Petition — Hellenic Lines Ltd. v. Fanetti

Supreme Court of the United States

OCTOBER TERM, 1981

PASQUALE FANETTI,

Respondent,

—against—

HELLENIC LINES LTD.,

Petitioner.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

ON PETITION FOR WRIT OF CERTIORARI

Edwin K. Reid, Of Counsel

Zock, Petrie, Reid & Curtin

Office and P. O. Address

19 Rector Street

New York, New York

10006

(212) 425-0310

Attorneys for Petitioner

SS I TE TD

(12492)

Questions Presented

Whether a shipowner choosing to act

as its own stevedore is entitled to

that insulation from liability, par-

tial or total, which hiring an inde-

pendent contractor-stevedore might

have afforded, within the statutory

scheme of the Longshoremen's and

Harbor Workers’ Compensation Act?

What quantum of evidence, relating

to the effect of future taxes on

earnings, is sufficient so as to

permit a jury instruction based upon

the after-tax principle established

by Norfolk and Western Ry. Co. v.

Liepelt?

COMPANIES AFFILIATED

WITH PETITIONER

Listing, pursuant to U.S. Sup. Ct.

Rule 28.1, 28 U.S.C. 28.1 (1981), of

companies affiliated with the Petitioner,

Hellenic Lines Ltd.

Hellenic American Agencies, Inc.

Universal Cargo Carriers

Transpacific Carriers Corp.

Trade Asia PTE Ltd.

w & WwW WH PF

Trade Orient Co. Private Ltd.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......... 1

AFFILIATED COMPANIES ......... 2

TABLE OF CONTENTS ............ 3

TABLE OF AUTHORITIES ......... 5

OPINIONS BELOW ............... 8

ID i cach caeustaseas 4

STATUTES INVOLVED ............ 11

STATEMENT OF THE CASE ........ 13

REASONS WHY THE WRIT SHOULD

DE Gn cudccdxcavsecus 16

I. The decisions of the

courts below are in

conflict with this

court's analysis of

Section 905(b) of the

Longshoremen's and

Habor Workers’ Compen-

II. The decisions of the

courts below conflict

with this court's

opinion in Scindia

Steam Navigation co.

Ltd. v. De Los Santos. 27

Page

III. The trial court failed

to properly instruct

the jury as to the de-

duction of future in-

come taxes from the

amount of future lost

BED cccccccconcceves 31

I oe ee ee ewig 35

APPENDIX

OPINION OF THE SECOND CIRCUIT. A l

NOTICE OF MOTION AND ORDER OF

SECOND CIRCUIT STAYING THE

MANDATE... ccccccccccsccecs A 22

OPINION OF THE DISTRICT COURT A 26

JUDGMENT OF SECOND CIRCUIT.. A 46

JUDGMENT OF DISTRICT COURT. . A 48

NOTICE OF APPEAL TO THE

SUPREME COURT............... A 50

NOTICE OF APPEAL TO THE

COURT OF APPEALS............ A 52

TABLE OF AUTHORITIES

CASES

Albergo v. Hellenic Lines

Ltd., 658 F.2d 66 (2nd

ls | We 6 0060606408646

Cavalier v. T. Smith and

Son, Inc., 668 F.2d 861,

S862 (Sth Cir. 1962).......

Edmonds v. a

Generale Transatlantique,

443 U.S. 256 (1979).......

Evans v. Transportacion

Maritime Mexicana, 639

F.2d 848, 859 (2d Cir.

re eee

Fanetti v. Hellenic Lines

Ltd., F.Supp.

ee. Ms «cus caneas

Fanetti v. Hellenic Lines

Le6., F.2d (2nd

St; Mita ccéceeeeeeeteas

Griffith v. Wheeling-

Pittsburgh Steel Corp.,

921 F.2d 31, 41-43 (3rd

GE. Bee ecccevvsseccteces

Kermarec v. Campagnie

Generale preneesiarnes ,

- 2. Fe, 8=<.6l ae

26

20

20

25

30

Lang v. Texas and Paci-

fic Ry. Co., 624 F.2d

1275, 1279 (Sth Cir.

Pb eeeseccococcocoooeces

Norfolk and Western

iF Co. v. Liepelt,

4 U.S. 490 (1980).......

Northeast Marine Terminal

Co. v. Caputo, 432 U.S.

a

P.C. Pfeiffer Co. v. Ford,

444 U.S. 69 (1979)........

Richardson v. Norfolk

Shipbuilding & Drydock

Corp., 621 F.2d 633,

634-35 (4th Cir. 1980)....

Robertson v. Jeffboat

Inc., 651 F.2d 434,

436 (6th Cir. 1981).......

Scindia Steam Navigation

Co. Ltd. v. De Los Santos,

451 U.S. 156 (1981).......

Sea-Land Serv., Inc. v.

Director, osenee | Work-

ers' Compensation Programs,

540 F.2d 629, 632-33 (3rd

DTT cece eebecececees

Smith v. Eastern er’ im

Pile = + te P Inc.

F.2d 789, 795-97 tha C Cir.

EE a

32

31, 33

24

24

26

26

27, 29

30

23

Page

Smith v. M/V Captain

Fred, 546 F.2d 119,

122-23 (5th Cir. 1977)... 26

STATUTES

Longshoremen's and Harbor

Workers’ Compensation Act,

33 U.S.C. §901 et seq. (1976). 13

Longshoremen's and Harbor

Workers’ ensation Act,

33 U.S.C. §905 (1976)......... ll,

16, 17,

28 U.S.C. 1254 (1976).......... 10,

28 U.S.C. 1332 (1976).......2.. 9,

U.S. Supreme Court Rule 28.1,

28 U.S.C. 28.1 (1976)......... 2

H.R. —. No. 92-1441, 92nd

Cong., 2nd Sess., 3 U.S. Code

Cong. & Admin. News 4705 (1972) 21-22

OPINIONS BELOW

The opinion of the United States

Court of Appeals, Second Circuit, not

yet reported, appears in the Appendix.

The opinion of Judge Motley, United

States District Court, Southern District,

not yet reported, also appears in the

Appendix.

JURISDICTION

This action originated in the United

States District Court, Southern District

of New York. Jurisdiction in the District

Court was based upon diversity, 28 U.S.C.

§1332 (1976). The judgment which is the

subject of this review, was entered in

the District Court on February 24, 1981.

A memorandum opinion was filed by Judge

Motley on June 15, 1981.

A Notice of Appeal to the Second

Circuit was filed by defendant's attorney

on July 14, 1981. An opinion and judg-

ment of the Court of Appeals affirming

the District Court were entered on May 6,

1982. Upon defendant's motion, dated

May 13, 1982, a stay of the mandate, pend-

ing review of this petition for a writ

of certiorari was ordered by the Second

Circuit on May 24, 1982. A Notice of

Appeal to the Supreme Court was filed by

10

the defendant on May 18, 1982. This pe-

tition is being docketed within thirty

(30) days from the stay of the mandate

in the Court of Appeals. The jurisdic-

tion of this Court is invoked pursuant

to 28 U.S.C. §1254(1) (1976).

ll

STATUTES INVOLVED

Longshoremen's and Harbor Workers’

Compensation Act, 33 U.S.C. §905 (1976).

§905 Exclusiveness of liability

(a) The liability of an employer

prescribed in section 904 of this title

shall be exclusive and in place of all

other a yt of such employer to the

employee, his legal representative,

husband or wife, parents, dependents,

next of kin, and anyone otherwise

entitled to recover damages from such

employer at law or in admiralty on

account of such injury or death, except

that if an employer fails to secure

pavneas of compensation as required

y this chapter, an injured employee,

or his legal representative in case

death results from the injury, o—- elect

to claim compensation under the chapter,

or to maintain an action at law or in

admiralty for damages on account of

such injury or death. In such action

the defendant may not plead as a

defense that the indus? was caused by

the negligence of a fellow servant, or

that the employee assumed the risk of

his employment, or that the injury was

due to the contributory negligence of

the employee.

(b) In the event of injury to a

erson covered under this chapter caused

y the negligence of a vessel, then

such person, or anyone otherwise entitled

to recover damages by reason thereof,

may bring an action against such vessel

12

as a third party in accordance with the

provisions of section 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 provide stevedoring

services, no such action shall be

3 +r if the injury was caused

y 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 7 ne of poreses 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 except

remedies available under this chapter.

13

STATEMENT OF THE CASE

The petitioner, Hellenic Lines Ltd.,

appeals from the affirmance of a judgment

and verdict of $511,190 in favor of

Pasquale Fanetti, the plaintiff, after a

jury trial, in U.S. District Court,

Southern District of New York. Fanetti,

a longshoreman, instituted this action

for personal injuries pursuant to the

provisions of the Longshoremen's and Har-

bor Workers' Compensation Act, 33 U.S.C.

§901 et seq. (1976).

The plaintiff claims that he was

injured on May 6, 1980, while employed

as a winch operator, aboard a vessel

owned by the petitioner. At the time of

the accident, Hellenic Lines Ltd. was

also functioning as its own stevedore.

The plaintiff and his co-workers had been

procured by Hellenic as stevedores from

the union hiring hall.

14

The longshoremen had been working

aboard the vessel since approximately

8:00 a.m. The plaintiff testified that

at about 2:55 p.m., while walking to his

work station, after a rest period he

slipped and fell on lashing gear, which

had been greased.

There was testimony that, during the

morning, unidentified members of the

ship's crew had placed this lashing gear

in the area where Fanetti fell. The

plaintiff and his co-workers, however,

had continued to work. There was no

testimony that the condition was called

to the attention of a ship's officer.

