Opposition Brief — Ugarte v. United States Lines, Inc.

| aig

FIRED

—~ AUG 15 1985

) )

JOSEPH F. SPANIOL, JR.

No. 85-171 CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

_>—

LUIS FRANK UGARTE,

Petitioner,

—vs.—

UNITED STATES LINES, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

BRIEF IN OPPOSITION

ROBERT ALEXANDER HULTEN

Counsel of Record

Attorneys for Respondent

KIRLIN, C AMPBELL & KEATING

14 Wall Street

New York, New York 10005

(212) 732-5520

COUNTER-STATEMENT OF QUESTIONS PRESENTED

1. Does this case warrant the sparing exercise of the Court’s

extraordinary certiorari jurisdiction where the judgment of the

New York Court of Appeals was based on its rules of proce-

dure allocating the burden of proof for summary iudgment

which were applied properly to Federal precedent governing

the Jones Act?

2. Should the General Maritime Law’s warranty of sea-

worthiness be extended to pier areas where the shipowner has

no control?

ill

TABLE OF CONTENTS

PAGE

Counter-Statement of Questions Presented............ i

I a Vv

Statement Pursuant to Supreme Court Rule 28.1 ...... Vii

I sce be vses neeesevebscvesecs ]

EES OCTET TTT Ee eT LT 2

Argument and Reasons for Denying the Writ ......... 3

A. Petitioner failed to sustain his burden of proof

according to State Procedure.................. 3

B. Jones Act precedent was properly followed by the

et ss 6 a a0 bo. 64a 0a0e¥000% 5

C. Extension of the warranty of seaworthiness to the

pier is not only inappropriate but precluded by

Ee ee fet wis twee aubssedcéevie es 8

ee ee sk kwkke Cand OO eed nes 10

Appendix

Text of Court Rule Forming Basis for 8A Order... 42a

Ee eee ve ens keys 6 4Sa

»

i’

i

TABLE OF AUTHORITIES

Cases Cited:

Aguilar v. Standard Oil Co., 318 U.S. 724, 736-737

CRD coe ives ocess keewesaneewece ies

Bates v. Prudential-Grace Lines, 497 F. 2d 900 (9th Cir.),

curt. Gam. 479 UD. WOGP CIGTE qc cnccwiccncccacesss

Carter v. Union R.R. Co., 438 F. 2d 208 (3d Cir. 1971) .

Chesapeake & Ohio R.R. v. Newman, 243 F. 2d 804 (6th

ees SEP MRRs OGk Cok éh Kaha hESda hee w eee

Columbia Ribbon v, A-1-A Corp., 42 N.Y. 2d 496, 500,

398 NYS 2d 1004, 369 N.E. 2d 4 (1977)............

Epling v. M. Transport Elping Co., 435 F. 2d 732, 736

(6th Cir.), cert. den. 401 U.S. 961 (1973) ...........

Friends of Animals, Inc. v. Associated Fur Manufac-

turers, Inc., 46 N.Y. 2d 1065, 1067, 416 NYS 2d 790,

ce ee eee pan ome

Gaeta v. New York News, 62 N.Y. 2d 340, 350, 477 NYS

y Em 1p ot ee U8.) ee ee eee re

Guttierez v. Waterman S.S. Corp., 373 U.S. 206 (1963)

Hamilton v. Marine Carriers Corp., 332 F. 2d 223 (ED

es | POS Pe Oe re Pern) Le

Henry v. S.S. MT. EVANS, 227 F. Supp. 408 D. Md.

REE ci PKR CARA DA Naa OURKS CUR RENE CORR ANKE eae

Hopson v. Texaco, Inc. 383 U.S. 262 (1966) ..........

Indig v. Finkelstein, 23 N.Y. 2d 728, 296 NYS 2d 370,

Se Pees Ne COU % kb dea sae abcecneweawcees

Jeter v. Starfish and Oyster Co., 482 F. 2d 457, 458 (Sth

Re EE ARON CEA a hk obeeus snc RkReC kha wee nen

Martinez v. Matson Navigation Company, et al., 1963

Ps SE EN SIs wh 00550 owe she wee ek

vi

PAGE

Roche v. Hearst Corp., 53 N.Y. 2d 767, 439 NYS 2d 348,

ee ees. EUDEED cn dcecccdcrtssenaveanbaned 4

Romero Reyes v. Marine Enterprises, Inc., 494 F. 2d 866

SE os a bud ka ub an hae hace OReeeseneeiwes 10

Shenker v. Baltimore & Ohio RR, 374 U.S. 1 (1963)... 6

Sinkler v. Missouri Pacific RR, 356 U.S. 326 (1958) ... ,5, 6

Thomas v. Grigorescu, 582 F. Supp. 514 (SDNY),

affirmed, 751 F. 2d 371 (2d Cir. 1984).............. 5

Tim v. American President Lines, 409 F. 2d 385 (9th Cir.

