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February 16, 1967

Salvatore CUSUMANO, Plaintiff,
Wilhelm WILHELMSEN, Defendant and Third-Party Plaintiff, v. PITTSTON STEVEDORES, INC., Third-Party Defendant

Tenney, District Judge.

The opinion of the court was delivered by: TENNEY


TENNEY, District Judge.

 The Court is presented herein with an interesting although not entirely novel extension of what have been described as the "amphibious Tinker-to-Evers-to-Chance juridical round robins churned by the swells of Sieracki-Ryan-Yaka-Italia, " *fn1" United States Lines Co. v. Williams, 365 F.2d 332, 333 (5th Cir. 1966), and again has one "of the growing number of multi-party Donnybrook Fairs in which like Kilkenny cats, * * * all lash out against each other in the hope that someway from someone, somehow all or part of the Sieracki-Ryan-Yaka-Italia fallout can be visited on another." D/S Ove Skou v. Hebert, 365 F.2d 341, 344 (5th Cir. 1966).

 The present case involves a suit by Salvatore Cusumano (Longshoreman) against Wilhelm Wilhelmsen, defendant and third-party plaintiff (Shipowner) with suit over by Shipowner against Pittston Stevedores, Inc., third-party defendant (Stevedore) and with counterclaims asserted by the Stevedore against both the Shipowner and the Longshoreman.

 The case was tried to a jury, the jury being requested first to return a special verdict as between the Longshoreman and the Shipowner.

 At the conclusion of the Longshoreman's case both the Shipowner and the Stevedore moved to dismiss. The Stevedore renewed its motion to dismiss at the conclusion of the defendant Shipowner's case both as to the Longshoreman and as to the Shipowner, which motions were renewed at the conclusion of the trial and in each case denied.

 The jury returned a verdict, finding that the Shipowner was not negligent but that the vessel was unseaworthy and assessed total damages of $119,000. However, the jury also found that the Longshoreman's contributory negligence was such as to reduce his damages by 60 per cent, and awarded him $47,600.

 Thereafter, on motion of the Shipowner, (and on the authority of Mortensen v. A/S Glittre, 348 F.2d 383 (2d Cir. 1965)), since there was no evidence of conduct on the part of Shipowner which would be sufficient to preclude recovery of indemnity, the Court directed a verdict over for the Shipowner against the Stevedore for the full $47,600. See D/S Ove Skou v. Hebert, supra, 365 F.2d at 350. Moreover, even had the jury found in favor of the Stevedore, the Court would have had to direct a verdict N.O.V. in favor of the Shipowner. Mosley v. Cia. Mar. Adra S.A., 257 F. Supp. 30 (S.D.N.Y.), aff'd, 362 F.2d 118 (2d Cir. 1966).

 The Stevedore withdrew its counterclaim against the Shipowner but presses its demand for a directed verdict against the Longshoreman on the ground that the conduct of its employee, the Longshoreman, is the sole cause of its being held liable to the Shipowner and that such conduct by the employee-Longshoreman was a breach of such employee's duty to his employer to perform his work in a proper and workmanlike manner.

 This attempt to complete the juridical circle and end the litigation where it started appears to have been first considered in the case of Cook v. The MV Wasaborg, 189 F. Supp. 464 (D.Ore.1960), where the stevedore attempted to treat its employee libelant as its "vice principal" and as such liable for the full amount of the judgment. The Court, however, held that the authorities cited by the stevedore were cases where the employee was in a position of sufficient authority so that he could be viewed as the alter ego of the employer and, accordingly, since that was not the case therein the indemnity action by the stevedore against the longshoreman was dismissed.

 Thereafter, in Cavelleri v. Isthmian Lines, Inc., 189 F. Supp. 525 (S.D.N.Y.1960), motion for reargument denied, 190 F. Supp. 801 (S.D.N.Y.1961), in an action by a longshoreman against a shipowner for injuries, with the stevedore joined as third-party defendant, the stevedore moved to assert a counterclaim against the longshoreman for indemnity. Judge Kaufman, then a District Court Judge, denied the motion on the grounds that there were no conceivable facts upon which the stevedore could recover. He set forth four hypotheses as to the cause of the accident which could be found at the trial and with respect to which there would be no basis for recovery by the stevedore on the counterclaim:

 (1) If the longshoreman were not negligent there could be no negligence on his part on which an indemnity to the stevedore could be based.

 (2) If the defendant shipowner were not negligent or the ship unseaworthy, the plaintiff could not recover and the action would be concluded.

 (3) If the accident were caused by the concurrent fault of the longshoreman and the shipowner, the longshoreman's recovery, because of the doctrine of comparative negligence, would be reduced in the proportion that his own negligence was found to be the cause of the accident. Since the amount attributable to the longshoreman's negligence would be excised, the remaining amount could ...

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