Fanetti's immediate supervisor,

another longshoreman, had been notified,

prior to the accident, of the existence

of this equipment on deck. This super-

visor, however, failed to report this

condition to the stevedore foreman.

The District Court Judge declined

15

Hellenic's request tc charge the jury as

to the stevedore's duty to correct an un-

safe condition aboard ship. The Court

held that since the stevedoring opera-

tions were performed by "employees of

Hellenic Lines", the latter was not en-

titled to such an instruction.

In its post-verdict motion, Hellenic

asserted that the trial court did not

properly instruct the jury on the deduc-

tion of future income taxes from its

determination of the amount of future

lost wages. This motion was denied.

The jurisdiction of the District

Court having been predicated upon diver-

sity, 28 U.S.C. §1332 (1976), the peti-

tioner respectfully seeks review by this

Court under 28 U.S.C. §1254(1) (1976),

based upon the error in the aforemention-

ed rulings.

16

REASONS FOR GRANTING THE WRIT

I

THE DECISIONS OF THE COURTS BELOW

ARE IN CONFLICT WITH THIS COURT'S

ANALYSIS OF SECTION 905(b) OF THE

LONGSHOREMEN'S AND HARBOR WORKERS'

COMPENSATION ACT, IN EDMONDS v.

COMPAGNIE GENERALE TRANSATLANTIQUE

Section 905(b) of the Longshoremen's

and Harbor Workers' Compensation Act

(hereafter referred to as “LHWCA") pro-

vides, in pertinent part, that a long-

shoreman may bring an action against a

vessel and that if"such person was em-

ployed by the vessel to provide steve-

doring services, no such action shall be

permitted if the injury was caused by the

negligence of persons engaged in provid-

ing stevedoring services to the vessel.”

33 U.S.C. §905(b) (1976). In Edmonds v.

17

Compagnie Generale Transatlantique, 443

U.S. 256 (1979), this Court recently had

occasion to interpret this provision.

The Edmonds Court concluded that a

"“longshoreman may recover the total

amount of his damages from the vessel if

the latter's negligence is a contribut-

ing cause of his injury, even if the

stevedore . . . is partly to blame." Id.

at 264. The Court expanded upon its anal-

ysis of Section 905(b) by adding that:

The second sentence of

the paragraph is express-

ly addressed to the dif-

ferent and less familiar

arrangement where the in-

jured —— load-

ing or unloading the ship

is employed by the vessel

itself, not by a separate

stevedoring company --

in short, to the situation

where the ship is its own

stevedore. In this situa-

tion, the second sentence

places some limitations

on suits against the ves-

sel for injuries during

its stevedoring operations.

It is necessary only to

construe the second sen-

18

tence to permit a third-

party suit against the

vessel providing its own

loading and unloading

services when negligence

in its nonstevedoring

capacity contributes to

the injury. The second

sentence means no more

than that all longshore-

men are to be treated

the same whether their

employer is an indepen-

dent stevedore or a

shipowner-stevedore and

that all stevedores are

to be treated the same

whether they are inde-

pendent or an arm of the

shipowner itself.

This leaves the question

of the measure of recovery

against a shipowner, whe-

ther or not it is doing

its own stevedoring, when

as shipowner it is only

partially responsible for

the negligence, but we are

uite unable to distill

rom the face of the ob-.

viously awkward yp of

the two sentences any indi-

cation that Congress intend-

ed to modify the pre-exist-

ing rule that a longshore-

man who is injured by the

concurrent negligence of

the stevedore and the ship

may recover for the entire

amount of his injuries from

the ship.

19

‘

Id. at 264-66,

The Edmonds Court's interpretation

of Section 905(b) is the determinative

point at issue in this dispute. Peti-

tioner relies upon Section 905(b) and

Edmonds as supporting its position that

the courts must preserve the distinction

between shipowner and stevedore even if

a shipowner chooses to act as its own

stevedore. Edmonds mandates that Helle-

nic, as shipowner, be insulated from the

consequences of the negligence of those

employed in its stevedoring capacity.

Contrastingly the Court of Appeals,

in affirming the jury charge of the Dis-

trict Court, held that a shipowner acting

as its own stevedore is not entitled to

that insulation, which hiring an indepen-

dent contractor might have afforded. fFor

this reason, the District Court specifi-

cally denied Hellenic's request that the

applicable provisions of the Safety and

20

Health Regulations for Longshoring, 29

C.F.R. §§1918.1, 1918.2, 1918.91 (1980)

be submitted as part of its instructions

to the jury. Fanetti v. Hellenic Lines

Ltd., ___ ‘F.Supp. ___s—s«(S«.D.N.Y. 1981)

(Appendix at A 37 ) aff'd, F.2d.

___» mn. il, 2 (2d Cir. 1982). These

regulations charge the stevedore and its

employees, the longshoremen, with the

primary responsibility to correct dan-

gerous conditions. See, Scindia Steam

Navigation Co. Ltd. v. De Los Santos,

451 U.S. 156, 176-77 (1981); Evans v.

Transportacion Maritime Mexicana, 639

F.2d 848, 859 (2d Cir. 1981).

The lower courts arrived at this

determination by concluding that Hellenic

should not be permitted to rely upon the

“independent contractor" status of its

stevedoring function, because it operated

simultaneously as both a shipowner and a

stevedore. Petitioner respectfully sub-

21

mits that this failure to treat Hellenic

Lines Ltd., as an entity, functioning in

two separate and distinct capacities was

error. Hellenic relies upon the follow-

ing authorities in support of this posi-

tion.

First, the Court of Appeals, Second

Circuit, misconstrued the legislative

history of "LHWCA". The House Report

states in pertinent part that:

The Committee believes

that the rights of an

injured longshoreman

, . shall not depend

on whether he was em-

ployed directly by the

vessel or by an inde-

pendent contractor.

Accordingly the bill

provides in the case

of a longshoreman who

is employed directly

by the vessel there

will be no action for

damages if the injury

was caused by the ne-

gligence of persons

engaged in performing

longshoring services

. . . The Committee's

intent is that the

same principles should

apply in determining

22

liability of the ves-

= which employs its

own longshoremen . .

as apply when an inde-

ploys such persons.

H.R. Rep. No. 92-1441, 92nd Cong., 2nd

Sess., 3 U.S. Code Cong. & Admin. News

4705 (1972).

As evidenced by this Report, the

Congressional intent was that the dis-

tinction between shipowners and steve-

dore safety responsibilities was to apply,

with full force and effect, even though

Hellenic acted as its own stevedore. The

District Court's charge, however, blurred

this crucial distinction. The lower

Court failed to specifically instruct the

jury that Hellenic could only be liable

for its "owner" occasioned negligence

and that it should be absolved of any

negligence in its “stevedoring” capacity.

Accord, Smith v. Eastern Seaboard Pile

Driving, Inc., 604 F 2d 789, 795-97 (2nd

23

Cir. 1979) (where another Second Circuit

panel preserved this distinction and re-

jected a so-called “single mission"

theory); See also, Albergo v. Hellenic

Lines Ltd., 658 F. 2d 66 (2nd Cir. 1981)

(which also recognized the shipowner/

stevedore dichotomy, but which the Court

of Appeals in the instant action found

not to be apposite to the question in

Fanetti.)

Further, the courts below erroneous-

ly looked to the "corporate" structure of

Hellenic and treated it as a single busi-

ness entity. The Longshoremen's Act,

however, focuses on a "functional", not

a “corporate”" approach, in delineating

the relative rights and obligations of

stevedores and shipowners. See, Sea-Land

Serv., Inc. v. Director, Office of Work-

ers’ Compensation Programs, 540 F.2d 629,

632-33 (3rd Cir. 1976) (Wherein the Court

compared the definitions of “employer”

24

and “employee” prior to and after the

1972 amendments, noting that the amend-

ments had adopted a functional approach) ;

cf. P.C. Pfeiffer Co. v. Ford, 444 U.S.

69 (1979); Northeast Marine Terminal Co.

v. Caputo, 432 U.S. 249 (1977) (wherein

this Court set forth a "situs" and "sta-

tus" standard, i.e. “functional” test,

in extending the scope of worker cover-

age under the LHWCA). This distinction

between the legal responsibilities of

Hellenic, as a shipowner and as a steve-

dore, was more than a mere academic exer-

cise. It went to the very essence of the

case. For even assuming arguendo that

the ship's crew initially created a hazar-

dous condition, the jury still should

have been instructed to carefully scru-

tinize the subsequent acts and omissions

(i.e. the failure to keep walking areas

clear as directed by the regulations) of

the stevedore (and its employees, the

25

longshoremen) in order to ascertain if

such conduct was the cause of the acci-

dent. Hellenic was denied that oppor-

tunity of attributing this accident to

an “independent” cause.

Finally, it should be noted that the

decisions of the lower courts herein are

also in conflict with the opinion of the

Third Circuit in Griffith v. Wheeling-

Pittsburgh Steel Corp., 521 F.2d 3l, 41l-

43 (3rd Cir. 1975), cert. denied, 423

U.S. 1054 (1976). In Griffith, the Court

of Appeals held that:

The vessel, even a

vessel which is an

employer under the

Act, is relieved of

liability for negli-

gence of persons en-

gaged in providing

stevedoring services,

but is not relieved

of liability for its

own “owner" occasioned

negligence.

Id. at 43.

The Fourth and Fifth Circuits have

26

expressed similar views in Richardson v.