SE OR C6i us ease bbs eOheradedekeed Vemeedee 6,7

United States v. Johnston, 268 U.S. 220, 227 (1925)... 2

Verrett v. McDonough Marine, 705 F. 2d 1437 (Sth Cir.

NS ib 6b Kad AWC EEE RORAARESECE CERO EEE EDERTAS A 5

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971) ....3, 8, 9

Wheeler v. West Indian S.S. Co., 205 F. 2d 354 (2d Cir.

REFIT TE Tee ETT Te TTT ee Te Ty ey reer 8

Zuckerman v. City of New York, 49 NY 2d 557, 562, 427

NYS 2d 595, 404 N.E. 2d 718 (1980)............... 3,4

Statutes and Rules Cited:

McKinney’s 1982 Rules of Court § 660.35............ ]

New York Civil Practice Law and Rules 3212 (f) ...... 4

nT NN SE ED os cad vacbwete ol eae anaes

Treatises:

Benedict on Admiralty—Vol. 1B, Hall-Saun-Bellman... 7n,

New York Civil Practice—Vol. 4, Weinstein-Korn-Miller 5

Vil

STATEMENT PURSUANT TO SUPREME

COURT RULE 28.1

UNITED STATES LINES, INC. is a wholly-owned subsidiary of

McLean Securities, Inc. The latter is traded publicly on the

New York Stock Exchange and approximately 90% of its

shares is owned by Malcolm P. McLean.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-171

a

LUIS FRANK UGARTE,

Petitioner,

—vs.—

UNITED STATES LINES, INC.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE STATE OF NEW YORK

>

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

Petitioner’s version is basically accurate with several impor-

tant exceptions.

There is no mention of the initial court’s 8A Order which is

similar to a pre-trial order in the United States District Courts

pursuant to Federal Rule of Civil Procedure 16. The State

authority for this rule at the trial level court is McKinney’s

1982 New York Rules of Court § 660.35 (22 NYCRR 660.35),

effective May 26, 198!, aid is reprinted in respondent’s por-

tion of the appendix beginning at page 42a.

The relevant portion of the order is on page 45a, wherein

discovery was to be completed by a certain date (no extensions

were sought) and where the petitioner demonstrated his inten-

tion of deposing only seamen-witnesses, not respondent’s per-

sonnel. This “8A Order” was part of the Record on Appeal

which was filed with both New York appellate courts.

2

The petition also implies that the subject railroad cars

magically appeared on the Bremerhaven dock after petitioner

left the vessel at 6:30 P.M. and before his return at around

10:00 P.M. This contradicts the affidavit submitted below [35a]

where Mr. Ugarte states that the vessel had been docked at that

location for a complete day before his excursion.

More importantly, counsel neglects to inform the Court that

Mr. Ugarte and a companion were drinking in the Bre-

merhaven Seamen’s Club before their return to the vessel from

shore leave. See the attached pages from plaintiff’s Examina-

tion Before Trial, or Deposition, printed as part of the Appen-

dix, 48-49a, which were part of respondent’s original motion.

Although he limits his consumption to only two beers in 3

hours, Mr. Ugarte does admit to half an hour of shopping at a

later time when normal retailing would not occur.

SUMMARY OF ARGUMENT

Respondent, UNITED STATES LINES, INC., (USL) respect-

fully submits that the instant petition fails to present a single

“special and important” reason warranting the issuance of a

Writ of Certiorari. (See Suprerne Court Rule 17.) On the

contrary, the only real issue raised by the disposition below is

whether the New York Court of Appeals correctly granted

USL’s motion for summary judgment because petitioner had

failed to present sufficient admissible proof as to whether

respondent violated any Jones Act duty.

Because that fact-bound determination presents no conflict

with any decision of this Court or any Circuit, and because this

Court’s extraordinary certiorari jurisdiction is not properly

invoked “to review evidence and discuss specific facts”, the

petition should be denied. See United States v. Johnston, 268

U.S. 220, 227 (1925).

