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CANDADO STEVEDORING CORP. v. LOWE

November 14, 1935

CANDADO STEVEDORING CORPORATION
v.
LOWE, Deputy Compensation Com'r, et al.



The opinion of the court was delivered by: MOSCOWITZ

MOSCOWITZ, District Judge.

The plaintiff, Candado Stevedoring Corporation, a self-insurer under the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C.A. §§ 901-950), brought this action to review an order made by Deputy Commissioner Samuel S. Lowe, and a supplementary order made by deputy commissioner, awarding compensation and penalties to the claimant, Pietro Angelo.

On August 4, 1932, Pietro Angelo, while employed as a stevedore by the plaintiff, was injured on the barge Loretta. An award was made upon his claim for compensation. Thereafter this action was brought to set aside the award of compensation. The deputy commissioner found the following facts:

 "* * * That the barge 'Loretta' on the day of the said accident was owned by Ira S. Bushey & Sons, Inc., but was under charter to the Seaboard Great Lakes Corporation; that Armand Brusatti, head timekeeper for the employer above named, learned that the claimant desired to bring an action against a third party responsible for the condition of the barge and inquired of Mr. Cox, Accident-Clerk for the employer, as to the name of a competent admiralty attorney; that Mr. Cox recommended a Mr. Stefferson, an officer of, and counsel to, the Luckenback Steamship Company, of which the Candado Stevedoring Corp. is a subsidiary; that Brusatti consulted Mr. Stefferson who declined to accept the case; that Mr. Stefferson recommended and arranged an appointment for Brusatti with Mr. Vernon Jones, member of the law firm of Kirlin, Campbell, Hickox, Keating & McGrann; that Mr. Jones accepted the case, and on behalf of the claimant, filed with the Deputy Commissioner of the United States Employees' Compensation Commission, form US-213 (notice of election to sue the third party); that on or about October 21, 1932, the said firm, acting in behalf of the claimant, instituted an action against Ira S. Bushey & Sons, Inc., as owners of the barge 'Loretta,' Foster Transportation Company and the Atlantic Lighterage Corporation; that as an answer to this action, the defendants by petition applied to the Federal Court for a limitation of liability or an exoneration from liability; that upon this action being taken, claimant's attorneys Kirlin, Campbell, Hickox, Keating & McGrann, by reason of an investigation which they caused to be conducted, concluded that because of the appraisals of the barge 'Loretta' which had been made by surveyors for the defendant and surveyors whom they had consulted in their own behalf, it was probable that the court would grant the application for the limitation of liability, and that if this application was successful, a recovery of not more than $1,500.00 would be possible; that the claimant's attorneys also ascertained that the Foster Transportation Company and the Atlantic Lighterage Corporation were improperly named in the action, and a discontinuance against them was taken; that at the same time the claimant's attorneys learned that the barge 'Loretta' although owned by Ira S. Bushey & Sons, Inc., was at the time of the accident, under charter to the Seaboard Great Lakes Corporation, and decided that the Seaboard Great Lakes Corporation, should be named as defendant with the owner, Ira S. Bushey & Sons, Inc.; that this was not done, because of the conclusions aforesaid, i.e., that the limitation of liability proceedings would probably be successful and Kirlin, Campbell, Hickox, Keating & McGrann then advised the claimant to abandon the third party action and accept compensation; that the claimant did not follow this advice, and, thereafter, retained other attorneys; that on June 26, 1933, answer to the petition for a limitation of exoneration from liability was filed in behalf of the claimant, by the new attorneys, in the United States District Court for the Eastern District of New York; that the case was called for trial in the said Court on March 2nd, 7th, April 4th, and April 16, 1934, and each time because of claimant's attorneys non-appearance or unreadiness to proceed, adjourned; that on May 2, 1934, there still being no appearance for the claimant, an inquest was held, and on May 14, 1934, the Court issued its findings of fact and conclusions of law, wherein, among other things, it was found that the barge 'Loretta' was on August 2, 1932, 'tight, staunch and strong, fully manned and properly equipped and in all respects was worthy,' and that the injuries to the claimant 'were occasioned and occurred without any privity, knowledge, fault or neglect on the part of the petitioner, Ira S. Bushey & Sons, Inc., or anyone for whom it was or is responsible,' and that 'The occurrence mentioned and described in the petition herein and the answer of the claimant, Pietro Angelo, was caused wholly by the negligence of the said Pietro Angelo, without the fault of anyone contributing thereto,' and that 'the petitioner, Ira S. Bushey & Sons, Inc., is entitled to exoneration of and from any liability in respect to the matters and things alleged in the petition herein and the answer of the claimant, Pietro Angelo.'

 "The Deputy Commissioner further found: '* * * that the result of the aforesaid action was known to the manager of the United States Protection & Indemnity Agency, which agency was the representative of the Candado Stevedoring Corporation in compensation claims arising under the Longshoremen's and Harbor Workers' Compensation Act, on or before July 31, 1934; that on the said date, the manager of the said agency addressed a letter to Kirlin, Campbell, Hickox, Keating & McGrann, reading as follows:

 "'Candado Stevedoring Corporation,

 "'Barge "Loretta"

 "'Injury to Pietro Angelo, longshoreman

 "'8-4-32

 "'Gentlemen:

 We are advised that you represent the claimant in the above captioned case against the Barge "Loretta."

 "'We are now advised that the claimant is now represented by Mr. Samuel Stern of 277 Broadway, New York City, who has requested that the Commission place the case on for a hearing as the claimant elects to accept compensation in view of the unfavorable termination of his third party action.

 "'We would appreciate any information you may be able to give us as it may be that the unfavorable termination of the claimant's third party action was caused by some action of his which may be prejudicial to the rights ...


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