

party defendant Holleran, and found Canizzo 40% eontribu-

torily negligent. The net verdict amounted to $65,628.60.

The Court of Appeals, by a divided panel, affirmed the

decision on liability and reversed and remanded a portion

of the damages to be redetermined by the lower Court.

Judge Friendly dissented from the holding as to liability.

The decision of this panel was filed three weeks following

the decision in Coz v. Flota Mercante Grancolombiana, S.A.

(2d Cir. dec. May 10, 1978, Docket No. 77-7338, petition for

writ of certiorari filed October term, 1978, Docket No. 78-

72). It was recognized in both the majority and minority

Canizzo opinions that the decision in Canizzo cannot be

reconciled with Coz.

~)

Reasons for Granting the Writ

I

The decision below conflicts with the deci-

sions of other courts of appeals as to the

standard of care to be applied in personal in-

jury suits under 33 U.S.C. 905(b).

The 1972 amendment to the Longshoremen and Harbor

Workers’ Compensation Act, 33 U.S.C. 905(b), dissolved

the tripartite litigation between longshoremen, shipowners

and stevedore employers. As indicated by Chief Judge

Kaufman in Munoz v. Flota Mercante Grancolombiana,

S.A., 553 F.2d 837 (2d Cir. 1977):

the worker could recover only for injuries proxi-

mately caused by the shipowner’s negligence, not un-

seaworthiness. The stevedore employer no longer

could be impleaded and fear of the coercive effects of

unequal bargaining power led Congress to prohibit in-

voluntary indemnification accords. Federal Courts

were to fashion a uniform law of negligence in future

cases based not upon the doctrine of unseaworthiness

but by analogy to landbased common law tort prin-

ciples.

It was the intent of Congress that a uniform standard of

care be developed. House Report No. 1441 (Education

and Labor Committee) U.S. Code Congressional & Ad-

ministrative News; 42 Cong. 2d Sess. Page 4698 et. seq.

1972.

With respect to the vessel’s liability for injuries caused

by “open and obvious conditions,’’ when such a condition

can be remedied by the independent contractor, there has

been a complete division among the Circuits. The conflict

is centered on the application of Sections 343-343A of the

Restatement (37a) as the appropriate standard of care. The

traditional land-based rule was that no liability attached to

8

the possessor for “open and obvious conditions.” Section

343A, adopting the so-called modern trend, modified that

rule.

In Napoli v. TransPacific Carriers Corp., 5386 F.2d 505

(2d Cir. 1976) the Second Circuit announced Section 343A

as the standard of care in cases dealing with injuries to

longshoremen under the amended statute. But that deci-

sion appeared to be limited in its application to those

situations where the stevedore and the vessel owner were

one and the same, i.e. where the vessel was the same as

the possessor of land without the intervention of an inde-

pendent contractor. The panel deciding Lubrano v. Royal

Netherlands SS Co., 572 F.2d 364 (2d Cir. 1978) indi-

cated that it would not so limit Napoli. The decision in

Cox however, limited the application of Napoli to a factual

setting in which the vessel acts as its own stevedore. The

majority in Cox indicated that it was following the Fourth

Cireuit opinions in Anuszewski v. Dynamics Mariners Corp,,

540 F.2d 757 (4th Cir. 1976) cert. denied, 429 U.S. 1098

(1977) and Riddle v. Exxon Transportation Co., 568 F.2d

1103 (4th Cir. 1977) whieh Judge Friendly cited in his dis-

sent in the instant case. Judge Russell’s comments in

Riddle set forth the Fourth Cireuit’s open and obvious rule:

However, even under the modern rule a vessel is not

liable for ‘open and obvious’’ dangerous conditions,

whether existing at time control of the vessel is re-

linquished by the vessel or arising afterwards with the

knowledge of the vessel if the danger is such that the

stevedore or shipyard would be expected to correct

the condition in the course of discharging its respon-

sibility for the safety of the longshoremen or ship-

yard worker.

The Fourth Cireuit has rejected the Seeond Circuit’s

Napoli application of 343A under circumstances similar to

those found in Canizzo and Lubrano. Chavis v. Finnlines

Ltd., O/Y (4th Cir. decided May 22, 1978 Docket No. 77-

1126).

9

The Third Cireuit in Hurst vy. Triad Shipping Company,

094 F.2d 1237 (3rd Cir. 1977) at page 1249 N. 35, cert.

denied, 46 U.S.L.W. 3218 (1977), has also specifically disap-

proved the application of 343 and 343A. See also Brown

v. Ivarans Rederi A/S, 545 F.2d 854, at page 863 N.10

(3rd Cir. 1976), cert. denied, 430 U.S. 969 (1977). The

Fifth Cireuit has followed the application of 343-3434

without the limitation suggested in Coa and Riddle and

Judge Friendly’s opinion in Canizzo. Brown v. Mitsubishi

Shintaku Ginko, 550 F.2d 331 (5th Cir. 1977); Gay v.

Ocean Transport & Trading Ltd., 546 F.2d 1233 (5th Cir.

1977). The Ninth Cireuit has also adopted 343-343A.

Teofilovich v. D’Amico Mediterranean/Pacific Line, 415

F.Supp. 732 (C.D.Cal. 1976). Judge VanPelt in Davison

v. Pacific Inland Navigation Co. Inc., 569 F.2d 507 (9th

Cir. 1978) page 508 N.1, has set forth this split among

the Cireuits with respect to the standard of care to be

applied in New Act cases.

There is no indication that there will be a resolution

among the Cireuits of the question of the appropriate and

uniform standard of care directed by Congress to be ap-

plied in New Act eases. It appears that the conflict has

been crystallized not only between the Circuits, but even

among different panels of the Second Circuit.

As analyzed by Judge Friendly, if the responsibility of

the contractors with respect to their obligations, both under

the safety regulations and the applicable law, had been

taken into consideration by the lower Court and by the

majority of the panel, the complaint in Canizzo would have

had to be dismissed. The lower Court only considered

the responsibilities as indicated in 343A of Farrell to

Canizzo. Congress did not intend to subject the vessel

to liability in situations of this kind. The majority opinion

suggests,

We are faced, then with a difficult problem of line

drawing which at this stage in the development of

10

legal doctrine is best undertaken on a case by case

basis. (7a)

The effect of the decision and the further expansion of

343A creates by indirection a non-delegable duty on the

part of the vessel owner. This is pointed out clearly by

the Third? and Fourth Circuits’ and by the opinion in

Cox. By applying Section 343A the Court effectively elimi-

nated from consideration the responsibility of the inde-

pendent contractors who have been entrusted with the

primary duty to provide their employees with a safe place

to work. 33 U.S.C. 941(b). Marant v. Farrell Lines, Inc.,

550 F.2d 142 (3d Cir. 1977). More importantly, Section

343A removes the incentive for the contractors to provide

their employees with a safe place in which to work and

circumvents the Congressional intent.

Thus, the varying conflicts among the Courts of Ap-

peals unresolved to date and which cannot be resolved

hy future litigation requires a determination by this Court

as to the appropriate standard of eare to be used in New

Act cases.

The importance of such a decision can scarcely be under-

estimated in light of the great number of cases which are

pending wherein longshoremen are seeking to recover dam-

ages for personal injuries and in which the verdict will

depend on the Cireuit in which the longshoreman was in-

jured and/or the shipowner resides.

* Hurst, supra at p. 1249 N.35.

’ Riddle, supra, Chavis, supra.

‘The proper Restatement section as approved by Hurst and

more recently in Chavis is Seetion 409 of the Restatement of Torts

(Second). While the effect of Section 409 was alluded to by

the majority (6a) they viewed its application as “too strict a

view.” Possibly this panel’s concept that the workmen’s com-

pensation benefits were not adequate under the new scheme was

the paramount consideration (9a N.3). This of course is not

correct and contrary to the entire legislative history and statu-

tory scheme.

11

The conflict in opinions between different

panels of the Second Circuit Court of Appeals

requires intervention by this Court and exer-

cise of its supervisory powers.

The decision of the Court of Appeals in Canizzo cannot

be reconciled with the decision of a different panel rendered

three weeks previously in Cox. The plaintiff in Cor has

filed a petition for a writ of certiorari. The majority in

the instant case indicates,

While each case must be determined on its own facts

the result in Cox cannot reasonably be reconciled with

the result here by the difference in the factual situa-

tions. (Footnote 3) (9a-b).

Judge Friendly states:

While the majority disregards Cox because the opin-

ion was handed down in ‘he face of known disagree-

ment by majority of this panel, our district judges

ean searcely be expected to function with so discordant

a chorus on this court (17a).