In his Point II, petitioner takes about two pages to argue

that the warranty of seaworthiness should be extended

landward over pier areas beyond the gangway and that this is a

3

“re-occurring and most important issue . . . not yet addressed

by this Court.” The brevity of argument and dearth of author-

ity are understandable in light of this Court’s decision in

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971) which

distinguished and re-affirmed Guttierez v. Waterman S.S.

Corp. , 373 U.S. 206 (1963) by limiting admiralty law to the end

of the gangway except in unique circumstances not present in

the case at bar.

ARGUMENT AND REASONS FOR

DENYING THE WRIT

A. Petitioner failed to sustain his burden of proof according

to State Procedure.

Stripped to its essentials, petitioner’s argument is that a

factual issue was created solely by Mr. Ugarte’s affidavit,

[35a]. This issue was the main contention in the motion for

re-hearing, [2la-24a]. Deficiencies are claimed because USL

personnel did not submit an affidavit and that issues were

raised by respondent’s counsel instead. Unfortunately, the

procedural ground rules leading to the dismissal below have

been misinterpreted.

Before considering whether a plaintiff puts forth sufficient

proof to defeat a defendant’s motion for summary judgment,

the issue of whether the defendant established a defense must

be addressed, Zuckerman v. City of New York, 49 N.Y. 2d 557,

562, 427 N.Y.S. 2d 595, 404 N.E. 2d 718 (1980). In this

instance, USL put forth sufficient evidence in admissible form

and petitioner raised no issue of material fact to support his

claim of negligence or unseaworthiness. Merely because defen-

dant’s supporting proof was placed before the court by way of

an attorney’s affidavit annexing plaintiff’s deposition testi-.

mony rather than affidavits of fact on personal knowledge,

does not defeat defendant’s right to summary judgment. See

Gaeta v. New York News, 62 N.Y. 2d 340, 350, 477 N.Y.S. 2d

82, 465 N.E. 2d 802 (1984), and Zuckerman v. City of New

York, supra, page 563.

4

Supporting affidavits will be scrutinized with care and purely

conclusory assertions will not and did not assist petitioner, see

Columbia Ribbon v. A-1-A Corp., 42 N.Y. 2d 496, 500, 398

N.Y.S. 2d 1004, 369 N.E. 2d 4 (1977) and Indig v. Finkelstein,

23 N.Y. 2d 728, 296 N.Y.S. 2d 370, 244 N.E. 2d 298 (1968), as

well as Friends of Animais, Inc. v. Associated Fur Manufac-

turers, Inc., 46 N.Y. 2d 1065, 1067, 416 N.Y.S. 2d 790, 390

N.E. 2d 298 (1979).

The substance and timing of petitioner’s affidavit should be

examined. He there states: “It is my claim that United States

Lines or its agent including the pier owner or operator. . .”

[36a]. This recitation comes after plaintiff had over 3 months

to conduct whatever disclosure he felt was needed to prove the

agency relationship. According to the 8A—Pre-Calendar Order

[46a], petitioner did not even want to depose any of respond-

ent’s personnel. Mr. Ugarte’s failure to employ discovery

procedures cannot be held against respondent even if the

relevant facts are solely within its knowledge, see Roche v.

Hearst Corp., 53 N.Y. 2d 767, 439 N.Y.S. 2d 348, 421 N.E. 2d

840 (1981).

Counsel for petitioner’s August 2nd, 1983 letter [27a] is also

woefully deficient. This correspondance seeks to re-open dis-

covery almost 6 months after the service of respondent’s

motion papers and 5 months after Mr. Ugarte’s conclusory

affidavit enumerated his theories of liability.

The text of this August 2, 1983 letter to the initial court,

while the motion was sub judice and after the close of discov-

ery, is also interesting. Mr. Katz states: “We have recently

learned that United States Lines, Inc. is charged with the

maintenance’ of the German pier at which its vessel was

docked at the time Mr. Ugarte was caused to sustain his

injury.” The source of this knowledge is curiously never identi-

fied. An attorney’s hearsay speculation was rightly ignored, see

Zuckerman v. City of New York, supra.

| Since the 2lieged cause of the accident was the positioning of

railroad cars, it is difficult to see the relevance or even materiality of this

statement.

5

Petitioner thus made three presentations to the New York

Courts over a two-year period without ever offering any

specific information justifying further inquiry. Mr. Ugarte’s

affidavit was sworn to on March 3, 1983; his counsel’s sub

judice \etter was in August, 1983, while the plea for further

discevery before New York’s highest Court in the form of a

motion for re-hearing was on March 14, 1985, [2la-24a]. A

leading New York procedural treatise, 4 Weinstein-Korn-Miller,

New York Civil Practice, states at page 51: “CPLR 3212(f) [the

alternative basis for petitioner’s rehearing] should not be used

>’

as a means of embarking on a ‘fishing expedition’ ”.

