Cartelli v. Egyptian Navigation Co.

661 F. Supp. 104, 1987 A.M.C. 2929, 1986 U.S. Dist. LEXIS 17501
CourtDistrict Court, S.D. New York
DecidedNovember 19, 1986
DocketNo. 83 Civ. 5492 (RLC)
StatusPublished
Cited by1 cases

This text of 661 F. Supp. 104 (Cartelli v. Egyptian Navigation Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cartelli v. Egyptian Navigation Co., 661 F. Supp. 104, 1987 A.M.C. 2929, 1986 U.S. Dist. LEXIS 17501 (S.D.N.Y. 1986).

Opinion

OPINION

ROBERT L. CARTER, District Judge.

After a jury trial, the jury found that both plaintiff and defendant were negligent and that the negligence of each was a proximate cause of and contributed equally to bringing about plaintiffs injuries. The jury found that $32,000 would adequately compensate the plaintiff for his injuries and awarded him the net amount of $16,-000.

Defendant moved for directed verdict both at the close of plaintiffs case and at the close of the whole case. Decision each time was deferred. Defendant now moves for judgment n.o.v.

On motion for judgment n.o.v., the question to be determined is “whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable men could have reached.” Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970). The evidence and all inferences must be viewed in a light most favorable to the non-moving party, Samuels v. Health & Hospitals Corp., 591 F.2d 195, 198 (2d Cir.1979), and the motion “will be granted only if (1) there is a complete absence of probative evidence to support a verdict for the non-movant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him.” Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2d Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970) (citations omitted); Noonan v. Midland Capital Corp., 453 F.2d 459, 461 (2d Cir.), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 333 (1972). That yardstick has been most recently reaffirmed in Lopez v. McLean Trucking Co., 798 F.2d 611, 614 (2d Cir.1986).

Since the 1972 amendment to the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976), the rule in this circuit as to a shipowner’s liability to longshoremen is that the ship “is not liable for injuries resulting from known or obvious dangers unless the shipowner should anticipate the harm despite the obviousness of the danger.” Evans v. Transportacion Maritime Mexicana, 639 F.2d 848, 855 (2d Cir.1981); see also Kakavas v. Flota Oceanica Brasilera, S.A., 789 F.2d 112, 119 (2d Cir.1986). Before liability can attach the shipowner must have actual or constructive notice of the danger. The shipowner, however, must take reasonable remedial steps to protect against hidden or non-obvious defects where the shipowner knows or should know of the condition and should realize that it poses a risk. The shipowner, however, has no affirmative duty to supervise the work of the stevedore. Evans v. Transportation Maritime Mexicana, supra, 639 F.2d at 855-56.

If “the shipowner knows of the dangerous condition and should anticipate that, even if the condition is obvious, the stevedore will not or cannot correct it and the longshoremen will not or cannot avoid it ... the shipowner has a duty to take reasonable steps to eliminate or correct the condition.” Lieggi v. Maritime Co. of the Philippines, 667 F.2d 324, 328 (2d Cir.1981) (quoting Evans v. Transportacion Maritime Mexicana, supra, 639 F.2d at 855-56). The shipowner is not relieved of liability simply because it relied on the stevedore to correct the defect, id. at 328; Evans v. Transportacion Maritime Mexicana, su[106]*106pra, 689 F.2d at 856-57, or because it relied on the stevedore’s judgment to proceed with the work in spite of the defective condition. Lieggi v. Maritime Co. of the Philippines, supra, 667 F.2d at 328; Lopez v. A/S D/S Svendborg, 581 F.2d 319, 324 (2d Cir.1978). “The sin qua non of a ship’s liability for an obviously dangerous condition arising during the process of loading and unloading is reasonable anticipation that the longshoremen will not be able to avoid it.” Giglio v. Farrell Lines Inc., 613 F.2d 429, 432-33 (2d Cir.1980) (citations omitted). During the loading and unloading of cargo, the stevedore bears primary responsibility to correct a dangerous condition, and the shipowner ordinarily is entitled to rely on the stevedore to do so. Evans v. Transportacion Maritime Mexicana, supra, 639 F.2d at 860.

While these various statements concerning a ship’s liability to a longshoreman are not altogether consistent, my understanding is that the basic thrust of doctrine in this area is that the ship must be on notice before liability will attach. Where there is a danger clearly apparent to the stevedore and the ship, liability is determined by whether there is a reasonable anticipation that the longshoremen will not be able to avoid the obvious risks posed.

Here the jury readily could have found that during the course of off loading drums containing tallow from the ship on March 2, 1982, spillage occurred leaving grease spots on the deck where the longshoremen were working. Plaintiff saw some such spots of tallow on the deck surface near the hatch from which the drums of tallow were being removed. During his lunch break, plaintiff informed a member of the ship’s crew about the tallow spills. The crew member answered him in English sufficient to make plaintiff feel the crew member understood what he had been told. Plaintiff did not report the spillage to the stevedore.

Sometime later plaintiff was required to go on the deck of the ship again, and when he started to leave he stepped on a greasy spot and fell, injuring himself. The place he fell was not where he had earlier seen the tallow spills which he had reported to the ship. The plaintiff did not know whether the spots of tallow that he had observed earlier had been cleaned. The jury reasonably could have found that the shipowner knew that tallow was being spilled on the deck during the off loading of the drums. The jury also could have found that the stevedore was aware of the spillage of the tallow while the drums were being off loaded. Apparently, tallow spills are incident to off loading of drums of tallow. Therefore, while such spills posed an obvious danger, it was not one that the ship should have reasonably anticipated that the longshoremen would not be able to avoid.

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Bluebook (online)
661 F. Supp. 104, 1987 A.M.C. 2929, 1986 U.S. Dist. LEXIS 17501, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cartelli-v-egyptian-navigation-co-nysd-1986.