Lusich v. Bloomfield Steamship Company

• Decision Date: 23 March 1966
• Docket Number: No. 21677.,21677.
• Citation: 355 F.2d 770
• Parties: George LUSICH, Appellant, v. BLOOMFIELD STEAMSHIP COMPANY et al., Appellees. BLOOMFIELD STEAMSHIP COMPANY, Appellant, v. BOLAND MACHINE AND MANUFACTURING CO., Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

355 F.2d 770 (1966)

George LUSICH, Appellant, v. BLOOMFIELD STEAMSHIP COMPANY et al., Appellees.

BLOOMFIELD STEAMSHIP COMPANY, Appellant, v. BOLAND MACHINE AND MANUFACTURING CO., Inc., Appellee.

No. 21677.

United States Court of Appeals Fifth Circuit.

January 24, 1966.

Rehearing Denied March 23, 1966.

Marvin C. Grodsky, New Orleans, La., for appellant.

Christopher Tompkins, Charles E. Lugenbuhl, N. B. Barkley, Jr., New Orleans, La., for appellees.

Before JONES and WISDOM, Circuit Judges, and BREWSTER, District Judge.

BREWSTER, District Judge:

Lusich, an employee of Boland Machine & Manufacturing Co., Inc., a shore side ship repair contractor, brought this maritime tort action for damages for personal injuries sustained while on board the SS LUCILLE BLOOMFIELD for his employer under a contract to make certain repairs on the starboard settling tank and the port boiler. He sought to recover upon the theories that his injuries were proximately caused by the negligence of the shipowner, Bloomfield Steamship Company, and by the unseaworthiness of the vessel.

Bloomfield denied responsibility for Lusich's injuries. It also filed a third-party complaint against Boland alleging breach of the contractor's implied warranty of workmanlike service, and praying for indemnity or contribution in the event of an award of damages to Lusich, and for recovery of attorneys' fees and expenses incurred in the defense of the case, regardless of the outcome of Lusich's action.

The main questions arise out of the court's actions in taking the negligence theory away from the jury, and in not holding Boland liable as a matter of law on the third-party claim.

Lusich, a welder, was hurt when he fell through an access hole in the inner floor of the starboard settling tank to the bottom of the tank some distance below. Boland had sent him and two of its other employees on the vessel in connection with the repairs required under its contract, which included the welding of a plate over a crack in the outside wall of the tank to stop an oil leak. The settling tank was used for storage of oil before it was pumped to the boiler burners. The access holes in the inner floor were necessary to allow the settlement of sediment in the oil and to provide a means for getting into the lower part of the tank for cleaning and repair. The only entrance to the tank was through a manhole in its top, and the inside of the tank was dark. Permanent lighting fixtures and outlets on the inside were prohibited, and light for inspection and repair was available only through extension cords and other portable means from the outside. Boland's general foreman and its "pusher" went into the tank after it had been drained, cleaned and gas freed, and Lusich followed them. The only light among them was on an extension cord in the hands of the foreman. It was adequate for him, but did not light the area to the rear of him. There were no covers over the access holes, and Lusich had not been warned of their presence. He had not been in a settling tank before and knew nothing about their inner construction.

Lusich alleged that the shipowner was negligent in failing to furnish him a safe place to work, to warn him of the presence of the holes, and to provide adequate safety devices. The shipowner claimed that the contractor was solely responsible for any negligence charged because, under the repair arrangement, it had complete control of the area of the ship where the repairs were being made.

The trial court instructed a verdict against Lusich on his negligence theory on the ground that under the principle announced in West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959), the shipowner had relieved itself of responsibility for the negligence alleged by surrendering complete control of the specific area of the repairs to the independent contractor. The court overruled Bloomfield's motions for instructed verdict and for judgment notwithstanding the verdict, each based upon the contention that Boland was liable to it as a matter of law for the attorneys' fees and expenses of litigation prayed for in its third-party complaint, and, in the alternative, for a new trial on that action. It is the actions of the court on some of those motions that give rise to the complaints on which this case must be reversed.

