De Los Santos v. Scindia Steam Nav. Co.

• Decision Date: 01 May 1979
• Docket Number: No. 76-3225,76-3225
• Citation: 1980 AMC 155,598 F.2d 480
• Parties: Lauro DE LOS SANTOS, Appellant, v. SCINDIA STEAM NAVIGATION CO., LTD., Appellee, Seattle Stevedore Co., Intervenor.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 480

598 F.2d 480

50 A.L.R.Fed. 261

Lauro DE LOS SANTOS, Appellant, v. SCINDIA STEAM NAVIGATION CO., LTD., Appellee Seattle Stevedore Co., Intervenor.

No. 76-3225.

United States Court of Appeals Ninth Circuit.

May 1, 1979.

Rehearing Denied June 28, 1979.

James A. Grutz (argued), Seattle, Wash., for appellant.

Robert H. Madden (argued), Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Before DUNIWAY and CHOY, Circuit Judges, and GRANT, ^* District Judge.

DUNIWAY, Circuit Judge:

Several 50 pound sacks of grain tumbled off a pallet, severely injuring appellant longshoreman Lauro De Los Santos, who was working in a ship's hold. Santos sued appellee shipowner Scindia Steam Navigation Co. ("Scindia"), alleging that the accident had occurred because the shipowner had negligently failed to repair the winch by means of which the pallet was lowered into the hold. The district court granted the shipowner's motion for summary judgment. Its opinion is reported at 1976 A.M.C. 2583. We reverse.

I. The Facts.

Stated in the light most favorable to Santos, against whom summary judgment was granted, the facts are these:

On the evening of December 10, 1972, Santos and other longshoremen employed by the Seattle Stevedoring Company were loading a cargo of wheat into a hold in Scindia's vessel, the M/S JALARATNA. The longshoremen used a winch that was part of the ship's gear to lower wooden pallets, each carrying seventy fifty-pound sacks of wheat, into the hold.

The ship's winch was unusual in that its controls were located on a platform more than 25 feet above the main deck. From that point, the winch driver could not actually see a pallet of sacks as he lowered it into the hold. He thus had to rely upon the hatch tender to signal to him when to start and stop the winch. Santos and three other men were in the hold. When a pallet reached the bottom of the hold, Santos and his co-workers would stow the sacks. Seattle Stevedoring controlled the loading procedure.

The winch's braking mechanism had continually malfunctioned during the two days prior to the accident and on the day of the accident in that, when the winch driver tried to stop a load, the load continued to fall for several feet before coming to a stop. The winch continued malfunctioning on the night of the accident. As the winch driver lowered the loaded pallet into the hold, the hatch tender signaled him to stop its descent. The winch driver applied the brake, but the pallet kept falling. When it struck a pallet jack, on which it should have come to rest, about half the sacks spilled off the pallet.

The hatch tender then had the winch driver raise the pallet, carrying the remaining sacks in a loose pile and not fastened down, about fifteen feet up so that Santos and the other men could clean up the spilled sacks. After the winch driver had raised the pallet, the hatch tender looked over the remaining sacks. He thought that they looked stable enough that he concluded that no more sacks would spill off and endanger the men cleaning-up below. Nevertheless, about ten minutes later several more sacks fell off the pallet and landed on Santos.

The parties disagree about what caused those sacks to work loose and fall. The district court accepted the shipowner's position that the pallet had swung back and forth, and that this swinging loosened the sacks. Santos points to deposition testimony which indicates little if any swinging. He relies upon testimony tracing the accident to further malfunctioning of the winch's braking mechanism. The winch driver explained that even though he had the controls set to hold the pallet stationary, the pallet began slipping down into the hold three or four times during the ten minutes, requiring him to pull it back up again each time so that it would not interfere with the cleanup. Santos argues that the defective condition of the ship's winch caused the repeated slipping, and that this slipping and pulling back up caused the additional sacks to work loose and fall.

II. The Applicable Law.

The Longshoremen's and Harbor Workers' Compensation Act defines the rights of longshoremen injured while taking part in stevedoring operations. Just before Santos' accident, Congress had passed the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub.L. 92-576, 86 Stat. 1251, amending 33 U.S.C. §§ 901-950. The Amendments made sweeping changes in the legal relationships among injured longshoremen, stevedores, and shipowners. Before the Amendments, an injured longshoreman could sue a shipowner for negligence, and also for breach of a warranty of seaworthiness, a form of liability without fault. Seas Shipping Co., Inc. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. If the longshoreman could establish that he had been injured by unsafe conditions aboard the ship, he recovered even if the shipowner had not been negligent. Under Ryan Stevedoring Co. v. Pan-Atlantic S.S. Co., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, the vessel owner could in turn seek indemnity against the stevedore company when a substandard performance by the stevedore or its longshoremen had brought the unseaworthy conditions into play. The injured longshoreman could not sue the stevedore, but he was entitled to workers' compensation type benefits without regard to fault.