In footnote 7 Judge Friendly notes:

Indeed the facts in Cox were stronger for the em-

ployees (17a).

In Cox there was evidence that the vessel had assumed

the responsibility to place pins in the hatch beams and had

retained control over that particular function. Plaintiff

was injured when a hatch beam which allegedly was to be

secured by the vessel’s chief mate fell on top of him. The

panel in Cox limited Napoli and refused to impute liabil-

ity to the vessel because of a dangerous condition which the

contractor could have remedied.

12

At the present time the District Judges in the Southern

District cannot determine which standard of care is appli-

eable in New Act longshore cases but more importantly,

the “differences of opinion and known disagreements’’

which existed when these decisions were handed down re-

quire that this Court entertain its supervisory power and

finally resolve this troublesome issue, so that a uniform

standard of care can be utilized within this Circuit and the

other Circuits.

The decision below raises significant and

recurring problems concerning the standard

of care to be utilized in New Act cases.

It has been indicated that various District Judges in the

Southern District of New York have placed longshore ac-

tions on a suspense calendar until final resolution of the

Cox-Canizzo conflict. In actuality the dispute among the

various Circuits is exactly the same as can be found in

Cox and Canizzo.

While not every case falls within the penumbra of Cox

and Canizzo, the majority of longshore litigation through-

out the country does require a resolution of the question of

the applicable standard of care as it relates to “open and

obvious conditions.’’ The fact of the matter is that a dif-

ferent legal principle will be applied in the Third and

Fourth as opposed to the Second, Fifth and the Ninth Cir-

cuits. Even more disconcerting is that the possibility that

a verdict appealed to the Second Cireuit would be de-

cided based on the panel designated to review it as has

happened with the two cases at hand. A vast amount of

resources will be needlessly expended both in trial Judge

time, lawyers’ time and expenses, in cases in which the

sole reason for litigation is the confusion as to the ap-

propriate standard of care.

a al aa a ee

13

CONCLUSION

For these reasons, a writ of certiorari should issue

rs review the judgment and opinion of the Second

ircuit.

Respectfully submitted,

Grorce W. Sutiivan

Attorney for Petitioner

17 Battery Place

New York, New York 10004

JEFFREY V. Boxer

Litty, Sutiivan & Purce.n, P.C.

Of Counsel

(63408)

4

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la

OPINION OF THE COURT OF APPEALS

UNITED STATES COURT OF APPEALS

For tHE Seconp Circuit

<tt> i»

——

Nos. 346, 488—September Term, 1977.

(Argued December 8, 1977 Decided June 2, 1978.)

Docket Nos. 77-7292, 77-7332

AnTHONY Canizz0,

Plaintiff-Appellee and

Cross-A ppellant,

v.

FarreELL Lings, Ino.,

Defendant-Appellant and

Cross-Appellee,

and

UniversaL TERMINAL AND STEVEDORING CorpP.,

Defendant-Appellee and

Third Party Plaintiff,

FarreLL Lines, Inc.,

Third Party Plaintiff-Appellant,

Vv.

Frank J. Horieran, Inc.,

Third Party Defendant-Appellee.

2a

Opinion of the Court of Appeals

Before:

Frimenbiy, SmirH and MEsKILL,

Circuit Judges.

Appeal from money judgment for personal injuries to

longshoreman against shipowner in the United States

Distriet Court for the Southern District of New York,

Charles L. Brieant, Jr., Judge.

Affirmed in part, reversed in part and remanded for

further proceedings.

owe

a

Jerrrry V. Boxer (Lilly, Sullivan & Purcell,

New York, N.Y.), for Farrell Lines, Inc.

Riowarp J. Carpars (Cohen & Cardali, New

York, N.Y.), for Anthony Camizzo.

Ausert S. Commerre (Commette, Quencer &

Annunziato, New York, N.Y., Robert K.

Marzik, of counsel), for Universal Terminal

and Stevedoring Corp.

Joun T. Suean, New York, N.Y. (J. Robert

Morris, New York, N.Y., of counsel), for

Frank J. Iolleran, Inc.

Smiru, Circuit Judge:

Farrell Lines, Inc. (“Farrell”) appeals from a decision

and order of the United States District Court for the

Southern District of New York, Charles L. Brieant, Jr.,

Judge, finding Farrell liable for injuries sustained by

appellee Anthony Canizzo in an accident on board Far-

rell’s ship, the S.S. African Comet. The court found Far-

rel] liable for damages in the net amount of $65,628.60,

after a deduetion which included $8500 per year for re-

3200

i Se

ee ee ee

St ne ee matt dabei ena ed

3a

Optnton of the Court of Appeals

maining earning ability and 40% contributory negligence,

and Canizzo cross-appeals from this reduction in the

damage award.

For the reasons adduced below, we affirm in part and

reverse in part the judgment of the district court and re-

mand the case for further proceedings consistent with this

opinion. .

I.

This suit commenced with the filing of a complaint

against Farrell and Universal Terminal and Stevedoring

Corp. (“Universal”), an independent stevedore loading

cargo on board the African Comet on the day of the acci-

dent, Farrell impleaded Frank J. Holleran, Inc., Canizzo’s

employer, as a third-party defendant, and filed a cross-

claim against Universal. Universal then filed a cross-claim

against Holleran. The district court dismissed Canizzo’s

action against Universal, Farrell’s cross-claim against Uni-

versal, Farrell’s third party complaint against Holleran

and Universal’s cross-claim against Holleran.

On January 12, 1973, the day of the accident, Universal

was employed by Farrell to load the African Comet. Hol-

leran provided lashing and carpentry personnel to secure

the cargo after it was loaded by Universal. Canizzo worked

for Holleran as a carpenter. At approximately 5:00 p.m.

Canizzo was instructed to move from one part of the ship

to another in order to continue his work. In so doing, he

was forced to traverse a narrow passageway between a

locomotive stowed on the inshore area of the deck and a

nearby hatch coaming. While walking through this pas-

sageway, Canizzo slipped on a patch of grease which was

partially covered by a pile of wires which lay on the deck.

Canizzo sustained permanent injury to his knee, and as a

result, is unable to work as a marine carpenter or long-

shoreman. He is not, however, totally disabled.

3201

4a

Opinion of the Court of Appeals

The trial court found that the ship’s crew placed cluster

lights and their attached electrical wires in the passageway

in question after 4:00 or 4:30 p.m., but at least one- -half an

jour before Canizzo’s accident. The lights, wires, and other

clutter which lay on top of the greasy deck created an “ob-

viously dangerous” condition which would have been ob-

vious to any prudent person. The court found that Farrell

had actual or constructive notice of this condition inasmuch

as the ship’s personnel should have seen the grease on the

deck when they put out the cluster lights. Furthermore, the

crew should have anticipated that Canizzo would be unable

to avoid the dangerous condition on the deck. This, the

district court believed, was sufficient to bring Farrell with-

in the negligence standard of § 343A of the Restatement

(Second) of Torts (1965),! which was adopted in this

court’s opinion in Napoli v. Trans Pacific Carriers Corp.,

536 F.2d 505 (2d Cir. 1976).

The court found further, however, that Canizzo had

been contributorily negligent in failing to walk with suff-

cient caution, or alternatively, in failing to avoid the wires

by taking a different route to the No. 6 hatch. It was

further held that Canizzo’s damages were reduced, inas-

much as he was capable of earning $8500 per year. Ac-

cordingly, the trial court awarded Canizzo $109,381.00

reduced by reason of contributory negligence to $65,628.60.

II.

This suit is brought pursuant to the Longshoremen’s and

Harbor Workers’ Compensation Act (“LHWCA”), 33

1 Section 343A provides:

(1) A possessor of land is not liable to his invitees for physical

harm cansed to them by any activity or condition on the land whose

danger is known or obvious to them, unless the possessor should

anticipate the harm despite such knowledge or obviousness.

3202

ee ee ee ner ed

Cents 2D tenet ay tes Bo

5a

Optnton of the Court of Appeals

U.S.C. § 901 et seg., as amended. Amendments to the Act

passed in 1972 increased levels of compensation payable to

injured longshoremen, eliminated the doctrine of unsea-

worthiness as it pertained to shipowners, made a ship-

owner’s negligence a necessary condition of his liability,

and immunized independent stevedore-employers from li-

ubility in exeess of compensation payments. In the words

of the House Report:

The Comittee believes that where a longshoreman or

other worker covered under this Act is injured throngh

the fault of the vessel, the vessel should be liable for

damages as a third party, just as land-based third

parties in non-maritime pursuits are liable for dam-

ages whien, through their fault, a worker is injured.

