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February 10, 1965

Thorwald BENSEN
Thomas JACKSON, doing business as the Jackson Ocean Brand Manila Rope Company and the Thomas Jackson & Son Co., Reading, Pa

The opinion of the court was delivered by: LORD, JR.

Plaintiff Thorwald Bensen, a seaman, was, on February 6, 1961, employed as a crewmember aboard the grain barge Oswego. He was then employed by the New York Elevating Company, operator of the boat. The vessel was owned by the Port of New York Authority.

In the present action, and certain previous actions instituted in the state and federal courts in New York, plaintiff claimed that while he was working on the Oswego's scaffolding a rope line broke, precipitating plaintiff to the deck below and resulting in serious and permanent personal injuries to him.

 Plaintiff says that the rope line, which had broken while supporting the scaffolding, had been purchased by the Port of New York Authority (hereafter called 'Port Authority'), owner of the vessel, from the defendants Thomas Jackson, etc. (hereafter called 'Jackson'), and stored in its original packing until February 6, 1961, when the operator of the vessel, New York Elevating Company (hereafter called 'N.Y. Elevating') placed certain fathoms of this rope in use aboard the Oswego.

 This is the third or fourth action which has been instituted by this plaintiff in connection with the described incident and injury. First, plaintiff instituted an action solely against his employer, N.Y. Elevating, in the United States District Court for the Eastern District of New York. That action under the Jones Act, § 33 Merchant Marine Act of 1920, 46 U.S.C.A. § 688, alleged negligence of the employer and failure to provide a safe place to work (Defendants' Exhibit A).

 It was mentioned above that three or four actions had been brought by this plaintiff. More precisely, there have been three proceedings, but the second, in a court of the State of New York, consisted of two separate causes of action. In the Supreme Court, Kings County, New York, Trial Term Part XIII, No. 158, trial was had before the Hon. Charles J. Beckinella and a jury from March 14 to March 28, 1963. The case was never submitted to the jury, however, in view of the following two developments.

 The first was dismissal, on the motion of the Port Authority, of the cause of action under the Jones Act as to the Port Authority. As its reasons for granting the motion on March 25, 1963, the Court ruled that a Jones Act suit will not lie against one who is not an employer; and that there was no evidence that plaintiff had been employed by the Port Authority (Defendants' Exhibit G, pp. 4 and 5).

 Rulings on motions by both defendants as to the first cause of action, unseaworthiness, and of N.Y. Elevating under the Jones Act, were reserved (Defendants' Exhibit G and certified copy of Clerk's Minutes, p. 373; Proceedings on March 25, 1963).

 Meanwhile, plaintiff had on July 24, 1962, discontinued the action in the New York District Court in order to proceed in the State court proceeding described above.

 Then in January of 1963, while the action in the New York Supreme Court was pending, but before it had been tried, plaintiff commenced the present suit against Jackson, alleging negligence in the manufacturing and processing of the rope in question. Defendant thereafter filed this motion for summary judgment.

 After the Court's ruling on March 25, described above, the case came -- a few days thereafter -- to an abrupt end by settlement. Defendants' Exhibit F, set out later herein, is a photocopy of the release signed by plaintiff which provides in general language, on a stock form, that in consideration of $ 75,000, plaintiff released Port Authority and N.Y. Elevating, and the Grain Barge Oswego from all claims whatsoever for all time to come.

 Defendants' Exhibit E is the official court reporter's certified transcript of the words spoken at the settlement, which are as follows:

 'MR. FANNING (counsel for N.Y. Elevating) The above-entitled action is settled and discontinued without costs, disbursements or interest for $ 75,000 and other costs that have been made.

 'The $ 75,000 will be fresh money of which $ 50,000 will be paid by the New York Elevating Company and $ 28,350 by the Port of New York Authority.

 'THE COURT: Fresh money indicates that it is not inclusive of any outstanding liens. The only one you know about is the Workmen's Compensation Lien.


 'MR. QUINLAN (Counsel for Port Authority): And Holy Family Hospital.

 'MR. FANNING: There is no bill from them. As far as the plaintiff is concerned, that is the amount.

 'THE COURT: In other words, it is net.

 'MR. FANNING: As far as he is concerned. As far as the liens are concerned, we haven't any notice of it and we wouldn't pay it anyway.

 'THE COURT: All right, gentlemen.'

 Notwithstanding a number of counter-arguments and affidavits of plaintiff's counsel in the New York proceedings, the Court is constrained to agree with defendant. That conclusion can best be explained by first considering plaintiff's contentions.

 He says, first, that

 'The New York Court, having found that there was no fault, negligence or misconduct on the part of the shipowner in causing, creating or contributing to the rope breakage, was considering granting relief to those defendants under the appropriate Federal Act dealing with limitations of liability (48 U.S.C. 183) (meaning 46 U.S.C. 181-195). Plaintiff, therefore, on advice of counsel, accepted an offer of $ 75,000 from the shipowner and the elevating company, and gave those defendants at that time an Admiralty Release. The sum only partially compensated the plaintiff for the serious injuries from which he was suffering. Plaintiff and his counsel at all times regarded ...

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