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September 15, 1978

Giuseppe BONGIOVANNI, Plaintiff,
N. V. STOOMVAART-MAATS "OOSTZEE" and M. P. Howlett, Inc., Defendants

The opinion of the court was delivered by: WERKER

These are companion motions for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure by defendants N.V. Stoomvaart-Maats "Oostzee" ("Stoomvaart") and M. P. Howlett, Inc. ("Howlett").

Plaintiff Giuseppe Bongiovanni, formerly employed as a longshoreman by Universal Stevedoring Co. ("Universal"), seeks to recover for injuries incurred during the course of his employment. He was allegedly injured on December 23, 1972 while helping to unload the "Jasmine," a Stoomvaart container vessel. According to Bongiovanni, the accident occurred after he and several of his coworkers had fastened T-shaped hooks to the four corners of a container located in the No. 2 hatch of the Jasmine and while he was standing on top of the container as it was being lifted by an offshore crane operated by an employee of Howlett. Bongiovanni states that after the container had been raised some three or four feet, he was struck by one of the hooks that his co-workers had fastened to the container. The hooks and other apparatus which were used to lift the container were furnished by Universal.

 Jurisdiction over this action is founded on diversity of citizenship. At least three separate claims are asserted against the defendants for negligence, strict liability in tort and unseaworthiness.

 Both defendants maintain that they are entitled to judgment as a matter of law based upon material facts which are not in issue. Howlett also contends that it is entitled to an order dismissing the complaint as barred by either the relevant state statute of limitations provision or laches. It further suggests that under the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA") Bongiovanni may not prevail on the unseaworthiness claim asserted against it. *fn1"


 The LHWCA was enacted in 1927 to extend the benefits of workmen's compensation schemes to employees, such as longshoremen, injured "upon the navigable waters of the United States" and, hence, beyond the jurisdiction of any individual states. Nacirema Co. v. Johnson, 396 U.S. 212, 217, 90 S. Ct. 347, 24 L. Ed. 2d 371 (1969). It limited the liability of stevedoring firms to payment of fixed compensation benefits and barred their longshoreman employees from recovering common law damages against them. 33 U.S.C. §§ 904, 905. Thereafter, however, the Supreme Court held that a longshoreman could recover damages from a shipowner when his injury resulted from an unseaworthy condition, even when the condition resulted solely from the stevedore's actions, Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), and it further ruled that the vessel could implead the stevedore and recover any damages for which it was held liable on the theory that the stevedore had breached its warranty of workmanlike performance, Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956). As a result, longshoremen were able to bring actions for damages despite having received compensation payments, and shipowners could be held strictly liable for any damages which were recovered.

 The 1972 LHWCA Amendments were intended to limit such indirect suits against employers by requiring that any person receiving compensation payments prove negligence before recovering damages from a shipowner. And since the shipowner's liability was limited to situations in which it was actually at fault, the 1972 Amendments barred any attempt by the shipowner to implead the stevedore.

 Section 905(b) of the LHWCA, as amended, which is the governing provision, provides, in part, as follows:

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.

 It covers accidents occurring after thirty days after the date the LHWCA was amended (October 27, 1972) and therefore applies to the instant action. Pub.L.No. 92-576, § 22, 86 Stat. 1251, 1265.


 Turning first to the Stoomvaart motion, the Court notes that three persons have thus far been deposed in this lawsuit: the oiler on the Howlett crane, William Palmisano; the captain of the Jasmine, M. Horjus; *fn2" and the plaintiff. According to their uncontradicted testimony, an officer of the Jasmine is always present on deck when cargo is discharged from that vessel. However, only Bongiovanni and three of his co-workers were in hatch No. 2 immediately prior to the accident. A fifth Universal employee, the signalman "Cha Cha," was standing on the deck of the vessel, but it is unclear whether he had signalled the crane to begin lifting the container at the time of the accident. *fn3" Bongiovanni first testified that he had seen Cha Cha give a signal to raise the container before the accident, but he later revised his answers to state that he did not know if the signal had been given because his view had been blocked by the hatch coaming. *fn4"

 Bongiovanni contends that Stoomvaart should not be granted summary judgment: (1) because there are material factual issues which must await a trial on the merits; (2) because he has not yet had an opportunity to depose Robert Swartz, the operator of the Howlett crane at the time of the accident; and (3) because the Second Circuit case law regarding a shipowner's liability to a longshoreman is a shambles following the recent Court of Appeals decisions in Cox v. Flota Mercante Grancolombiana, S. A., 577 F.2d 798 (2d Cir. 1978), and Canizzo v. Farrell Lines, Inc., 579 F.2d 682 (2d Cir. 1978).

 With respect to the first contention, based on nothing more than the affirmation of his counsel, Bongiovanni informs the court that an offshore crane is positioned by a tug which takes its directions from the deck of the vessel to which it will be moored; that the mooring lines are in part fastened by members of the ship's crew acting under the direction of a deck officer; that these lines require periodic correction as containers are off-loaded; and that such corrections are the responsibility of the ship and crane crews and not the longshoremen. Although counsel does not actually state the significance of this "information," it is presumably offered to show that Stoomvaart could be liable to Bongiovanni if the evidence at trial were to establish that the hook which struck Bongiovanni worked loose as a result of movement caused by improper mooring of either the crane or the Jasmine. The Bongiovanni argument is based upon misstatement of the record and hearsay, however. For example, although Bongiovanni evidently contends that the mooring lines required adjustment as containers were removed from the vessel, the present Captain of the Jasmine noted that the stabilization of the ship required no adjustments during unloading. Horjus deposition at 13.

 Even if the Court were to accept Bongiovanni's contentions, summary judgment still could not be averted since there is no suggestion whatever in the record that the accident in question resulted from improper mooring rather than the failure of one ...

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