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December 23, 1968

Gaetano DI PAOLA, Plaintiff,
INTERNATIONAL TERMINAL OPERATING CO., Inc., Dominican Steamship Line, Brodin Line and Daido Line, Defendants, INTERNATIONAL TERMINAL OPERATING CO., Inc., Rederiaktiebolaget Disa, Rederiaktiebolaget Poseidon, Aktiebolaget Svenska Orient Linien, and Japan Line, Ltd., Third-Party Plaintiffs, v. PIER 8 TERMINALS, INC., Third-Party Defendant

The opinion of the court was delivered by: MANSFIELD

MANSFIELD, District Judge.

 In this action by a pier worker to recover damages for personal injuries, defendant International Terminal Operating Co., Inc. ("ITO") has moved pursuant to Rule 56(b), F.R.Civ.P., for summary judgment dismissing the complaint on the ground that the Court lacks subject matter jurisdiction.

 The complaint originally based jurisdiction on diversity of citizenship, but during a pretrial conference it became apparent that the Court lacked diversity jurisdiction. As a result, the parties stipulated in the pretrial order that plaintiff's complaint be deemed amended "to include a statement that the matters and things therein alleged set forth a claim for relief within the Admiralty and Maritime jurisdiction of this Court within the meaning of Rule 9(h), F.R.C.P." Defendant ITO did not, by this stipulation, waive its right to raise its current objection to this Court's jurisdiction. See Nakken v. Fearnley & Eger, 137 F. Supp. 288, 290 (S.D.N.Y.1956).

 The facts necessary to decide this motion are not in dispute. On September 20, 1963, plaintiff, who was employed as a cooper by Pier 8 Terminals, Inc., was performing his duties, which consisted of sweeping up any coffee that may have spilled from coffee bags stored on the pier and sewing up the torn bags, when some coffee bags stacked on the pier fell, striking and injuring him. These bags had been unloaded from the motor vessel Lia by ITO, either in the late afternoon of September 17, 1963 or in the morning of September 18, 1963, pursuant to a stevedoring contract containing the normal warranties requiring the stevedore to perform its work in a safe and workmanlike manner. It was ITO's job to take cargo off all of the vessels that berthed at the Pier 8 Terminal, and the particular bags in question had been placed in a net sling and removed from the Lia by the use of the ship's winch. They were placed on the string piece on the north side of the pier and then removed from the sling net and placed on pallets. Employees of ITO then took these pallets inside the covered portion of the pier and tiered them. It is plaintiff's contention that the accident was caused by the negligent tiering of these pallets and coffee bags.

 Plaintiff urges that maritime jurisdiction is present either because his injuries were the result of maritime tort, or because they were caused by ITO's breach of warranty under a maritime contract.

 The "Maritime Tort" Theory

 Neither the vessel nor its crew is, for the purposes of this motion, alleged to have been the direct cause of plaintiff's injuries. The allegedly negligent tiering was performed by longshoremen employed by the stevedore, ITO. Admiralty jurisdiction, however, does not depend on who committed the tort, but on where the tort was committed. Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U.S. 52, 34 S. Ct. 733, 58 L. Ed. 1208 (1914). Traditionally "the civil jurisdiction of the admiralty in matter of tort [depended] upon * * * whether the act was committed under navigable waters -- * * *". North Pac. S.S. Co. v. Hall Bros. Marine Railway & Shipbuilding Co., 249 U.S. 119, 125, 39 S. Ct. 221, 222, 63 L. Ed. 510 (1918). As plaintiff in the instant case was injured while working on a pier, which would be considered an extension of land, see Wiper v. Great Lakes Engineering Works, 340 F.2d 727, 730 (6th Cir. 1965), this Court, under the traditional rules of admiralty jurisdiction which required both the tort and the injury to occur on navigable waters, would have been required to dismiss plaintiff's contention that the alleged negligent storage of the coffee bags and his resulting injury satisfy the requisites of admiralty jurisdiction. The area embraced by maritime tort jurisdiction, however, has been substantially extended both through judicial decision and Act of Congress. The Supreme Court has held that admiralty jurisdiction exists when "it is alleged that the shipowner commits a tort while or before the ship is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act", Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 210, 83 S. Ct. 1185, 1188, 10 L. Ed. 2d 297 (1962). Gutierrez involved a longshoreman who, while unloading a cargo of broken and defective bags containing beans, slipped on some loose beans which were spilled on the dock during the unloading process. The Supreme Court stated the facts of the case, as found by the District Court, as follows:

"The cargo of beans was packed in broken and defective bags, some of which were being repaired by coopers aboard the ship during unloading. Beans spilled out of the bags during unloading, including some from one bag which broke open during unloading, and the scattering of beans about the surface of the pier created a dangerous condition for the longshoremen who had to work there. The shipowner knew or should have known that injury was likely to result to persons who would have to work around the beans spilled from the defective bags, and it was negligent in allowing cargo so poorly stowed or laden to be unloaded. Petitioner fell on the beans and injured himself, and such injuries were proximately caused by the respondent's negligence and the unseaworthiness of its cargo or cargo containers." (373 U.S. at 207, 83 S. Ct. at 1187)

 On these facts the Court found the case to be within the maritime jurisdiction. The tortious act occurred "while or before" the ship was being unloaded. In fact it was part of the continuous and uninterrupted unloading process, directly connected with conduct aboard the ship; and its impact was felt at a time and place not remote from the wrongful act.

 In the present case plaintiff does not contend that the tort occurred "while or before" the ship was being unloaded. The tort alleged in paragraph 18 of the complaint is that the cargo was negligently stored on the pier after the unloading of it had been completed. Nor does plaintiff allege that the tort occurred while the bags were removed from the ship, or even from the string piece to the covered portion of the pier. Not until after the bags had been unloaded from the ship to the string piece on the pier, where they came to rest, and then removed from the sling net and transported to the covered portion of the pier and stored, does plaintiff point to carelessness on the part of defendant that caused plaintiff's injury. While jurisdiction need not be limited to a case where "its defective winch drops some cargo onto a longshoreman", Gutierrez v. Waterman S.S. Corp., supra, 209-210, 83 S. Ct. at 1188, plaintiff here asks us to extend the Gutierrez doctrine beyond that or any other case decided. In all prior cases the accident occurred during the integrated process of unloading and removing cargo from a ship's hold and lowering it to rest on a pier. In Gutierrez, for instance, there was a definite relationship between the accident and acts which occurred aboard the vessel. Indeed the facts in Gutierrez make clear that the carelessness leading to the accident originated aboard ship prior to unloading, for the bags were defective before they were transferred from the ship to the pier and it was foreseeable that permitting them to be unloaded prior to repair by the coopers working aboard ship would result in their contents being spilled upon the dock. In the present case the relationship between the vessel on navigable waters and the alleged careless act is either nonexistent or remote at best.

 Maritime jurisdiction must also be denied here on another ground. In all cases where an injury to a longshoreman on land has given rise to admiralty jurisdiction not only was the ship being actively unloaded at the time of the accident but the injured plaintiff's actions at the time of the accident "were direct, necessary steps in the physical transfer". Litwinowicz v. Weyerhaeuser Steamship Co., 179 F. Supp. 812, 817 (E.D.Pa.1959). See also, Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2d Cir. 1950); Hagans v. Farrell Lines, 237 F.2d 477 (3d Cir. 1956). In contrast, plaintiff's activities here had nothing to do with the unloading of the ship. He was no more related to the unloading process than was the cargo checker to whom the court denied admiralty jurisdiction in LiMandri v. Brasileiro, 316 F.2d 3, 5 (2d Cir. 1963), on the ground that he was not performing "ship's service". Finally, not only were the storage of the cargo and plaintiff's activities distinct steps away from the active unloading of the ship, but the injury occurred three to four days after the unloading and storage. Gutierrez requires that the impact of the tort be felt at a time "not remote from the wrongful act", Gutierrez, supra, 373 U.S. 210, 83 S. Ct. at 1188.

 In summary, the mere fact that the plaintiff is a longshoreman injured by goods that have at some time past been unloaded from a ship is not enough. The jurisdictional elastic, supple as it is, cannot be stretched on forever. There comes a point where a halt must be called, whether or not the accident be characterized as too "remote", "distant", "unconnected", or the like. Viewing the totality of circumstances (as presented in the parties' affidavits) we believe that point has been passed here. The combination of an alleged wrongful act only tenuously related to a vessel, an injury to one not performing seamen's tasks, and an impact not felt until three to four days after the alleged wrongful act, render the case ineligible to meet the jurisdictional requisites of Gutierrez. It should be further noted that while the Supreme Court in Gutierrez was dealing with a claim of unseaworthiness, which is uniquely a creature of maritime law, here plaintiff's injuries did not arise out of any such maritime status or relation cognizable by substantive maritime law. On the contrary, his claim is essentially one based on common law negligence. See, e.g., Burns v. Cunard Steamship Co., 404 F.2d 60 (2d Cir. 1968) (decided December 4, 1968).

 The 1948 extension of the Admiralty Act, 46 U.S.C. ยง 740, does not require that admiralty take jurisdiction over this matter. That Act reads:

"The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that ...

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