Norfolk Shipbuilding & Drydock Corp.,

621 F.2d 633, 634-35 (4th Cir. 1980),

Smith v. M/V Captain Fred, 546 F.2d 119,

122-23 (5th Cir. 1977) and Cavalier v.

T. Smith and Son, Inc., 668 F.2d 861,

862 (Sth Cir. 1982); contra, Robertson

v. Jeffboat Inc., 651 F.2d 434, 436 (6th

Cir. 1981), cert. pending (Docketed Jan.

1982).

To summarize, therefore, the deci-

sion of the Second Circuit herein con-

flicts with this Court's holding in Ed-

monds and with the decisions rendered in

at least three other Circuits. This con-

flict justifies the granting of this

writ.

27

Il

THE DECISIONS OF THE COURTS

BELOW CONFLICT WITH THIS

COURT'S OPINION IN SCINDIA

STEAM NAVIGATION CO. LTD.

Vv. DE LOs SANTOS

During the trial of this action, the

District Court did not have the benefit

of this Court's recent opinion in Scindia

Steam Navigation Co. Ltd. v. De Los San-

tos, 451 U.S. 156 (1981). The latter

decision suggests that the "LHWCA" re-

quires that a shipowner's duties be

judged by a standard apart from a strict

adherence to land-based principles. Pe-

titioner submits that the District Court's

charge (set forth, in part, at F.2d

___ in. 1 (2nd Cir. 1982) erroneously

aligned the duties of a shipowner with

those responsibilities of a homeowner,

or a property owner, in a non-maritime

context.

Admittedly, the legislative history

28

to the “LHWCA" recommends that a ship-

owner's liability is to be judged by land

based standards. 451 U.S. at 165-66 n. 13.

The charge of the District Court, how-

ever, failed to clearly set forth the

unique relationship among shipowner,

stevedore and longshoreman. In the ana-

logy employed by the trial judge in her

charge, the jury was left with the under-

standing that liability flowed directly

from the property owner (shipowner) to

the invitee (longshoreman). This charge

implied a continuing non-delegable duty

extending from the property owner (ship-

owner) to the invitee (longshoreman).

Under the LHWCA, the shipowner is, of

course, required to exercise reasonable

care under the circumstances. The ship-

owner, however, does not adopt the status

of a mere property owner with a direct

relationship to an invitee (longshore-

man). There is a third participant, an

29

intermediary, in the relationship, namely

the stevedore. The presence of the steve-

dore on the scene creates a justifiable

expectation by the vessel that the steve-

dore will perform its tasks with reason-

able competence and see to the safety

of the cargo operations. 451 U.S. at

172. The shipowner is not to be burdened

with primary responsibility for safety,

nor with a continuing duty to inspect the

cargo operations once the stevedore be-

gins its work. 451 U.S. at 163-64 n.10.

This Court has, in fact, noted that

maritime negligence actions under "LHWCA"

are not necessarily comparable to non-

maritime torts. In De Los Santos, Jus-

tice White stated:

[T]he legislative his-

tory does not refer to

the Restatement and also

states that land-based

principles of assumption

of risk and contributory

negligence are not to be

applied in §905(b) cases.

This strongly suggests,

30

as Kermarec v. C agnie

Generale Transatlentique,

indicated, that maritime

negligence actions are

mot necessarily to be

governed by principles

applicable in non-mari-

time contexts. Further-

more, since the lower

courts are not only in

disagreement as to the

applicability of §§343

and 343A but also as to

their import and meaning

when applied in the mari-

time context, those sec-

tions, while not irrele-

vant, do not furnish sure

guidance in cases such as

this.

451 U.S. at 168 n. 14.

In summary, therefore, Petitioner

submits that the erroneous jury instruc-

tions in the District Court did not clear-

ly outline to the trier of fact the uni-

que tripartite maritime relationship in

this case. For this reason, the decision

of the lower courts merit review.

31

IIl

THE TRIAL COURT FAILED

TO INSTRUCT THE JURY

PROPERLY AS TO THE DE-

DUCTION OF FUTURE IN-

COME TAXES FROM THE

AMOUNT OF FUTURE LOST

WAGES

Relying upon this Court's decision

in Norfolk and Western Ry. Co. v. Liepelt,

444 U.S. 490 (1980), Hellenic submitted

a proposed jury instruction seeking to

invoke the after tax principle set forth

in that case. The District Court, how-

ever, instructed the jury only in general

terms that there would be no liability

for taxes on any amount awarded to the

plaintiff. In its post trial motion,

Hellenic claimed error, attributing it

to the absence of the requested charge.

Specifically, the District Court failed

to employ Hellenic's proposed instruction

that the jury must deduct from any amount

of lost wages, the amount of income taxes

32

on those wages.

The Court of Appeals, in affirming

the trial court, stated that Hellenic

failed to invoke the after tax principle

of Liepelt in a timely and proper fashion.

Petitioner respectfully submits that,

while no specific exception was taken to

the District Court's charge on the issue,

by virtue of its proposed jury instruc-

tion, Hellenic's position on this ques-

tion was made clear to the Court so as

to satisfy FED. R. Civ. P. 51. As one

set of commentators has noted:

The failure to object

may be disregarded if

the party's position

has previously been

clearly made to the

court and it is —_

that a further objec-

tion would be unavail-

ing.

C. Wright & A. Miller, 9 Federal Practice

and Procedure §2553 at 639-640 (1971);

see, Lang v. Texas and Pacific Ry. Co.,

624 F.2d 1275, 1279 (5th Cir. 1980).

33

The Second Circuit also noted that

Hellenic offered no evidence to establish

plaintiff's future taxes. Petitioner

submits, however, that it was entitled

to rely upon plaintiff's income tax re-

turns, which were introduced into evi-

dence. From these returns a jury was

entitled to project future tax rates.

Standing alone, these tax returns

were evidence sufficient to permit

Hellenic to invoke the after tax princi-

ple of Liepeit. While the latter deci-

sion was based upon a trial record where

an expert's estimates were called into

question, this Court did not explicitly

limit the application of the after tax

principle to only those situations where

an economist has testified. In short,

if a jury was allowed to calculate plain-

tiff's future loss of earnings from

Fanetti’s tax returns, the trial court

should have charged that they could like-

wise estimate Fanetti's future taxes

based upon those returns.

For this reason, therefore, Hellenic

submits that this petition merits review

and the granting of the writ.

35

CONCLUSION

For these reasons, a writ of cer-

tiorari should issue to review the judg-

ment and opinion of the Second Circuit.

Respectfully submitted,

ZOCK, PETRIE, REID & CURTIN

Attorneys for Petitioner

Cffice and P.O. Address

19 Rector Street

New York, New York 10006

(212) 425-0310

Edwin K. Reid

Al

UNITED STATES COURT OF APPEALS

FoR THE SECOND CIRCUIT

~

No. 468—August Term, 1981

(Argued January 14, 1982 Decided May 6, 1982)

Docket No. 81-7500

+

PASQUALE FANETTI,

Plaintiff-Appellee,

—Vi—

HELLENIC LINgEs LTD.,

Defendant-Appellant.

Before:

OAKES and NEWMAN, Circuit Judges,

and HaiGutT, District Judge.*

-—$§~ i>—

Appeal from a judgment of the United States District

Court for the Southern District of New York, following a

. Of the Southern District of New York, sitting by designation.

2567

A2.

jury trial before Judge Constance Baker Motley, and

from the denial of defendant’s motion for a new trial,

remittitur or judgment notwithstanding the verdict.

Affirmed.

— —_—_<)>__—_

ROBERT ALEXANDER HULTEN, New York, NY

(Edwin K. Reid, Zock, Petrie, Reid &

Curtin, of counsel), for Appellant.

Morris CiZNeER, New York, NY (Zimmerman

& Zimmerman, of counsel), for Appellee.

>

HAIGHT, District Judge:

Hellenic Lines Ltd. (‘‘Hellenic’’) appeals from a plain-

tiff’s verdict following a jury trial in the United States

District Court for the Southern District of New York,

Constance Baker Motley, Judge, in an action brought

under the Longshoremen’s and Harbor Workers’ Com-

pensation Act (“‘“LHWCA”’), 33 U.S.C. §§ 901-950

(1976). The significant questions on the appeal concern

Hellenic’s liability, within the statutory scheme, as both

shipowner and stevedore; and whether the calculation of

lost future wages should be made on the basis of gross

wages, or net wages after deduction for income taxes. We

affirm.

On May 6, 1980, plaintiff Pasquale Fanetti was work-

ing as a longshoreman on board the M/V HELLENIC

2568

AZ

SPLENDOR, then berthed at Brooklyn, N. Y. Faxetti

was part of a work gang, supervised by hatch boss

Allesandro DeLiso, and engaged in loading containers at

the No. 2 hatch. Fanetti operated a winch which swung

one of the vessel’s booms inshore and offshore.

Hellenic owned the HELLENIC SPLENDOR. It also

acted as stevedore, procuring longshoremen labor directly

from the union hiring hall in Brooklyn in accordance with

the needs of Hellenic’s vessels. The longshoremen thus

hired were paid by Hellenic Lines Ltd. salary checks. This

arrangement contrasts with the retention by a shipowner

of an independent stevedoring contractor. Hellenic’s

commercial practice of assuming the dual roles of ship-

owner and stevedore has previously come to the attention

of this Court. Napoli v. TransPacific Carriers Corp., 536

F.2d 505 (1976).

