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October 21, 1975

JOE GELLMAN, Plaintiff,

The opinion of the court was delivered by: PLATT


 On March 28, 1974, plaintiff filed a summons and complaint naming in the caption the above-named defendant ship owner and the ship "Maria Costa" and misstating in the body of the complaint that the name of the ship was the "ITKONIS". Thereafter, when the agent for the designated ship owner claimed that he was not authorized to accept service on the ground that the stated ship did not belong to their company, plaintiff filed an amended complaint and a supplemental summons on July 12, 1974 correcting the name of the ship in the text to conform with the name set in the caption, to wit: the "MARIA COSTA", and the same general agent accepted service of such complaint.

 In his amended complaint plaintiff sued the ship owner and ship for $100,000 for personal injuries which he alleged were caused as a result of the negligence of the defendant and the unseaworthiness of the vessel.

 On August 13, 1974, defendant filed an answer consisting of a general denial and alleging affirmative defenses (i) failure to state a claim, (ii) contributory negligence, (iii) assumption of risk, (iv) exclusive remedy under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905, et seq., and (v) no negligence or unseaworthiness on the part of the defendant.

 On the same date, the defendant filed a third-party summons and complaint against Universal Terminal & Stevedoring Corp. ("Universal" -- plaintiff's employer) alleging a breach on its part of its warranty to perform its services as a stevedore in a safe, careful, prudent, proper and workmanlike manner, as well as affirmative and active negligence.

 On August 23, 1974, defendant filed an amended answer, alleging as a Sixth Affirmative Defense that plaintiff's action against the defendant for negligence should be barred on the ground that it had accrued more than three years prior to the commencement of the action and as a Seventh Affirmative Defense that plaintiff had been guilty of laches.

 Also on August 23, 1974, defendant filed an additional third-party complaint against Carrier International Ltd. ("Carrier") seeking indemnity on the ground of affirmative and active negligence in that Carrier had constructed, packed and shipped boxes of cargo which did not contain adequate supports and which contained defective wooden boards.

 On October 8, 1974, defendant Universal served an answer to the amended third-party complaint generally denying the allegations contained therein.

 On October 9, 1974, defendant Carrier served an answer to such complaint also generally denying the allegations contained therein and setting forth a counterclaim against the defendant and a cross-claim against the third-party defendant Universal, alleging in each instance negligence on their part.

 The parties stipulated to the following facts:

 "On April 3, 1971 at approximately 6:30 PM the vessel 'COSTA MARIA' owned by the defendant was berthed at Pier 2, Brooklyn, New York. Plaintiff was an employee of Universal Terminal & Stevedoring Corp., a stevedoring corporation, engaged by the ship owner to perform stevedoring operations aboard said vessel. That at said time plaintiff was employed as a longshoreman and acting in the course and scope of his employment."

 At such time the plaintiff was working in the hold in the number 3 hatch loading cargo with some seven additional longshoremen. Cargo had been loaded in the wings of the hatch earlier in the day and the longshoremen were beginning to load cargo in the square of the hatch.

 Two big wooden cases, each 20 feet in length, 8-1/2 feet in width and 8 feet high, were lowered into the hatch. Both of them carried the label "Carrier" on them.

 According to the plaintiff, he and his fellow longshoremen, "Jerry" and "Jeso", mounted, by means of a ladder, to the top of one of the cases and the three of them, with himself in the rear, proceeded to walk across the top of such case to unhook the wires by which it was lowered into the hold.

 Suddenly without warning plaintiff heard a cracking noise under his left foot which went through the case and he fell down on his left side and shoulder.

 Jerry and Jeso ran over and pulled him out; the timekeeper came down and the plaintiff reported his accident to him, and thereafter Jerry took him to the emergency room of the hospital of the Holy Family Division at 155 Dean Street, Brooklyn, New York.

 At the hospital, x-rays were taken of plaintiff's left shoulder, his left rib cage and his left leg, all of which ...

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