Doca v. Marina Mercante Nicaraguense, S.A.

• Citation: 1980 AMC 2401,634 F.2d 30
• Decision Date: 01 October 1980
• Docket Number: Nos. 629,1006,D,s. 629
• Parties: Jack A. DOCA and Fannie C. Doca, Plaintiffs-Appellees, v. MARINA MERCANTE NICARAGUENSE, S.A. and Pittston Stevedoring Corp., Defendants-Appellants. ockets 79-7626, 79-7637.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 30

634 F.2d 30

Jack A. DOCA and Fannie C. Doca, Plaintiffs-Appellees, v. MARINA MERCANTE NICARAGUENSE, S.A. and Pittston Stevedoring Corp., Defendants-Appellants.

Nos. 629, 1006, Dockets 79-7626, 79-7637.

United States Court of Appeals Second Circuit.

Argued March 5, 1980.

Decided Oct. 1, 1980.

Victor S. Cichanowicz, New York City (Cichanowicz & Callan, New York City, on brief), for defendant-appellant Marina Mercante Nicaraguense, S. A.

George G. Kilarjian, New York City (Bigham, Englar, Jones & Houston, New York City, on brief), for defendant-appellant Pittston Stevedoring Corp.

Morris Cizner, New York City (Zimmerman & Zimmerman, New York City, on brief), for plaintiffs-appellees.

Before FEINBERG, Chief Judge, and NEWMAN and KEARSE, Circuit Judges.

NEWMAN, Circuit Judge:

This appeal from a personal injury award, made pursuant to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976), primarily requires consideration of the effect of inflation in determining damages for loss of future wages.

Plaintiff Doca was employed as a cargo checker by Hamilton Terminal Company. He was injured when he slipped and fell while carrying out his assigned duties aboard the M. V. Costa Rica. Defendant Marina Mercante Nicaraguense, S. A. ("Marina") is the owner of the ship; it hired defendant Pittston Stevedoring Company ("Pittston") to unload the vessel, and Pittston in turn hired Hamilton to perform certain services in connection with the unloading. Doca went aboard the Costa Rica at the joint request of a Pittston supervisor and a Hamilton supervisor to check the hatches for the presence of some metal pipe. The path to Hatch # 4 along the offshore side of the vessel was surrounded by garbage, but there appeared to be a clear route through the center of it, covered with dunnage paper. In fact, there was a turnbuckle underneath the paper; as Doca proceeded toward Hatch # 4, he tripped on the turnbuckle and struck his head on the coaming, or rim of the hatch. As a result of this fall, Doca suffered a cerebral concussion and cervical spine injury. This left Doca with a series of neurological symptoms that were found to render him incapable of working, engaging in "most normal recreational activities," or having a normal sexual relationship with his wife. ¹

The District Court for the Southern District of New York (Kevin T. Duffy, Judge) found both the shipowner Marina and the stevedoring company Pittston negligent in causing Doca's injury, and, reflecting their relative responsibilities for the injury, found Marina liable for 90% and Pittston liable for 10% of damages totaling $669,127. These damages included, among other items, $352,560 for Doca's wages from the date of trial for the 12-year remainder of his working life and $15,000 for his wife's loss of consortium.

Marina and Pittston appeal the judgment, raising issues concerning both liability and damages. We affirm as to liability and remand for redetermination of lost future wages.

I. Liability

The liability issues are not substantial. The District Court's conclusion that both Marina and Pittston were negligent is fully supported by the evidence. The 1972 Amendments to the LHWCA had the effect of applying general tort principles regarding owners and occupiers of land to the duty of a shipowner toward those who come aboard for business reasons. 33 U.S.C. § 905; see H.R.Rep. No. 92-1441, 92d Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 4698, 4701-03; Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976), Landon v. Lief Hoegh & Co., 521 F.2d 756, 762 (2d Cir. 1975), cert. denied, 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 642 (1976). This duty is to maintain the property in a reasonably safe condition in the light of all the circumstances. See W. Prosser, Handbook of the Law of Torts § 61 (4th ed. 1971); Restatement (Second) of Torts § 343. In the present case, the ship's deck was clearly in an unsafe condition; this was not simply a matter of one turnbuckle being covered by some paper, but of a general obstruction of the walking area by various types of refuse. The ship's crew had created this hazard, and the ship was primarily responsible for it. Moreover, the crew was aware of the hazard, as it had been pointed out to them by Pittston's hatch foreman, who asked them to clean it up. The ship could have contracted with Pittston to clean the deck but it did not do so, and thus retained its basic responsibility. The finding that Marina was 90% responsible for the accident is amply supported.