Fanetti was injured at about 2:55 p.m. on May 6, as he

was proceeding toward his place of work at the winch

controls. The controls for the boom being used were

located on a raised deck extending from the No. 2 hatch

forward. Two ladders, one on the inshore side of the

vessel and the other on the offshore side, gave access to

the raised deck; the winch controls themselves were 10

feet forward of the hatch. Thus to get to the winch

controls from a position on the deck aft of the hatch, one

had to go up either of the two ladders, and then walk 10

feet to the controls. Fanetti, returning from a ‘‘blow’’

(rest period from work), climbed the offshore ladder and

headed across the raised deck toward the winch controls.

When he was about four feet away from the ladder, he

slipped and fell, suffering the injuries complained of.

Fanetti alleged, and the jury was entitled to find, that

the passageway he was required to transverse across the

raised deck to get to his work site was obstructed by

2569

AG.

lashing gear, including greased and oily turnbuckles,

chains and wires, and that the deck itself was oily and

greasy. These hazards were generated by the actions of

the vessel’s crew. After the longshoremen finished load-

ing the containers, the crew was responsible for lashing

them securely in place. In preparation for that work crew

members brought lashing equipment onto the raised deck

and dumped it on the walkways. That equipment con-

sisted of metal turnbuckles 2-1/2-3 feet long, wires the

thickness of a finger 20-25 feet long, and chains. These

artifacts were greased and oiled to prevent rusting. When

laid down upon the deck, they rendered portions of the

deck oily and greasy. When the longshoremen com-

menced work at the No. 2 hatch at 8:00 a.m. there were a

few turnbuckles on the deck, but throughout the day the

crew brought more lashing equipment and placed it on

the raised deck, so that by the time of the accident in

mid-afternoon the area from the ladders to the controls

was so obstructed that one had to walk over the equip-

ment to get to the controls. While so engaged, Fanetti

slipped and fell.

Fanetti and his hatch boss DeLiso both testified that

they complained to ‘‘seamen’’ or ‘‘crewman’’ about the

obstructions, to no avail. There was no evidence that the

condition was called to the attention of a ship’s officer.

The jury, after hearing this evidence and medical testi-

mony, returned a verdict in Fanetti’s favor for $511,190.

Hellenic moved for judgment n.o.v., remittitur or a new

trial, all of which the District Judge denied. This appeal

followed.

We do not understand Hellenic to dispute on the appeal

that the vessel’s crew, in the performance of work unrela-

2570

A5

ted to the longshoremen’s loading of cargo, created a

condition on deck dangerous to the longshoremen who

had to work there. Rather, Hellenic taxes the trial court

with error in its jury charge by failing to distinguish

between shipowner and stevedore safety responsibilities.

That distinction, or as alternatively phrased, ‘‘[t}he di-

chotomy between shipowner and stevedoring functions’’

(Hellenic brief at 3), is said to apply with full force and

effect even though Hellenic, opting not to hire an inde-

pendent contractor, instead acted as its own stevedore. In

the light of that distinction, the argument continues,

Judge Motley’s charge on the subject of Hellenic’s duty

to plaintiff gua shipowner' was adequate. Hellenic views

itself as entitled to a charge based on the standards

promulgated by this Court for the situation in which a

! That portion of the district court’s charge relevant to the appeal

reads as follows:

**Now the duty of a shipowner to a longshoreman in these circum-

stances is closely related to the duty owed by homeowner or

property owner to one whom the homeowner or property owner

invites into his premises. In inviting others onto his premises, the

owner is considered to be offering some assurance to the invitee

that the place is prepared for his reception and that reasonable care

has been exercised to make it safe for his use. In this case, the

property of the defendant is a vessel, a ship. That is not to say that

the shipowner must make his vessel absolutely free of all dangers or

hazards. The shipowner’s duty in this case was to exercise reason-

able care under the circumstances to provide a reasonably safe place

for the longshoremen to work. This means that the shipowner must

take remedial steps to protect longshoremen from concealed or non

obvious defects, where the shipowner knows or should have known

of the condition and should realize that it is an unreasonable risk of

harm.

**Now in this case it is not claimed that the shipowner failed to

correct a concealed or non obvious defect. It is claimed that the

shipowner knew of the dangerous condition created by the seamen,

since it was an open and obvious situation. The shipowner is not

liable for injuries resulting from known or obvious dangers, unless

the shipowner should anticipate a harm despite the obviousness of

danger...”

2571

A 6

shipowner hires an independent contracting stevedore.

Evans v. Transportation Maritime Mexicana SS. “‘CAM-

PECHE”’, 639 F.2d 848 (2d Cir. 1981), is cited as a

recent, salutary example. Evans, following earlier cases

decided by this Court, held that ‘‘a vessel is not liable for

injuries resulting from known or obvious dangers unless

the shipowner should anticipate the harm despite the

obviousness of the danger,’’ 639 F.2d at 855; the ‘‘sine

qua non of a ship’s liability for an obviously dangerous

condition arising during the process of loading or unload-

ing is reasonable anticipation that the longshoreman will

not be able to avoid it.’’ Jd. at 856, quoting Giglio v.

Farrell Lines, Inc., 613 F.2d 429, 432-33 (2d Cir. 1980).

**If a charge were given to the jury along the guidelines of

the Evans case,’’ Hellenic argues in its brief, ‘‘the verdict

may have been for the shipowner rather than the plain-

tiff.’’

In particular, Hellenic argues that Judge Motley should

have informed the jury that the stevedore bears the

primary responsibility to correct dangerous conditions,

and that the shipowner will often rely on the stevedore to

do so. The charge is criticized for failing to discuss ‘‘the

unique degree of anticipation to which the shipowner is

entitled, based on its functional relationship with its

stevedore,’’ brief at 8. In that regard, Hellenic complains

that the judge did not inform the jury that the ‘‘steve-

dore’’ was responsible for insuring compliance with rele-

vant safety and health regulations for longshoring.’

2 The particular instructions requested by Hellenic are as follows:

“8. It was the duty of the stevedore employer to furnish the

plaintiff with a safe place to work. 29 C.F.R., Chapter XVII,

Sections 1918.1 and 1918.2.

“9. The safety and Health Regulations for longshoring provides

that: ‘Weather deck walking and working areas shall be kept

2572

A7

Even if the requested charge had been given, the

exoneration of Hellenic on the evidence in this case is

unlikely. Crew negligence created the hazard, just as in

Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d

30 (2d Cir. 1980), where a longshoreman fell on deck as

the result ‘‘of a general obstruction of the walking area

by various types of refuse.’’ Jd. at 33. The shipowner in

Doca hired an independent stevedoring contractor. The

district court, trying the case without a jury, assessed

90% liability against the shipowner. We affirmed, observ-

ing that ‘‘[t}he ship’s crew had created this hazard, and

the ship was primarily responsible for it.’’ /bid.

Nonetheless, the independent stevedoring contractor in

Doca bore the remaining 10% of liability because a

regulation promulgated by the Occupational Safety and

Health Administration, 29 C.F.R. § 1918.91(a) (1979},

required stevedores to keep their work area free of ‘‘trip-

ping or stumbling hazards’’; we affirmed the district

court’s conclusion that the regulation created a non-dele-

gable duty to remove the hazard, adding that ‘‘[t}he fact

that the hazard was primarily the ship’s responsibility

does not excuse the stevedore from fulfilling its regula-

reasonably clear of lines, bridles, dunnage and all other loose

tripping or stumbling hazards.’ (29 C.F.R., Chapter XVII, Section

1918.91 (a).

“The safety and Health Regulations for Longshoring further pro-

vides: ‘Slipperty conditions shall be eliminated as they occur and

loose paper, dunnage and debris shall be collected as the work

progresses and be kept clear of the immediate work area.’ (29

C.F.R., Chapter XVII, Section 1918.91 (c) and (d).

**10. The responsibility for removing such hazards is on the steve-

dore. (29 C.F.R., Section 1918.2 (a), .3 (c).

**11. The shipowner had no duty to supervise the operations of the

stevedore. Therefore, any failure of the stevedore to conduct its

operations properly would not be the responsibility of the ship.”’

2573

A 8

tory obligation,’’ ibid. In the case at bar, we are not

prepared to say that no reasonable jury could find that

the obstruction was at a place where an independent

contractor (if one existed) would have been expected to

remove it. We therefore confront the question posed by

Hellenic on this appeal: whether a shipowner choosing to

act as its own stevedore is entitled to that insulation from

liability, partial or total, which hiring an independent

contractor might have afforded.

We answer that question in the negative, for the reason

stated by Judge Friendly in Napoli v. TransPacific Car-

riers Corp., supra, 536 F.2d at 508, where Hellenic was

also the shipowner:

** _ . . a charge which relieves a shipowner of liabil-

ity for a dangerous condition which was ‘known to

the stevedore or to any of its employees’ is clearly

inappropriate where the shipowner, itself, is the

stevedore.”’

See also Canizzo v. Farrell Lines, Inc., 579 F.2d 682,

689-90 (2d Cir. 1978), Friendly, Ct.J., dissenting:

‘*Where, as in [Napoli], there is no independent

contractor, it is part of the ship’s duty to exercise

reasonable 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 . . . Things are very different when the long-

shoreman works for an independent stevedore who

has primary responsibility for the workplace.’’ (em-

phasis in original).

