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SHAW v. LAURITZEN

January 16, 1969

Cecil SHAW
v.
J. LAURITZEN v. T. HOGAN CORPORATION and South Jersey Port Commission



The opinion of the court was delivered by: BODY

 BODY, District Judge.

 The plaintiff brought suit against the defendant, J. Lauritzen, owner of the "SS Tenna Dan", for injuries arising out of an accident which occurred on May 31, 1963 aboard the "SS Tenna Dan". The defendant, as third-party plaintiff, sued T. Hogan Corporation which was plaintiff's employer and had been engaged to unload powdery nitrate from the ship's No. 3 hatch. The defendant also sued the South Jersey Port Commission which was the owner and operator of the moveable shoreside crane operated on tracks. It used a yellow claw bucket to remove the bulk nitrate.

 The plaintiff alleged that the "SS Tenna Dan" was unseaworthy in that one of its metal ladder rungs was unseaworthy and broke, being the proximate cause of injury to plaintiff's back. Plaintiff sought damages for his injuries in the form of lost wages, residual bills, pain and suffering and lost earning capacity.

 The defendant, as third-party plaintiff, sought indemnification from T. Hogan Corporation upon its alleged breach of an implied warranty to carry out its contract in a safe, proper, and workmanlike manner. It was alleged that certain employees, other than Shaw, had knowledge or should have had knowledge of the defective ladder rung, and should have reported the same to the ship officials. Further, as a proximate result of this failure to warn, plaintiff was injured.

 Third-party plaintiff sued South Jersey Port Commission upon the breach of its implied warranty to discharge the "SS Tenna Dan" in a safe, proper and workmanlike manner. It is alleged that its claw bucket was negligently operated, striking the ladder twice, and was the proximate cause of the plaintiff's injury.

 After a trial of seventeen days, the jury returned a verdict for the plaintiff amounting to $135,000. It found, answering special interrogatories, that the "SS Tenna Dan" was unseaworthy and this unseaworthiness was a proximate cause of plaintiff's injuries. It found that T. Hogan Corporation and the South Jersey Port Commission had not breached its implied warranties to perform their jobs in a safe, proper and workmanlike manner with reasonable safety under the circumstances.

 I.

 The facts of the case in brief are as follows: On May 31, 1963 at 9:00 P.M. plaintiff, Cecil Shaw, for the first time, descended the forward ladder aboard the "SS Tenna Dan" in No. 3 hatch when a ladder rung, the next to last, at the bottom of the top section of the ladder leading from the forward end of the main deck to the upper 'tween deck, pulled out in his hands and he fell into the powdery nitrate about twelve feet below. There was evidence presented that the plaintiff was not aware of this defective rung. The plaintiff claimed a continuing back injury and herniated lumbar disc. Certain witnesses, George Bankerville and Ernest Green, employees of third-party defendant Hogan, testified that they had noticed the faulty rung but had told no one. There was also evidence of yellow paint on the port and starboard sides of the ladder which Lauritzen contended showed that the ladder had been negligently struck by equipment operated by third-party defendant, South Jersey Port Commission.

 Since the dates of the post-trial motions are crucial to this Court's decision, they are set out below:

 1. March 8, 1968 -- Judgment entered.

 2. March 18, 1968 -- Defendant, J. Lauritzen, filed post-trial motions, including remittitur or new trial as to plaintiff; judgment n.o.v. or new trial as to T. Hogan Corporation; and new trial as to South Jersey Port Commission.


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