Burrage v. Flota Mercante Grancolombiana, SA

Decision Date28 October 1970
Docket NumberNo. 28077.,28077.
Citation1970 AMC 2254,431 F.2d 1229
PartiesFrank BURRAGE, Plaintiff-Appellee, v. FLOTA MERCANTE GRANCOLOMBIANA, S.A., Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Benjamin W. Yancey, Walter Carroll, Jr., New Orleans, La., for defendant-appellant; Terriberry, Carroll, Yancey & Farrell, New Orleans, La., of counsel.

Stuart A. McClendon, Metairie, La., George W. Reese, Reese & Abadie, New Orleans, La., for plaintiff-appellee.

A. R. Christovich, Jr., New Orleans, La., for New Orleans Stevedoring Co., third party defendant-appellee; Christovich & Kearney, New Orleans, La., of counsel.

Before JOHN R. BROWN, Chief Judge, AINSWORTH and GODBOLD, Circuit Judges.

JOHN R. BROWN, Chief Judge:

With almost ironic coincidence this, as the earlier one of Gutierrez,1 is a beanworthy case. Burrage, a Sieracki — Ryan — Yaka pseudo seaman, was injured on a New Orleans wharf while working as a longshoreman in the employ of Stevedore2 during the discharge of Shipowner's SS Ciudad de Nieva when he slipped on a coffee bean that had come from the ship's cargo earlier that morning or the day before. The District Court in a judge trial held Shipowner liable for substantial damages and rejected Shipowner's plea of contributory negligence and its claim against Stevedore for WWLP indemnity under Ryan.3

Shipowner attacks each of these actions and, for good measure, throws in a little Louisiana problem by invoking the substitute employer defense under § 6 of the Louisiana Compensation Act (LRS, 23:1061 and 1032). On these points Shipowner fails, but we hold indemnity should have been allowed and reverse as to that.

The facts are neither conflicting nor complex and we accept all as above the Plimsoll line of F.R.Civ.P. 52(a).4 Burrage was working on the dock, his job being to fasten cargo to the ship's cargo gear. It seems more or less agreed that the coffee beans on the wharf had come from the discharge of bag coffee the day before. At any rate, cargo other than bagged coffee was being discharged when the injury occurred, and for some time prior to that. When the longshoremen arrived on the dock in the morning to commence work coffee beans were, in the words of Burrage, "scattered all over." About 20 minutes before his injury he and a working companion asked one of the other longshoremen to bring a broom from Stevedore's gear shed in order for them to sweep up the spilled beans in the work area. Neither broom nor sweeper arrived, and Burrage injured his back when he slipped on a coffee bean.

Of course, maximizing the extent of the spilled beans, Burrage's awareness of having to work while standing in, on, over, around or against coffee beans plus his acknowledgment that he "had to get rid of the coffee beans someway or another if I was going to work there", put him in the strategic/tactical dilemma faced often by those who pursue a damage claim.

Perhaps it was the Judge's effort to draw the middle line in the context of Shipowner's claim of contributory negligence and the indemnity claim against Stevedore that led him to his finding. The Judge first held the cargo unseaworthy on Gutierrez' standards.5 In describing the Stevedore's response to the obligations imposed on it the Judge found that if "* * * the leakage was excessive, then the foreman of the longshoreman would stop the work and the work area would be swept so that work could be continued safely." This was then followed by the finding that it "is conclusive that when this accident occurred there was not an excessive leakage of beans on the wharf, but nonetheless, there were beans on the wharf as a result of leakage."6

But we do not think that decision compels a resolution of this enigmatic riddle. The facts more than justify the conclusion that the bags "were not fit for their intended use and were defective" and this "caused the coffee beans to be scattered along the wharf". Whether of fact, or law, or a little bit of both, the Judge was entitled to conclude that "coffee bags intended to carry coffee beans are defective if they contain holes in them so as to cause leakage on the wharf area while they are being discharged from the vessel."7 And so too was the apex maritime law conclusion that "bags * * * that leaked" coffee beans "were unfit for their intended use" and because of this "made the vessel * * * unseaworthy".8

These findings and conclusions make it clear with respect to the ship that on the two step analysis implicit in the Trawler Racer9 the Judge determined that the bags were not "reasonably fit" and in its wake came the unavoidable consequences of the breach of the absolute duty to furnish a seaworthy vessel.

