Giuseppe Capotorto v. Compania Sud Americana De Vapores, Chilean Line, Inc. , 541 F.2d 985 ( 1976 )

J. JOSEPH SMITH, Circuit Judge:

Giuseppe Capotorto, a longshoreman, appeals the dismissal by the United States District Court for the Eastern District of New York, John R. Bartels, Judge, of his action for a judgment declaring invalid his purported release of Compañía Sud Americana de Vapores, Chilean Line, Inc. (the defendant) from all claims arising out of an accident which injured him while working aboard defendant’s vessel. We affirm.

On October 9, 1972, while working as a longshoreman aboard defendant’s vessel, Capotorto injured his back. His employer, Pittston Stevedoring Corporation, sent him initially to two doctors for treatment and then in November of 1972 to a third, a Dr. Vaccarino, for further examination. All three doctors diagnosed Capotorto’s injury as a lumbosacral sprain.

In February of 1973, at the suggestion of the doctor then treating him, Capotorto resumed work as a longshoreman. In June of 1974, however, he had another accident while working on a vessel not belonging to the defendant. At trial he testified that as a result he reinjured his back, but the doctors who examined him after this accident noted injury only to his knee, ankle, and foot.

Prior to the 1974 accident, Capotorto sued the defendant on the basis of the injuries sustained in the accident of 1972. But on December 24, 1974, upon the advice of the attorney then representing him, he concededly signed a document purporting to release the defendant from all claims arising out of the 1972 accident in return for $16,-182.57.

On March 2, 1976, the court concluded that this document constituted an effective release and dismissed the declaratory judgment action brought by Capotorto to set it aside.

On appeal, Capotorto challenges the validity of the release on two grounds. First, he contends that at the time it was signed the parties mistakenly thought that the 1972 accident had resulted in merely a lumbosacral sprain when, in fact, it had resulted in a herniated disc. Capotorto bases this contention on Dr. Vaccarino’s testimony that, after re-examining Capotorto in February of 1975, he concluded that the appellant was suffering from a herniated disc caused by the accident in 1972 and exacerbated by the one in 1974. The district court rejected this testimony, however, stating:

The Court concludes that the diagnosis by Dr. Vaccarino in the beginning of 1975 of a herniated disc caused by the 1972 accident and exacerbated by the 1974 accident is not plausible and is not accepted by the Court for the reason that after the October 1972 accident, Dr. Vaccarino diagnosed the injury only as a lumbarsacral [sic] sprain.

Moreover, since all the other doctors stated the plaintiff only suffered a knee and ankle injury in the 1974 accident, that [sic] it is very difficult to see how the June 14th, 1974 accident could exacerbate or create a herniated disc condition not theretofore diagnosed. It is to be noted that at the trial no X-rays were offered or produced, nor was a myelogram performed on the plaintiff.

The trial court’s conclusion that Capotorto had not suffered a herniated disc because of the 1972 accident was not clearly erroneous.

Capotorto failed to establish that his 1972 injury was more serious than he realized when he signed the release on the advice of his then lawyer in December, 1974, or that the lawyer failed to advise him, even though he may have taken only five minutes from a Christmas party to talk with him. He failed to prove any mistake in his then estimation of the extent of his injuries. His lawyer had long and successful experience in the field. His lawyer’s treatment of him, while no model of attorney-client relations, forms no basis for a finding of lack of appreciation of the nature of his claim. Appellant’s argument that the release was predicated upon an erroneous diagnosis of the accident’s consequences therefore fails for lack' of a factual basis.

Capotorto also contests the validity of the release on the ground that he would not have signed it had he not been inadequately advised by the attorney then representing him as to possible claims for future sequelae of the injury. Even if there were a factual basis for this argument,¹ it appears to be legally insufficient.

Capotorto does not contend that a release should normally be set aside because of the injured party’s reliance upon the inadequate advice of his own attorney. Rather he makes the more narrow two-step argument that a shipowner may not rely upon a release executed by a seaman because of inadequate advice of counsel and that a longshoreman should be treated like a seaman where the validity of a release obtained by a shipowner is in issue.