B. Jones Act precedent was properiy followed by the New

York Court.

Epling v. M. Transport Epling Co., 435 F. 2d 732, 736, (6th

Cir.), cert. den. 401 U.S. 961 (1973), is an example:

ae

. . . Even the sweeping non-delegable duty imposed

by the Jones Act upon the employer to provide his

employees with a safe place to work will permit the

imputation of a third-party’s negligence to the employer

only where there has been a breach of some contractual

duty owed by the third party to the employer.”

A recent Federal Employers’ Liability Act (FELA) case from

the Second Circuit has a similar holding, see Thomas v.

Grigorescu, 582 F. Supp. 514 (SDNY) affirmed 751 F. 2d 371

(1984). Former maritime attorney, and now Judge Haight,

there found that the Hopson v. Texaco, 382 U.S. 262 (1966)

and Sinkler v. Missouri Pacific, 374 U.S. 326 (1958) line of

cases could only be invoked if definite proof of a specific

contract between an independent contractor and the railroad

or the shipowner is established. Absent such proof, FELA or

Jones Act duty, “extends only to those areas over which the

defendant or its agents exercise control”, 582 F. Supp. at 518.

See also Verrett v. McDonough Marine, 705 F. 2d 1437 (Sth

Cir., 1983).

6

Petitioner’s use of precedent leaves something to be desired.

He cites a series of cases [Petition, bottom of p. 8, top of p. 9],

which do not lend much support to his cause. Aguilar v.

Standard Oil Co., 318 U.S. 724, 736-737 (1944) was a main-

tenance and cure case which in dicta implied that a shipowner

would not be liable for a pier operator’s negligence, Hamilton

Vv. Marine Carriers Corp., 332 F. 2d 223 (ED Pa. 1971) was

resoundingly rejected by the Ninth Circuit in Bates v. Pruden-

tial-Grace Lines, 497 F. 2d 900, cert. den. 419 U.S. 1009

(1974).

Counsel’s Aguilar and Hamilton string ends with Chesa-

peake & Ohio R.R. v. Newman, 243 F. 2d 804 (6th Cir., 1957).

This case is so easily distinguishable that its citation is almost

misleading. In Newman, the shipowner and the railroad were

the same entity and owned 90 acres of pier area. The plaintiff

proved a custom and practice concerning certain overlapping

duties between the ship and the shoreside employees of the

involved facility. Finally, the accident occurred on a well-util-

ized path linking the ship with its marine office.

Merely because common elements of marine transportation

such as railroads and piers are involved does not add anything.

The Ninth Circuit dismissed a seaman’s complaint in Tim v.

American President Lines, 409 F. 2d 385 (1969), where serious

injury occurred during the discharging or unloading of defen-

dant’s vessel and was caused by the stevedore’s gantry crane

operator. Plaintiff there also failed to prove the specific opera-

tional control or agency necessary to impose Sinkler or Hop-

son liability, 409 F. 2d at 388.

A large portion of the petition urges that longstanding Jones

Act precedent has impliedly been overruled by two FELA

cases, Carter v. Union R.R. Co., 438 F. 2d 208 (3rd Cir., 1971)

and Shenker v. Baltimore & Ohio R.R., 374 U.S. (1963). This

exact argument was rejected by the lower court in Bates v.

Prudential-Grace Lines, 357 F. Supp. 774, 777:

“Although I recognize that this conclusion [of

Hamilton] has some merit, I cannot give it great weight.

7

First, I cannot conclude that either Carter or Shenker was

intended to abrogate such a well-established rule. . .””

[Bates was affirmed by the Ninth Circuit, 497 F. 2d 900, cert.

den. 419 U.S. 1009 (1974).]

While the railroad workers’ FELA and the seamen’s Jones

Act can judicially intersect, logistical considerations and opera-

tional reality preclude the transformation of a “landlubber”

into a “seafarer”. Respondent is not a property owner but is a

vessel owner. A ship cannot choose its docking berth at a

particular port. The local port authority will make that selec-

tion. Once assigned a berth, it must rely on the dock operator

or owner. Various ancillary independent contractors, such as a

railroad, become involved once a vessel begins to load or

discharge. After mooring at a particular berth, the ship may be

shifted to another location for a myriad of reasons and with

short notice.