[But] the Committee believes that especially with the

vast improvement in compensation benefits which the

bill would provide, there is no compelling reason to

continue to require vessels to assume what amounts to

absolute liability for injuries which occur to Jongshore-

men .. . who are injured while working on those

vessels.

Accordingly ... it would be fairer to all concerned .

for the liability of vessels as third parties to be pre-

dicated on negligence, rather than the no-fault concept

of seaworthiness,

[Report of the House Education and Labor Commit-

tee, H.R. Rep. No. 92-1441, 92nd Cong., 2d Sess., 1972

U.S. Code Cong. & Ad. News, 4698 at 4702-03. 1]

See Lubrano v. Royal Netherlands Steamship Co., ——

¥'.2d slip op. 1533 (2d Cir, Feb. 15, 1978); Ruffino v.

Scindia Steam Navigation Co., 559 F.2d 861 (2d Cir. 1977) ;

Munoz v. Flota Merchante Grancolombiana, S.A., 553 2d

3203

6a

Opinion of the Court of Appeals

837 (2d Cir. 1977); Napolt v. TransPacific Carrters Corp.,

supra, 536 \".2d 505; Landon v. Lief Hoegh & Co., 521 F.2d

756 (2d Cir. 1975), cert. dented, 423 U.S. 1053 (1976).

Under the relevant previsions of the Restatement (Sec-

ond) of Torts (1965), possessors of land, and hence ship-

owners, are liable for physical harm caused to invitees by

dangerous conditions which are not obvious to the invitee

(§ 343), but are absolved from liability when dangerous

conditions are known or obvious, except when the possessor

should anticipate the harm despite the invitee’s knowledge

or the obviousness of the condition. (§ 343A.)

Thus in Napoli, supra, we held that where a longshore-

man had fallen from unsecured planks, there was sufficient

evidenee of the shipowner’s knowledge of “obviously dan-

eerous conditions” that were unlikely to be avoided by the

longshoreman, that the case should have gone to a jury for

n determination of the shipowner’s negligence under

§ 343A of the Restatement (Second) of Torts. 536 F.2d 505.

A shipowner, however, can only be liable under § 343A

“f he knows or should have known of the obviously danger-

ous, but unavoidable, condition. Ruffino v. Scindia Steam

Navigation Co., supra, 559 F.2d at 862; Munoz v. Flota

Merchante Grancolombiana, S.A., supra, 553 F.2d 837.

While these principles are reasonably clear, considerable :

legal uncertainty remains in cases in which the negligence

of a shipowner combines with the negligence of an indepen-

dent stevedore to cause injury to a longshoreman. Simi-

larly, when harm is caused by an independent stevedore

viven complete control over the loading of a ship, it is

unclear whether, everything being equal, a shipowner is’

linble for that harm even when he has knowledge of the

dangerons condition eaused by the stevedore. See Restate-

ment (Second) of Torts, §§ 409-429; Lubrano v. Royal

Netherlands Steamship Co., supra, slip op. 1533 at 1539

3204 -

ie Pi lah Baits ¢ We ition’ Sis La i alts ns a andes

7a

Opinion of the Court of Appeals

(Mocre, J, dissenting) ; Hickman vy. Jugoslavenska Lin-

wyska Plovidba Rijeka, “Zvir”, F.2d

1459 (2d Cir., Feb. 2, 1978).

’ slip op.

| Too strict a view of a shipowner’s liability in these situa-

tions would do much to diminish the salutary effects of the

1972 amendments by, in effect, making shipowners liable

onee again, on what is akin to an nnseaworthiness iaatanl:

but without recourse to contribution on the part of a new.

ligent stevedore, Too lax a view would specifically contra-

dict the congressional intention to make shipowners liable

for their own negligence under the amended statute. See

Report of the House Edueation and Labor Committee

H.R. Rep. No. 92-1441, supra, at 4701-02. We are faced,

then, with a difficult problem of line drawing which, at this

stage in the development of the legal doctrine ‘is best

undertaken on a case by case hasis. ii

In the instant case, the trial court found Farrell liable

on either of two alternative legal theories. First, it found

that the ship’s crew placed cluster light wires i top of a

pateh of grease, thereby creating the dangerous condition

which was the proximate cause of Canizzo’s injury. Second

it found that, in placing the cluster lights on the deck the

crew observed or should have observed the greasy cite,

and was therefore on notice of the obviously unsafe condi-

tion aboard ship.

These findings rest on the trial court’s assessment of

the credibility of plaintiff and of two of plaintiffs wit-

nesses, Mazze and Trovato, both of whom were fellow em-

ployees and friends of plaintiff and both of whom had

unrelated injury claims pending. The court found both

biased in plaintiff’s favor and rejected portions of the testi-

mony of each, notably that of Trovato that a ship’s officer

had observed the dangerous conditions at 1:00 or 2:00 p.m

The court did, however, credit the festimony that the

3205

8a

Opinion of the Court of Appeals

grease, Wire and cluster light wires existed in the area of

the accident, that the grease was there at 1:30 or 2:00, and

that the cluster lights had been placed on deck by the ship’s

company.*

These conclusions are based primarily on the weighing

of testimony hy the trier who had the opportunity to ob-

serve witnesses Mazze and ‘Trovato on the stand and listen

to them under direct and cross-examination, and we find

no basis for setting them aside. The existence of a sub-

stantial area of grease in a narrow passageway, which

should have been known to the ship’s personnel, made more

dangerous by the positioning by the ship’s personnel of the

cluster lights and wires upon the greasy area supports

the finding of negligence on the part of the ship and justi-

fies the plaintiff's judgment even under the new dispen-

sation.

There is a strong presumption in favor of a trial court’s

findings of fact if supported by substantial evidence, Pam-

pillonia v. Concord Line, A/S, 536 ¥.2d 476 (2d Cir. 1976),

Luigi Serra, Inc. v. SS Francesco C, 379 F.2d 540 (2d Cir.

1967) (maritime negligence). Such findings may be set

aside only if clearly erroneous. Rule 52(a), Fed. R. Civ. P.

Where no substantial evidence supports a factual deter-

2 While the testimony concerning the cluster lights is to some degree

vague and inconsistent, there is some substantial basis for the court to

conclude that it was more probable than not that the crew put them

out. The longshoremen had often worked this ship and were familiar

with its lighting. Trovato testified that “they” put two lights near every

hatch and that the ship owns the cluster lights, Canizzo that the crew

takes care of them, Dennen (a Farrell witness by deposition) testified

that they are owned hy the ship, are ship’s gear, are stowed adjacent

to the hatch, are made available and are available to where they are

needed. Holleran indicated hat they were ship's gear but usually hooked

up hy longshoremen. Davis, a ship superintendent for Universal, hy

deposition testified that the crew pute the cluster lights out and brings

them to the hateh but that either the crew or Universal's mon plug

thom in. There is no indication that the clustor lights in question had

yet been hooked up.

3206

9a

Opinton of the Court of Appeals

mination, it is clearly erroneous, and properly set aside.

United States ea rel. Paros vy. Rundle, 491 F.2d 447, 452

(3d Cir. 1974); Hodgson v. Fairmont Supply Co., 454 F.2d

490, 495 (4th Cir. 1972); Shenker v. United States, 322

V.2d 622, 624 (2d Cir.), cert. denied sub nom. American

Stevedores, Inc. v. Shenker, 376 U.S. 907 (1963); Apache

Powder Co. v. Ashton Co., 264 F.2d 417, 422 (9th Cir,

1959); Cleo Syrup Corp. v. Coca-Cola Co., 139 F.2d 416,

418 (8th Cir. 1943), cert. denied, 321 U.S. 781 (1944); see

SA Moore’s Federal Practice § 52.03|1] +9 Wright & Miller,

Federal Practice & Procedure § 2585 un, 8.

Here the question is not so much whether the evidence

supporting the findings on liability is substantial as

whether it is credible. We are not convinced that the deter-

mination of credibility is clearly erroneous, although a con-

trary ruling might have been supportable.

The judgment establishing the ship’s liability must be

affirmed.’

3 Cor v. Flota Mercante Grancolombiana, S.A. was decided May 10,

1978, slip op. 2989ff, while this case was sub judice. Cor seems to us

in conflict with at least Lubrano v. Royal Netherlands S.S. Co.,

F.2d , Slip op. 1533 (2d Cir. Feb. 15, 1978), among the decisions

in this circuit.

While each case must be determined on its own facts, the result in

Cox cannot reasonably be reconciled with our result here hy the differ-

ences in the factual situations, for the proof of ship’s negligence in

Coz was at least comparable to that here. With all respect, however,

we must disagree with the result in Cor. It appears to us to do what

the Congress was unwilling to do, abolish the shipowner’s liability to

the injured longshoreman in negligence as well as in unseaworthiness.

