161 A.D.2d 129 | N.Y. App. Div. | 1990
Order, Supreme Court, New York County (Edward J. Greenfield, J.), entered June 11, 1987, which denied defendants-appellants’ motion for summary judgment dismissing the amended complaint, unanimously reversed, on the law, the motion granted and the first, second and fourth causes of action in the amended complaint dismissed, without costs.
Judgment, Supreme Court, New York County (Edward J. Greenfield, J.), entered October 21, 1988, upon a special jury verdict in favor of plaintiff S.M. Pires, solely on his cause of action for maintenance and cure against defendant Frota Oceánica Brasileira, S.A., in the sum of $1,323,666.70 (less $10,000 credited pursuant to stipulation of the parties) with interest to the verdict totaling $126,887.83 and interest from the verdict to October 20, 1988 totaling $39,031.10 together with costs and disbursements, unanimously modified, on the law, to delete the award of $126,887.83 in prejudgment interest and otherwise affirmed, without costs.
Assuming the truth of the above allegations and assuming, for purposes of this motion, that defendants-appellants, individually or collectively, engaged in the operation of M/V Frotaleste and are, therefore, Jones Act (46 USC § 688) employers within the meaning of Hellenic Lines v Rhoditis (398 US 306) and its progeny and that plaintiff was on ship’s business at the time of the accident, defendants-appellants are, nevertheless, entitled to summary judgment dismissing the causes of action against them.
"Although an injury occurring ashore may be in the course of the seaman’s employment, he cannot recover, in a Jones Act cause of action, unless he proves that the injury was caused by the negligence of any of the officers, agents or employees of the shipowner, for negligence of the shipowner or his agents is the gravamen of the Jones Act.” (2 Norris, Law of Seamen § 30:31, at 439 [4th ed].)
Viewing plaintiffs’ allegations in their most favorable light, we are left with the alternative theories that the Frotaleste was unseaworthy because it did not provide protective gloves for plaintiff, that he was therefore compelled to go ashore on his own to buy them, and that, in permitting plaintiff to go ashore in a port with which he was unfamiliar, the ship’s officers were negligent in not warning plaintiff of the dangers inherent in a railyard and in not providing him with • a flashlight with which to traverse the darkened port area.
However, in order to sustain a cause of action for negligence, even one judged by the liberal standards of the Jones Act under which any negligence on the part of an employer,
In the instant case, there is neither a sufficient showing of any violation of defendants-appellants’ duty of care nor any evidence that such violation, if any, was the proximate cause of plaintiffs injuries. A very similar situation was presented in Wheeler v West India S. S. Co. (103 F Supp 631, affd 205 F2d 354, cert denied 346 US 889), where a seaman was returning at 2:00 a.m. from shore leave to his ship, which was docked at the end of a viaduct. It was very dark at the time and, as he jogged along to catch up with his shipmates, he was struck by a tender attached to a locomotive which was coasting backwards down the viaduct. As a result, the seaman lost both legs. In setting aside a jury verdict in favor of the plaintiff and entering judgment for defendant, the court concluded that even if an inspection of the viaduct by the ship’s master at the time of docking would have disclosed that the walkways were damaged, that the railroad tracks were set flush with the viaduct’s surface, that there were railroad cars on those tracks at the viaduct’s offshore end and, possibly, that the viaduct lacked lighting facilities, such inspection would not have disclosed that a locomotive would be operating thereon, negligently or otherwise, at night. Likewise, in the instant case, even if it were found that the Frotaleste was unseaworthy or the shipowners were negligent in sending plaintiff ashore in an unfamiliar port at night without a flashlight, there is no evidence from which a jury could reasonably conclude that due diligence on the part of the shipowners or their employees could have prevented the allegedly negligent operation of the locomotive by the Port of Galveston. The contention that plaintiff was ashore on ship’s business rather than for his own purposes does not alter the applicable standards of care or the requirement of a causal relationship between any negligence and plaintiffs injuries. Absent such causal relationship, plaintiffs causes of action for negligence under the Jones Act or, in the alternative, under the maritime law concept of unseaworthiness, as well as his wife’s cause for loss of consortium, must fall.
As to plaintiffs recovery for maintenance and cure, a no-
We have considered defendant Frota’s other arguments on the issue of maintenance and cure and find them to be without merit. Concur—Kupferman, J. P., Asch, Wallach, Smith and Rubin, JJ.