Furthermore, the AMERICAN COURIER was chartered to

the U.S. Navy’s Military Sealift Command which dictated her

itinerary and schedules. See Tim v. American President Lines,

supra, where the stevedore was also hired by the U.S. Govern-

ment to handle its cargo so that it was an intervening entity

precluding a direct link with the shipowner. Under those

circumstances there was no Jones Act duty.

Petitioner’s theories of failure to warn and inadequate light-

ing from the ship can also be eliminated. Mr. Ugarte knew of

the possible configuration of shoreside equipment in Bre-

merhaven, and that he would be returning at night after shore

leave [36a]. USL’s knowledge was no greater. Martinez v.

Matson Navigation Company, et al., 1963 AMC 1188 (S.D.

Ga. 1963), dealt with a similar accusation of a failure to warn:°

2 A leading treatise, 1B Hall-Saun-Bellman, Benedict on Admiralty

[7th rev. ed.] § 29, p. 3-208, n. 21 further faults Hamilton for failing to

consider the unique nature of shore leave—a feature of employment un-

known to railroad workers.

3 This unofficial citation is quoted in its entirety and discussed in 1B,

Benedict on Admiralty, supra, § 29, n. 21, p. 3-203. It also states, “when a

seamen passing across the pier suffers injury by his own act, in no event does

8

“The conditions which produced the libellant’s [plain-

tiff’s] injuries were as apparent to him before his accident

as they might have been to the shipowner. There was no

reason why the libellant, upon discovering the darkened

condition of the pier, could not have returned to the ship

and secured a flashlight or asked the master for assist-

ance.”

Plaintiff and his companion successfully negotiated the

route from the ship to their libations at the Seamen’s Club. Mr.

De Oliveria also returned safely. Ignoring the premise that the

proximate cause of the accident was the God-created rain

which fell after sunset [testimony at 49a], whatever difficulties

remained could have been easily conquered by the far-from-

cumbersome, hand-held flashlight. See also Wheeler v. West

Indian S.S. Co., 205 F. 2d 354 (2nd Cir., 1954).

Petitioner has offered no conflict in the Circuits or any

compelling reason to disregard longstanding precedent. This

Court should reject his invitation to unnecessarily overrule a

valid doctrine of admiralty, that there is no Jones Act duty

owed to a shore-leave seaman beyond the end of the gangway,

see cases referred to in 1B Benedict, supra, § 29, n.21 .

C. Extension of the warranty of seaworthiness to the pier is

not only inappropriate but precluded by precede,

In Victory Carriers, Inc. v. Law, 404 U.S. 202 ()9' nes

Court settled the issue of the shipowner’: 'i2) tity w. un-

seaworthiness where the injury occurs beyor. *he “ea of the

gangplank. There is none unless the instrumer %’-, causing the

injury was in some way attached to the ship or under the

control of the ship or its crew. For the same reason that the

Jones Act claim fails for lack of proof as to the shipowner’s

control, a pursuit of an unseaworthiness theory would be

equally futile.

the shipowner owe the seaman any great duty of care”, p. 3-197, n. 17. See

also cases cited pp. 3-200 through 3-208, n. 21.

a + «

sere antag tame se i sate

9

Victory Carriers distinguished and reaffirmed the holding of

Gutierrez v. Waterman Steamship, 373 U.S. 206 (1963), upon

which petitioner relies. This Court noted that a maritime

“function” such as stevedoring, which was being performed at

a time of the injury in Law, was not crucial. The key fact in

Gutierrez was that the injury was caused by an appurtenance

of a ship, defective cargo containers, and occurred ashore so

that the necessary ingredients for imposing liability under 46

U.S.C. § 740 were present, 440 U.S. 210-211.

Using terminology applicable to this Petition, Victory Car-

riers stated:

“Respondent Law was not injured by equipment which

was part of the ship’s usual gear which was stored on

board, the equipment which injured him was in no way

attached to the s’ p, the forklift was not under the control

of the ship or its crew and the accident did not occur

aboard ship or on the gangplank. Affirmance of this

decision below would raise a host of new problems as to

the standards for and limitations of the applicability of

maritime law to accidents on land. At least in the absence

of explicit Congressional authorization, we shall not ex-

tend the historic boundaries of maritime law”. 404 U.S.

213-214.

The principles of Gutierrez and Victory Carriers have been

followed by the courts in seamen’s personal injury litigation.