Under the 1972 Amendments, the injured longshoreman lost his action against the shipowner for unseaworthiness, but in return Congress granted the longshoreman significantly higher compensation benefits. Congress also ended the shipowner's right to indemnity from the stevedore. The shipowner had less need for indemnification because the abolition of the unseaworthiness action left it liable only when an injured longshoreman could prove it negligent. House Report No. 92-1441, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. and Admin.News, pp. 4698-4705; Senate Report No. 92-1125, 92d Cong., 2d Sess., pp. 8-12; Davison v. Pacific Inland Nav. Co., Inc., 9 Cir., 1978, 569 F.2d 507, 511-13. Note, "The Injured Longshoreman v. The Shipowner After 1972: Business Invitees, Land-Based Standards, and Assumption of Risk," 28 Hastings L.J. 771, 773-79 (1977). (hereafter, "The Injured Longshoreman") Cooper Stevedoring Co. v. Kopke, Inc., 1974, 417 U.S. 106, 113, fn. 6, 94 S.Ct. 2174, 40 L.Ed.2d 694.

The Act as amended explicitly preserves the injured longshoreman's right to sue the shipowner for negligence. 33 U.S.C. § 905(b) provides that:

In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party . . . . The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. . . .

In the case at bar, Santos alleged that Scindia had been negligent within the meaning of § 905(b), and that Scindia's negligence had proximately caused his injuries. He timely asserted his right to have the facts tried to a jury.

When a party moves for summary judgment under Fed.R.Civ.P. 56, all of the facts and all reasonable inferences to be drawn from those facts must be viewed in the light most favorable to the party against whom the motion is made. The trial court may grant the motion for summary judgment only when no material questions of fact remain. Poller v. Columbia Broadcasting Systems, Inc., 1962, 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458; United States v. Diebold, Inc., 1962, 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176; United States v. Perry, 9 Cir., 1970, 431 F.2d 1020, 1022; Radobenko v. Automated Equipment Corporation, 9 Cir., 1975, 520 F.2d 540, 543; United States v. Bissett-Berman Corporation, 9 Cir., 1973, 481 F.2d 764, 767. Furthermore, we have emphasized that " '(i) ssues of negligence are ordinarily not susceptible of summary adjudication.' " Arney v. United States, 9 Cir., 1973, 479 F.2d 653, 660. See also, Leaf v. United States, 9 Cir., 1978,588 F.2d 733, 736.

Here, Santos contends that the district court granted the motion for summary judgment only after resolving a number of disputed material facts against him. Santos also argues that the district court applied an incorrect legal standard when it explicitly adopted the standard of negligence set forth in Restatement (Second) of Torts, §§ 343 and 343A. To pass upon these contentions, we must begin by determining what showing of negligence § 905(b) requires when an allegedly dangerous condition of the ship or its gear injures a longshoreman. ¹

The Act does not define "negligence." Davis v. Inca Compania Naviera, S.A., W.D.Wash., 1977, 440 F.Supp. 448, 451; Gallardo v. Westfal-Larsen & Co. A/S, N.D.Cal., 1977, 435 F.Supp. 484, 492. In Davison v. Pacific Inland Navigation Co., Inc., 9 Cir., 1978, 569 F.2d 507, 508-09, fn. 1, we specifically reserved the question of what standard of negligence is to be used in a case brought under the Act. We noted there that courts which have already considered the question have applied different standards. Santos' appeal requires us to arrive at a standard.

While the legislative history is not entirely clear, we read the House and Senate Committee Reports, cited Supra, as calling upon the federal courts to fashion a negligence standard responsive to five specific concerns. Cf. Gallardo v. Westfal-Larsen & Co. A/S, supra, 435 F.Supp. at 491, 493.

First, Congress was concerned about safety. The Senate Committee on Labor and Public Welfare protested that longshoring had an injury frequency rate "well over four times the average for manufacturing operations," and called for safer working conditions when it insisted that "every appropriate means be applied toward improving the tragic and intolerable conditions which take such a heavy toll upon workers' lives and bodies. . . ." Senate Report at 2. The...