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June 8, 1973

Peter GAETA, Plaintiff,
COMPAGNIE MARITIME BELGE (LLOYD ROYAL) S.A., Defendant and Third-Party Plaintiff, v. BAY RIDGE OPERATING CO., INC., Third-Party Defendant

Robert J. Ward, District Judge.

The opinion of the court was delivered by: WARD

ROBERT J. WARD, District Judge.

This is a motion by third-party defendant, Bay Ridge Operating Co. Inc. ("Bay Ridge"), for an order pursuant to Rule 12, Fed. R. Civ. P., dismissing this action for lack of subject matter jurisdiction and for an order pursuant to Rule 56, Fed. R. Civ. P., granting defendant summary judgment. In the alternative, Bay Ridge moves for an order pursuant to Rule 42(b), severing the third-party action. Defendant and third-party plaintiff, Compagnie Maritime Belge (Lloyd Royal) S.A., joins in Bay Ridge's motion for dismissal based on the lack of subject matter jurisdiction and for summary judgment, and moves in its own behalf for the same relief. Defendant opposes the motion for a severance.

 The action was commenced by plaintiff, a longshoreman employed by Bay Ridge, to recover damages for injuries sustained while moving pallets from the SS Lusambo. Plaintiff asserted causes of action for unseaworthiness and for negligence. Plaintiff conceded in a deposition that he had never been aboard the vessel but was engaged in loading cargo the day of the accident. Plaintiff testified that during the course of his activities, empty pallets were taken off the ship by a winch operated by Bay Ridge employees and deposited on the pier on top of cargo. Plaintiff noticed these pallets were not stable. He moved some of them to a nearby shed and then tried to stabilize those remaining by pushing them while holding on to the boom of his hilo. The pallets fell off the pile and hit plaintiff in the leg.

 Defendant and third-party defendant rely on Victory Carriers v. Law, 404 U.S. 202, 92 S. Ct. 418, 30 L. Ed. 2d 383 (1971), for their assertion that plaintiff's unseaworthiness claim should be dismissed for lack of subject matter jurisdiction. There, plaintiff, a longshoreman, was on a pier driving a fork lift containing cargo to be loaded on a vessel owned by defendant. The overhead protection rack of the fork lift fell on plaintiff causing his injury. The Supreme Court framed the issue as follows:

Whether maritime law governs accidents suffered by a longshoreman who is injured on the dock by allegedly defective equipment owned and operated by his stevedore employer. Id. at 204, 92 S. Ct. at 420.

 The Court determined that maritime law does not govern such an accident. Since the plaintiff

was not injured by equipment that was part of the ship's usual gear or that was stored on board, the equipment that injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gangplank(,) Id. at 213-214, 92 S. Ct. at 426.

 the Court was "not inclined . . . to disturb the existing precedents and to extend shoreward the reach of the maritime law. . . . Id. at 211, 92 S. Ct. at 425.

 Plaintiff argues that the facts here are distinguishable from those in Victory Carriers. He asserts that here pallets were unloaded from the ship in a negligent manner. *fn1" In support, plaintiff cites Siderewicz v. Enso-Gutzeit O/Y, 453 F.2d 1094 (2d Cir. 1972). There, a longshoreman stationed on the pier was injured during the unloading of a vessel

when one of the hooks, after being freed of bales in the unloading process, snagged on part of the pier as the empty sling to which it was attached was being returned to the vessel. Id. at 1094.

 The longshoreman contended the hook "snagged" because of improper unloading. The Second Circuit distinguished Victory Carriers as follows:

(In Victory Carriers there) was a "pier-side accident(s) caused by a stevedore's pier-based equipment" (92 S. Ct. 421); here, the harm was caused by unloading gear operating from the ship. . . . Id. at 1095, n. 3.

 Apparently plaintiff claims that because his accident was not caused by pier-based equipment, his case should come under the Siderewicz exception to Victory Carriers. However, plaintiff's accident was not caused by unloading gear operating from the ship as in Siderewicz. In fact, he was not struck by any of the ship's equipment. Rather, as stated above, his injury arose from pallets taken off the ship and already at rest on the pier. Thus, the facts of this case are dissimilar to both those of Victory Carriers and Siderewicz. After careful consideration, however, the Court is constrained to find the accident more like the pier-side accident in Victory Carriers than the accident in Siderewicz.

 Undamaged pallets at rest on a pier, albeit unstably so, should not render the condition of a vessel from whence they came unseaworthy. *fn2" The pallets did not fall directly from the vessel injuring plaintiff, a situation possibly within the Siderewicz nexus of facts. This distinction, like others in this area of admiralty law may appear highly technical; nevertheless distinctions in this area are not a "recent development nor particularly paradoxical." Victory Carriers, 404 U.S. 202 at 212, 92 S. Ct. 418, 30 L. Ed. 2d 383. Furthermore, as in Victory Carriers, plaintiff had a remedy under state workmen's compensation laws, and, in fact, exercised it. While not conclusive, the availability of this remedy was a factor in the Court's decision in Victory Carriers. Id. at 215, 92 S. Ct. 418. As there, the shipowner's liability here would probably be shifted to the ...

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