See Henry v. S.S. MT. EVANS, 227 F. Supp. 408 (D. Md. 1964)

and other cases cited in /B-Benedict on Admiralty, § 29 pp.

3-198 to 3-200, n. 18. None involves a shore leave situation

which would be an inappropriate vehicle to change settled rules

and where the Jones Act limits liability to the end of the

gangway.

The only Appellate Court decision located which somewhat

extended Gutierrez to a pier area is Jeter v. Starfish and Oyster

Co., 482 F. 2d 457, 458 (Sth Cir., 1973). There the captain of a

fishing boat slipped on fish slime as he walked on the pier

10

while fish were being unloaded. The court failed to hold the

vessel unseaworthy, but found the defendant negligent in fail-

ing to clean the fish properly. The pier was actually owned by

the same entity that owned the fishing boat and it had a vice

president on the scene. It is thus similar to Chesapeake & Ohio

R.R. v. Newman, supra, and distinguishable on the same

grounds.

Petitioner cites Romero Reyes v. Marine Enterprises, Inc.,

494 F. 2d 866 (Ist Cir. 1974), which actually is against him if

read closely. It upheld the rule that the gangplank line is the

presumptive boundary of admiralty jurisdiction. The First

Circuit would not let the ship dodge its responsibility merely

because this key appurtenance was owned by another entity.

CONCLUSION

This case is of no importance beyond the immediate parties.

The New York Court of Appeals correctly applied its own

procedural laws and controlling Federal precedent by granting

respondent’s Motion for Summary Judgment. Any extension

of the doctrine of unseaworthiness to areas of the pier uncon-

trolled by the shipowner is not warranted based on the facts of

this case.

Dated: New York, New York

August 9, 1985

Respectfully submitted,

KIRLIN, CAMPBELL & KEATING

Attorneys for Respondent

14 Wall Street

New York, N.Y. 10005

ROBERT ALEXANDER HULTEN

Counsel of Record

APPENDIX

42a

Text of Court Rule Forming Basis for 8A Order

§ 660.35. Mandatory Pre-Calendar Conferences: Applicable

in New York County in Actions for Personal Injury

or Wrongful Death in Which City of New York is

Not a Party

(a) In all actions for personal injury or wrongful death,

except actions in which the City of New York is a party, a

precalendar conference shall be conducted before the note of

issue, is filed.

(b) Within sixty days after joinder of issue, the plaintiff

shall serve on all parties who have appeared in the action a

notice of pre-calendar conference to be held in Special Term,

Part 8-A. Such notice, with proof of service upon all such

parties, bearing an index number, and substantially in the form

available in the calendar clerk’s office, shall be filed by the

plaintiff with the calendar clerk within five business days after

service, and the calendar clerk shall place the action on a

conference calendar.

(c)(1) The matters to be considered at the conference shail

include:

(i) settlement of the action;

(ii) simplification and limitation of issues, where

appropriate;

(iii) establishment of a timetable for the completion of

all discovery proceedings; and

(iv) the granting of a general or special preference or

the remanding of the action to the Civil Court.

(2) Except where a , :y appears in the action pro se, an

attorney thoroughly famiiiar with the action, and authorized to

act on behalf of the party, shall represent such party at the

conference. The plaintiff shall submit at the conference a copy

THIS PAGE INTENTIONALLY LEFT BLANK

43a

of the bill of particulars, if one was demanded, with proof of

service upon all parties who have appeared in the action. If no

bill of particulars has been demanded before the scheduling of

the precalendar conference, the plaintiff nevertheless shall

submit at such conference a bill of particulars containing the

information specified in CPLR 3043(a), together with proof of

service.

(d) At the conclusion of the conference the court shall

render a written order, including its directions to the parties as

well as stipulations of counsel. Alternatively, in the court’s

discretion, all directions of the court and stipulations of

counsel may be recorded by a reporter. Where the latter

procedure is followed, the parties shall procure and equally

pay for a certified transcript thereof. The transcript, corrected

if necessary On motion or by stipulation of the parties ap-

proved by the court, shall have the force and effect of an order

of the court. The transcript shall be filed by the plaintiff with

the clerk of the court.

(e) Continuation of a preference shall be conditional upon

full compliance with the foregoing order or transcript. When a

note of issue and certificate of readiness are filed in an action

to which this section is applicable, the filing party, in addition

to complying with all other applicable rules of the court, shall

file with the note of issue and certificate of readiness a copy of

the precalendar conference order or transcript and an affirma-

tion or affidavit, with proof of service on all parties who have

appeared, showing specific compliance with such order or

transcript. In the discretion of the court, failure by a party to

comply with the order or transcript, or the making of unneces-

sary or frivolous motions bv a party, shall result in the

imposition upon such party of costs or such other sanctions as

are authorized by law.

