The opinion of the court was delivered by: KAUFMAN
The defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The defendant urges that the plaintiff has had a complete trial of the merits of his claim in an admiralty proceeding instituted by him against the United States of America; that the basis of the plaintiff's claim in this action was the same basis of a claim in his suit already adjudicated, where he was the libelant and the United States of America was the respondent. The basis of the claim for recovery in both actions, defendant says, is the charge that a defective winch was used which was the proximate cause of the injury to the plaintiff here (libelant in the admiralty action). This issue having been litigated in the admiralty suit, the defendant here urges that the finding of this Court on that issue against the libelant there, plaintiff here, is res judicata and the plaintiff is estopped from recovering any judgment herein in view of the previous trial of the issues.
The plaintiff, an employee of Sancor Corporation, was injured on March 12, 1947, while certain re-conversion work was taking place on board the S/S Robert W. Hart, at the Powers Shipyard in the State of New Jersey. At that time the ship was owned by the United States of America and was being serviced by the defendant as general agent under a General Agency Agreement.
In 1948, the plaintiff instituted the present action and also commenced an action against the United States of America. Answers were filed in both actions, and the United States of America impleaded the trustees of Sancor Corporation, which was then in bankruptcy, in the admiralty suit. The allegations of the complaint were substantially the same as the allegations of the libel, the real difference being in the identities of the defendant and the respondent and the allegations that the negligent acts which led to the injury were those of the respondent in the one case or the defendant in the other.
The admiralty suit was tried on the merits before this Court, while the action at law was at issue and awaiting trial. Indeed, at the commencement of the admiralty suit, the following statement was made by Laffoon's counsel:
'Mr. Baker: Yes, we had a pre-trial, I might state, your Honor, so that the case might be clear, and there is another action pending against the Waterman Steamship Company, which is general agent in this case of this vessel, and pre-trial was held in this case, and being that both actions were reached at about the same time, we have decided to move this action and not the civil action at this time.' (p. 5, record.)
The admiralty trial consumed four days and upon the conclusion thereof this Court filed an opinion, Laffoon v. U.S., 101 F.Supp. 823, findings of fact and conclusions of law. A decree was subsequently entered, dismissing the libel on the merits. Libelant took no appeal from the final decree.
The first cause of action in the suit at bar based upon the alleged unseaworthy condition of the vessel was dismissed by Judge Noonan of this court, upon a motion of the defendant, because 'seaworthiness is peculiarly and exclusively the obligation of the owner of the vessel * * *'. 111 F.Supp. 960. Opinion dated November 28, 1950.
The second cause of action was grounded jurisdictionally upon diversity of citizenship. In this cause of action the plaintiff claimed his injury was due to the negligence, carelessness and recklessness of the defendant. Judge Noonan denied the motion to dismiss the second cause of action. Certainly as a pleading this cause of action was good, for an agent is responsible under certain conditions, for its own negligence or the negligence of its agents.
On October 16, 1951, a pre-trial order was entered in the instant case by Judge Leibell. A substantial number of facts were agreed upon between the parties, among them being: that the vessel was owned by the United States of America; that the defendant entered into a general agency contract with the United States of America; that the vessel was delivered to the defendant by the Maritime Commission on January 31, 1947; that the United States of America acting through the defendant as its general agent, signed specifications for work which Sancor Corporation was to do on the vessel under a contract between the United States of America and Sancor Corporation, dated January 21, 1946. The following important facts are also stipulated: that plaintiff was employed as a rigger of Sancor Corporation and was working on the vessel while she was docked at the Powers Shipyard on March 12, 1947, the date of the accident; that the operation then in progress was the placing of a pontoon hatch cover on the hatch opening at the 'tween deck of No. 2 hold; that the vessel's winches which were being used at the time were being operated by employees of Sancor Corporation; that the steam for the winches was supplied by ship's employees in the engine room and that certain ship's officers were aboard.
The issues formulated by the Court in the pre-trial order are significant. They were:
(1) Who was in control of the vessel at the time of the accident to plaintiff?
(2) Was there any duty or obligation imposed on Waterman to put the winches in proper working condition before plaintiff was put to work as a rigger at hold No. 2?
(3) Was the winch actually defective so that it failed to operate properly?
(4) Was it the duty and obligation of Sancor Corporation to put the winches in proper working condition before plaintiff was put to work as a rigger at hold No. 2?
(5) Did Waterman fail to make a proper inspection of the winches in co-operation with the Maritime Commission in preparing the specifications ...