The concept of stevedoring contractor as independent

expert upon whom the shipowner may reasonably rely

2574

AQ

runs like a /eitmotiv through the cases, most recently

Evans, supra, 639 F.2d at 856:

**In determining whether a shipowner should antici-

pate injury to longshoremen resulting from a known

dangerous condition, courts must take into consider-

ation the independent-contractor status of the steve-

dore. See Giglio v. Farrell Lines, Inc., supra, 613

F.2d at 435; Canizzo v. Farrell Lines, Inc., supra,

579 F.2d at 688 (Friendly, J., dissenting). Lubrano v.

Royal Netherlands Steamship Co., supra, 572 F.2d

at 372 (Moore, J., dissenting). See also Comment,

supra, at 749, 751-52; Robertson, supra, at 451. The

stevedore is specifically hired for its expertise in

coping with the dangers inherent in loading and

unloading cargo, and in many cases it will be per-

fectly reasonable for the shipowner to assume that

the stevedore will correct the defect. See Giglio v.

Farrell Lines, Inc., supra, 613 F.2d at 433; Canizzo

v. Farrell Lines, Inc., supra, 579 F.2d at 689

(Friendly, J., dissenting) (‘No decision of this court

requires us to ignore the ship’s justifiable reliance on

the independent contractors to perform their

duty.’).”’

A shipowner is, of course, at liberty to refrain from

hiring an independent stevedoring contractor. Presum-

ably it does so to save money. However, that saving is

accomplished at the cost of not having an independent

expert on board. As myriad cases in this field demon-

strate, the presence of the expert independent stevedoring

contractor furnishes the shipowner with significant pro-

tection, in the form of insulation from liability for its

own acts which would otherwise attach. But the ship-

2575

A 10

owner cannot save the premium and still claim the protec-

tion.

Hellenic argues that the analyses quoted from Napoli

and Canizzo would never have been articulated if the

Supreme Court’s decision in Edmonds v. Compagnie

Generale Transatlantique, 443 U.S. 256 (1979), had then

been available. We do not agree. In Edmonds the injured

longshoreman was employed by an independent steve-

doring company. The jury determined that he was re-

sponsible for 10% of the total negligence resulting in his

injury, that the stevedore’s fault, through a co-em-

ployee’s negligence, contributed 70%, and that the ship-

owner was accountable for 20%. The district court re-

duced the longshoreman’s recovery by 10%, but refused

further to reduce the award against the shipowner in

proportion to the fault of the employer. The Fourth

Circuit reversed and held the shipowner liable only for

that share of the total damages equivalent to the ratio of

its fault to the total fault, regarding that result as neces-

Sary to reconcile two sentences added as part of the 1972

amendments to LHWCA at 33 U.S.C. § 905(b). Those

sentences read:

“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 by reason thereof, may bring in action

against such vessel as a third party in accordance

with the provisions of section 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 provide steve-

doring services, no such action shall be permitted if

2576

All

the injury was caused by the negligence of persons

engaged in providing stevedoring services to the ves-

sel.”’

The Supreme Court reversed and reinstated the judg-

ment of the district court. The Court observed that the

first sentence of § 905(b) was drafted by Congress to

overrule the express or implied warranty of a stevedore’s

workmanlike service declared in Ryan Stevedoring Co. v.

Pan-Atlantic S.S. Corp., 350 U.S. 124 (1956), which

could result in indemnification of the shipowner by the

stevedore for the former’s liability to the longshoreman.

By overruling Ryan, the first sentence of § 905(b) ‘‘pre-

vents the vessel from recouping from the stevedore any of

the damages that the longshoreman may recover from the

vessel.” 443 U.S. at 264. The Court continued:

**But the sentence neither expressly nor implicitly

purports to overrule or modify the traditional rule

‘that the longshoreman may recover the total amount

of his damages from the vessel if the latter’s negli-

gence is a contributing cause of his injury, even if the

stevedore, whose limited liability is fixed by statute,

is partly to blame.”’ /bid.

Rather than stopping there, the Court in Edmonds

went on to analyze the second sentence of § 905(b).

Although recognizing that application of the second sen-

tence ‘‘is not involved in this case,’’ id. at 265, the Court

engaged in the analysis to deal with inconsistencies be-

tween the two sentences perceived by the Fourth Circuit.

The Court stated:

**The second sentence of the paragraph is expressly

addressed to the different and less familiar arrange-

2577

Al2.

ment where the injured longshoreman loading or

unloading the ship is employed by the vessel itself,

not by a separate stevedoring company—in short, to

the situation where the ship is its own stevedore. In

this situation, the second sentence places some limi-

tations on suits against the vessel for injuries caused

during its stevedoring operations. Whatever these

limitations may be, there is no conflict between the

two sentences, and one arises only if the second

sentence is read, as the Court of Appeals read it, as

applying to all injured longshoremen, whether em-

ployed by the ship or by an independent stevedore.

Nothing in the legislative history advises this con-

struction of the sentence, and we see no reason to

depart from the language of the statute in this

respect.’” Jd. at 264-65 (footnotes omitted).

To avoid any other practical difficulties, the Court con-

tinued:

‘* . . it is necessary only to construe the second

sentence to permit a third-party suit against the

vessel providing its own loading and unloading ser-

vices when negligence in its nonstevedoring capacity

contributes to the injury. The second sentence means

no more than that ail longshoremen are to be treated

the same whether their employer is an independent

stevedore or a shipowner-stevedore and that all steve-

dores are to be treated the same whether they are

independent or an arm of the shipowner itseif.

‘**This leaves the question of the measure of recovery

against a shipowner, whether or not it is doing its

own stevedoring, when as shipowner it is only par-

tially responsible for the negligence, but we are quite

unable to distill from the face of the bviously

2578

A 13

awkward wording of the two sentences any indica-

tion that Congress intended to modify the pre-exist-

ing rule that a longshoreman who is injured by the

concurrent negligence of the stevedore and the ship

may recover for the entire amount of his injuries

from the ship.’’ Jd. at 266 (emphasis added).

Hellenic relies upon the italicized language as support-

ing its contention that a shipowner acting as its own

stevedore should be entitled to rely upon itself as expert

stevedoring contractor, thereby insulating itself from the

consequences of its negligence as shipowner. Additional

authority for this proposition is also said to be found in

the legislative history of the 1972 amendments.’ In our

view, however, the Edmonds Court’s attempted clarifica-

tion of ‘‘the obviously awkward wording of the two

sentences’’ of this statute should not be so far removed

from the context in which it was given as to require what

we continue to consider, with Judge Friendly in Napoli

and Canizzo, an illogical result. The Court’s purpose in

Edmonds was to achieve a statutory construction which

would permit an injured longshoreman to recover his full

damages from a shipowner only concurrently negligent.

That was also the thrust of the legislative history, with its

articulated belief ‘‘that the rights of an injured longshore-

3 S.Rep.No. 92-1125 (1972) states at pp. 11-12:

“The Committee believes that the rights of an injured

longshoreman . . . shall not depend on whether he was empiwyed

directly by the vessel or by an independent contractor. Accordingly

the bill provides in the case of a longshoreman who is empioyed

directly by the vessel there will be no action for damages if the

injury was caused by the negligence of persons engaged in perform-

ing longshoring services . . . The Committee’s intent is that the

same principles should apply in determining liability of the vessei

which employs its own longshoremen . . . as apply when an inde-

pendent contractor employs such persons.”’

2579

A 14

man. . . shall not depend on whether he was employed

directly by the vessel or by an independent contractor.’’

That salutary purpose may be preserved without requiring

trial judges to give juries instructions about the ship-

owner’s right to rely upon an expert contractor who, in

fact, was not there. The concept is schizophrenic and the

predictable effect upon the jury one of bafflement. The

Supreme Court itself, in the later case of Scindia Steam &

Navigation Co. v. De Los Santos, 415 U.S. 156 (1981),

emphasized that ‘‘the legal duties placed on the stevedore

and the vessel’s justifiable expectations that those duties

will be performed are relevant in determining whether the

shipowner has breached its duty.”’ Jd. at 176. Implicit in

that analysis is the existence of an independent, expert

stevedore upon whom the shipowner’s ‘‘justifiable expec-

tations’’ may reasonably fall. In those circumstances, and

as Judge Friendly said in Canizzo, ‘‘[t}hings are very

different’’; and we do not read in Edmonds anything

which requires us to accede to Hellenic’s request that

illusion be substituted for reality.

We hold that the requested charge is not appropriate

where, as here, the shipowner acted as its own stevedore.

In consequence, we find no error with the district court’s

instructions.‘

4 Albergo v. Hellenic Lines, Inc., 658 F.2d 66 (2d Cir. 1981), also

relied on by Hellenic, is not to the contrary. A/bergo affirmed the

district court's grant of judgment n.o.v. to defendant because ‘‘as a

matter of law there was no factual or legal basis for an anticipation by

the ship that the plaintiff would be unable to avoid the claimed hazard

despite its obviousness and the way he himself dealt with it."’ The

decision continues:

“The simple act performed by the plaintiff of moving the skinny

rope cuttings aside with his hand from the area where he had to

shackle, which was the area of the accident, eloquently strikes down

any notion of the existence of a negligent condition for which the

2580

A 15

Hellenic complains of the district judge’s charge on the

subject of income taxes. The court’s charge on that

subject in its entirety was as follows:

**If you make an award to the plaintiff, the amount

so awarded is not subject to federal or state income

taxes and no amount may be added to the award

believing that such taxes would be due.”’

Hellenic made no objection to the charge as given.

However, in a post-verdict motion it asserted that a new

trial was required because the jury was not also instructed

to deduct future income taxes from its determination of

the amount of future lost wages. Reliance was placed

upon Norfolk & Western Railway Co. v. Liepelt, 444

U.S. 490 (1980).