Courts have historically been more hostile to seamen’s releases than to those executed by other workers. Compare, e. g., Garrett v. Moore-McCormack Co., 317 U.S. 239, 248, 63 S.Ct. 246, 87 L.Ed. 239 (1942) and Kelcey v. Tankers Co., 217 F.2d 541, 545 (2d Cir. 1954) with Callen v. Pennsylvania R. R., 332 U.S. 625, 630, 68 S.Ct. 296, 92 L.Ed. 242 (1948), and Ricketts v. Pennsylvania R. R., 153 F.2d 757, 759, 770 (2d Cir. 1946). See also, e. g., Muruaga v. United States, 172 F.2d 318, 320 (2d Cir. 1949); Bartholomew v. Universe Tankerships, Inc., 168 F.Supp. 153, 156-57 (S.D.N.Y.1957), aff’d, 2 Cir., 263 F.2d 437, cert. denied, 359 U.S. 1000, 79 S.Ct. 1138, 3 L.Ed.2d 1030 (1959). In Blanco v. Moran Shipping Co., 483 F.2d 63 (5th Cir. 1973), cert. denied, 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108 (1974), the Fifth Circuit vacated a summary judgment upholding a seaman’s release because some question remained as to whether the seaman’s attorney had sufficient information and afforded him “adequate legal advice.”

We need not consider Blanco and other seamen’s cases here, however, since longshoremen do not share with seamen the special problems that may justify the invalidation of releases executed by them because of inadequate advice of counsel.

The particularly authoritarian relationship of shipowners and their representatives to seamen and the isolation of the latter from the legal, economic, and psychological support of a landbased community may put the seamen at a serious bargaining disadvantage. Longshoremen, more closely similar to other workers ashore, do not confront these problems. Nor do we think special treatment of longshoremen is dictated by other considerations formerly cited to justify the status of seamen as “wards of admiralty,” such as their alleged propensity toward “rashness” and “credulity,” see, e. g., Brown v. Lull, 4 Fed. Cas. 407, 409 (No. 2018) (C.C.D.Mass.1836); Harden v. Gordon, 11 Fed.Cas. 480, 485 (No. 6047) (C.C.D. Maine 1823), and the United States’ military and commercial interest in protecting its maritime industry, see, e. g., Hume v. Moore-McCormack Lines, Inc., 121 F.2d 336, 346-47 (2d Cir.), cert. denied, 314 U.S. 684, 62 S.Ct. 188, 86 L.Ed. 547 (1941). We note that the Congress, shortly after the accident here, has recognized a difference between the status of seamen and longshoremen in relation to the ship, ending the liability of the ship to longshoremen for personal injuries due to unseaworthiness, while increasing compensation rates for longshoremen’s injuries under the Longshoremen’s and Harbor Workers’ Compensation Act. See Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976), and cases cited in n.3.

In short, we see no compelling reason to apply more stringent standards to longshoremen’s releases for injuries sustained aboard ship than to those entered into by longshoremen and other workers for injuries sustained ashore. Harris v. Lykes Bros. Steamship Co., 375 F.Supp. 1155, 1157 & n. 1 (E.D.Texas 1974);² 1 Norris, The Law of Maritime Personal Injury § 6, at 13 (3d ed. 1975). Contra, Wooten v. Skibs A/S Samuel Bakke, 431 F.2d 821, 823 (4th Cir. 1969);³ W. J. McCahan Sugar Refining & Molasses Co. v. Stoffel, 41 F.2d 651, 654 (3d Cir. 1930); 1 Edelman, Maritime Injury and Death 442 (1960) (construing Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942), as implying in dictum that the law of maritime releases should not distinguish between seamen and longshoremen); cf. Robertson v. Douglas Steamship Co., 510 F.2d 829 (5th Cir. 1975).

Affirmed.

1 . The trial court did not specifically determine whether Capotorto had been adequately advised as to possible future claims by this attorney.

2 . The precedential significance of this decision has been undercut by dictum in Robertson v. Douglas Steamship Co., 510 F.2d 829, 834-36 (5th Cir. 1975). We note, however, that Robertson involved the question of mutual mistake and that it did not even mention Harris.

3 . Wooten v. Skibs A/S Samuel Bakke, 431 F.2d 821 (4th Cir. 1969), holds that the burden of proving a maritime release is part of the general law of admiralty applicable to seamen and longshoremen. However, the release in Wooten was based upon a mutual mistake of fact, which alone would be sufficient to set aside the release. The Court in Wooten also states that since plaintiff is a longshoreman working on board a ship in navigable waters, he is entitled to the seaman’s traditional and statutory protections, citing Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). The Sieracki case extended the doctrine of unseaworthiness to longshoremen, but by amend-

ment to the Longshoremen’s and Harbor Workers’ Compensation Act, Congress has expressly abolished this doctrine with respect to longshoremen. The protections afforded seamen and longshoremen differ in many respects, and the Court is of the opinion that these differences are based upon sound reasoning.

Harris v. Lykes Bros. Steamship Co., 375 F.Supp. 1155, 1157 n. 1 (E.D.Texas 1974). But see note 2 supra.