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GAROFALO v. MALAYSIA OVERSEAS EXPORT LINES

May 2, 1979

Anthony GAROFALO, Plaintiff,
v.
MALAYSIA OVERSEAS EXPORT LINES, INC., Defendant



The opinion of the court was delivered by: COOPER

Plaintiff, a longshoreman, seeks recovery against the defendant, a shipowner, of damages for personal injuries suffered when plaintiff was working as a longshoreman aboard defendant's vessel, the Oriental Hero. The accident occurred on December 20, 1974, at which time plaintiff was employed by the Universal Maritime Service, Inc. (UMS), a stevedoring contractor which had been retained by defendant to unload the Oriental Hero. Plaintiff was specifically employed as a sorter, his task being the checking and sorting of cargo, which was to be removed at various landing points.

By means of a pre-trial consent order signed on March 15, 1979, the parties stipulated to the facts above, and designated the issues on trial as follows: Plaintiff claims that defendant was negligent in failing to provide a safe place to work; that the defendant is strictly liable without tort in failing to maintain the ship in a safe and seaworthy condition; and that defendant was on notice of the alleged defect which caused plaintiff's injury.

 Defendant maintains that he was without knowledge of any defect or dangerous condition, and that the ship had provided a normal and reasonably safe work area; that the accident occurred solely through the fault of the stevedore and its longshoremen.

 Defendant moved for a directed verdict at the close of plaintiff's case at trial to the Court, on the grounds that plaintiff had failed to make out a prima-facie case of negligence. The Court granted defendant's motion as a matter of law, based on the evidence adduced at trial by the plaintiff, and enters this Memorandum Opinion in support of its disposition.

 The relevant facts follow. As mentioned above, plaintiff was a sorter engaged to work on board defendant's ship. He was a member of a longshoreman "gang" of 16 or 17 men, plus a foreman or "hatch boss", supplied by UMS pursuant to contract with defendant.

 On the date in question, plaintiff was sent to work on the "tween deck in Hatch No. 3. The hatch covers on the main deck had been removed, and thus the hatch square of the "tween deck was open to the air. The floor of the hatch square on the "tween deck was covered with debris dunnage, papers, wires, hard plastic, etc. All the cargo was stowed in the wings, around the sides of the "tween deck square.

 Eight other longshoremen in plaintiff's gang had commenced work on the "tween deck in the No. 3 hold around 8:00 a.m. that same day. They were cleaning up the debris in the square which covered the entire center area of the deck. It is clear from the trial testimony of one of plaintiff's co-workers that the debris in the square had to be cleaned up before the longshoremen could begin unloading the cargo, and that several members of the gang had set to work doing so at once. (Trial transcript, p. 80).

 Plaintiff went onto the "tween deck around 8:15 a.m. He testified at trial that he worked sorting cargo on the inshore wing of the "tween deck for about half an hour. *fn1" Then, plaintiff claims, he had to get over to the offshore wing to sort the cargo there. He alleges that there was not much room to walk around the square, although on cross-examination he was unable to remember whether cargo was stacked right up to the edge of the square, or whether there was a walkway around it.

 In any case, plaintiff decided that he had to go across the square to get to the offshore cargo. His own testimony reveals that the floor of the square where he crossed was covered with dunnage and debris, and that the other men were busy cleaning up the debris in another part of the square. (Trial transcript, p. 25).

 Plaintiff testified that he was being very careful because of all the debris he saw, but that upon his first step into the square, right in the middle of the hatch area, he stepped on some paper, his foot went into a hole, and he fell and injured his leg that being the injury for which he claims damages here.

 Upon examination of the area after his accident, it turned out that a piece of one of the hatch-covers, which made up the floor of the square, was missing. The hole would have been obvious had the floor not been covered with debris. The testimony shows that after plaintiff was injured, and left the deck, the other longshoremen nailed a board over the hole and continued with their work. (Trial transcript, pp. 84-85).

 Plaintiff was asked on cross-examination whether he had made any complaints about any condition in the square while he was there. He testified that neither he nor, to his knowledge, anyone else, made any such complaint not even to their own hatch boss, much less to any member of the crew. (Trial transcript, pp. 58-59).

 THE APPLICABLE LAW

 Since the 1972 amendments to the Longshoremen and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 901 Et seq., a longshoreman may seek recovery for personal injury against a shipowner only on a theory of negligence. The old admiralty doctrine of unseaworthiness liability without fault is no longer applicable to suits by dock-workers. Congress has mandated that the remedy for such suits lies in seeking compensation from the stevedore, unless the shipowner is ...


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