As Judge Friendly points out, liability of the ship for such negligence

as a greasy deck attributable to the ship’s company was specifically

contemplated and thought to be preserved by the legislation.

Litigation in this troubled field would he tidior if the Congross had

eliminated altogether the ship’s possible liability to longshoremen. Thore

ate, however, other considerations.

Benefits under the Longshoremen’s and arbor Workers’ Act have

been considerably ingreased. We ennnot overlook the fact, however, that

as is usual under workmen's compensation schemes, they do not fully

compensate for the loss suffered. Tf tho ship, not a purty to the em-

3207

10a

Opinion of the Court of Appeals

ITT.

The trial court found that because of Canizzo’s experi-

ence as a carpenter and his above-average intelligence, he

was capable of earning $8500 per year. While we do not

quarrel with the court’s estimation of Canizzo’s intelli-

gence, we are forced to conclude that it has taken an un-

founded view of the employment potential of a 58-year-old,

partially-disabled marine carpenter who has a history of

heart trouble. While Canizzo may he capable of some em-

ployment, the record lacks any evidence as to its nature,

availability or rate of compensation. The finding that he

ean earn $8500 per year unti! his retirement leaves this

court “with the definite and firm conviction that a mistake

has been committed” and that this finding is consequently

clearly erroneous. Untied Siaies v. U.S. Gypsum Co., 333

U.S. 364, 395 (1948); Schley v. CIR, 375 F.2d 747, 749-50

(2d Cir. 1967); Rule 52(a), Fed. R. Civ. P.

Accordingly, we must remand this case for redetermina-

tion of Canizzo’s damages.

The court’s dismissal of charges against Universal for

failure of proof of Universal’s negligence, and its dismis-

sal of charges against Ifolleran, as forbidden by the terms

of 33 U.S.C. § 901 et seqg., as amended, were correct.

The judgment of the district court is affirmed on the

issue of liability, reversed on the issue of damages, and

the case is remanded for further proceedings consistent

with this opinion.

= =

—orr

ployment contract, is absolved from liability for its own rogligence,

this uncompensated loss, which may be very great, is shifted from the

negligent ship to the often innocent employee. The terms of the statute

and the legislative history indicate to us that while Congress was willing

to shift the burden of injury without fault to an improved compen-

sation system for shore workers (who arguably nover should have heen

classified with seamen anyway) it was not willing so to shift the burden

of injury through the fault of the ship. This policy judgment we would

leave to the Conpress.

3208

lla

Opinion of the Court of Appeals

Frrenpiy, Circuit Judge, dissenting from the holding as

to liability:

Courts must be exceedingly careful in defining the con-

tours of the longshoreman’s action for negligence against

the ship, which was preserved by §905(b) of the 1972

amendments to the Longshoremen’s and Harbor Workers’

Compensation Act (LITWCA), lest too expansive notions

of the ship’s duty vitiate Congress’ intent to do away with

absolute liability for vessels (the ‘“unseaworthiness” doc-

trine) and make greatly improved compensation benefits

the primary remedy for longshoremen and harbor workers.

Congress’ objective, as is ,;well known, was to curtail the

triangular action whereby a longshoreman' who had al-

ready received compensation benefits from his employer?

would bring a suit for unseaworthiness against the ship,

which in turn would sue the employer. See Munoz v. Flota

Merchante Grancolombiana, SA, 553 F.2d 837, 839-40 (2

Cir. 1977). Much of any recovery by the longshoreman

would return to his employer’s compensation insurer in

satisfaction of its lien; another substantial portion would

go to the plaintiff's lawyer and medical experts; and there

would be a further transactional cost in the ship’s recovery

from the employer of its cost of defending against the

longshoreman’s suit. See, e.g., McLaughlin v. Trelleborgs

Angfartygs A/B, 408 F.2d 1334 (2 Cir.), cert. denied, 395

U.S. 946 (1969). Unless the courts keep the longshore-

man’s negligence action against the ship within proper

] For simplicity I shall generally use the word “Jongshoreman” to in-

clude all persons covered by the Longshoremen’s and Harbor Workers’

Compensation Act, and the word “stevedore” to include their employers,

althongh plaintiff Canizzo was a marino carpenter. Cf. 35 U.S.C. § 992

(3) and (4).

2 Before the 1972 amendments these were often inadoquate, see Munoz

v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 839 (2 Cir.

1977).

3209

l2a

Opinton of the Court of Appeals

bounds, the ship’s situation will be worse in some respects

than before since it will be deprived of its former third

party action against the longshoreman’s employer. More-

over, the increased compensation payments, which Con-

gress conceived as the usual source of making the long-

shoreman whole, will absorb a still larger share of his

recovery against the ship with consequent attenuation of

any benefit to the injured worker. And all this despite the

fact that the employer is generally in a far better position

than the ship to prevent accidents to its employees. Sec

Tubrano v. Royal Netherlands S.S. Co., slip ops. 1533,

1546-47 & n.7 (2 Cir. Docket No. 77-7211, Feb. 15, 1978)

(Moore, J., dissenting). Such a result would contravene

the objective of Congress whereby

. adequate workmen’s compensation benefits .. .

by assuring that the employer bears the cost of un-

safe conditions, serves [sic] to strengthen the em-

ployer’s incentive to provide the fullest measure of

on-the-job safety.

H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972), reprinted

in 3 U.S. Code, Cong. & Ad. News 4698, 4699 (1972).°

Nothing in the language of the statute or prior decisions

of this court or others can justify imposition of liability

on the ship under such circumstances as are presented

here.

In retrospect it seems to have been a mistake for courts

to give such talismanic significance to §§ 343 and 343A of

the Restatement of Torts 2d as has sometimes been done.

These sections are awkwardly drafted;‘ the framers had

3 Tdentical language appears in the Senate Report, No. 92-1125, 92d

Cony., 2d Sess, 2 (1972).

4 Section 343A, on which linbility is here sought to be predicated, is

a stutement of when the possessor in not linhle.

l3a

Opinion of the Court of Appeale

no notion that they would be applied to the tangled situa-

tions of ship loading or unloading; and they must be read

together with Chapter 15, “Liability of an Employer of an

Independent Contractor”. In dealing with § 905(b), courts

would do better to consider the policies that actuated Con-

gress in adopting the 1972 amendments. In my view Con-

gress did not mean to subject the ship to liability for every

dangerous condition known or knowable to it when it had

a right to assume that this would be remedied by the em-

ployer, as § 941(a) requires. The typical cases where the

ship was to be liable under §905(b) would be for condi-

tions of which it was or should have been aware but of

which the employer was not and could not reasonably be

expected to be and for affirmative acts of negligence for

which the employer bore no responsibility (e.g., when the

crew carelessly operated the ship’s machinery used in load-

ing and unloading or when such machinery was defective).®

Decisions in other circuits have emphasized the primary

responsibility of the employer and the right of the vessel

to assume that this will be discharged. The Third Circuit

5 This view does not run counter to the case stated in the House Report:

So, for example, where a longshoreman slips on an oi! spill on a

vesiel’s deck and is injured, the proposed amendments to Section 5

woud still permit an action against the vessel for negligenve. To

recover he must establish that: 1) the vessel put the foreign sub-

stance on the deck, or knew that it was there, and willfully or

negligently failed to remove it; or 2) the foreign substance had

been on the deck for such a period of time that it should have

been discovered and removed by the vessel in the exercise of rea-

sonable care by the vessel under the circumstances,

H.R. Rep. No. 1441, supra, 3 U.S. Code Cong. and Ad. News at 4704

(1972). The crucial words are “willfully and negligently” and “in the

exercise of reasonable care.” Reasonable care does not require the ship

to act if it could properly expect that the contractors who wore von-

stuntly coming and going in the area wow'd do so, Seo Anuscewshi v,

Dynamic Mariners Corp., Panama, 391 F.Supp. 1143, 1149 (D. Mad.

1975), aff’d, 540 ¥.2d 757 (4 Cir. 1976), cert. denied, 45 U.S, 3571

(1977).

3211

l4a

Opinion of the Court of Appeals

disapproved a jury instruction that “[{t]he responsibility

for the safety of the longshoreman lies concurrently or

Jointly with the longshoreman’s employer, and with the

shipowner.” Marant v. Farrell Lines, Inc., 550 F.2d 142

(3 Cir. 1977). Later, in /urst v. Triad Shipping Co., 554

.2d 1237, 1250 n.85 (3 Cir.), cert. denied, 46 U.S.L.W.

