Carrell v. Fred Olsen Line Agency, Ltd.

BRAY, P. J. In an action brought under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, plaintiff appeals from a judgment in his favor in the sum of $1,504.92.

Questions Presented

1. Is the finding of contributory negligence supported?

2. Are the damages inadequate?

Record

The rule of comparative negligence obtains in this action. Plaintiff, a longshoreman, was injured by being struck on the head by a falling plank on board defendant’s freighter MS Burrard. The action was tried without a jury. At the conclusion of the trial defendant’s motion to amend its answer to plead contributory negligence on plaintiff’s part was granted. The court found that the crew of the vessel was negligent but that plaintiff was equally at fault. Following the comparative negligence rule of admiralty law (see Pope & Talbot, Inc. v. Hawn (1953) 346 U.S. 406 [74 S.C.t 202, 98 L.Ed. 143] ; Chelentis v. Luckenbach 8.8. Co. (1918) 247 U.S. 372 [38 S.Ct. 501, 62 L.Ed. 1171]) the court mitigated [603]the damages by one-half, giving plaintiff judgment in the sum of $1,504.92.

1. Contributory Negligence.

August 22, 1956, plaintiff and other longshoremen were assigned to discharge cargo from the No. 3 hatch of the freighter. Before discharge commenced, the booms and guy wires had to be rigged, and plaintiff and others of his longshore gang were assigned to perform rigging on the port side of the superstructure of the ship. They noticed some of the vessel’s sailors working overhead on a painting scaffold which was swung out over the side directly over an area where some of the longshoremen would necessarily have tasks to perform in connection with rigging the ship's gear. Upon request of the stevedore boss, the seamen ceased their painting operations and made the scaffold fast to the ship’s side so that the gear could be rigged below. Union rules provided that no longshoremen might work while others were working overhead.

The longshoremen proceeded to rig the guy wires. After the rigging appeared to have been satisfactorily concluded the longshoremen went back to the No. 3 hatch. However, the rigging was not satisfactory and after seven to ten minutes the longshoremen returned to make further adjustments from a covered passageway below the scaffold and out of sight of the sailors above, who during the interval had resumed painting. Reaching for a guy line, plaintiff leaned out from the passageway. At this time the seamen were moving the scaffold and a plank serving as a platform on the scaffold fell, striking plaintiff, rendering him unconscious.