(f) A motion in an action to which this section is applicable

shall be made as follows:

(1) Motions that are made before the note of issue and

certificate of readiness are filed, or that relate to an order

44a

or transcript that has been rendered at a precalendar

conference, shall be returnable at Special Term, Part

8—A, except as provided below.

(2) Motions in such actions in which a note of issue and

certificate of readiness have been filed, but where the

action has not been assigned to a conference and assign-

ment or trial part, shall be made returnable in Special

Term, Part 1 or 1—A, as appropriate, in the same manner

as motions in actions to which the requirement of a

precalendar conference under this section does not apply.

(3) Motions to dismiss or for summary judgment pur-

suant to CPLR 3211 or 3212, made before service of a

precalendar conference notice, shall be returnable in Spe-

cial Term, Part 1.

(4) Motions for disclosure pursuant to CPLR article

31, made before service of a complaint, or motions

pursuant to CPLR 3042, or any other motions relating to

a bill of particulars, made before service of a precalendar

conference notice, shail be returnable in Special Term,

Part 1—A.

(5) Motions to remove an action or proceeding from

another court or for consolidation or severance, made

before service of a precale.dar conference notice, shall be

returnable at Special Term, Part 1.

(6) Motions to dismiss for lack of prosecution where

the plaintiff has not filed a precalendar conference notice

shall be returnable at Special Term, Part 1.

(g) Motions-for disclosure or other relief in actions to which

this section is applicable, made after the bill of particulars has

been served or after notice of precalendar conference has been

filed, but before the precalendar conference is held, may be

denied unless there is shown good cause why such relief is

warranted before the required precalendar conference.

(h) A party may move to advance the date of a precalendar

conference upon a showing of special circumstances.

ose peds ESS

45a

8A Order

PRE-CALENDAR CONFERENCE ORDER

PURSUANT TO 22 NYCRR 660.35 EFFECTIVE MAY 26, 1981

SUPREME COURT, NEW YORK COUNTY

SPECIAL TERM PART 8A

Index Number 06143/79

Conference Number H 11938

Conference Date 10/28/82

>

LUIS UGARTE,

Plaintiff(s),

against

UNITED STATES LINES, INC.,

Defendant(s).

APPEARANCES:

>

Plaintiff(s) Neil Tolkiss

PHILLIPS & CAPPIELLO

Defendant(s) K.C. Hildebrandt

KIRLIN CAMPBELL & KEATING

I. INSURANCE COVERAGE:

CL} If not

furnished, Plaintiff to be advised in

() Writing by

Il. BILL OF PARTICULARS:

Ls

CL) 2(A).

L) 2(B).

ag F

L) 4.

Not submitted: Action marked off calendar,

or

Submitted: Satisfactory

Unsatisfactory

Supplemental Bill of Particulars to be served

Bill of Particulars for affirmative defenses

to be served

46a

III. MEDICAL REPORTS AND HOSPITAL AUTHORIZATIONS

Xx) 1. Furnished (Except:

() 2. Medical reports or authorizations for records

to be served

_] 3. Hospital authorizations to be served

IV. PHYSICAL EXAMINATION: (Other Than Transit)

x) 1(A). Held () 1(B). Waived

CL) 1(C). Examination of to be held

_) 2(A). Physicians’s report furnished

x) 2(B). Copy of physician’s report to be furnished

to plaintiff within 60 days of examination

V. EXAMINATION BEFORE TRIAL:

_) 1. Plaintiff _) Defendants L) All Parties

& 2. To be Held Seamen witnesses by Jan. 31, 1983+

() 3. Held (Except: ) } Waived

VI. OTHER DISCLOSURE:

LJ 1. None

(| 2. All parties to exchange names and addresses of

all witnesses, opposing parties statements and

photographs. If none, an affirmation to that

effect shall be exchanged.

_] 3. Authorizations for plaintiff(s) employment rec-

ords (IRS) including W-2 for period

4.

5. To be completed Jan. 31, 1983*

VII. IMPLEADER ACTIONS:

_) 1. (A) None 1 (B) To be commenced

VIII. PREFERENCES:

Xx) 1. (A) General preference granted

(J) 1. (B) Denied

(} 2. Medical malpractice action: General prefer-

ence not considered.