3218 (1977), Judge Hunter noted that

creation of a shipowner’s duty to oversee the steve-

dore’s activity and insure the safety of the longshore-

men would ... saddle the shipowner with precisely

the sort of nondelegable duty that Congress sought

to climinate by amending section 905(b). Every ship-

owner has the authority to oversee stevedoring opera-

tions. If that authority, without more, suffices to charge

the shipowner with a responsibility for detecting un-

safe methods of operations and warning the longshore-

men about them, then shipowners will be back in their

pre-1972 position.

The Fourth Circuit has taken a similar view. It approved

a jury instruction that the primary responsibility for the

safety of a repairman on a ship rested upon the shipyard

and not upon the shipowner. Riddle v. Exxon Transporta-

tion Co., 563 F.2d 1103, 1109 (1977).* After noting the

6 In support of this the court stated in footnote 9:

See, for instance, Ramiree v. Toko Kaiun K.K. (N.D. Cal. 1974)

385 F.Supp. 644, 653; Lucas v. “Brinknes” Schiffahrts Ges. (E.D.

Pa. 1974) 379 F.Supp. 759, 768,

Tn the first ease, the Court said:

“The primary responsibility for the safety of a longshoreman

lies with the stevedoring company.”

In Lucas, the Court said:

“* * * It is clear, however, that Congress decided that the pri-

inary duty to provide a safe place to work is on the stevedore.”

Tn Brown v. Ivarana Rederi A/S (34 Cir, 1976) 545 F.2d 854

KOM (ILS. appeal pending), the Court snid:

3212

15a

Opinion of the Court of Appeals

“modern” rule of a landowner’s liability set forth in $§ 343

and 343A of Torts Restatement and applied by this court

in Napoli v. TransPacific Carriers Corporation, 536 F.2d

505 (1976), Judge Russell went on to say:

However, even under the modern rule, a vessel is not

liable for “open and obvious” dangerous conditions,

whether existing at time control of the vessel is re-

linquished by the vessel or arising afterwards with

the knowledge of the vessel, if the danger is such

that the stevedore or shipyard would be expected to

correct the condition in the course of discharging tts

responsibility for the safety of the longshoreman or

shipyard worker.

563 F.2d at 1111-12 (emphasis added). One author has

written:

The consistent philosophy of these decisions is that

in the ordinary situation shipowners are in no position

to learn of unsafe conditions or methods arising during

the stevedore’s operations; when the shipowners do

learn of such dangers, ordinarily the stevedore and his

employees will have an equal or greater awareness, So

that the danger can be said to be open and obvious;

and that the safety of stevedoring and other such oper-

ations is the primary and usually the sole respon-

sibility of the stevedore.

Robertson, Negligence Actions by Longshoremen Against

Shipowners Under the 1972 Amendments to the Longshore-

“* * © However, express language in the statute and the legis-

tive history reports accompanying the 1972 Amendments ainply

demonstrate that for reasons of policy the mujor responsibility

for the proper and safe conduct of the work was to be borne

hy the stevedore.

563 F.2d at 1109 n. 9.

l6a

Opinion of the Court of Appeals

mews and Harbor Workers’ Compensation Act, 7 Journ.

Maritime Law & Commerce 447, 473 (1976).

No decision of this court requires us to ignore the ship’s

justifiable reliance on the independent contractors to per-

form their duty. Napoli v. T'ransPacific Carriers Corp.,

supra, 536 ¥'.2d 505, which the district judge regarded us

the fons et origo of imposition of broad liability on the

ship, did nothing of the kind. Where, as in that case, there

is no independent contractor, it is part of the ship’s duty to

exercise reasonalle care to inspect its own workers’ work-

place, to remove grease spills, etc. In such a case there is

no “independent contractor” with primary responsibility

upon whom the ship may properly rely, As the Napoli

court rightly said in rejecting the district court’s charge in

that Case.

a charge which relieves a shipowner of liability for a

dangerous condition which was “known to the steve-

dore or to any of its employees” is clearly inappropri-

ate where the shipowner, itself, is the stevedore.

Napoli, supra at 508. Things are very different when thie

longshoreman works for an independent stevedore who has

primary responsibility for the workplace. The decision of

a divided panel in Lubrano v. Royal Netherlands S.S. Co.,

supra, slip ops. 1533, is also distinguishable. In that case

there was evidence of direct knowledge and participation

of a ship’s officer who “approved and joined in the direce-

tion that the men keep working, although the dunnage was

not there.” It was not a case where either the ship did not

actually know of the danger and merely “should” have

known, nora case where at most the ship knew of the prob-

lem but could rely on others to alleviate it) -in Lubrano the

3214

17a

Opinton of the Court of Appeals

court found that the ship’s officer may have himself or-

dered the continuance of the dangerous situation.

Jn contrast this court las repeatedly recognized how far

the ship may rely upon the independent contractor to

rectify dangerous conditions that arise during loading and

unloading. Munoz v. Flota Mercanta Grancolombiana, S.A.,

supra, 903 F.2d at 840; Ituffino v. Scindia Steam Navigation

Co., 559 F.2d 861 (2 Cir. 1977); Wickman v. Jugoslavenske

Linijska Plovidba Rijeka, “ZVIR”, 570 F.2d 449 (2 Cir.

1978). The last of this line of cases is Cox v. Flota Mer-

cante Grancolombiana, Docket No. 77-7338, decided May 10,

1978, slip opinions 2989, There a unanimous panel directed

dismissal of a complaint on facts which the majority prop-

erly concedes, see fn. 3, are indistinguishable from those in

the instant case.” While the majority disregards Cox be-

cause tlhe opinion was handed down in the face of known

disagreement by a majority of this panel, our district

judges can scarcely be expected to function with so dis-

cordant a chorus on this court.

The first basis on which the district judge and the ma-

jority would hold the vessel liable—knowledge of the ac-

cumulation of grease—is plainly untenable. When Farrell

Lines engaged Universal to load and Holleran to lash the

cargo, it was entitled to assume that they would perform

the job in a workmanlike fashion, including compliance

with the Safety and Health Regulations for Longshoring,

29 C.F.R. 1918.91(c), which require that “slippery condi-

tions shal] he eliminated as they occur,” and place respon-

sibility for compliance on stevedores. See 29 C.T-.R.

§§1918.2(a); 1918.3(ce); Brown v. Mitsubishi Shintaku

Ginko, 550 F.2d 331, 333 (5 Cir. 1977). Tf grease had ae-

7 Indeed the facta in Cox were stronger for the employes. There was

evidence that placing pins in the beams was tho ship's responsibility

and that a mate had agreed with the hateh boss to supply them.

3215

18a

Opinion of the Court of Appeals

cumulated on the site of the accident for severa} hours, the

responsibility for removing it or warning workers about

it rested primarily on the independent contractors whose

employees were regularly on the scene and were or should

have been supervised, not on the ship. ‘Yhe ship would

therefore certainly not have been negligent if it merely

failed to discover the existence of the grease within the

hours this assertedly was accumulating. Moreover, even if

some unidentified ship personnel might have (or, as the

distriet judge said even less convincingly, “should have”)

seen the grease when they were “pulling out” cluster lights

to help the longshoremen and carpenters—assuming there

was sufficient evidence for the judge to conclude that this

had oceurred, which T seriously doubt—this does not estab-

lish negligence on the part of the ship, First, any know!l-

edge of the unknown deckhands about the grease would be

imputable to Farrell Lines only if they had a duty to in-

form Farrel! about it, ALI, Restatement of Agency 2d

§ 272, which they may not have had, see td. at § 275 illust.

6, unless, for example, they were ship’s officers, for which

there was no proof at all. Moreover, even if the ship could

be said to have had constructive notice of the condition,

there was no reason to think that the independent con-

tractors who were primarily responsible for eliminating

or warning about it would not take care of the pro’ lem as

they were bound to do, This is particularly so sinee, as the

district judge noted, Trovato, a Holleran employee and

witness for Canizzo, said he saw the grease at 1:30 P.M.

and hence could have reported the condition to his em-

ployer for corrective action,

There is likewise no merit in the alternative theory that

the ship’s deeckhands aggravated the danger by placing

the cluster lights on top of the grease and this aggrava-

tion was a substantial factor in causing Canizzo’s injury,

3216

19a

Opinton of the Court of Appeals

ALI, Restatement of Torts 2d §4 430, 431. In the first

place, there was no sufficient evidence to support this. Mven

if the testimony were deemed adequate to sustain the con-

clusion that the lights were brought out by deckhands

rather than the longshoremen, there is no evidence that

deckhands were responsible for placing them where Canizzo

fell. Also, if the deckhands had placed the lights pre-

cisely at that spot, there were wires on the deck before

the cluster lights were put out and Canizzo made no claim

that he would not have fallen except for the lights. In

his contemporane us accident report he made no mention

of the cluster lirhts, saying only that he “tripped over

debris (old gear and wire),” and at trial his account of

the accident was simply that he noticed grease on his over-

alls and shoes after his fall and that on the deck “there

was a few wires there, with grease on them, and cluster

lights with the wire hanging, you know, all messed up.”

