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KING v. DEUTSCHE-DAMPFS-GES

June 18, 1974

Jackson O. KING, Plaintiff,
v.
DEUTSCHE-DAMPFS-GES., Defendant and Third-Party Plaintiff, v. INTERNATIONAL TERMINAL OPERATING CO., INC., and Court Carpentry & Marine Contracting Co., Third-Party Defendants



The opinion of the court was delivered by: MOTLEY

Memorandum Opinion and Order

 MOTLEY, District Judge.

 Plaintiff, a marine carpenter, brought this diversity action against defendant shipowner on negligence and unseaworthiness theories. The case was tried to a jury on October 31 and November 1, 1973 and the jury, in accordance with its special verdict (Court's Exhibit 1), found that plaintiff had sustained damages in the amount of $30,000. The jury reduced those damages by 50%, for contributory negligence, and awarded plaintiff $15,000. *fn1"

 Plaintiff moves under Rule 59(e), Fed.R.Civ.P., to set aside that portion of the jury's verdict finding him contributorily negligent and, accordingly, to amend the judgment to award him $30,000.

 Defendant moves under Rule 50, for judgment in its favor notwithstanding the verdict. In the alternative it moves under Rule 59 for a new trial on the issue of negligence.

 Plaintiff claimed on the trial that, on June 18, 1968, while in the employ of Court Carpentry and Marine Contracting Co., he was working aboard the defendant's vessel as a marine carpenter or lasher. Plaintiff's employer had been hired by defendant to do carpentry work. A stevedoring company, International Terminal Operating Company (ITO) had been employed by the vessel owner to stow steel beams on the 'tween deck of the vessel.

 It was plaintiff's job to tie or lash other cargo which had been stowed on the steel beams by ITO to those steel beams.

 There was no dispute that plaintiff was required to walk on the beams in order to perform this task.

 Plaintiff sought to recover damages which he allegedly sustained to his left knee when he stepped into a space which had been left between the beams. He claimed that the manner in which the beams were stowed, that is, the leaving of a space wide enough for a foot to go through, rendered the vessel unfit. Plaintiff further claimed that the vessel owner was liable for the negligent acts of the stevedoring company and plaintiff's employer, the carpentry company, and, in the alternative, that the vessel owner negligently failed to carefully inspect the stevedore's work.

 Defendant, on the other hand, contended that plaintiff was contributorily negligent by failing to watch where he was walking.

 The jury found that defendant was negligent, that its negligence was the proximate cause of the accident and that plaintiff was contributorily negligent. The jury, however, found that plaintiff had not sustained his burden of proving that the vessel was unseaworthy.

 Defendant now moves for judgment n. o. v., or, in the alternative, for a new trial on the grounds that 1) plaintiff was not entitled to a charge under the Jones Act, as he was not a member of the crew or an employee of the defendant, 2) there was insufficient evidence of negligence on the part of the vessel owner, and 3) the jury should not have been instructed that the vessel owner could be held liable for the negligent acts of the stevedore and carpentry companies.

 Negligence

 The court agrees with defendant's contention that plaintiff was not entitled to recover under the Jones Act. The Jones Act applies only between employers and employees and there was no showing that the vessel owner was an employer for purposes of the Jones Act. Mahramas v. ...


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