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King v. Dampfs-Ges

decided: August 8, 1975.

JACKSON O. KING, PLAINTIFF-APPELLEE,
v.
DEUTSCHE DAMPFS-GES, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE-APPELLANT, V. INTERNATIONAL TERMINAL OPERATING CO. INC., AND COURT CARPENTRY & MARINE CONTRACTING COMPANY, THIRD-PARTY DEFENDANTS-APPELLANTS



Appeal from judgment entered after jury trial in the Southern District of New York, Constance Baker Motley, District Judge, awarding plaintiff $42,900 damages against shipowner for injuries sustained while working aboard ship and awarding shipowner full indemnification against both the stevedore and plaintiff's employer.

Mulligan, Timbers and Gurfein, Circuit Judges.

Author: Timbers

TIMBERS, Circuit Judge:

On this appeal from a judgment entered January 22, 1975 after a three day jury trial in the Southern District of New York, Constance Baker Motley, District Judge, awarding plaintiff $42,900 damages against the shipowner for injuries sustained while working aboard ship and awarding the shipowner full indemnification against both the stevedore and plaintiff's employer, the essential issues are:

(1) Whether the court erred in failing to dismiss the complaint for lack of sufficient evidence on the issue of unseaworthiness.

(2) Whether the court erred in granting judgment n.o.v. in favor of the shipowner on its indemnity claim against plaintiff's employer.

Finding no error, we affirm.

I.

Jackson O. King was employed as a marine carpenter by Court Carpentry & Marine Contracting Company (Court Carpentry) on June 18, 1968. He was injured while working in the hold of the M/S Trautenfels which was owned by Deutsche Dampfs-Ges (Deutsche). King entered the hold to secure cargo which previously had been loaded into the hold. In order to do so, he was required to walk directly on steel "I" or "H" beams which had been stowed side by side facing fore and aft to form a superdeck in No. 4 hatch, by the stevedore, International Terminal Operating Co. Inc. (ITO). While walking on the beams, King fell into a space between two of the beams and sustained an injury to his left knee.

The instant appeal is from the judgment entered after a second trial which began October 9, 1974.*fn1 In response to special questions, the jury found that King's injuries were caused by the vessel's unseaworthiness, but reduced its $57,200 verdict to $42,900 because of King's 25% contributory negligence. After instructions from the court, the jury answered further special questions by awarding indemnification in favor of Deutsche against ITO ON THE GROUND THAT ITO had breached its implied warranty of workmanlike performance in stowing the beams improperly so as to leave the space between the beams into which King fell; but the jury rejected Deutsche's claim of indemnity against Court Carpentry on the ground that Deutsche had not sustained its burden of proving that Court Carpentry had breached its implied warranty of workmanlike performance by failing to discover the dangerous condition.

On Deutsche's post trial motion for judgment n.o.v., the court held as a matter of law that Deutsche was entitled to judgment over against Court Carpentry, King's employer, in view of the jury's finding of contributory negligence on the part of King.

This appeal by ITO and Court Carpentry followed. Deutsche has taken a protective appeal against King and in opposition to the appeals of ITO and Court Carpentry which seek to overturn the indemnity awards.

II.

Turning first to the claim that the district court erred in failing to dismiss the complaint for lack of sufficient evidence on the issue of unseaworthiness, we hold that this issue was submitted properly to the jury and that there was ...


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