Robertson v. Tokai Shosen KK, Civ. A. No. 86-2620.
| Citation | 655 F. Supp. 152 |
| Decision Date | 16 January 1987 |
| Docket Number | Civ. A. No. 86-2620. |
| Parties | Thomas ROBERTSON v. TOKAI SHOSEN K.K. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Charles Sovel, Philadelphia, Pa., for plaintiff.
Carl D. Buchholz, III, Philadelphia, Pa., for defendant.
I have before me defendant's motion for a directed verdict pursuant to Federal Rule of Civil Procedure 50(a). I have considered the arguments of counsel carefully, the submissions of counsel, and I have also reviewed the statute and the cases, and I conclude that the motion should be granted.1
The central questions are (1) whether the vessel's responsibilities regarding stowed cargo differ from the responsibilities regarding the ship itself, its equipment and work space; and (2) if the vessel's responsibilities do differ, how so?
The factual evidence in the case is fairly simple. On May 17, 1983, the plaintiff was employed as a longshoreman by the Delaware Operating Company, an independent stevedoring contractor. Delaware Operating Company had been hired by the defendant to discharge cargo from the M/V Georgia Rainbow in the Port of Philadelphia. Plaintiff was a member of the longshore gang that was assigned to discharge cargo of steel products, including steel wire coils, from the No. 1 hatch.
Plaintiff was injured shortly after he entered the hold at 8:00 o'clock a.m. He was down among the coils, either preparing to start work or having just begun, when one of the coils fell from the top of the stow, striking him in the neck and back, and injuring him. The plaintiff contends that the steel coil was improperly stowed and was unstable and that it was either not lashed at all, or it was improperly lashed. As a result, the plaintiff claims that the vessel's owner was negligent in causing or permitting the steel wire coils to be improperly stowed and in failing to warn the plaintiff of the unsafe condition of the stow before the plaintiff entered the hold. While the plaintiff presented evidence that the vessel did a cursory visual inspection of the cargo before the commencement of discharge operations, there is no evidence that defendant had actual knowledge of any unreasonable hazard presented by the cargo.
Plaintiff brought this lawsuit under section 5(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b). The statute provides in part as follows:
In the event of injury to a person covered under this chapter caused by the negligence of the vessel, then such person, or anyone else otherwise entitled to recover damages by reason thereof, may bring an action against the vessel.
Now, the Act also precludes tort recoveries by longshoremen against the stevedoring company but provides that the stevedore pay workers compensation. As the Supreme Court pointed out in the leading case in this area, Scindia Steam Navigation Company v. De Los Santos, 451 U.S. 156, at 165, 101 S.Ct. 1614, at 1620, 68 L.Ed.2d 1, and especially in note 13, the statute abrogated the historical right of a longshoreman to recover against the vessel for injuries without regard to the fault of the vessel, and substituted the requirement that recovery could be had against the vessel only if the vessel was at fault. In exchange, the workers compensation available from the stevedore to the longshoreman was greatly enhanced. Courts are therefore required to construe the duty of the vessel in a manner consistent with the fault-based principles contained in the Act.
The Scindia case discusses the duty owed by the vessel to the stevedores and longshoremen. It is important to keep in mind while reading that case, and also the Third Circuit case of Griffith v. Whelling Pittsburgh Steel, 657 F.2d 25 (3d Cir.1981), that both of those cases involve aspects of the ship's equipment and not the cargo on board. The Scindia case states the general rule as follows:
The vessel owes to the stevedore and his longshoremen employees the duty of exercising due care under the circumstances. This duty extends at least to exercising ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. The shipowner thus has a duty with respect to the condition of the ship's gear, equipment, tools and work space to be used in the stevedoring...
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Howlett v. Birkdale Shipping Co.
...not have the same access to, the cargo stow, its duties with respect to the stow are limited by comparison. See Robertson v. Tokai Shosen K.K., 655 F.Supp. 152, 154 (ED Pa.), aff'd, 835 F.2d 490 (CA3 1987), cert. denied, 486 U.S. 1007, 108 S.Ct. 1733, 100 L.Ed.2d 196 In sum, the vessel's tu......
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Derr v. Kawasaki Kisen K.K.
...it is unaware. Derr v. Kawasaki Kisen K.K., No. 85-5250, bench op., App. at 106-09 (E.D.Pa. Dec. 2, 1986); Robertson v. Tokai Shosen K.K., 655 F.Supp. 152, 154-55 (E.D.Pa.1987). The cases having been consolidated for purposes of appeal, Derr and Robertson contend that the district courts er......
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Woods v. Partenreederei Ms. Yankee Clipper, Civ. A. No. 85-3652-C.
...that the cargo does not pose any unreasonable risk to the longshoremen. Id. at 172, 101 S.Ct. at 1624. See also, Robertson v. Tokai Shosen, K.K., 655 F.Supp. 152 (E.D.Pa. 1987) (shipowner not liable for injury caused by improperly stowed The plaintiff also argues, though, that the defendant......