The court submitted the case to the jury on general instructions and ten special interrogatories including the questions of whether Lusich's injuries were proximately caused by unseaworthiness of the vessel, whether Boland failed to perform its contract in a reasonably safe, proper and workmanlike manner, whether Lusich was contributorily negligent, and of what amount of damages, if any, was suffered by him. The jury found that the SS LUCILLE BLOOMFIELD was not unseaworthy; that there was no failure on the part of Boland to perform its contractual duties in a workmanlike manner; and that the amount of Lusich's damages was "None". Under the court's instructions, the jury should not have answered several of the interrogatories that it did actually answer, including the one on damages, in the event of a finding unfavorable to Lusich on the first interrogatory about unseaworthiness.

Judgment was entered denying the respective recoveries sought by Lusich on his original action and by Bloomfield on its third-party complaint. Lusich and Bloomfield each prosecuted a separate appeal from the portion of the judgment adverse to him or it.

We are of the opinion that the withdrawal of the negligence theory from the jury was reversible error. The evidence raised a jury issue as to whether the shipowner was negligent, and it was not relieved of responsibility therefor by the arrangement with the repair contractor under the facts in this case.

It is well settled that a shipowner which has entered into a contract requiring the presence of employees of an independent contractor aboard its vessel to perform functions essential to maritime service owes those workers the nondelegable duty to provide a reasonably safe place to work.¹ In the Casbon case, cited in footnote 1, Judge Skelly Wright, giving Mahnick and Petterson as his authorities, summarized this responsibility as follows:

"* * * To these workers is owed the nondelegable duty to provide a reasonably safe place to work, as well as reasonably safe appliances with which to perform the work. Mahnich v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. This duty cannot be contracted away by requiring the shoreside contractor to supply the men and the equipment (citing Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798), nor can it be avoided by abandoning part of the vessel to such contractors. * * *"

In West v. United States, supra, relied upon by the trial judge in taking the negligence theory from the jury, the Supreme Court refused to impose upon the shipowner the duty of providing the employee of an independent contractor a safe place to work, when it applied the following test to the facts before it:

"* * * It would appear that the focus should be upon the status of the ship, the pattern of the repairs, and the extensive nature of the work contracted to be done, rather than the specific type of work that each of the numerous shore-based workmen is doing on shipboard at the moment of injury." 361 U.S., at 122, 80 S.Ct., at 192.

West, an employee of a shore based independent ship repair contractor, was injured in 1951 while working in connection with the overhaul of a World War II "Liberty" ship at the contractor's docks in Philadelphia. It had been towed there from Norfolk, Virginia, where it had been "in the moth-ball fleet" in total deactivation for several years, with its pipes, boilers and tanks completely drained, and an oil preservative injected through them to prevent rusting. The work to be done was a complete overhaul to restore the ship to seaworthiness, and was characterized by the Supreme Court as being "equivalent to home port structural repairs." The only personnel of the shipowner on the vessel during the job were there for the purpose of inspecting the work as it progressed to insure compliance with the contract. Full control of the entire ship was in the hands of the contractor during the course of the job, and the vessel was not in maritime service in any sense at the time of West's injury.

The application of the test above stated to the facts of the present case brings about an entirely different result from that in West. Here, the SS LUCILLE BLOOMFIELD was moored at a dock in the Mississippi River at the Port of New Orleans for the purpose of discharging cargo at the army base there. The repairs Boland had contracted to make were admittedly minor in nature and expense.² They were completed the same day they were actually started, and cost only $311.72. They did not interfere with the purpose for which the ship was docked, and cargo was worked during the entire time they were being made. If there was any surrender of control, it was of only a small area of the ship for a short period of time.

The distinction between this type of case and the situation in the West case was expressly recognized by the Supreme Court when it said:

"On the other hand, the vessels involved in the cases depended upon by petitioner were, at the times of the injuries, in the hands and under the control of the owners or charterers, and, instead of undergoing general repairs, were in active maritime service in the course of loading or unloading cargo pursuant to voyages. * * *" West v. United States, 361 U.S., at 121, 80 S.Ct., at 192, 4 L.Ed.2d, at 164.

Bloomfield contends that even if it was error to direct a verdict against Lusich on the negligence theory, it was not reversible because negligence was included in the unseaworthiness theory submitted to the jury. The answer to this argument is found in Pope & Talbot v. Hawn, 346 U.S. 406, 413, 74 S.Ct. 202, 207, 98...