The basic cause of Canizzo’s slipping was, of course, the

grease; its removal was the primary responsibility of the

independent contractors, not of the ship. Beyond this, if

the cluster lights in fact aggravated the danger caused by

the grease and the wires, Canizzo’s employer had the re-

sponsibility and the opportunity to place them elsewhere

and the ship was entitled to assume that it would.

The judgment should be reversed with instructions to

dismiss the complaint.

3217

SS

2la

Opinion of the District Court.

FINDINGS AND CONCLUSIONS

BRIgaNt, J.

This action, tried before me without a jury on Novem-

ber 22 and 23, 1976, arises out of a claimed personal injury

suffered by plaintiff Anthony Canizzo, a marine carpenter,

on January 12, 1973 aboard the S.S. Arrican Comer.

Plaintiff was employed by third-party defendant Frank

J. Holleran, Ine. (“Holleran”). Defendant Farrell Lines,

Incorporated (“Farrell”) was the owner of the AFRICAN

Comer, and defendant Universal Maritime Service Corp.

(“Universal’’, sued herein as Universal Terminal and

Stevedoring Corp.) was the loading stevedore.

The COMET was being loaded at Pier 5, Furman Street,

Brooklyn, New York.

This is a so-called “new law” case, regulated by the

Longshoremen’s and Harbor Workers Compensation Act

Amendments of 1972, effective November 26, 1972, 33

U.S.C. § 901, et seq.

The complaint was filed January 23, 1973, and seeks

damages for personal injuries said to have arisen out of a

failure “to give the Plaintiff a safe place to work when

Plaintiff was caused to fall as a result of debris, wires and

a slippery substance resembling oil, causing Plaintiff to

sustain serious, severe, crippling, permanent and progres-

sive personal injuries.” (Complaint, | Seventh).

Plaintiff also pleads as a second cause of action that

the AFRICAN COMET was unseaworthy. Such a plead-

ing no longer states a claim. See 33 U.S.C. §905(b), as

amended effective November 26, 1972.

Both Farrell and Universal were sued directly by plain-

tiff. By its amended answer, Farrell denied any negli-

gence and pleaded the affirmative defenses of contributory

22a

negligence; that the danger was open, obvious and well

known to plaintiff, and caused by risks assumed by plaintiff

at the time he entered upon his employment; that the sole

cause was the negligence and carelessness of plaintiff’s own

employer, its agents, servants and employees; and also

raised other defenses not material to our discussion here,

Farrell’s amended answer also sought contribution among

defendants; sought contribution from Holleran as a joint

tortfeasor, or alternatively, indemnity, and claimed the

benefit as an equitable contribution of the amounts of work-

men’s compensation benefits paid by Holleran to its em-

ployee, plaintiff here. Farrell also sought indemnity on

various grounds from Universal.

Universal in its amended answer has asserted a cross-

claim against Holleran and Farrell, claiming that any

liability arose out of a breach by Farrell of its duty to

provide the plaintiff with a safe place to work, and also by

reason of the negligence of Holleran in creating a dan-

gerous condition, or by plaintiff’s contributory negligence

to be imputed to Holleran.

Further detailed recital of the allegations of the various

parties in their pleadings is not presently necessary, and

they are to be deemed incorporated by reference.

The Accident

Plaintiff, then 55 years of age, and having had more

than 35 years experience as a marine carpenter working in

the Port of New York, was employed on January 12, 1973

by Holleran. Holleran had been retained to provide car-

penters and lashers, working as separate gangs, in connec-

tion with loading the AFRICAN COMET.

The COMET was moored starboard side to Pier 5. A

General Electric diesel locomotive, one of four being ear-

ried by the COMET, had been loaded. This locomotive had

been stowed on the weather deck, between hatches Nos. 5

and 6 on the starboard side, The locomotive was placed on

top of timbers intended as shoreing, and to distribute its

23a

weight. The timbers had been placed by Holleran’s ear-

penters, Holleran’s lashers were engaged in lashing the

locomotive to the deck, using chains and possible wires, and

were also doing other lashing work in the vicinity of hatches

5 and 6,

Shortly after 5:00 o’clock in the afternoon, while walk-

ing on the weather deck in a space, described as an alley-

way, next to the locomotive, and while passing from hateh

4 to hatch 5, Canizzo fell,

In his accident report given to his employer Holleran

on January 15th, Canizzo gave the hour of the accident as

5:15 p.m., and according to the accident report, stated:

“while working on deck, walking between 5 and 6 hatches

starboard side, he tripped over debris, old gear and wire,

and fell, inj. right arm and left knee.” The nature of the

injury as described in the accident report is: “contusion of

right shoulder, elbow, hand, wrist—contusion of left knee.”

The first notification to Holleran of this ineident occurred

January 15, 1973. Mr. Holleran testified that on the follow-

ing Monday Canizzo told him he had fallen over “old gear

and wire.”

Plaintiff arrived at the emergency room of the Lutheran

Medical Center in Brooklyn at 6:00 p.m. on January 12,

1973. The emergency room report (Ex. A), which lists

plaintiff’s employer as “Hallorry Lumber Co.,” shows “pa-

tient statement—while at work tripped on ship deck and

injured right shoulder and knee, pier 5 Port Authority on

African Comet.” The findings on examination were “ten-

derness over right shoulder, arm, forearm and hand with

slight limitation of motion.’’ The impression or diagnosis

was ‘‘contusion of upper extremity.” An X-ray taken on

January 12th at Lutheran Medical Center showed no evi-

dence of fractures, dislocation or any other bone or joint

abnormalities of the right shoulder, humerus, hand and

forearm, There was no X-ray taken of the knee, and no

notation made with respect thereto.

24a

A contemporaneous entry in the ship’s deck log confirms

the occurrence of the fall.

At trial Canizzo testified that while walking through the

“alleyway,” after he had taken a few steps, “IT slid and |

stumbled, and L tried to get my balance; I couldn’t, and I

fell over on my hands and knees, hurting my right hand

and my left leg.” (Tr. p. 15), He stated that he noticed

wrease on his overalls and shoes after the fall, and that on

the deck “there was a few wires there with grease on them

and cluster lights with the wire hanging, you know, all

messed up.”

The area was not well lighted. Dusk was approaching

and the cluster lights had been taken out by ship’s person-

nel in preparation to rigging them for continued cargo

work, Other persons had walked through the alleyway in

the same manner as Canizzo, and had negotiated the area

without injury.

William R. Davis, Universal’s ship superintendent, tes-

tified that he walked down the alleyway, approximately

three feet in width, between the locomotive and the coaming

of the No. 6 hatch. He did so at 4:00 or 4:30 P.M., at a

time when it had not yet turned dark. He found the

passageway clear. Lashers employed by Holleran were

working near the locomotive. Davis testified that the crew,

rather than Universal puts out the cluster lights when re-

quested by stevedores, I find that the cluster lights were

so placed by Farrell’s personnel after Davis’ visit, but at

least half an hour before Canizzo’s injury and probably

longer.

The Court regards the situation as presenting a clear

ease of Napoli negligence [Napoli v. Trans Pacific Carriers,

etc. (Hellenie Lines), 586 F.2d 505, 507 (2d Cir. 1976) ].

Farrell, as owner of the COMET was required to exercise

reasonable care to furnish plaintiff with a reasonably safe

place to work. The condition on the deck at the point

where longshoremen and other harbor workers would be

25a

required to walk between the locomotive and the hatch

coaming, as an alternative to taking a longer route around

the hatch, was obviously dangerous by reason of the pres-

ence of wires, lights and clutter, which covered the deck

surface, below which there was grease, It was obvious to

any prudent person that the deck condition was such as to

require careful walking, or alternatively, taking a differ-

ent route.

The condition was so open and obvious that it should

have been observed. I find that there was prior notice of

the condition to the shipowner. In so finding, I am relying

in part upon the obviousness of the condition, and in part

on testimony to the effect that the cluster lights, which are

part of the ship’s equipment, and ordinarily rigged under

the supervision of the Mate, were a contributing part of the

condition, In placing the cluster lights in the alleyway,

ship’s personnel should have seen the grease.

