679 F.2d 69 (5th Cir. 1982), 80-3261, Burks v. American River Transp. Co.

Docket Nº:80-3261.
Citation:679 F.2d 69
Party Name:Joseph BURKS, Plaintiff-Appellant, v. AMERICAN RIVER TRANSPORTATION COMPANY, Defendant-Appellee-Appellant, v. ROGERS TERMINAL AND SHIPPING CORP. and Northwestern National Casualty Co., Intervenors-Appellees-Appellants.
Case Date:June 25, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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679 F.2d 69 (5th Cir. 1982)

Joseph BURKS, Plaintiff-Appellant,

v.

AMERICAN RIVER TRANSPORTATION COMPANY, Defendant-Appellee-Appellant,

v.

ROGERS TERMINAL AND SHIPPING CORP. and Northwestern National

Casualty Co., Intervenors-Appellees-Appellants.

No. 80-3261.

Unit A [*]

United States Court of Appeals, Fifth Circuit

June 25, 1982

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Daniel L. Avant, Baton Rouge, La., for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John O. Charrier, Jr., New Orleans, La., for American River Transp.

Eugene R. Groves, Thomas K. Kirkpatrick, Baton Rouge, La., for Rogers Terminal and Northwestern Nat. Cas. Co.

Appeals from the United States District Court for the Middle District of Louisiana.

Before BROWN, WISDOM and RANDALL, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

This case presents a novel question: Does a longshoreman/seaman retain the right to bring an action based on unseaworthiness against a vessel or her owner despite the proscription in the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA)? We conclude that he does not.

I.

At the time of the injury for which he seeks recovery in this suit, Joseph Burks was an employee of Rogers Terminal and Shipping Corporation (Rogers), a firm that provides stevedoring services at the Port of Baton Rouge, Louisiana. Burks had worked for Rogers for over 20 years, the last 15 of them principally aboard one of its vessels, a barge known as the K-1.

The K-1 is a non-propelled barge 132 feet in length, 45 feet in width and 10 feet in depth. It is specially equipped so that it can discharge bulk cargo, such as grain, from other barges directly onto oceangoing vessels. To perform its unloading operations, K-1 is towed out into the Mississippi River and made fast to the side of a receiving vessel. Barges are then brought up along the other side. A crane on K-1, using a clamshell bucket, lifts out the barges' cargoes and deposits the grain into a hopper on K-1. A marine leg (a belt with shovels) scoops the grain out of K-1, lifts it over the side, and deposits it in a pipe leading from the marine leg to a funnel over the hold on the receiving ship. The entire process takes place in mid-stream.

On October 31, 1976, K-1 and its crew were engaged in unloading grain from a barge (ART-402) owned by American River Transportation Company (ARTCO) and loading it onto a completely unrelated oceangoing vessel in the Mississippi River. Burks was injured while standing on a fiberglass hatch cover on ART-402 which gave way, causing him to fall about 20 feet into the hold. Burks sued ARTCO for negligence under the Jones Act, 46 U.S.C. § 688, and for unseaworthiness under the general maritime law. He did not sue his employer, Rogers.

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The case was tried without a jury, and the District Court entered judgment dismissing both the Jones Act claim and the unseaworthiness claim. 486 F.Supp. 603 (M.D.La.1980). As to the Jones Act claim, the Court held that Burks had failed to prove ARTCO was guilty of any negligence. The Court also concluded that, whether or not Burks was a seaman as to Rogers, his employer, he was a longshoreman as to ARTCO who was not entitled, after the 1972 Amendments to the LHWCA, to sue ARTCO for unseaworthiness. Burks does not appeal the court's finding of no Jones Act negligence, but contests the decision on his unseaworthiness claim.

II. Sieracki Still Rules the Seas

The Supreme Court's decision in The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903), introduced the action for unseaworthiness, a species of liability without fault, to the general maritime law of the United States. Not until 40 years later, however, beginning with the decision in Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, 1944 A.M.C. 1 (1944), did unseaworthiness begin to develop into a broad basis for recovery for maritime personal injuries.

