The opinion of the court was delivered by: LEIBELL
The defendant moves for an order granting defendant summary judgment dismissing the above action on the grounds that plaintiff has no right of action against the defendant, as a matter of law.
The plaintiff's deposition has been taken by the defendant. It appears therefrom that on November 5, 1947 plaintiff was working as a longshoreman for the defendant and was a hatch boss at Hatch No. 3 of the S.S. Mormacsaga supervising the discharge of a cargo of coffee from the lower hold. He claims that the ship's winch handling the drafts of coffee was giving trouble the day of the accident. Shortly before work ended for the day he was coming out of the combing, the space below the square of the hatch, and was hit on the head by a bag of coffee which fell down the hatch. He was badly injured and was confined to a hospital bed for forty days with a traction on his head. After he was released from the hospital he was obliged to wear a brace to hold his head, for about five or six months. His deposition contains the following (p. 10):
'Q. You received Workmen's Compensation Insurance? A. Yes.
'Q. Did you file a claim with the Federal Compensation Commission? A. I don't believe I filed my claim. I was receiving my $ 20 a week compensation from the Workmen's Compensation Commission insurance and the Federal Compensation Commission called me over. After I spoke with one of the men in the Federal Compensation Commission on Christopher Street in New York City, I got $ 25 a week compensation.'
Plaintiff testified that he was a member of the International Longshoremen's Association, Local 327.
On May 5, 1949 plaintiff filed in this court the above entitled action for $ 50,000 damages under the Jones Act, 46 U.S.C.A. § 688. In his complaint he alleges that he was employed aboard the S.S. Mormacsage 'as a seaman in the capacity of longshoreman' and that the defendant 'owned, operated, managed and controlled' the vessel. Plaintiff also alleges that he sustained his injuries due solely to the negligence of the defendant, its agents, servants and employees including the officers and 'fellow seamen' aboard the vessel and due to the failure of the defendant to keep the vessel in a seaworthy condition and reasonable state of repair.
A Vice-President of the defendant has submitted an affidavit on this motion from which I quote the following:
'On November 5, 1947, the plaintiff, Sam Conzo, was employed as a longshoreman by Moore McCormack Lines, Inc. aboard the 'Mormacsaga' at Pier 16, Brooklyn, New York.
'The 'Mormacsaga' was owned and operated by Moore McCormack Lines Inc.
'Mr. Conzo was a hatch foreman, identification #15256, Social Security #099-09-9215. He was paid wages for November 5, 1947, the date of the accident.
'On November 6, 1947, the employer submitted the employer's first report to the deputy commissioner of the United States Employee's Compensation Commission administering the Longshoreman's and Harbor Workers' Compensation Act (33 U.S.C.A. § 901 et seq.) and thereafter notified its insurance carrier under the said act.
'Your deponent has been advised that Sam Conzo has received Compensation under the provisions of the Longshoreman's Act.'
A Vice-President of the Liberty Mutual Insurance Company makes affidavit as follows:
'Liberty Mutual Insurance Company insured the liability of Moore McCormack Lines, Inc. for claims in connection with the Longshoremen's and Harbor Workers' Compensation ...