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CASTELLANO v. OETKER

May 9, 1975

MICHAEL CASTELLANO, Plaintiff,
v.
RUDOLF A. OETKER, POLARSTEIN, Defendant. RUDOLF A. OETKER, Defendant and Third Party Plaintiff, v. BAY RIDGE OPERATING CO., INC. and STANDARD FRUIT & STEAMSHIP CO., Third Party Defendants



The opinion of the court was delivered by: PLATT

PLATT, D.J.

 Plaintiff sued the defendant, Rudolf A. Oetker ("Oetker"), who owned the S.S. Polarstein (the "Vessel"), for injuries sustained while he was working as a longshoreman unloading a cargo of bananas from such Vessel when the same was berthed at Pier 42 East River, New York, on January 15, 1970.

 The Vessel filed a third-party complaint against Bay Ridge Operating Co., Inc. ("Bay Ridge") and Standard Fruit & Steamship Co. ("Standard Fruit") alleging in the case of Bay Ridge a breach on its part of its warranty to perform its services as a stevedore (plaintiff's employer) in a reasonably safe, proper, careful, prudent and workmanlike manner, as well as affirmative negligence and fault and as against Standard Fruit negligence and breach of duty to supply reasonable safe, fit and seaworthy materials and conveyor equipment and tools.

 Bay Ridge cross-claimed against Standard Fruit alleging negligence and breach of agreement to provide the Vessel with safe, proper, fit and seaworthy equipment and tools, and counterclaimed against the Vessel alleging negligence, breach of warranty of seaworthiness and breach of the express and implied terms of its contract with Bay Ridge. Standard Fruit in turn has cross-claimed for indemnification against Bay Ridge.

 Standard Fruit owned, and furnished to the Vessel and Bay Ridge, the conveyor equipment used aboard the Vessel on January 15, 1970 to unload the banana boxes.

 Bay Ridge was working aboard the Vessel on January 15, 1970, pursuant to a stevedore contract with Standard Fruit dated December 1, 1969.

 Bay Ridge installed, rigged, unrigged, repaired and maintained the conveyor equipment aboard the Vessel, including the operation and control of the conveyor equipment.

 Plaintiff was lawfully aboard the Vessel as an employee of Bay Ridge on January 15, 1970, engaged in the performance of electrical maintenance work at about 10:30 p.m. on that date.

 The reasonable value of the medical treatment provided for plaintiff as a result of his alleged accident and injuries sustained was $2,184.98.

 On January 15, 1970, about 10:30 p.m., the plaintiff, an electrical maintenance man, was working in the hold or on "D" deck in the #2 hatch disconnecting a conveyor when he was struck on the upper portion of his body by a box of bananas which fell from a point on a conveyor roller between B and A decks.

 At that time identical conveyor belts had been installed from D deck to C deck and from C deck to B deck and belts identical to one another had also been installed along the B, C and D decks and a similar conveyor belt had been installed from B deck to A deck; all for the purpose of conveying banana boxes from D deck up and off the vessel at a point on the A deck.

 The conveyors between the lower three decks had side rails approximately 3-1/2 to 4-1/2 inches high and the conveyor from B deck to A deck had side rails approximately 2-1/2 to 3 inches in height.

 The use of such different conveyors from B deck to A deck was, and had been for many years, apparently standard practice in the unloading of Standard Fruit's banana boxes.

 Some months before the accident Standard Fruit had started using a new type of box known as a "Zulu" which was higher (by about 4 inches) and shorter than the old boxes used to crate and ship bananas. According to the testimony, during the day of January 15 the longshoremen had been unloading the old type boxes and around 6:30 to ...


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