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PENA v. A/S DOVREFJELL

September 17, 1959

Andrew PENA, Libelant,
v.
A/S DOVREFJELL, Claimant-Respondent (New York & Cuba Mail Steamship Company and International Terminal Operating Co., Inc., Respondents-Impleaded)



The opinion of the court was delivered by: SUGARMAN

On December 27, 1955, Andrew Pena was working as a member of a gang of longshoremen unloading a cargo of tobacco from No. 4 hold of the S.S. Siboney at Pier 34, North River, New York City. Pena was employed by the International Terminal Operating Company. There were on the bottom of the No. 4 hold 28 drums and 138 packages of metal scrap. The drums stood on end. The drums and packages were covered by heavy gray paper, designed to protect from contamination the bales of tobacco stowed over the metal scrap. The paper was covered by dunnage planks of varying sizes.

At about noon of that day, the hatch boss ordered the men to stop work for lunch. Some of the tobacco had been removed. Pena began to walk from the place where he was working in the after end of the starboard section of No. 4 hold to the exit ladders located amidships when a piece of dunnage broke causing his foot and leg to drop through an opening between the drums beneath the broken board. Pena sustained a back injury of some severity. He had had prior injuries to his back.

 The Pleadings.

 On March 5, 1956, Pena filed a libel in admiralty against the S.S. Siboney, for the injuries sustained thereon by him on December 27, 1955. His original libel demanded $ 40,000 in damages. On November 16, 1956, he amended his libel to demand $ 150,000 in damages.

 After filing a stipulation as the owner of the Siboney, the claimant-respondent, A/S Dovrefjell (Dovrefjell) filed its answer.

 On April 17, 1957, Dovrefjell, after leave granted so to do, filed its impleading petition for indemnity against respondents-impleaded, New York & Cuba Mail Steamship Company (New York & Cuba) and International Terminal Operating Co., Inc. (International). New York & Cuba was alleged to be the time charterer of the Siboney and International the stevedore unloading the vessel by agreement with the time charterer and employing the libelant Pena.

 On June 3, 1957, New York & Cuba answered the impleading petition of Dovrefjell and the libel of Pena and filed a for indemnity from Dovrefjell and International.

 On June 28, 1957, Dovrefjell answered the petition of New York & Cuba for indemnity.

 On August 1, 1957, International answered the petition for indemnity of Dovrefjell.

 On December 10, 1958, New York & Cuba filed a supplemental petition indicating that it and Dovrefjell, at a pretrial settlement conference, settled the libelant Pena's claim for $ 32,000, of which it, New York & Cuba had assumed and paid $ 16,000 and had incurred legal expenses of $ 5,500, and sought indemnity for the total of $ 21,500 from International.

 On December 17, 1958, Dovrefjell filed a supplemental petition indicating that it and New York & Cuba, at a pre-trial settlement conference, settled the libelant Pena's claim for $ 32,000, of which it, Dovrefjell, had assumed and paid $ 16,000 and had incurred legal expenses of $ 6,000 and sought indemnity for the total of $ 22,000 from International.

 On January 23, 1959, International answered the supplemental petitions of Dovrefjell and New York & Cuba.

 The owner and the charterer rely in the first instance on the stevedoring contract as the basis for their claimed right to indemnity. This reliance is misplaced.

 As hereinafter appears, I find that the International Terminal Operating Company was blameless in respect ...


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