Pittston's liability is based on a regulation, promulgated by the Occupational Safety and Health Administration, 29 C.F.R. § 1918.91(a) (1979), which requires stevedores to keep their work area free of "tripping or stumbling hazards." The District Court held that this regulatory standard created a non-delegable duty to remove the hazard. The fact that the hazard was primarily the ship's responsibility does not excuse the stevedore from fulfilling its regulatory obligation; the stevedore was within its rights in asking the ship's crew to clean the deck, and presumably, it could have obtained monetary compensation for cleaning the deck itself. But since it continued working without making sure the deck was clean, it exposed itself to liability for violation of a statutorily established standard. See Complaint of Allied Towing Corp., 416 F.Supp. 1207 (E.D.Va.1976), aff'd in part, vacated in part on other grounds, 580 F.2d 702 (4th Cir. 1978) (LHWCA case); Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920); W. Prosser, supra, § 36 at 200-03. Pittston's argument that its duty does not run to Doca because Doca was not Pittston's employee cannot be maintained. Since Doca's company, Hamilton, was hired by Pittston, Doca's relationship to Pittston was effectively that of an employee, for purposes of the scope of the duty based on the OSHA regulation, especially since Doca was sent on the mission that led to his injury by a Pittston and a Hamilton supervisor, acting together.

The District Court was also justified in concluding that Doca was not contributorily negligent in taking the offshore route to Hatch # 4, or in not looking under the paper. The evidence indicated that it is a standard safety procedure to walk on the offshore side of a ship when the ship is being unloaded, since cargo is lifted over the inshore side. Of course, Doca might have looked underneath the paper before he walked on it. But the District Court was entitled to conclude that this would have been more than the reasonable care required of a business invitee.

The District Court was also entitled to find that neither of the defendants had established a valid cross-claim for indemnity. Marina's contractual indemnity claim is defeated by the District Court's finding that Pittston's failure to observe the obligation of the OSHA regulation does not establish breach of a warranty of workmanship performance, even though it suffices to establish Pittston's negligence. The District Court also did not err in finding, alternatively, that Marina's own negligence, in the circumstances of this case, was sufficient to preclude an indemnity claim. See Lopez v. Oldendorf, 545 F.2d 836 (2d Cir. 1976), cert. denied, 431 U.S. 938, 97 S.Ct. 2650, 53 L.Ed.2d 256 (1977); Hurdrich v. Eastmount Shipping Corp., 503 F.2d 397 (2d Cir. 1974). Finally, the District Court was entitled to reject Pittston's tort theory indemnity claim, apparently predicated on the contention that Marina's negligence was active and Pittston's only passive. See Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Co., 410 F.2d 178 (5th Cir. 1969), and cases there cited. The evidence of the omissions of both defendants justified the 90-10 allocation, properly reflecting the relative responsibility of the two tortfeasors, but did not compel a finding that Pittston must be relieved of its share of the damages.

II. Damages

One of the damage issues-whether an injured worker's wife can recover for loss of consortium under the LHWCA-has now been authoritatively decided by American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). Appellants' challenge to the $15,000 loss of consortium component of the damage award is therefore rejected. ²

The final and most significant question raised by this appeal is whether and to what extent an award for lost future wages should be adjusted because of inflation. ³ If an adjustment for inflation is to be made, two approaches are available. Under the first method the projection of current wages is increased to reflect the fact that the employee would have received cost of living increases to keep pace with inflation. The sum of those increased annual wage figures is then discounted to present value by the prevailing interest rate. See United States v. English, 521 F.2d 63, 75 (9th Cir. 1975). Under the second method the discount rate is decreased below the prevailing interest rate to reflect the estimated rate of inflation. This reduced discount rate is then applied to the sum of the current wages projected to continue for each of the years for which wages will be lost. See Feldman v. Allegheny Airlines, Inc., 382 F.Supp. 1271 (D.Conn.1974), aff'd, 524 F.2d 384, 387-88 (2d Cir. 1975). If the same estimated inflation rate is used, the "outcome of the calculation under either approach would be very nearly identical," Feldman, supra, 524 F.2d at 391 (Friendly, J., concurring).

In this case the District Court took inflation into account, to an unspecified extent, apparently by using the second approach and adjusting for future inflation by decreasing the present value discount. The Court did not provide a computation for its award for loss of future earnings; however, Judge Duffy stated that he had reached his result by "considering both probability of continued inflation and a discount to present value." Doca...