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February 23, 1979

Francesco CLEMENTE, Plaintiff,
FARRELL LINES INCORPORATED and Universal Maritime Services, Inc., Defendants

The opinion of the court was delivered by: NEAHER


This action was brought by plaintiff in State court against defendant Farrell Lines Incorporated ("Farrell"), the owner of the SS African Comet, and an independent stevedore, Universal Maritime Services, Inc. ("Universal"), for injuries plaintiff allegedly sustained while working on the vessel as a cargo lasher in the employ of Frank J. Holleran Corporation ("Holleran"), which is not a party to this action. Farrell removed the case to this court on the ground of diversity of citizenship. It now moves for summary judgment pursuant to Rule 56, F.R.Civ.P., based upon plaintiff's deposition and undisputed facts, which it contends entitles it to judgment as a matter of law under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 Et seq. ("LHWCA"). For the following reasons, defendant Farrell's motion is granted.

 The undisputed facts reveal that on July 18, 1975, plaintiff was working aboard the African Comet lashing cargo at various hatches under the direction of his employer, Holleran. At approximately 9 p.m., he was assigned by his employer to lash cargo in the upper deck of the No. 4 hatch. According to plaintiff, he was injured when a container near which he was working was pushed against him by another container being carried on a hilo operated by an employee of the co-defendant stevedore, Universal.

 Farrell contends there is no evidence in the record upon which plaintiff can state a claim of negligence against the vessel owner under the 1972 amendments to the LHWCA. It claims that No. 4 hatch was not under the control of Farrell and cites Napoli v. Hellenic Lines, 536 F.2d 505 (2 Cir. 1976); Munoz v. Flota Mercante Grancolombiana, S.A., 553 F.2d 837 (2 Cir. 1977); Cox v. Flota Mercante Grancolombiana, S.A., 577 F.2d 798 (2 Cir.), Cert. denied, 439 U.S. 881, 99 S. Ct. 222, 58 L. Ed. 2d 195 (1978), for the proposition that the 1972 amendments to the LHWCA eliminated any non-delegable duty by a shipowner to provide an employee with a safe place to work.

 Plaintiff opposes Farrell's motion with a brief attorney's affidavit contending that there are genuine triable issues of material fact based upon, at least, two theories of the vessel's negligence. First, it is claimed that there is a question whether the defendant vessel fulfilled its obligation to provide sufficient lighting at the time of the accident's occurrence at 10:00 p.m. Second, it is suggested that the hatch at the time of the accident was overcrowded with men, cargo, material and equipment.

 After careful review of the parties' submissions, the court is of opinion that plaintiff has failed to show the existence of any genuine triable issue of material fact which would bar summary judgment in favor of Farrell. On the contrary, plaintiff's own statements after the accident and in his later deposition conclusively establish that the sole proximate cause of the accident and his injury was the act of a fellow worker in the hatch. In an "Employee's Claim for Compensation" form he signed two or three months after the occurrence, plaintiff furnished the following description of the accident:

"While at work in hatch, lashing, a longshoreman operating a hi-lo machine struck me from behind."

 In his deposition signed and sworn to August 14, 1978, plaintiff expanded the foregoing description and admitted that other longshoremen in the hatch "told me it was the machine," referring to the hilo. The additional details he provided, however, indicate the manner in which he claims the accident happened and eliminate any possibility of negligence on the part of the vessel.

 Agreeing that a sketch, Exh. C for identification on the deposition, accurately depicted the scene just before his injury, plaintiff testified he was standing between a container and the offshore bulkhead in the No. 4 hatch. The container, 20 feet long and 8 feet high, had been pushed into position athwart the forward end of the square, the right end projecting some distance under the wing on the offshore side of the vessel. Plaintiff estimated there was a 2-foot space between the bulkhead and the end of the container. He was in that space facing the bulkhead attempting to hook up the lashing wire, so as to fasten the forward corner of the container to the bulkhead, when the container moved forward and struck him.

 According to plaintiff one row of two or three containers had already been placed across the forward end of the hatch to form a barrier for drums and other cargo which had been stowed against the forward bulkhead. The container plaintiff was working on was the first in a second row of containers to be placed at that end of the hatch. He knew that additional containers were being loaded into the hatch to complete the row. Based on his own testimony as to how the accident happened and what he was told by the longshoremen working in the hatch, it is clear that a hilo operator in attempting to place another container in the row bumped the container next to plaintiff, causing it to strike him and thereby inflict the injuries claimed.

 In such circumstances, plaintiff's contention that he should nonetheless be permitted to continue this action in order to ascertain whether he can prove negligence on Farrell's part wholly ignores the 1972 amendments to the LHWCA. In language too plain to be misread, the LHWCA now provides that

"no such action (by "a person covered under this chapter') shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel." 33 U.S.C. § 905(b).

 Based on plaintiff's own testimony, aside from any lack of care on his own part, there is no way in which his injury can be attributed to anyone other than the longshoreman hilo operator. The operations under way in the hatch were entirely under the control of the independent contractors. No one connected with the vessel's command or crew were present in the hatch between 9:00 and 10:00 p.m., nor should there have been. As pointed out in Munoz v. Grancolombiana, S.A., supra at 840:

"The shipowner had no duty to supervise the minute details of work totally entrusted to the competence of the stevedore. Indeed, commercial reality and applicable union regulations preclude a rule that would require a non-expert constantly to intrude on the ...

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