*4 over though shipowner retains control FEINBERG, Circuit Judge (dissenting): subject continu- his vessel and is to that duty to respectfully shipowner I dissent. has no ing duty, the hand, If, you find this on the other stevedoring experienced supervise stevedoring is existed the vessel knew company condition company and the safety anticipated its have and should responsible for condition primarily plaintiff, despite the the harm to the employees. own knowledge of the condition plaintiff’s Haight, charge, Judge rely- Later obviousness, shipowner failed its and the expounded of law ing part principles on care under all the to exercise reasonable Lines, Ltd., 536 F.2d Napoli v. Hellenic condition, to circumstances correct 1976), greater went into on the negligence should find you then detail: part of the vessel. not liable for shipowner . a dangerous ship- in a longshoreman harm to was that instructed is known or condition vessel which owner the steve- duty supervise on the had no to obvious, where the except dore should not be and that long- to the anticipate should harm held if it assumed that a liable shoreman, knowledge his despite known or obvious would be reme- condition obviousness of condition. I timely died in a manner the stevedore. majority do understand the to hold I that while regard, charge you In that other instruc- any judge’s these or longshoreman may under a Instead, wrong. a third trial open tions were avoid from likely harm result required theory posi- obvious he not be dangers, may jury” have “must confused danger though tion avoid the even instance, issue retrial was “whether the defendant aware of it. For his duties sub- *5 responsible for the ject superiors partially orders of his could be held may the as- exposure workmanship because it had require improper his unavoidable to a steve- longshoreman supervision known A sumed and control the danger. is job directing work required operations by leave his dore’s that the necessarily ma- delaying Alternatively, work. the face trouble for continue as it did.” jority says that issue on retrial was circumstances, you if Under such find keep “whether the defendant ‘had the men them, shipowner has a exer- joined’ working’ ‘affirmatively in correct cising care to such reasonable keep working,” stevedore's decision to them In danger. other obvious condition case, 572 citing prior our decision in this words, you plaintiff if find the had to n.4. at 367 & danger work an area of obvious duties, job order to if carry out his suggested It phraseology is true that the shipowner could you find that the reason- by majority sharpened would have anticipated he would use ably have jury. issue to deter- But in order liable, area, shipowner is if it then reasonably mine whether the as- does not reasonable care to cor- exercise be sumed that would condition here danger. rect the obvious stevedore, the neces- remedied the ship- In or not assessing whether sarily plaintiff’s claim that had to consider owner reasonable care in such exercised shipowner, knowing insufficient circumstances, wish to consider you may available, affirmatively joined dunnage was was reason- whether or not working. keep the decision to the men that the condition ably entitled to assume closing This because the particularly so by the steve- timely would remedied be arguments of both counsel focused dore. joined in the issue whether defendant decision, had claimed. right vessel stevedore’s as you
If find that the stated the issue judge’s charge the condition to assume that Since terms, I see correctly, although general timely would steve- remedied dore, jury verdict. no reason to reverse the your then verdict should for perfection but perfect, was not defendant. for put plain- standard review. To expense tiff to the trouble and of a third
trial more than seven years injury after his justifiable jury
and after a verdict in his sorry judicial
favor is a exercise in adminis- Therefore,
tration. I dissent. al.,
Oscar ROBERTSON et Boone, Francisco, Plaintiffs-Appellees, John H. San Cal. Knudsen, Francisco, (Boone Cal., & San Seymour Goldberg, Seymour Goldberg S. Chamberlain, Appellant, Wilton N. Encino, Cal., Corporation, Law Peter J. Hill, Nash, McHugh, New York Betts & NATIONAL BASKETBALL ASSOCIA- City, brief), on the appellant Chamber- al., Defendants-Appellees. TION et lain. Cardozo, Michael A. New York No. Docket 79-7199. Rose, Mendelsohn, (Proskauer, Goetz & Appeals,
United States Court of City, Jeffrey New York A. Mishkin and Second Circuit. Diamond, Cynthia City, Ann New York counsel), defendants-appellees. Argued Jan. 1980. Warren, (Weil, Irwin H. New York City May Decided 1980. Manges, Gotshal & New York James *6 Quinn, counsel), New
W. York plaintiffs-appellees. OAKES,
Before
VAN GRAAFEILAND
NEWMAN,
Judges.
Circuit
GRAAFEILAND,
Judge:
VAN
Circuit
30, 1976,
July
On
Judge
approved
Carter
the settlement of an antitrust class action
against the National Basketball Association
which
pending
had been
United
District
Dis-
Court
Southern
States
trict of New York since 1970. Robertson v.
Association,
National Basketball
72 F.R.D.
(S.D.N.Y.1976).
9, 1977,
On June
judgment
Court affirmed the
entered on
Judge
opinion.
Carter’s
Robertson v. Na-
Association,
tional Basketball