Liepelt, a death action brought under the Federal

Employers’ Liability Act (‘‘FELA’’), held that the trial

court erred in excluding the defendant’s proffered testi-

mony of an expert witness that the decedent’s federal

income taxes, during the period of lost future wages,

would have amounted to a particular figure, which defen-

dant wished to urge in reduction of damages. The Court

held in Liepelt that under the FELA, the measure of

vessel owner could be held in damages. As a matter of law there was

no such negligent condition nor any basis for anticipation that the

longshoreman could not avoid the rope in this case—certainly not

one remaining at any time after plaintiff cleared the untidy condi-

tion impeding him.’ /d. at 69.

Hellenic was the defendant in Albergo, and again acted as its own

stevedore. While language in the opinion could be read as recognizing

the shipowner/stevedore dichotomy, the context was entirely different.

Unlike the case at bar, A/bergo did not involve injury to a longshore-

man resulting from a hazardous condition created by crew negligence.

We do not regard Albergo as apposite to the question presented here.

2581

A 16

recovery is the damages that flow from the deprivation of

the pecuniary benefits which the beneficiaries might have

reasonably received. Since it is after-tax income, rather

than gross income before taxes, that provides the only

realistic measure of a wage earner’s ability to support his

family, it necessarily follows ‘‘that the wage earner’s

income tax is a relevant factor in calculating the monetary

loss suffered by his dependends when he dies.’’ 444 U.S.

at 493-94. The Court rejected ‘‘the notion that the intro-

duction of evidence describing a decedent’s estimated

after-tax earnings is too speculative or complex for a

jury,”’ ibid., and remanded the case for further proceed-

ings consistent with its opinion.’

Although for the reasons stated infra Hellenic is not in

a position to benefit from it, we take this opportunity to

extend the Liepelt decision at least to all claims for future

wages based solely on federal law. In McWeeney v. New

York, New Haven & Hartford R.R. Co., 282 F.2d 34 (2d

Cir.) (en banc), cert. denied, 364 U.S. 870 (1960), an

FELA case, we held that the district court had not

committed error in refusing defendant’s request that the

jury be instructed to ‘‘calculate any past or future loss of

earnings on the basis of [plaintiff’s] net income after

deduction of income taxes.”’’ Jd. at 35. But Judge Lum-

bard’s dissenting observation—‘‘it seems to me that it is

manifestly unfair to a defendant to ignore the substantial

item of income tax payments on future income,”’ id. at

43—forecast the Supreme Court’s identical conclusion in

Liepelt; and we see no basis for distinguishing in this

regard between FELA and LHWCA cases. Focusing

$ The second point of decision in Liepelt was that a defendant is

entitled to a jury instruction that the award of damages would not be

subject to income taxation. 444 U.S. at 496-98. As noted supra, Judge

Motley gave that instruction in the case at bar.

2582

A 17

upon after-tax earnings is an exercise in economic fair-

ness; by this decision we extend it at least to all federal

law claims for future lost wages. Cf. Gulf Offshore Co.

v. Mobil Oil Corp., __. U.S. —____ , 101 S.Ct. 2870,

2880 (1981), a personal injury case arising under the

Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 ef

seq., (“*OCSLA”’), in which the Court characterized the

Liepelt instruction that damage awards are not subject to

federal income taxation as an instruction which furthers

“strong federal policies of fairness and efficiency in

litigation of federal claims.’”*

However, to take advantage of the after-tax principle,

a defendant must invoke it in timely and proper fashion.

In the case at bar, Hellenic cited Liepelt in its original

request that the judge charge the jury:

“If you find that plaintiff's damages from his acci-

dent include lost wages, then you must subtract the

amount of income taxes plaintiff would have had to

pay on those lost wages.”’

But Hellenic, unlike the defendant in Liepelt, offered no

evidence to establish what amount of future taxes plain-

tiff would have incurred.’ Hellenic did not seek a stipula-

6 Gulf Offshore Co. did not consider the applicability to OCSLA

cases of Liepelt’s holding that defendant is entitled to introduce

evidence showing the effect of income taxes on plaintiff's future

earnings. 101 S.Ct. at 2879 n.14.

We leave for another day a defendant's entitlement to a Liepelt charge

where federal jurisdiction is based solely on diversity of citizenship.

Again, cf. Gulf Offshore Co., where the Court, in view of the

particular federal/state choice of law provisions in OCSLA, remanded

the case for a determination of whether Louisiana law required the

instruction and, if it did not, whether Liepelt displaced the state rule in

an OCSLA case. /d. at 2880.

7 Some of the factors to be considered in the calculation of future

taxes are summarized in Liepelt at 494:

(footnote continued on next page)

2583

A 18

tion from plaintiff on the point before resting its case.

While plaintiff's more recent tax returns had been re-

ceived in evidence to prove his past earnings, Hellenic did

not indicate before the evidence closed that it would rely

on those returns to quantify future taxes, thereby depriv-

ing plaintiff of an opportunity to offer his own evidence,

expert or otherwise, of what his future taxes might be.

For that reason we reject Hellenic’s argument that the

trial judge should have instructed the jury on the basis of

the past tax returns, or used them to make future tax

calculations herself. Finally, Hellenic did not object to

the charge ultimately given by the district court on the

general subject of taxes. In these circumstances, Hellenic

is not entitled to relief on appeal.

For the future guidance of the district courts and trial

bar, we hold that a defendant confronted with a claim for

future lost wages is entitled to an after-tax charge based

on Liepelt when there is present in the record a stipulation

of future taxes; or evidence of future taxes; or evidence of

past taxes, in which event the jury should be instructed

that it is entitled to assume a future tax amount or tax

percentage of wagcs comparable to the past tax years."

**Admittedly there are many variables that may affect the amount

of a wage earner’s future income-tax liability. The law may change,

his family may increase or decrease in size, his spouse’s earnings

may affect his tax bracket, and extra income or unforeseen deduc-

tions may become available. But future employment itself, future

health, future personal expenditures, future interest rates, and

future inflation are also matters of estimate and prediction. Any

one of these issues might provide the basis for protracted expert

testimony and debate. But the practical wisdom of the trial bar and

the trial bench has developed effective methods of presenting the

essential elements of an expert calculation in a form that is under-

standable by juries that are increasingly familiar with the complex-

ities of modern life."’

8 Some flexibility may be required. Typically in such cases the evi-

dence of past earnings takes the form of W-2 forms showing gross

2584

A 19

We have considered Hellenic’s other points on appeal,

and find them without merit.

Affirmed.

wages and withheld taxes for a calendar year. If the year in which the

accident in suit occurred is included in the proof, it must be discounted

as an econc mic barometer, since earnings in that accident-interrupted

year will be less than normal, and the tax indebtedness accordingly

uncharacteristic.

Application of this rule to the case at bar would not have been fair,

since prior to the ruling we announce today plaintiff had no way of

knowing that we would permit such a charge in such circumstances and

under such an assumption.

2585

A 21

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

UNITED STATES COURTHOUSE

FOLEY SQUARE

NEW YORK 10007

A. Daniel Fusaro

Clerk

Fanetti v. Hellenic Lines Ltd.

Docket No. 8l- 7500

August Term, 1981

Decided May 6, 1982

Page 2571, line 13 - delete "adequate."

and insert "inadequate." in place

thereof.

A. DANIEL FUSARO, Clerk

ADF/hjd

A 22

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PASQUALE FANETTI,

Docket

No.

81-7500

Plaintiff-Appellee,

-against-

HELLENIC LINES LTD.,

Defendant-Appellant.

NOTICE OF MOTION

FOR STAY OF MANDATE PENDING

APPLICATION FOR CERTIORARI

PURSUANT TO RULE 41 (b)

FED. R. APP. P.

Motion by:

Zock, Petrie, Reid & Curtin

Edwin K. Reid & Martin E. Coffey

(212) 425-0310

Opposing Counsel:

Zimmerman & Zimmerman

Martin Lassoff, Esq.

(212) 227-1350

UNITED STATES COURT OF APPEALS, SECOND

CIRCUIT, FILED MAY 13, 1982, A. DANIEL

FUSARO, CLERK

A 23

Has a request of epgesing counsel for

consent been refused? Ss

Has service been effected? YES

Is oral argument desired? NO

Requested Return Date: May 25, 1982

Date of argument of appeal, if

scheduled:

Judge or Agency whose order is being

appealed:

Judges Newman, Oakes & Haight

EMERGENCY MOTIONS, MOTIONS FOR STAYS

& INJUNCTIONS PENDING APPEAL

Has request for relief been made below?

NO

Would expedited appeal eliminate need

for this motion? NO

If no, explain why not:

Stay is es to allow appellant to

prepare petition for certiorari.

Brief statement of the relief requested:

Stay of mandate pending defendant-

appellant's application to the Supreme

Court for a writ of certiorari.

Previous requests for similar relief

and disposition: None

A 24

Statement of the issue (s) presented

by this motion:

Should the mandate be stayed pending

defendant- -appellant' s application for

certiorari to the Cupreme Court.

Brief statement of the facts:

Hellenic Lines Ltd. appealed from the

denial of its motion for judgment n.o.v.,

remittitur or for a new trial after a

jury verdict in favor of the plaintiff

in U.S. District Court, Southern

District, New York, in an action for

rersonal injuries brought under the

Longshoremen's and Harbor Workers'

Compensation Act, which resulted in a

+. ent for the plaintiff in the amount

$l, 190. All of these trial motions

aon denied. The Court of Appeals,

Second Circuit, affirmed.