Thus, Shipowner fails on its basic attack on the decree against it. It fares no better on its contention that the trial Court should have held Burrage guilty of contributory negligence as a complete or substantially partial defense. Whether the conduct of the injured employee met the standard of the ordinarily prudent person is almost invariably a question of fact. In assaying the problem the trier is entitled to take into consideration the realities of the situation, the economic dependence of the worker on continued employment, and the law's general approach that in fostering industrial safety the burden of noncompliance with standards of care is ordinarily placed directly on the employer, not wholly on the injured victim. Manning v. M/V Searoad, 5 Cir., 1969, 417 F.2d 603, 1970 A.M.C. 145. It was reasonable under the circumstances for the workmen to continue working.

But the nature of the obligations wrapped up in the Ryan-WWLP concept called for quite different results in the Shipowner vis-a-vis Stevedore's indemnity claim.10 The notion of workmanlike performance certainly encompasses an obligation by the contractor to take notice of those deficiencies and hazards likely to give rise to damage to life, limb, or property and then take requisite action depending on the nature of the relationship of the parties and their contractual obligations, express or implied, either to eliminate or minimize the hazard or to stop work until the situation is corrected. T. Smith & Son Inc., v. Skibs A/S Hassel, 5 Cir., 1966, 362 F.2d 745, 1966 A.M.C. 1700; Nicroli v. Den Norske Afrika, 2 Cir., 1964, 332 F.2d 651, 1964 A.M.C. 217; Albanese v. N. V. N.A.S.M., 2 Cir., 1968, 392 F.2d 763, 1968 A.M.C. 800, rev'd on other grounds, 393 U.S. 995, 89 S.Ct. 482, 21 L.Ed.2d 461. Of course, there can be no question, either on the record or the findings, that Stevedore and that Burrage and others working with him were aware of the existence of the beans on the dock and looked upon this as a sufficient hazard to safe operations as to lead them to request that brooms and sweepers be sent. Such knowledge from injured workmen or fellow workers may be quite enough to set in motion the duties under WWLP without bringing it home directly to a supervisory employee. T. Smith & Son,supra; United States Lines v. Williams, 5 Cir., 1966, 365 F.2d 332, 335, 1966 A.M.C. 2418, 2423.

Stevedore does not really undertake to say that the presence of beans on the wharf was not a hazardous condition. It simply emphasizes the Trial Judge's notion that this was not "excessive". But this really presents — and we believe it is the explanation for the Trial Judge's preoccupation with it — notions of negligence, ordinary care and the like. But WWLP is not measured by such restrictive terms. As the brief for Burrage, the injured man, points out that liability against Shipowner rests not upon charge, proof, and finding that the wharf was unwharfworthy. Rather, it rests on the claim, proof and finding that the ship, through defective cargo (coffee bags), was unseaworthy. Whether the spillage onto the dock was "excessive" enough to warrant a finding of negligence, it and hazards flowing from it were quite enough to compel a conclusion that workmanlike performance called for Stevedore to do something, and it did nothing. And of course, neither on evidence nor on finding could we or the Trial Court conclude that there was any action on the part of Shipowner, its crew or representatives "sufficient to preclude recovery" in the Weyerhaeuser11 concept.

As both Shipowner and Stevedore urged the point and it now becomes material as to either one or both, we must face up to the substituted employer bar of § 6 of the Louisiana Compensation Act. That section provides, in effect, that if the work being done for a principal by a contractor is part of the principal's "trade, business or occupation" the principal is liable to pay compensation to any employee of the contractor. LRS, 23:1061. If that is met, the exclusive remedy provision of the Act, LRS 23:1032, comes into play to cut off any damage suit claim. Although writers, and occasionally this Court, extoll this as a protection to employees who might find themselves remediless if the contractor turns out to be a financially irresponsible fly-by-night, it is in the experience of this Court at least nearly always invoked as a bar to the third party suit, a factor which we recently took into account in Gorsalitz v. Olin Mathieson Chemical Corp., 5 Cir., 1970, 429 F. 2d 1033; See also, Arnold v. Shell Oil Co., 5 Cir., 1969, 419 F.2d 43; Cole v. Chevron Chem. Co., 5 Cir., 1970, 427 F. 2d 390.

But our problem here is not that of Gorsalitz and Arnold, supra, to define "the trade, occupation" issue. Indeed, we may assume without deciding, that since the Sieracki pseudo seaman status...

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