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ALBANESE v. N. V. NEDERL. AMERIK STOOMV. MAATS.

June 9, 1967

Anthony ALBANESE, Plaintiff,
v.
N. V. NEDERL. AMERIK STOOMV. MAATS., Defendant. N. V. NEDERL. AMERIK STOOMV. MAATS., Third-Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., Inc., Third-Party Defendant


Levet, District Judge.


The opinion of the court was delivered by: LEVET

LEVET, District Judge.

After a verdict by the jury in favor of the third-party defendant, International Terminal Operating Co., Inc. ("ITO"), the third-party plaintiff, N.V. Nederl. Amerik Stoomv. Maats. ("Holland America Line"), has moved to set said verdict aside for judgment in favor of Holland America Line notwithstanding the verdict, or, in the alternative, for a new trial.

 This claim arises by reason of the fact that the plaintiff, Anthony Albanese, a longshoreman, obtained a verdict and collected a judgment against Holland America Line for the sum of $145,000 by reason of injuries from carbon monoxide fumes while working in his occupation in the hold of the M. S. Schiedyk, owned by Holland America Line. This judgment, with interest and costs, was satisfied for $160,497.33 by Holland America Line.

 TRIAL AND APPEALS

 This case was originally tried before Judge Cooper with a jury and verdicts returned for Albanese against Holland America Line as defendant and against Holland America Line as third-party plaintiff in favor of ITO as third-party defendant. Holland America Line appealed both verdicts and the Court of Appeals reversed both, 346 F.2d 481 (2nd Cir. 1965). Albanese, ITO and Holland America Line all applied for certiorari. In a per curiam opinion, the Supreme Court accepted certiorari and reversed the Court of Appeals decision as to Albanese, but denied the petitions for certiorari by ITO and Holland America Line, 382 U.S. 283, 86 S. Ct. 429, 15 L. Ed. 2d 327 (1965). It denied the petition for a rehearing on the Albanese decision, 382 U.S. 1000, 86 S. Ct. 534, 15 L. Ed. 2d 490 (1966), and denied rehearing on the denial of ITO's petition for certiorari, International Terminal Operating Co. v. N.V. Nederal. Amerik Stoomv. Maats 382 U.S. 1030, 86 S. Ct. 644, 15 L. Ed. 2d 544 (1966). It also denied ITO's motion for leave to file a second petition for a rehearing, 384 U.S. 994, 86 S. Ct. 1884, 16 L. Ed. 2d 1011 (1966). The Court of Appeals, however, thereafter refused to withdraw its mandate for a new trial between Holland America Line and ITO.

 It is appropriate to point out that the jury verdict on this retrial was in accord with previous determinations.

 1. At the first trial, Judge Cooper denied a motion for a directed verdict against ITO (SM 926, first trial); *fn1"

 2. The jury's verdict at the first trial before Judge Cooper was in favor of ITO;

 3. Judge Cooper denied a motion of Holland America Line for judgment N.O.V. against ITO;

 4. The Court of Appeals of this circuit rejected the argument of Holland America Line that it was entitled to a verdict against ITO as a matter of law, 346 F.2d 481;

 5. The United States Supreme Court denied the cross-petition of Holland America Line for certiorari seeking the same relief, 382 U.S. 283, 86 S. Ct. 429, 15 L. Ed. 2d 327;

 6. After reinstatement of the Albanese verdict by the Supreme Court, 382 U.S. 283, 86 S. Ct. 429, 15 L. Ed. 2d 327, Holland America Line argued to the Court of Appeals for the Second Circuit that it was entitled to a judgment as a matter of law; the motion was denied on March 1, 1966;

 7. Undaunted, on September 28, 1966, Holland America Line moved for summary judgment before Judge Tyler of the District Court. Judge Tyler denied the motion.

 As a result, the claim of Holland America Line for certiorari seeking the retrial and was heard by court and jury. A verdict for ITO resulted.

 THE RETRIAL

 At the retrial the jury was instructed to answer "Special Interrogatories" which were as follows:

 "SPECIAL INTERROGATORIES FOR THE JURY

 
(Please answer the following questions. Unanimous agreement is necessary before an answer may be recorded.)
 
1. Has the defendant International proved by a fair preponderance of the credible evidence that a mate or an officer of the vessel, MS Schiedyk, on February 25, 1961 at about 11:00 A.M., told Curko, the hatch boss for International, that he would turn on the ship's blower in the #2 hatch and that the said officer or mate at that time told Curko to proceed with the work in the #2 hatch?
 
Yes
 
No
 
If your answer is "Yes," proceed to Question #2.
 
2. Has the defendant International proved by a fair preponderance of the credible evidence that on February 25, 1961 International reasonably relied on this promise in proceeding to continue to work in the hold?
 
Yes
 
No"

 Counsel for Holland America Line made no objections. (296-98) The jurors were also directed to return a general verdict for plaintiff or for defendant. *fn2" (398) The jury eventually gave affirmative answers to both questions in the Special Interrogatories. The general verdict was for defendant.

 The jury retired to deliberate at 2:58 P.M. (414) At about 4:45 the jury sent in a question reading: "What was the purpose of the special interrogatories as to the jury?" (415) The court instructed the jury:

 
(a) "These are asked merely for informational purposes to assist the Court."
 
(b) "These are not the only issues for your consideration; there may be others."
 
(c) And the court again instructed the jury that a general verdict was ...

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