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December 27, 1974

OLAF PEDERSEN'S REDERI A/S, Defendant and Third Party Plaintiff, v. AMERICAN STEVEDORES, INC., and A. M. KRISTOPHER CO., INC., Third Party Defendants

The opinion of the court was delivered by: NEAHER


 NEAHER, District Judge.

 This action was originally instituted by a longshoreman (Rodriguez) to recover damages from defendant shipowner (Pedersen) for injuries he sustained while aboard the latter's ship. Pedersen, in turn, impleaded Rodriguez's employer, American Stevedores, Inc. (American) seeking indemnification for the monetary damages Pedersen was required to pay to Rodriguez. The case is now before the court solely on the indemnity claim; but in order to better understand the questions presented, the prior proceedings and present posture of the case will be briefly stated.

 After a trial in 1971 before the late Judge Rosling of this court, the jury returned a verdict in favor of Rodriguez against Pedersen in the amount of $35,000. In answer to special interrogatories, the jury found the ship unseaworthy and the shipowner negligent but also found Rodriguez contributorily negligent and reduced his damages from $80,000 to the amount announced. Upon subsequent submission of Pedersen's claim for indemnity, the jury returned a separate verdict in favor of American denying Pedersen a recovery over. Pedersen then moved for judgment n.o.v. or a new trial on the indemnity claim. Judge Rosling granted Pedersen the new trial. *fn1"

 Pedersen has now moved for summary judgment on its indemnity claim, asserting that there are no new facts to be adduced at a new trial and that on the facts as brought out on the first trial, it is entitled to judgment as a matter of law. American opposes Pedersen's motion and has cross-moved under Rule 60(b), F.R.Civ.P., to set aside the order granting Pedersen a new trial and for reinstatement of the jury verdict denying indemnity. In so moving, American also acknowledges "that no purpose would be served by a new trial other than to have the record of the first trial read to a different jury." *fn2" In short, both sides agree that all relevant facts are before the court. *fn3"

 Before turning to the facts, the somewhat unusual posture of the case requires threshold consideration of the propriety of entertaining a motion for summary judgment at this juncture. The indemnity claim clearly remains as a completely separate action, having been "severed and deferred for later jury trial" by Judge Rosling. *fn4" Although such a trial was had, no judgment has ever been entered determining the action. The jury's verdict denying indemnity was set aside and a new trial ordered with a strong suggestion that the existing evidence was insufficient to support such a verdict. *fn5" The parties say that additional evidence does not exist. A judgment deciding the case one way or the other would seem to be in order.

 American, in opposing the use of summary judgment procedure, suggests that the court merely "recall the order granting a new trial" and direct entry of judgment on the vacated jury verdict in its favor. *fn6" It contends that Judge Rosling having denied Pedersen's motion for judgment notwithstanding the verdict, the latter's declared intention not to offer additional proof is a waiver of its right to a new trial. Consequently, American argues, it should be relieved of the new trial order under Rule 60(b), the jury verdict in its favor should be reinstated, and judgment should be entered accordingly. *fn7"

 Aside from the technical difficulties American's Rule 60(b), contentions present, *fn8" the court sees only two routes to an appealable judgment on the indemnity claim: (1) resubmission of the same evidence to a new jury which neither party desires and which seems to make no sense here; or (2) re-examination by the court of the facts not in dispute, whether established by jury verdict or otherwise, to determine if judgment on the merits can be rendered as a matter of law. Pedersen's motion for summary judgment urges route (2) and impresses the court as the better course.

 Although a judge should not ordinarily disturb previous rulings of another judge in the same case, "the law of the case" rule is not so inflexible as to permit of no exception. Certainly it should not prevent the discharge of a judge's obligation to present an appellate court with the judgment he believes ought to be rendered in the case. Dictograph Products Co. v. Sonotone Corp., 230 F.2d 131 (2 Cir.), cert. dism., 352 U.S. 883, 77 S. Ct. 104, 1 L. Ed. 2d 82 (1956), cited by Pedersen, supports such a view. See also Petition of Kinsman Transit Company, 388 F.2d 821, fn. 9 at p. 825 (2 Cir. 1968); Ross Products, Inc. v. New York Merchandise Co., 242 F. Supp. 878 (S.D.N.Y. 1965); Kaminsky v. Abrams, 281 F. Supp. 501 (S.D.N.Y. 1968); Rogers v. Valentine, 426 F.2d 1361, fn. 2 at p. 1363 (2 Cir. 1970).

 Finding no sound reason for holding that the prior rulings herein bar reconsideration of the merits of Pedersen's claim, we now examine what the parties agree are the facts which gave rise to that claim.

 On July 3, 1967, Rodriguez and other members of his gang were discharging cargo from Pedersen's M/V "Sunny Prince." The gang was working on the upper 'tween deck level of hatch #2, when Rodriguez was summoned from that hatch at about 11:00 a.m. and directed to hatch #4 to do some unloading. When Rodriguez left hatch #2 he left his gloves and hook there, anticipating that he would return to work in that hatch. Shortly after arriving at hatch #4, he realized he would not be returning to hatch #2, and after having his lunch, he requested permission from his superior to go back to hatch #2 to retrieve his gloves and hook.

 Meanwhile, unknown to Rodriguez, ship's cleaners in the employ of A. M. Kristopher Co., Inc., had gone into hatch #2 to clean out the debris remaining after the completion of the unloading. In order to do so it was necessary for them to remove the covers from the upper 'tween deck. After they had completed the task, they asked the ship's chief officer whether they should replace the covers and were told by him not to do so. He also instructed them to close the main deck hatch opening. This, of course, left the #2 upper 'tween deck level in total darkness with a previously covered floor aperture now open.

 As Rodriguez proceeded from hatch #4 to hatch #2, he walked through a door which had been left ajar and which gave access to a passageway connecting the two hatches at the 'tween deck level. Concededly there were no signs giving notice of the changed conditions in hatch #2. As it was dark in the passageway, Rodriguez used a small "penlight" for illumination. After arriving in the #2 hatch 'tween deck area, he tripped over the hatch coaming and fell through the uncovered opening into the lower hold, thereby sustaining his injuries.

 Until Congress, in 1972, revised the statutory provision relating to actions of this nature, *fn9" the law in this circuit was well established that a finding of contributory negligence on the part of a plaintiff longshoreman caused his employer, the stevedore company, to be held liable per se to indemnify the defendant shipowner, Hartnett v. Reiss Steamship Company, 421 F.2d 1011, 1018 (2 Cir.), cert. denied, 400 U.S. 852, 91 S. Ct. 49, 27 L. Ed. 2d 90 (1970); McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1336 (2 Cir.), cert. denied, *fn10" 395 U.S. 946, 23 L. Ed. 2d 464, 89 S. Ct. 2020 (1969); Mortensen v. A/S Glittre, 348 F.2d 383 (2 Cir. 1965), *fn11" absent a finding that the ...

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