79 A.D.2d 590 | N.Y. App. Div. | 1980
Judgment, Supreme Court, New York County, entered March 19, 1980, upon a verdict awarding plaintiff Gilberto Alvez the sum of $500,000 and plaintiff Juanita Alvez the sum of $50,000, unanimously reversed, on the law, with costs to abide the event, and a new trial ordered. Plaintiff, a ship cleaner and lasher aboard defendant’s vessel, sues in unseaworthiness and negligence under admiralty law for injury sustained when he was struck in the right eye by the handle of a mechanical device, referred to as a “tensioner”, as he and his partner were exerting downward pressure on a short pipe extension which they had slipped over the handle of the tensioner. The source of the extension pipe, obviously inadequate for the use to which it was being put, was sharply contested. The shipowner offered proof that it had not provided the pipe, that lashers supplied their own equipment, and that pipe extensions were not customarily used to tighten tensioners. Plaintiff claimed that the extension pipe had been provided by defendant in accordance with maritime custom at Bush Terminal where the ship was berthed. Only the issue of unseaworthiness was submitted to the jury. In essence the court instructed the jury to find for plaintiff if the pipe was not reasonably fit for the purpose for which it was being used. This was error, since it provided a basis for a finding of unseaworthiness irrespective of whether the particular pipe, or, for that matter, any pipe which