Summary of the argument:

Defendant-appellant submits that this

Court should stay the mandate because

this action raises ory questions

regarding the scope of the duty to

longshoremen by a shipowner, which

simultaneously functions as a stevedore;

and that the Supreme Court has not

squarely addressed this issue in its

previous opinions explicating the

shipowner-stevedore relationship. In

view of the size of the lower Court

verdict and the significance of the

issue to be raised in a further appeal,

it is, therefore, requested that a

stay of the mandate be issued.

A 25

5/13/82

MARTIN E. COFFEY

Attorney for

Defendant-Appellant

ORDER

IT IS HEREBY ORDERED that the motion

be and it hereby is granted.

UNITED STATES COURT OF APPEALS, SECOND

CIRCUIT, FILED MAY 24, 1982, A. DANIEL

FUSARO, CLERK.

5/24/82

A 26

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

eeeeeceewee ee ee ee eee eeeeeeceecnce= xX

PASQUALE FANETTI, :

Plaintiff, , oe

-against- (CBM)

HELLENIC LINES LTD.,

Defendant.

eeccececcsssouccesesenceesccce X

ZIMMERMAN & ZIMMERMAN

By: Martin Lassoff

160 Broadway

New York, New York 10038

Attorneys for Plaintiff

ZOCK, PETRIE, REID & CURTIN

By: R. Alexander Hulten

Edwin K. Reid

19 Rector Street

New York, New York 10006

Attorneys for Defendant

CONSTANCE BAKER MOTLEY, D.J.

A 27

MEMORANDUM OPINION

On February 13, 1981, the jury

entered a verdict in this longshoreman's

injury suit in favor of plaintiff,

Pasquale Fanetti, in the amount of

$511,100. Defendant, Hellenic Lines

Ltd. (Hellenic Lines), moved for judg-

ment n.o.v., remittitur or a new trial

on a number of grounds. For the

reasons discussed below, defendant's

motion is denied.

Pasquale Fanetti commenced this

action on June 30, 1981, against

Hellenic Lines, the owner of the M.V.

Hellenic Splendor, to recover for

injuries allegedly sustained while he

was working as a longshoreman aboard

the vessel. Fanetti claimed that during

the course of stevedoring operations

a dangerous condition developed aboard

the vessel when the seamen employed by

A 28

Hellenic Lines placed greasy wires and

cables on the deck in the area in which

Fanetti was required to work. At about

3 o'clock in the afternoon of May 6,

1980, when Fanetti was walking back to

his station to operate the winch, he

slipped on the grease left on the deck

by the wires and fell on the wires,

suffering injuries to his neck, back

and shoulder. Fanetti alleged that the

accident was due to Hellenic Lines’

negligence in failing to remedy this

obviously dangerous condition.

After a five-day trial, the jury

found that Hellenic Lines’ negligence

was a proximate cause of the accident

and awarded Fanetti $50,000 for past

pain and suffering, $50,000 for future

pain and suffering, $1,100 for past

medical expenses, $1,500 for future

medical expenses, $29,000 for past

lost wages, and $550,000 for future

A 29

lost wages. The jury subtracted $170,500

from the total amount of damages of

$681,600, representing the amount of

plaintiff's contributory negligence,

which it found to be 25 percent. The

final award was $511,100. See Special

Interrogatories to the Jury - Damages.

Hellenic Lines argues that the

Court should enter judgment n.o.v.

because there was no evidence that a

complaint regarding the grease on deck

was ever made to a mate or ship's

officer with supervisory powers. A

shipowner can only be liable if it has

actual or constructive notice of the

dangerous condition that led to the

longshoreman's injury. Canizzo v.

Farrell Lines, Inc., 579 F.2d 682, 685

(2d Cir. 1978); Evans v. Transportacion

Maritime Mexicana SS "Campeche", 639

F.2d 848, 855 (2d Cir. 1981). The

jury was charged as to this rule. See

A 30

Charge of the Court, p. 12. Hellenic

Lines relies on Judge Friendly's dissent

in Canizzo v. Farrell Lines, Inc., supra,

579 F.2d at 690, for its contention that

any knowledge of the ship's deckhands

about the grease would be imputable to

the shipowner only if they had a duty to

inform the shipowner about it or if they

were ship's officers. Judge Friendly's

dissent, however, is in conflict with

the majority opinion on this point.

The majority in Canizzo v. Farrell

Lines, Inc., affirmed the district

court's judgment establishing liability

on the part of the shipowner for injuries

sustained by a longshoreman when he

slipped on a patch of grease which was

partially covered by a pile of wires

which lay on the deck. The district

court found that the shipowner had

actual or constructive knowledge of the

obviously dangerous condition inasmuch

A 31

as the ship's personnel should have seen

the grease on the deck when they placed

cluster lights in the area. This ~

finding rested on testimony that the

grease, wire and cluster light wires

existed in the area of the accident,

that the grease was there three or

three and one-half hours before the

accident, and that the cluster lights

had been placed on the deck by the

ship's company. Canizzo v. Farrell

Lines, Inc., supra, 579 F.2d at 684,

686. The Court of Appeals concluded,

[t]he existence of a

substantial area of

grease in a narrow

passageway, which

should have been known

to the ship's person-

nel, made more danger-

ous by the positioning

by the ship's personnel

of the cluster lights

and wires upon the

greasy area supports

the finding of neglig-

ence on the part of

the ship and justifies

the plaintiff's

judgment.

A 32

Id at 686.

Thus, in the instant case, it was

proper for the jury to find that

Hellenic Lines had actual or constructive

notice of the dangerous condition

based on the evidence that the ship's

crew created the condition by placing

greasy wires on the deck where Fanetti

was required to work.

Hellenic Lines argues that a new

trial is required because this Court

failed to instruct the jury as to the

stevedore's responsibility for the

safety of the longshoremen, including

the contents of the relevant Safety

and Health Regulations for Longshoring.

Hellenic Lines’ argument is based

on the recent Court of Appeals’ decision

in Evans v. Transportasion Maritime

Mexicana SS "Campeche", 639 F.2d 848

(2d Cir. 1981) (Evans), which held that

the trial court erred in neglecting

A 33

to include such a charge to the jury.

The Court in Evans set forth a detailed

analysis of a shipowner's liability

for negligence in longshoremen's injury

suits, "([r]Jecognizing that district

courts can ‘scarcely be expected to

function with so discordant a chorus

on this court,'. . ." Id. at 853

(citation omitted). Unfortunately,

the correctness of Hellenic Lines’

assertion under the standards set by

this Circuit remains uncertain after

Evans.

The gravamen of the Court of

Appeals’ opinion in Evans regarding

a shipowner's negligence in the case

of an obviously dangerous condition

is that "a vessel is not liable for

injuries resulting from known or obvious

dangers unless the shipowner should

anticipate the harm despite the

obviousness of the danger." Id. at 855.

A 34

The Court went on to hold that "[i]n

determining whether a shipowner should

anticipate injury to longshoremen

resulting from a known dangerous con-

dition, courts must take into considera-

tion the independent-contractor status

of the stevedore”. Id. at 856 (emphasis

added). The Court explained that,

"[t]he stevedore is specifically hired

for its expertise ir loading and

unloading cargo, and in many cases

it will be perfectly reasonable for the

shipowner to assume that the stevedore

will correct the defect." Id. In

achieving the goal of reaching a realis-

tic conclusion concerning the ship-

owner's reasonable anticipation, there-

fore, the trier of fact should recognize

that ordinarily a ship should be

entitled to rely on its stevedore to

perform its job in a safe and workman-

like fashion. Accordingly, the Court

A 35

of Appeals held that the district court

erred in failing to inform the jury

that, for the purpose of determining

shipowner anticipation, they could

consider the fact that the stevedore,

which was an independent contractor,

is primarily responsible for the safety

of the longshoremen and is obligated

to take whatever steps are necessary

to correct an unsafe condition aboard

the ship. Id at 860.

The court in its charge in the

instant action followed the general

rule set forth in Evans by instructing

the jury as follows:

[t]he shipowner is

not liable for

injuries resultin

from known or obvious

dangers unless the

shipowner should

anticipate a harm

despite the obvious-

ness of the danger.

In other words, mere

knowledge of the

dangerous condition

may not serve as an

A 36

independent basis for

liability. Rather,

the shipowner must

be held liable for

an obviously danger-

ous condition aris-

ing during the pro-

cess of loading and

unloading only if it,

the shipowner, should

reasonably have

anticipated that the

longshoreman would

not be able to avoid

harm.

Charge of the Court, pp. 11-12. The

Court determined, however, that it was

not necessary to instruct the jury as

to the stevedore's duty to correct an

unsafe condition aboard ship since the

stevedoring operations .n the instant

action were performed by employees of

Hellenic Lines and not by an independent

contractor, as was the case in Evans.

Thus, unlike the situation in Evans,

there was no independent contractor

with primary responsibility upon whom

Hellenic Lines could reasonably rely

to correct the dangerous condition:

A 37

See Canizzo v. Farrell Lines, Inc.,

supra, 579 F.2d at 689 (Friendly, J.,

dissenting). It would therefore not

have been helpful to the jury in

reaching a realistic conclusion con-

cerning the shipowner's reasonable

anticipation to instruct them as to

the stevedore's duties. Accordingly,

this court rejects Hellenic Lines’

argument that Evans requires that the

Court include such instructions when

the stevedore is not an independent

contractor.

Hellenic Lines also moves for a new

trial on the ground that plaintiff's

medical testimony regarding his

permanent injuries was so speculative

that it should not have been submitted

to the jury. Fanetti presented two

medical experts who testified as to his

injuries - Dr. Leo J. Koven, an

examining orthopedist, and Dr. Suda B.