OO

4 These italicized phrases were added to the standard form by counsel

at the October 25, 1982 pre-trial conference.

47a

LJ

Ww

. General preference not determined pending

further application after compliance with __

C) 4. (A) 325 (C) CPLR _) 4. (B) 325(D)

CL) 5. (A) 3403 (A)____ CPLR granted

_) 5. (B) 3403 (A)____ denied

LJ) 5. (C) 3403 (A)___ CPLR held in abeyance

pending further application/motion

IX. ADDITIONAL DIRECTIVES:

|] 1. Court reporters minutes incorporated in order

_] 2. See attached page for additional directives

() 3. None

Is directed to file a Note of Issue and Certificate of

Readiness on or Before 29 April 83

XI. WHEN FILING THE NOTE OF ISSUE AND CERTIFI-

CATE OF READINESS THE FILING PARTY SHALL

SERVE A COPY OF THIS ORDER, TOGETHER WITH

AN AFFIRMATION STATING COMPLIANCE WITH

ALL DIRECTIVES OF THIS ORDER AND AN AFFI-

DAVIT OF SERVICE ON THE CALENDAR CLERK

AND ALL PARTIES. IN THE EVENT OF NON-COM-

PLIANCE, COSTS OR OTHER SANCTIONS MAY BE

IMPOSED.

THIS CONSTITUES THE DECISION AND ORDER OF

THE COURT.

Dated: 10/25/82

Enter:

/s/ [Alfred Ascione]

Pe € on

ALL DATES CONTAINED HEREIN RELATING TO THE

COMPLETION OF ITEMS IN THIS ORDER MUST BE

ADHERED TO. COUNSEL MAY NOT ENTER INTO ANY

ADJOURNMENTS WITHOUT FURTHER ORDER OF

THIS COURT.

48a

Excerpts from Original Motion Papers

claiming a breach of the warranty of unseaworthiness under

he General Maritime law for injuries allegedly sustained on

May 24, 1978, when defendant’s ship, the $.S. AMERICAN

COURIER, was berthed at Bremerhaven, Germany, on May

24, 1978.

3. Even though this maritime action has been instituted in

State Court, Federal Maritime law governs and this Court’s

sole responsibility is to determine the applicable Federal law,

Alvez v. American Export, 46 N.Y. 2d 634.

4. It is clear from plaintiff’s testimony in bh «= examination

before trial that he was injured while returning to the vessel

from shore leave as he fell in between two railroad cars in an

area not under the defendant’s control. This can be shown in

the following excerpts:

EBTI—Page 7.

“Q. Where did you have the accident?

A. I had the accident coming back from shore, as I was

trying to go between the cars. I climbed on a platform and

fell. The place was wet and slippery on account of the

rain.

Q. What time did you go ashore?

A. I went ashore between about 6:30 and 7:00 P.M.

EBT—Pages 12-13.

Q. Now, on the dock alongside which the ship was tied

up, were there any railroad tracks?

A. Yes.

Q. Do you remember how many?

A. There were boxcars there, they were a long way

from one end to the other. So the safest way to go to the

ship was to walk to the left, to walk around the cars to get

to the gangway.

Q. Let’s put it this way, from the gangway to the

closest railroad car what was the distance about?

49a

A. I would say, from here to the wall, that would be

the gangway. I don’t know how far it would be.

Q. 10 feet, approximately?

A. Yes I know it’s near that.

EBT—Pages 16-17.

Q. Before you got to the railroad cars, did you walk up

onto a loading platform and jump off that loading plat-

form, on the ground?

A. I remember climbing between the cars, between the

boxcars and standing on a platform. Then I slipped and

fell. I fell because of the rain, it was slippery. It was wet

and slippery.”

5. It is also clear from the same testimony that plaintiff was

on shore leave conducting personal affairs unrelated to the

ship’s business:

EBI—Pages 22-23.

Q. When you first went ashore that evening with Mr.

DeOliveria, you say you went to the Seamen’s Club. Did

you have anything to drink there?

A. Yes, I had two beers.

Q. You say you left the Seamen’s Club?

A. Yes.

Q. About what time did you leave the Seamen’s Club?

A. About 9:00 o’clock, 9:30, something like that. It

may have been 10:00 o’clock, then we got back to the

ship.

Q. After you left the Seamen’s Club, did you go to any

other bar in Bremerhaven?

A. No.

Q. Did you have anything else to drink after you left

the Seamen’s Club?

A. No.

) Q. You say you went shopping after you left there?

A. Yes, then back to the ship.”