The main mast of this development is Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L.Ed. 1099, 66 S.Ct. 872, 1946 A.M.C. 698 (1946), which rejected the notion that the vessel owner's duty to furnish a seaworthy vessel extended to only those seamen employed directly by him on his vessel. Id. at 90-94, 66 S.Ct. at 875-877. The Supreme Court held that the duty extended equally to longshoremen employed by an independent stevedoring contractor hired to unload the vessel. Sieracki rested on the rationale that because loading and unloading vessels was traditionally a seaman's duty, a longshoreman doing that work and incurring those risks of a seaman was entitled to the rights of a seaman, including recovery based on unseaworthiness. 1 Extending this rationale, later decisions recognized the unseaworthiness action in a variety of situations where harbor workers provided services traditionally done by seamen. 2

Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, 1956 A.M.C. 9 (1956), introduced a new twist. The Court created an implied warranty of workmanlike performance (WWLP) running from the contracting (e.g. stevedoring) company to the vessel and owner. Breach of this warranty by the stevedore or his employees entitled the vessel owner to full indemnity for any liability he incurred in an unseaworthiness action brought by one of the stevedore's employees, absent conduct on the shipowner's part "sufficient to preclude liability". Waterman Steamship Corp. v. David, 353 F.2d 660, 665, 1966 A.M.C. 30 (5th Cir. 1965), cert. denied, 384 U.S. 972, 86 S.Ct. 1863, 16 L.Ed.2d 683 (1966), citing Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491, 1958 A.M.C. 501 (1958). 3 As developed

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in the subsequent cases, the warranty covered a great number of acts and omissions by the contracting company. See Proudfoot, "The Tar Baby": Maritime Personal Injury Indemnity Actions, 20 Stan.L.Rev. 423 (1968). As a result, stevedores were forced to bear full unlimited liability for their employees' injuries in an ever increasing number of cases, 4 despite § 5 of the Longshoremen's & Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905, which prescribed expressly that an employer's liability under the Act would be exclusive and in place of all other liability to the employee or anyone entitled to recover damages on account of the employee's injury or death. 5

To eliminate the circular and frequently unlimited liability flowing from Sieracki and Ryan, Congress amended the LHWCA in 1972. 6 It now provides that a "person covered under" the Act may no longer bring an action against a third-party vessel owner "based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred." 33 U.S.C. § 905(b). 7 Rather, the exclusive remedy against the third party vessel owner is a negligence action. 8

Congress in the 1972 Amendments intended to abolish the unseaworthiness action Sieracki had given to longshoremen and harbor workers, the so-called Sieracki -seamen. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 260, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521, 527, 1979 A.M.C. 1167, 1171-72 (1979):

Congress acted in 1972 ... to eliminate the shipowner's liability to the longshoremen for unseaworthiness and the stevedore's liability to the shipowner for unworkmanlike service resulting in injury to the longshoreman-in other words, to overrule Sieracki and Ryan.

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See also (1972) U.S.Code Cong. & Admin.News 4701-05; 9 1A Benedict on Admiralty § 13 (7th ed. E. Jhirad, A. Sann, N. Golden & B. Chase 1980).

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Yet several commentators speculated that some longshoremen and harbor workers might still have the right to bring an unseaworthiness action.

(U)nseaworthiness actions by Sieracki seamen against a vessel owner may still be permitted because of several possible loopholes in the 1972 amendments. The amendments prohibit an unseaworthiness action by a "person covered under this Act". Presumably, if there is a Sieracki seaman not covered under the Longshoremen's Act, he may still bring an unseaworthiness action against a vessel owner.

Gorman, The Longshoremen's and Harbor Workers' Compensation Act-After the 1972 Amendments, 6 J.Mar.L. & Com. 1, 15 (1974). See also Robertson, Negligence Actions by Longshoremen Against Shipowners Under the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 7 J.Mar.L. & Com. 447, 448 (1976); G. Gilmore & C. Black, The Law of Admiralty § 6-57, at 449 (2d ed. 1975).

Swan Lake: Tiptoe Through the Loophole

This Court's recent decision in Aparicio v. Swan Lake, 643 F.2d 1109, 1981 A.M.C. 1887 (5th Cir. 1981), proved that those commentators were, or might be, right, or nearly right. Aparicio, a Panama Canal Company employee, was injured while working aboard a vessel in the Panama Canal. The District Court dismissed his unseaworthiness claim against the vessel owner, holding that the 1972 amendments to the Act had abolished the unseaworthiness action. 10 We reversed. Judge Rubin pointed out that Aparicio was not covered under the LHWCA for two independent reasons: first, the Canal is outside the territorial reach of the LHWCA; second, the Panama Canal Company is an agency of the United States, and as such its employees are excluded from benefits under the Act. He then stated, "Until Congress abrogates the remedies created by the Supreme Court as they apply to maritime workers not covered by the LHWCA, those workers remain entitled to relief and their employers and vessel

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owners remain bound by the Sieracki-Ryan doctrine." Id. at 1118. 11

Yet Aparicio dealt with a narrow loophole in the LHWCA-actually no loophole at all, just a hole where the Act did not apply. It recognized that those employees not covered by the LHWCA should not get the short end of Congress' stick. It did not, as the Court took pains to point out, ...

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