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CONCEPCION v. USN

June 2, 1983

Robert CONCEPCION, Plaintiff,
v.
UNITED STATES NAVY and Trinidad Corporation, Defendants.



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

MOTLEY, Chief Judge.

 This is an action under the Jones Act. Pro se plaintiff Robert Concepcion (Concepcion) claims that, on October 2, 1979, he suffered personal injuries while serving as a merchant seaman aboard defendants' vessel, the U.S.N.S. Potomac (the Potomac). Plaintiff seeks to recover lost earnings. The United States Navy (the Navy), owner of the Potomac, and Trinidad Corp., a private steamship company that operated the Potomac under contract with the Navy, are named as defendants.

 This case is now before the court on defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.Defendants contend that plaintiff's action is barred by the terms of a general release executed by Concepcion in connection with a previous lawsuit (the first action). Defendants also move to dismiss the complaint against the Trinidad Corp. on the ground that the liability of the United States is by statute exclusive, thereby rendering Trinidad Corp. an improper defendant.

 For the reasons stated below, defendants' motion for summary judgment is denied as to defendant United States Navy and granted as to defendant Trinidad Corp.

 DISCUSSION

 Concepcion's first action was for injuries suffered aboard the U.S.N.S. Sealift Antarctic (the Sealift Antarctic) on July 19, 1978. Defendants in the first action were the Navy, as owner of the Sealift Antarctic, and Marine Transport Lines, Inc., another private steamship company under contract with the Navy to operate the vessel. After lengthy negotiations and discovery proceedings, Concepcion, who was represented by counsel, agreed to a settlement of the action in the amount of $20,000. On August 13, 1980, defendants, in accordance with the settlement agreement, drafted a release which was signed by the plaintiff on August 30, 1980.

 The issue now before the court is whether the release executed in the first action on August 30, 1980 bars Concepcion's current action.

 Concepcion contends that the release he signed on August 30, 1980 only covered the back injuries that he sustained aboard the Sealift Antarctic. It is urged by Concepcion that he never agreed to release the Navy or Trinidad Corp. from liability for the injury that occurred aboard the Potomac.

 A. The Scope of The Release:

 The release, drafted by defendants, included printed, type-written and hand-written language. At the top of the form are the printed words "General Release". The specific terms of the release are type-written in the main body of the document. It is unquestionable that the typed-in portion refers only to the injury sustained by Concepcion on July 19, 1978 aboard the U.S.N.S. Sealift Antarctic. *fn1"

 "[A]n issue of construction is posed when a general release refers to specific claims." La Beach v. Beatrice Foods Co., 461 F. Supp. 152, 158 n. 8 (S.D.N.Y.1978).In construing the scope and effect of a release, the intent manifested by the parties must govern. Zenith Radio Corp. v. Hazeltine Research Inc., 401 U.S. 321, 345-46. 91 S. Ct. 795, 809-810, 28 L. Ed. 2d 77 (1970), reh'g denied, 401 U.S. 1015, 91 S. Ct. 1247, 28 L. Ed. 2d 552 (1971); United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO v. Great American Industries, Inc., 479 F. Supp. 216, 237 (S.D.N.Y.1979); Ruskay v. Jensen III, 342 F. Supp. 264, 271 (S.D.N.Y.1972), aff'd sub nom. Ruskay v. Waddell, 552 F.2d 392, 395 (2d Cir.1977), cert. denied, 434 U.S. 911, 98 S. Ct. 312, 54 L. Ed. 2d 197 (1977). The intent manifested by the parties may be discerned from the "language of the release itself and the circumstances surrounding its execution." Ruskay v. Waddell, 552 F.2d at 395-96.

 In the present case, the typewritten language is unmistakably clear as to the scope of the release. The language unequivocally refers to only an injury "sustained on or about July 19, 1978 while employed aboard the U.S.N.S. Sealift Antarctic." (See Exhibit A to Affidavit of Craig S. English in Support of Defendants' Motion for Summary Judgment (English affidavit).) The injury suffered by plaintiff on October 2, 1979 aboard the Potomac was neither generally nor specifically referred to in the release. It is, therefore, certain that the parties did not manifest an intention to include it within the scope of the release. A fair reading of the language indicates that the release applied only to the injury suffered by plaintiff aboard the Sealift Antarctic on July 19, 1978. Had the defendants and plaintiff intended to include both injuries within the scope of the release, it would be fair to say that the parties would have referred to both injuries in the document.

 In an action by a seaman, the burden is on the party claiming prior settlement as a defense to prove that the earlier settlement was entered into by the seaman with a full understanding of his rights. Garrett v. Moore-McCormack Co., 317 U.S. 239, 248, 63 S. Ct. 246, 252, 87 L. Ed. 239 (1942). See also Sagastume v. Lampsis Navigation Ltd., 579 F.2d 222, 224 (2d Cir.1978); Wink v. Rowan Drilling Co., 611 F.2d 98, 100 (5th Cir.1980), cert. denied, 449 ...


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