Within the rule of Napoli, supra, the ship should have

reasonably anticipated that Canizzo would not be able to

avoid the danger, despite its obviousness, and the vessel

might reasonably anticipate that he would use the “alley-

way” despite its obvious danger, since the only alternative

would be to take a longer way around. I find that the

shipowner was negligent in not correcting the open and

and obvious danger, a portion of which was created by

the shipowner’s employees.

Plaintiff also was contributorily negligent, in that he

proceeded into a cluttered area where grease was likely

to be associated with the wires and cluster lights, and

failed to walk cautiously, make an observation of the

footing, or take a longer route around. That with caution

he could have negotiated the obvious danger, appears from

the fact others had walked through the “alleyway,” imme-

diately prior to Canizzo’s injury, and had done so without

injury to themselves,

26a

Plaintiff testified that Valentino Trovato was working

as a lasher and had come over to help him when he fell,

and that Salvatore Mazze, who had been walking behind,

also had helped him when he fell.

In his accident report, given prior to the litigation,

Canizzo says that he “tripped” over the wires on the deck.

At trial he testified that he had stepped over and between

the wires, and slipped on the grease which the wires con-

cealed. The Court does not attribute this difference in

the account given as representing a tendency on the part

of Canizzo io exaggerate, or trim his story, to suit some

legal theory. I conclude rather that he regarded the two

as one, and that in fact he probably did trip over the

wires, his foot landed on a greasy substance and he fell.

I am inclined to credit his testimony as truthful to the

effect that his right foot slipped after he had stepped into

the area where the wires were.

The Court observed Mr. Canizzo’s demeanor on the

stand. Apart from the natural suspicion which attaches

to “grease spot cases” in this Court, there was no basis

to regard his testiznony as incredible, and I find that he

testified truthfully at trial.

Salvatore Mazze testified on plaintiff’s behalf and cor-

roborated his testimony generally. He too was a marine

carpenter employed by Holleran. He witnessed the acci-

dent and saw the grease, wire and cluster lights in the

so-called alleyway. He claimed also to have seen rope

preventers and guy lines in the area of the cluster lights

and the electric wires. This I do not believe. Mazze has

been a friend of Canizzo for thirty years. Mazze’s cred-

ibility is suspect, not only because of his friendship for

plaintiff, but because he in turn has an accident case pend-

ing in this Court, and, by coincidence, Mr. Canizzo is the

eye-witness in Mazze’s personal injury claim case. Be-

cause of his bias, his testimony is entitled to slight weight.

27a

Valentino Trovato also testified for plaintiff. He too

was employed as a lasher by Holleran on the date of the

accident. He testified that he saw bundles of wire between

the 5 and 6 hatch, and also testified that he saw grease

covering a space of five or six feet, occupied by the wire,

with the grease underneath the wire. He observed this

condition between 1:00 o’clock and 2:00 o’clock. He saw

cluster lights of the ship on top and “grease on what he

fall down on.” (Tr. p. 148).

The locomotive had been loaded at about 1:00 o’clock.

Universal loaded lashing gear on deck at hatch No. 5

for Holleran at 2:30 in the afternoon, for use in connec-

tion with lashing the locomotive. Trovato testified that

the Cargo Mate, or Chief Mate of the vessel observed the

conditions at 1:00 or 2:00 o’clock. TI do not credit this

testimony as truthful. Trovato also was a client of

plaintiff’s attorneys, and had brought two separate

actions in this Court, one of which had been settled, and

the other pending. He was biased in plaintiff’s favor.

However, it makes no difference, since I find the condi-

tions described existed in the so-called alleyway for a

long enough period so that the vessel knew or should have

known of its existence, within the doctrine set forth in

Napoli, supra, and part of the condition, with respect to

cluster lights was created by the ship’s personnel.

I find that Farrell was negligent. Its negligence above

described, together with plaintiff’s contributory negligence

in failing to walk carefully and watch where he was going,

were the proximate cause of the injuries.

There was no negligence shown on the part of Universal.

There is no evidence that Universal undertook any activity

with respect to the cluster lights or the electric wires

associated with them, and no evidence that Universal

caused the presence of the grease. As to the grease, it

is equally likely that the grease was caused by Holleran,

as by Universal, or the ship’s crew.

28a

The negligence of Holleran in failing to provide its

employee with a safe place to work is barred in the first

instance by the complete remedy of compensation. Under

the statutory amendments, no claim over exists in favor

of Farrell Lines against Holleran or Universal. 33

U.S.C. §905(b). No negligence by Holleran’s lashers was

shown.

The Injuries

At the Lutheran Hospital plaintiff was not treated for

his knee. He first saw Dr. Lanier for his knee on April 6,

1973. An orthopedic surgeon with 25 years experience

and all of the usual credentials, Dr. Lanier, after taking

a case history, took X-rays of all of the injured areas.

The X-rays were negative. Dr. Lanier’s initial diagnosis

was that the injury on the right hand and right shoulder

were mild, and did not require any particular therapy, but

he believed that the left knee showed signs of a torn

medial cartilage. He found plaintiff unable to do a full

knee bend, and that there was atrophy of the left thigh

and of the left leg indicative of limited use due to pain.

The medial cartilege situated between the femur and the

tibia is a cushioning mechanism for the knee, generally

round in shape and found under the meniscus.

An arthrogram in May of 1973 was negative, but Dr.

Lanier reached the conclusion that in spite of the negative

X-rays and arthrogram, plaintiff, in view of his vociferous

complaints, would probably require surgery for the left

knee. Plaintiff was given a left knee brace to rest his knee,

and physical therapy, and later, on June 27th, a cast was

applied to the knee for the purpose of immobilizing the

point of injury.

Plaintiff’s continued complaints ultimately led to surgery

on September 12, 1973 at Flatbush General Hospital. Dr.

Lanier testified that he made “an incision over the left knee

carried down to the medial meniscus, which is subjacent. I

Neate eaten ein

29a

noted there was a hypermobility of the anterior portion of

the medial meniscus, and that immediately explained to me

why the arthrogram was negative . . . because if you don’t

have a frank tear, that may be one reason why an arthro-

gram is negative and yet surgery can be effacacious be-

cause of looseness of the anterior attachment, which is a

relatively common occurrence in knee problems, and on this

basis I removed the medial meniscus.” )

. Dr. Lanier testified that following surgery Mr. Canizzo

did fairly well” and received physiotherapy following the

operation. :

At the time of trial, Mr. Canizzo continued under Dr.

Lanier’s care, still claimed to suffer pain in his knee, but

had improvement in motion. Dr. Lanier believed that the

surgery had the ultimate result of being “satisfactory as

regards walking around, having less pain, less swelling, less

buckling.”

In February 1974 plaintiff was readmitted to Flatbush

General Hospital under Dr. Lanier’s care for the purpose

of a manipulation of his knee to improve motion and pick

up additional degrees of flexion. On February 25th he was

discharged, still with pain over the sear on the knee, feel-

ings of stiffness and a limp while walking. Dr. Lanier

reports weakness of the quadriceps muscle, a problem

commonly following knee surgery, and symptoms of dam-

age to the lateral cartilage of the left knee, including

abnormal sounds on palpation. Dr. Lanier diagnosed a

diseased meniscus, and continued physiotherapy.

Although plaintiff’s condition suggests further surgery

Dr. Lanier believes that it would be unwise to engage i:

such second operation at this time, “only because two oper-

ations on the knee are just two traumatic insults to a knee

and the knee just doesn’t tolerate that much surgery.”

Dr. Lanier testified that the accident was a competent

producing cause of the injuries. Dr. Lanier believed that

the condition was permanent because three years after the

30a

accident and following the surgery there is still restriction

of the left knee, complaints of swelling, intermittent weak-

ness, pain and adventitious sounds. He has prescribed

medication, restricted activity, and use of an elastic

bandage.

Dr. Lanier suggested that continued annual periods of

physiotherapy were needed, and this would cost about

$20,000.00 for plaintiff's foreseeable future life. As to this

item, I believe the treatments would have no beneficial

effect, and decline to find this element of damage.

On the cross-examination of Dr. Lanier, it appeared that

the initial diagnosis before the operation had been a rup-

tured medial meniscus, and that the operation showed that

Mr. Canizzo did not in fact have a ruptured medial menis-

cus, but rather had a “hypermobile medial meniscus” in

that the ligaments were loosened from the peripheral at-

tachments.