A 38

Patel, who was in partnership with

Fanetti's treating doctor. Dr. Koven

testified that his diagnosis of

Fanetti's condition, based on his

physical examination of Fanetti and

his analysis of x-rays of Fanetti's

neck, was that Fanetti suffered from a

quiescent, pre-existing arthritis and

pinching of a nerve in the root of his

neck which had been aggravated by the

accident of May 6, 1980. Dr. Koven

also testified that Fanetti suffered

from adhesive capsulitis of the injured

shoulder, also known as frozen shoulder,

caused by the tearing of tissue and

bleeding, which painfully limited

Fanetti's ability to lift his right

arm. Testimony of Dr. Koven, pp. 7-8.

Dr. Koven testified that, with reasonable

medical certainty, the accident of

May 6, 1980, was the competent producing

cause of these injuries and that, with

A 39

reasonable medical certainty, he did not

believe that Mr. Fanetti would ever be

able to return to work as a longshoreman.

Testimony of Dr. Koven, pp. 9-10. Dr.

Patel also testified that Fanetti suf-

fered from adhesive capsulitis as a

result of the accident and that, with

reasonable medical certainty, Fanetti

would not be able to return to work.

Testimony of Dr. Patel, pp. 11, 12, 15.

In light of this testimony, the court

finds that there was sufficient

evidence for the jury to find that

Fanetti suffered from a frozen shoulder

and an aggravation of his pinched nerve

condition which resulted from the

accident and which created a permanent

disability.

Hellenic Lines contends that a new

trial or remittitur is required because

plaintiff failed to mitigate his damage

by getting an electromyogram (EMG).

A 40

This argument is not persuasive. Dr.

Patel testified that the purpose of EMG

studies would be to determine the extent

of the damage to Fanetti's nerves.

Testimony of Dr. Patel, p. 13. There

was no evidence that the EMG would have

provided treatment of Fanetti's injuries

or would have otherwise served to

diminish Fanetti's damages.

Hellenic Lines contends that it is

entitled to a new trial because the jury

did not have before it a present worth

table when it calculated the amount of

plaintiff's award for future pain and

suffering and future lost wages. The

Court instructed the jury that in the

case of the award of future damages it

was required:

to discount, or reduce

to its present worth

the amount of the anti-

cipated future loss by

taking, one, the inter-

est rate which plaintiff

could reasonably be

A 41

expected to receive

on an investment

today of a lump sum

payment together with,

two, the period of

time over which the

future loss is reason-

ably certain to be

sustained, and then

deduct from the total

award for anticipated

future losses whatever

that amount would be

reasonably certain to

earn or return if

invested at such rate

of interest over such

future period of time,

and include in the

verdict an award for

only the present worth,

that is, the reduced

amount of the total

anticipated future

loss.

Charge of the Court, pp. 25-26. The

court suggested that the jury use a

discount rate of two percent. The

court also noted that it took judicial

notice of a chart which shows the

present worth of a dollar invested

today over a period of years at the

rate of two percent and that the jury

might send for the chart if it got to

A 42

the point of calculating present worth.

After the jury returned its verdict

in favor of plaintiff the court quest-

ioned the forelady of the jury as to

whether the amounts awarded for future

pain and suffering, future medical

expenses and future lost wages had been

discounted to their present value. The

forelady responded that the jury had

discounted the awards to their present

value as the court instructed. Trans-

cript, 3-13-81, pp. 1-2. The court

concludes that the jury was properly

charged as to the requirement that

awards for future damages be discounted

to their present worth. The two percent

present value chart is only an aid to

the jury in making its calculations

of present value; the jury's failure

to use it does not require a new trial.

Finally, Hellenic Lines asserts

that a new trial is required because the

A 43

jury was not instructed to deduct future

income taxes from its determination of

the amount of future lost wages.

Hellenic Lines relies on a recent

United States Supreme Court decision,

Norfolk & Western Railway Company v.

Liepelt, 444 U.S. 490 (1980) (Liepelt),

for this contention. In Liepelt, a

- wrongful death action arising under the

Federal Employer's Liability Act, the

Supreme Court held that the trial judge

erred in excluding evidence of the

income taxes payable on the decedent's

past and estimated future earnings and

in refusing to instruct the jury that

the award of damages would not be subject

to income taxation. The petitioner

in Liepelt had offered to prove in the

trial below through the testimony of

its expert, an actuary, that the

decedent's federal income taxes during

the years 1973 through 2000 would have

A 44

amounted to about $57,000.

Upon consideration of the holding

in Liepelt, this court finds that its

charge was in accordance with the

Supreme Court's ruling. The court

charged the jury, as required by Liepelt,

that "[i]£ you make an award to the

plaintiff, the amount so awarded is not

subject to federal or state income taxes

and no amount may be added to the award

believing that such taxes would be due.”

Charge of the Court, p. 27. The court

did not exclude any evidence offered

by Hellenic Lines of income taxes

payable on Fanetti's estimated future

earnings. In fact, Hellenic Lines'

counsel states in its memorandum of

law in support of its motion that “there

was no evidence on this issue [of

plaintiff's future income taxes] except

for some of plaintiff's prior income

tax returns." Defendant's Memorandum

A 45

of Law at 26-27. The holding in Liepelt

only required that the trial judge allow

defendant to introduce evidence of

income taxes payable on estimated future

earnings; it did not require that the

trial judge instruct the jury to deduct

future income taxes where no evidence

was presented.

For the reasons discussed above,

Hellenic Lines' motion for a new trial,

remittitur or judgment n.o.v. is denied.

Dated: New York, New York

June 15, 1981

U.S.D.J.

A 46

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York,

on the sixth day of May, one thousand

nine hundred and eighty-two

Present:

Hon. James L. Oakes

Hon. Jon 0. Newman

Circuit Judges

Hon. Charles S. Haight,

, District Judge

PASQUALE FANETTI,

Plaintiff-Appellee,

my 81-7500

HELLENIC LINES LTD.,

Defendant-Appellant.

UNITED STATES COURT OF APPEALS, SEC. CIR.

FILED MAY 6, 1982, A. DANIEL FUSARO, CLERK

A 47

Appeal from the United States

District Court for the Southern District

of New York.

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 CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed

that the judgment of said District Court

be and it hereby is affirmed in accord-

ance with the opinion of this Court

with costs to be taxed against the

appellant.

A. Daniel Fusaro, Clerk

By Edward J. Guardaro,

Deputy Clerk

A 48

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

rrr? TTririrerererefeeerefefftiftftflttttt 4

PASQUALE FANETTI,

Plaintiff, 80 Civ.

3689

-against- (CBM)

HELLENIC LINES LTD.,

Defendant.

~~~. tTrTtrtTrrrrerrereeefeeefetftftifittfttttt x

JUDGMENT #81,0201

The issues in the above entitled

action having been brought on regularly

for trial before the Honorable Constance

Baker Motley, United States District

Judge and a jury on February 9, 1981,

and at the conclusion of the evidence

the jury having answered the attached

"Special Interrogatories to the Jury”

finding in favor of the plaintiff as

against the defendant in the sum of

$681,600.00., and the jury having

A 49

further found contributory negligence

on the part of the plaintiff to the

degree of 25%, thereby reducing the

final award to $511,100.00., it is,

ORDERED, ADJUDGED AND DECREED:

That the plaintiff have judgment as

against the defendant in the sum of

$511,100.00.

(CBM) Defendant shall have 30 days from

date of verdict to file post trial

motions.

Dated: New York, New York

February 21, 1981

Clerk

APPROVED:

U.S.D.T.

A 50

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

PASQUALE FANETTI,

Plaintiff-Appellee, po .net

No.

~ageinet- 81-7500

HELLENIC LINES LTD.,

Defendant-Appellant.

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE

UNITED STATES

Notice is hereby given that

Hellenic Lines Ltd., the defendant-

appellant above-named, hereby appeals

to the Supreme Court of the United

States from the judgment entered in this

action on May 6, 1982, affirming a

judgment entered in the United States

District Court, Southern District, for

the plaintiff, after a jury trial.

This appeal is taken pursuant to

A 51

28 U.S.C. §1254.

Pursuant to U.S. Sup. Ct. Rule

28.5, 28 U.S.C. Rule 28, all parties

required to be served have been served

and counsel's names and addresses are

listed below.

Dated: New York, New York

May 18. 1982

ZOCK, PETRIE, REID & CURTIN

By

Martin E. Cottey

Attorneys for Defendant-

Appellant

Office and P.O. Address

19 Rector Street

New York, New York 10006

(212) 425-0310

To: Zimmerman & Zimmerman

160 Broadway

New York, New York 10038

A 52

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ecececeesesoueuesonooesessees xX

PASQUALE FANETTI,

Plaintiff, :80Civ. 3689

(CBM)

-against-

HELLENIC LINES LTD.,

Defendant.

eo Xx

NOTICE OF APPEAL

NOTICE IS HEREBY GIVEN, that

defendant herein, Hellenic Lines Ltd.,

does appeal to the United States Court

of Appeals for the Second Circuit from

the entire Order/Opinion of the

Honorable Constance B. Motley, United

Staves District Judge, dated June 15,

1981.

Dated: New York, New York

July 14, 1981

A 53

Yours etc.,

ZOCK, PETRIE, REID &

CURTIN

Attorneys for Defendant

By

Office and P.O. Address

19 Rector Street

New York, New York 10006

(212) 425-0310

To: Zimmerman & Zimmerman

Attorneys for Plaintiff

160 Broadway

New York, New York 10038

UNITED STATES DISTRICT COURT, FILED,

JULY 14 1981, S.D. OF N.Y.