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December 26, 1968

Victor MENDOZA, Plaintiff,
A/S J. LUDWIG MOWINCKELS REDERI, Defendant and Third-Party Plaintiff, v. UNIVERSAL TERMINAL & STEVEDORING CORP., Third-Party Defendant

The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge.

 This action arose out of an injury suffered by Victor Mendoza, a thirty-eight year old longshoreman, on August 19, 1964, on board the S.S. LISTA. Defendant, A/S J. Ludwig Mowinckels Rederi, was the owner of the vessel and third party defendant, Universal Terminal & Stevedoring Corp., was the stevedore discharging the vessel and was also Mendoza's employer. This court has jurisdiction over the matter in controversy under 28 U.S.C. § 1333.

 By the preponderance of the credible evidence in this case, the court is able to reconstruct the relevant events leading up to the accident:

 Plaintiff began work at 8:00 a.m. on August 19, 1964, on board the S.S. LISTA. He began work with his regular gang on the tween deck of the number three hatch. After completing their work on the tween deck, plaintiff and his gang descended into the lower hold. The cargo to be immediately discharged from the lower hold consisted of unboxed automobiles which stood on a dunnage floor which was laid over general cargo. The dunnage floor was irregular and uneven and not nailed together. It consisted of two layers, one running fore and aft and the other running athwartship. One of the automobiles to be unloaded stood with its front wheels in a hole in the dunnage floor. Mendoza, with five or six members of his gang, attempted to lift the automobile out of the hole. He stood in front of the wheel on the driver's side of the automobile on some sacks of cargo below the level of the dunnage floor, with his hands on the bumper of the automobile. Mendoza and his gang failed to move the automobile and then a longshoreman entered the automobile. Mendoza and his gang pushed and the longshoreman in the automobile started it in reverse. The spinning rear wheels kicked a piece of dunnage out from under the automobile and it struck Mendoza on the right knee.

 The longshoremen received the keys to the automobiles from their hatch boss, Oscar Allen, who was present in the lower hold during the discharging operation. Allen received the keys from a crew member who was also present at the hatch during the discharging operation.

 The S.S. LISTA was unseaworthy in respect to Victor Mendoza. A shipowner's warranty of seaworthiness runs in favor of one who is performing the ship's service. Seas Shipping Co., v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). Victor Mendoza, a longshoreman, was performing the ship's service and was thus entitled to a seaworthy vessel. The third party defendant was guilty of operational negligence when its longshoreman drove an automobile on unsecured dunnage boards. The spinning of the motor driven wheels might easily kick out a loose piece of dunnage which could cause injury -- precisely what happened to Victor Mendoza. Although there was testimony during the trial that it is not unusual for longshoremen to drive automobiles over unsecured dunnage floors, such testimony does not establish that this procedure is proper. See Texas & Pac. Ry. v. Behymer, 189 U.S. 468, 470, 23 S. Ct. 622, 47 L. Ed. 905 (1903). The operational negligence of a stevedore can render a vessel pro tanto unseaworthy, Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, rehearing denied, 386 F.2d 444 (2d Cir. 1967), cert. denied, 390 U.S. 1027, 88 S. Ct. 1416, 20 L. Ed. 2d 284, April 22, 1968; Alexander v. Bethlehem Steel Corp., 382 F.2d 963 (2d Cir. 1967), and in this case the operational negligence did so render the S.S. LISTA unseaworthy.

 Defendant was also guilty of negligence. A ship owner owes a business guest or other invited person a safe place to work. United New York & New Jersey Sandy Hook Pilots Assn. v. Halecki, 358 U.S. 613, 79 S. Ct. 517, 3 L. Ed. 2d 541 (1959); The M/V TUNGUS v. Skovgaard, 358 U.S. 588, 79 S. Ct. 503, 3 L. Ed. 2d 524 (1959); Connolly v. Weyerhaeuser Steamship Co., 236 F.2d 848 (2d Cir. 1956), rev'd on other ground sub nom. Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S. Ct. 438, 2 L. Ed. 2d 491 (1958). Defendant breached its duty to Mendoza, who as a longshoreman fell within a protected class, when it allowed a longshoreman to drive an automobile on an unsecured dunnage floor when it had actual knowledge of this state of affairs through the crew member present at the number three hatch.

 The driving of an automobile by a longshoreman on an unsecured floor for which defendant is accountable both in negligence and unseaworthiness was the proximate cause of Mendoza's injury. The spinning of the motor driven wheels caused a piece of dunnage to kick out from under the automobile and Mendoza was struck.

 Both defendant and third party defendant have maintained that Victor Mendoza was guilty of contributory negligence. The burden of showing that he was guilty of contributory negligence is on defendant and third party defendant. Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 528, 4 A.L.R.3d 517 (9th Cir. 1962); United States v. Smith, 220 F.2d 548, 554 (5th Cir. 1955); 2 Norris Seamen § 684 at p. 847 (1962). The preponderance of the credible evidence fails to establish that Victor Mendoza, who was performing the task assigned to him under the direction of his hatch boss, was guilty of contributory negligence.

 The piece of dunnage that kicked out and struck Victor Mendoza in the knee caused him to fall over backwards. Although in pain, he continued working for the remainder of the day and worked again the following day, August 20, 1964. The knee became increasingly swollen and disabling and, therefore, plaintiff attempted to seek medical care from the doctor recommended by the stevedore. Unable to locate this physician, plaintiff sought no further medical care until the evening of August 22, 1964, when he went to St. Vincent's Hospital for emergency care necessitated by the restricted motion and pain in the right knee. The plaintiff was given an Ace bandage and crutches to assist in ambulating.

 On August 24, 1964, the plaintiff visited the stevedore's medical consultant who prepared the attending physician's report which stated that there was a marked swelling of the supra and infra patella bursae of the right knee with marked inflammation, exquisite tenderness and inability to flex the knee joint. Mendoza was put under treatment with physical therapy, medication and a knee support. On August 26, 1964, approximately one hundred and forty cc's of bursa fluid was removed.

 Mendoza remained under treatment but the pain and swelling persisted and on August 31, 1964, he again went to St. Vincent's Hospital where he was admitted. Mendoza was treated with bed rest and medication to reduce the swelling and was discharged, improved, on September 15, 1964.

 On September 30, 1964, Mendoza was examined by a Dr. Joseph F. Giattini, and this physician noted an acute swelling of the right knee joint. A diagnosis of tear of the lateral meniscus was made and it was recommended that plaintiff have surgery in the form of an arthrotomy of the right knee. For the purpose of surgery Mendoza was referred to Dr. Anthony J. Pisani.

 Dr. Pisani examined the patient on October 21, 1964, and reported soft tissue swelling and evidence of effusion in the knee. He found pain on motion and tenderness over the medial meniscus. X-rays showed some narrowing of the medial joint space with minimal degree of arthritic change. The doctor felt that there was a chronic underlying condition of gout, with a superimposed injury to the right knee resulting in injury to the medial meniscus. He recommended arthrotomy of the knee for excision of the torn meniscus. On December 15, 1964, Mendoza was admitted to St. Vincent's Hospital and ...

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