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November 27, 1978

Klaus ZIELINSKI, Plaintiff,

The opinion of the court was delivered by: HAIGHT


This is an action by a longshoreman against a shipowner to recover damages for personal injuries sustained while plaintiff was loading cargo aboard defendant's vessel. The accident occurred on December 15, 1975; thus plaintiff's claim is governed by the Longshoremen's and Harbor Workers' Compensation Act (the Act), 33 U.S.C. § 901 Et seq., as amended in 1972. Under the amended Act, a longshoreman's claim for damages against a shipowner sounds in negligence, 33 U.S.C. § 905(b), and it is the law of this Circuit that the standard of care in such cases is to be ascertained by reference to "land-based principles of negligence." *fn1" Lubrano v. Royal Netherlands Steamship Co., 572 F.2d 364, 366 (2d Cir. 1978) (quoting Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976) ).

On this motion for summary judgment under Fed.R.Civ.P. 56, I must decide whether the facts as developed thus far present a basis upon which defendant's liability may be predicated. Those facts must be gleaned from a reading of plaintiff's deposition, *fn2" the pertinent portions of which are set out in the margin. *fn3"

 Plaintiff contends that his deposition raises a factual issue, precluding summary judgment, with respect to whether defendant was negligent in failing to provide adequate lighting on the deck under the circumstances in which the accident occurred. I find, however, that plaintiff's deposition testimony proves fatal to this assertion. Even assuming, as plaintiff stated, that there was no illumination on the deck and that darkness was falling, that failure to provide lighting could not have contributed to plaintiff's accident, since, as he testified, he was able to see the deck on which he slipped. Thus, the presence or absence of lighting on the deck is immaterial to any theory of defendant's liability based on negligence.

 A second question arises as to whether the rain-slicked condition of the deck, standing alone, could form the basis for a finding of negligence. The shipowner is not an insurer of safety; his duty is to provide the longshoreman with a reasonably safe place to work, Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (2d Cir. 1976), not an accident-free ship. See Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223 (2d Cir.), Cert. denied, 375 U.S. 835, 84 S. Ct. 52, 11 L. Ed. 2d 65 and 375 U.S. 829, 84 S. Ct. 73, 11 L. Ed. 2d 61 (1963).

 The analytical difficulty in deeming a rain-slicked deck to be an unreasonably dangerous or defective condition arises from the long-standing precedent that "a deck made slippery by rainwater does not constitute an Unseaworthy condition." Santamaria v. The S.S. Othem, 272 F.2d 280, 281 (2d Cir. 1959) (emphasis added). "Unseaworthiness" and "negligence" in the maritime context are related but distinct doctrines. *fn4" The former, analogous to a warranty concept, premised a shipowner's liability on the presence of a defective condition in his vessel or any part thereof, which rendered it unfit for the purposes for which it was to be used. Once such a defective condition was found, a shipowner was cast in damages for injuries proximately caused by the condition of the ship, without regard to traditional negligence concepts of fault or due care. Thus, an injured longshoreman, having demonstrated the presence of a defective condition, recovered on a theory of strict liability. *fn5" See, e.g., Van Carpals v. The American Harvester, 297 F.2d 9 (2d Cir. 1961), Cert. denied, 369 U.S. 865, 82 S. Ct. 1031, 8 L. Ed. 2d 84 (1962). The point of this analysis, of course, is that if a slippery deck condition caused by rain does not render a vessel unseaworthy, it cannot form the basis for a finding of negligence, since in law it does not constitute an unreasonably dangerous working condition. *fn6" See, e.g., Denaro v. United States, 337 F.2d 275, 276 (2d Cir. 1964); Lieberman v. Matson Nav. Co., 300 F.2d 661, 662 (9th Cir. 1962); Tate v. Aì Svenska Amerika Linein, 331 F. Supp. 854, 856-58 (E.D.La.), Aff'd, 435 F.2d 172 (5th Cir. 1970); Colon v. Trinidad Corp., 188 F. Supp. 97, 100 (E.D.N.Y.1960).

 Laying aside this analysis for the moment, one might assume for the sake of argument that the rain-slicked deck did constitute a dangerous condition. What then is standard of care to which a shipowner is held? Land-based principles of negligence hold that:

"(a) possessor of land is not liable to his invitees for physical harm caused to them by any . . . condition on the land whose danger is known or obvious to them, Unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement 2d, Torts, § 343A(1) (emphasis added).

 It is clear beyond cavil that plaintiff, a longshoreman since 1962, *fn7" should have been aware of the fact that rain upon the steel deck of a ship produces a slippery condition. Might a shipowner anticipate a fall upon such a rain-slicked deck? Indeed yes, but his liability does not flow from mere anticipation. In adopting the Restatement formulation as the applicable standard of care in such cases, the Second Circuit has made it clear that the breach of duty leading to liability arises when "the shipowner (is) negligent in not correcting the open and obvious danger" from which he can foresee harm. Napoli v. Hellenic Lines, Ltd., Supra, 536 F.2d at 509.

 There is not, and indeed cannot be, any allegation in this case that defendant was negligent in allowing rainwater to accumulate on the deck of the ship, for it is plaintiff's own sworn testimony that the light drizzle had only just begun at the time of his accident. *fn8" Rather, it is plaintiff's contention that there is a triable issue of fact with respect to "(t)he type of deck paint used and whether said deck paint had the propensity to become slippery when wet." *fn9" Thus, plaintiff is relying not solely on the presence of rainwater on the deck, but rather upon the interaction of that rainwater with the deck paint to create what might be termed a latently defective condition on the deck of the ship. *fn10"

 The problem with denying defendant's summary judgment motion based on the above-described theory concerns the manner in which the factual basis for this claim came into the case. Plaintiff's deposition, which is properly before me for consideration on this motion, does not raise an issue with respect to the type of deck paint used. Plaintiff testified simply that the deck had been freshly painted and that the paint (if not the deck) was dry at the time of his fall. *fn11" The issue as to the type of paint was raised for the first and only time in plaintiff's attorney's Affidavit in Opposition to the instant motion.

 Rule 56(e), Fed.R.Civ.P., provides:

"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . ."

 The affidavit here was made on information and belief, based on "knowledge of the contents of plaintiff's counsel's file." *fn12" There is nothing in this record to support counsel's averment concerning the type of deck paint used. See, Automatic Radio Co. v. Hazeltine, 339 U.S. 827, 831, 70 S. Ct. 894, 94 L. Ed. 1312 (1950). Nor is there any showing that plaintiff's counsel would be competent to testify to the matters contained in the affidavit. Because the affidavit fails to comply with the express requirements of Rule 56(e), I may not consider it. E. g., Union Insurance Soc. of Canton, Ltd. v. William Gluckin & Co., 353 F.2d 946, 952 (2d Cir. 1965). Plaintiff's attorney has merely stated a factual contention that he ...

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