Dr. Balensweig, a qualified orthopedic surgeon testifying

for the defendants, did, on examination of plaintiff, find a

slight thickening of the lining of the joint and a trace of

fluid on the left knee. He found no instability, but did find

crepitus in the left knee cap. He found some arthritis

changes in the left knee and the usual post-operative con-

ditions of nerve damage. Dr. Balensweig defined a ‘‘hyper-

mobile medial meniscus”? as “an assumption of physicians

when they don’t find anything and they believe that the

patient has trouble with the knee’. His testimony was

illuminating (Tr. p. 342):

(). What is it (hypermobile medial meniscus) sup-

posed to define?

A. It’s supposed to mean a tear of the attachments

of the meniscus to the tibia, making it too loose.

Q. In other words it is a looseness?

A. It’s supposed to be a looseness. However, the

only time we find tears of the attachments of the

meniscus that we can believe is when we have a severe

injury to the knee with a tear of the radial collateral

ligament, and then the meniscus is ripped loose from

Pe Aa ae Tk: ET SUT

bes etek b >

3la

its attachment, shifted into the joint, and it is way

away from its attachments. “If you get a so-called

peripheral tear, which you can get, as it heals it can

scar down and become hypermobile. It’s a waste-

basket term, used in orthopedi :

: pedies to expl Si

take in surgery’’. plain your mis

Dr. Balensweig believed, and I find, that the operation to

the meniscus was the result of a mistaken diagnosis, and

an unnecessary operation. Be that as it may, the opera.

tion and its results flow from the accident, since it is fore-

seeable that a person injuring his knee in a fall may even

with a negative arthrogram, a procedure only about 80%

accurate, be diagnosed as in need of surgery and may sub.

mit to surgery for a torn meniscus, resulting in a post

operative diagnosis of hypermobilit

basket term. yP y, the so-called waste-

In Dr. Balensweig’s words (Tr. p. 245) “so, as I said

before, it is a term that has crept into orthopedics to ex-

plain the 10 or 15% of so-called normal knees that you

operate on, where they have symptoms of a torn cartilage

and you find nothing, and you say ‘well it must have been

hypermobile’.” But, Dr. Balensweig himself found that

Canizzo had a disability, as a result of excess new bone

formation in the infrapatellar tendon, which appeared to

him to be a post-operative reaction, and he had a low grade

synovitis of the knee. Dr. Balensweig also found that the

patient had a “myositis ossificans” type of reaction post-

surgically, in the lower end of the incision, and that he

would have difficulty kneelin and s uatti

very brief periods. ? quatting for more than

Dr. Balensweig testified, and the Court finds, that

Canizzo can drive a car, a fact which he himself admits and

can do work requiring iimited amounts of walking and

standing with sufficient rest periods.

I conclude and find that as a result of the injury and con-

sequent on the decision to operate on the knee (which was

reasonable when made, although hindsight shows the sur-

32a

gery unnecessary), plaintiff has a permanent disabling

condition in his knee. Plaintiff is not physically fit to per-

form the duties of a marine carpenter, which require

considerable walking and climbing of ladders 60 feet or

longer and walking over and across dunnage and other

irregular surfaces. This condition prevents totally his

employment as a marine carpenter or longshoreman. How-

ever, because he can operate an automobile and can stand

and walk for periods of time with intervening rest periods,

he is in no sense totally disabled from an economic point

of view.

I find that plaintiff was injured by falling much in the

manner in which he described, while walking between the

hatch coaming and the locomotive on the AFRICAN

COMET, that his injuries were due to the presence of a

greasy substance, cluster lights, electric wires and possibly

lashing wires, on the deck, although the presence of the

lashing wires is not shown by a preponderance of credible

evidence. I find that the danger was open and obvious,

and that the shipowner was negligent in not correcting it,

and that the shipowner had actual or constructive notice.

Mitigation of Damages

During the period of more than four years which has

elapsed since his injury, plaintiff has not engaged in train-

ing for any other job. He stays home, relaxes and watches

television. Apparently, he is not planning to seek em-

ployment. He takes the attitude that because he is 58

vears old, he need not do so. (Tr. p. 24).

Canizzo has a substantial career experience as a marine

carpenter. He is a personable individual, whose intelli-

gence appears to be better than average. He has occupied

a position of importance in his labor union. Apparently,

he intends to retire. Although he had a heart attack in

April 1976, unrelated to his injuries here, the Court would

expect that Mr. Canizzo could devote himself to some pro-

ductive work, and believes that parttime sedentary em-

33a

ployment within the City could be found by him, either

immediately, or after suitable career counseling.

Under familiar legal principles, it is his duty to miti-

gate damages by attempting to work, and the Court finds

that for purposes of this action, he could earn income,

without undue hardship, and even with his history of a

heart attack, of at least $8,500.00 per year. :

The Court fixes the contributory negligence of Mr.

Canizzo in failing to walk carefully and watch where he

was going at 40%, and the balance of the negligence is

attributable to Farrell, or 60%.

Plaintiff’s earning capacity was approximately $16,000.00

per year at the time of the accident. Since then marine

carpenters can expect to earn more. He was totally dis-

abled for a period of about 14 months. Thereafter he con-

tinued to be permanently disabled from the performance

of his job as a marine carpenter, but is able to perform

other work. With proper vocational counseling, which he

should have sought on his own incentive when advised that

his knee would not improve further, I find that plaintiff

can earn the sum of $8,500.00 per year hereafter, compared

with current marine carpenter’s earnings of $19,000.00.

His losses and damages are computed as follows:

Salary lost while permanently

SE Ack dUE UU boss. SOei cache cy $ 18,666.00

Difference in salary between work

as marine carpenter and value of

sedentary job, for work expectance

of approximately nine years, total

of $94,500.00 reduced to present value

ieee ro eee rs err kkéves 64,260.00

Medical and related services

ie Ore er a oo, 6,455.00

Pain and suffering, loss of

I Pee ie le levator swine 20,000.00

Gross Total $109,381.00

34a

The foregoing gross amount is reduced by reason of

contributory negligence to the net sum fixed by the Court

at $65,628.60.

The foregoing constitutes the findings of fact and con-

clusions of law of the Court pursuant to Rule 52, F.R.Civ.P.

Settle judgment on five (5) days notice disposing of all

claims, cross-claims and third-party actions in accordance

with the foregoing.

Dated: New York, New York

April 13, 1977

Cxuarues L. Brreant

Charles L. Brieant

U. S. D. J.

35a

Judgment of the Court of Appeals.

UNITED STATES COURT OF APPEALS

For THE Seconp Circuir

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States Court-

house in the City of New York, on the second day of

June one thousand nine hundred and seventy-eight.

Present: Hon. Henry J. Frienpiy

Hon. J. JosepuH Situ

Hon. Tuomas J. MesKILy

Circuit Judges,

77-7292

77-7332

7"

i

ANTHONY Canizz0,

Plaintiff-Appellee and Cross-Appellant,

V.

Farre i Lines, Inc.,

Defendant-Appellant and Cross-Appellee,

and

UniversaL TERMINAL AND STEVEDORING Corp.,

Defendant-Appellee and Third Party Plaintiff,

Farre.y Lines, Inc.,

Third Party Plaintiff-Appellant,

Vv.

Frank J. Hoiveran, Inc.,

Third Party Defendant-Appellee.

-

i

Appeal from the United States District Court for the

Southern District of New York.

36a

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by counsel.

On ConsmeraTion Wuereor, it is now hereby ordered,

adjudged and decreed that the Judgment of said District

Court be and it hereby is affirmed in part, reversed in

part and the action be and it hereby is remanded to said

District Court for further proceedings in accordance with

the opinion of this court, with costs to be taxed against

the defendant-appellant and cross-appellee Farrell Lines,

Inc. in favor of plaintiff-appellee and cross-appellant

Canizzo.

A. Danie, Fusaro,

Clerk

By ArtHur HELLER

Deputy Clerk

37a

Restatement (Second) of Torts § 343-343A (1965).

§ 343. Dangerous Conditions Known to or Discoverable

by Possessor

A possessor of land is subject to liability for physical

harm caused to his invitees by a condition on the land

if, but only if, he

(a) knows or by the exercise of reasonable care

would discover the condition, and should realize that

it involves an unreasonable risk of harm to such in-

vitees, and

(b) should expect that they will not discover or

realize the danger, or will fail to protect themselves

against it, and

(c) fails to exercise reasonable care to protect them

against the danger,

§ 343A. Known or Obvious Dangers

(1) A possessor of land is not liable to his invitees

for physical harm caused to them by any activity or

condition on the land whose danger is known or obvious

to them, unless the possessor should anticipate the

harm despite such knowledge or obviousness,

(2) In determining whether the possessor should an-

ticipate harm from a known or obvious danger, the

fact that the invitee is entitled to make use of publie

land, or of the facilities of a public utility, is a factor

of importance indicating that the harm should be

anticipated.