Pampillonia v. Concord Line
Opinion of the Court
On April 3, 1969, plaintiff Dominick Pampillonia was employed as a marine carpenter by C. C. Lumber Co., Inc., now Court Carpentry and Marine Contracting Co. (employer). He was injured that day while working aboard the SS Jill Cord which was owned and operated by Concord Line, A/S (shipowner).
Plaintiff claimed to have been injured when he slipped and fell on grease or other
A jury verdict in favor of plaintiff in amount of $80,000 was returned on December 18, 1973 against the shipowner for breach of its warranty of seaworthiness.
The only additional testimony received at the trial of the indemnity claim was that of Captain William Wheeler, an expert witness called by the shipowner. He testified, based on his extensive experience as a ship’s officer and as a stevedore superintendent, concerning the custom and practice of a ship’s carpenter in using grease during the process of lashing down cargo and the practice of plaintiff’s employer of using grease in lashing operations which he had observed over the years.
Based on the entire record, Chief Judge Mishler concluded, in his memorandum decision of December 21, 1973, that the shipowner had established by a fair preponderance of the credible evidence that the employer had breached its warranty to perform the ship carpentry work in a workmanlike manner. The court s conclusion was based on its specific findings of fact that the employer had placed or dropped grease in an area normally used for passage by longshoremen; that the employer had allowed grease or other slippery substance to remain in an area used as a passageway by plaintiff and other longshoremen, thereby creating a dangerous condition and an unsafe place to work; and that the employer had failed to eliminate the “slippery condition” as required by Section 1918.91(c) of the Safety and Health Regulations for Longshoring, promulgated by the United States Department of Labor. 29 C.F.R. § 1918.91(c) (1975).
We hold, based on our careful review of the record, that Chief Judge Mishler’s findings of fact are not clearly erroneous but are supported by substantial evidence.
Affirmed.
. Plaintiffs claim of negligence against the shipowner was dismissed by the court during trial. No cross appeal was taken from that ruling.
The shipowner’s indemnity claim against the stevedore, International Terminal Operating Co., Inc., was discontinued during trial. There is no issue on appeal with respect to that claim.
The $80,000 judgment in favor of plaintiff and against the shipowner, entered pursuant to Chief Judge Mishler’s memorandum of decision of December 21, 1973, has been paid by the shipowner. No appeal was taken from that part of the judgment.
. It is axiomatic that such findings, so supported, will not be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a); McAllister v. United States, 348 U.S. 19, 20-21 (1954). This is especially so when the trial court’s findings involve issues of credibility or the weight to be given to testimony, expert or otherwise. See Empire Transport, Inc. v. United States, 524 F.2d 1, 3, 4 (2 Cir. 1975); King v. Deutsche Dampfs-Ges, 523 F.2d 1042, 1045 & n. 2 (2 Cir. 1975); Interocean Shipping Co. v. National Shipping and Trading Corp., 523 F.2d 527, 534-35 (2 Cir. 1975).
Reference
- Full Case Name
- Dominick PAMPILLONIA v. CONCORD LINE, A/S, and Third-Party v. COURT CARPENTRY AND MARINE CONTRACTING CO., Third-Party and International Terminal Operating Co., Inc., Third-Party
- Cited By
- 1 case
- Status
- Published