Atlantic & Gulf Stevedores, Inc. v. SKIBS A/S DANMOTOR

• Decision Date: 14 October 1971
• Docket Number: Civ. A. No. 69-G-126.
• Citation: 1972 AMC 68,342 F. Supp. 837
• Parties: ATLANTIC & GULF STEVEDORES, INC., et al., Plaintiffs, v. SKIBS A/S DANMOTOR et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

342 F. Supp. 837

1972 AMC 68

ATLANTIC & GULF STEVEDORES, INC., et al., Plaintiffs, v. SKIBS A/S DANMOTOR et al., Defendants.

Civ. A. No. 69-G-126.

United States District Court, S. D. Texas, Galveston Division.

October 14, 1971.

COPYRIGHT MATERIAL OMITTED

Dixie Smith, Fulbright, Crooker & Jaworski, Houston, Tex., for plaintiffs.

Ben N. Ramey, of Ramey & Clay, Houston, Tex., Edward W. Watson, of Eastham, Watson, Dale & Forney, Galveston, Tex., for defendants.

MEMORANDUM AND ORDER

NOEL, District Judge.

This suit arises from an injury sustained by James P. Grace, a longshoreman, while he was working aboard the vessel ALEX in the harbor at Galveston, Texas. The vessel was owned and operated by defendant Skibs A/S Danmotor, which settled the longshoreman's third-party claim against the vessel. The instant action is brought by Atlantic & Gulf Stevedores, Inc., the longshoreman's employer, and Texas Employers' Insurance Association, the compensation carrier, to recover from defendant Danmotor the amount of compensation payments to Grace, medical expenses, and attorney's fees. Also joined as defendants are Grace and his attorney. In turn, defendant Danmotor counterclaims seeking indemnity for the amount of its settlement with Grace, as well as its fees and expenses incurred in defending Grace's claim.

FINDINGS OF FACT

(1) On the morning of February 4, 1966, Mr. Grace's gang was assigned to unload cargo from the Number 3 hatch of the ALEX, which was berthed starboard-side to the dock at Galveston. Located at the forward end of the open hatch, and secured at the base of a large mast on the centerline of the ship, was a jumbo boom served by four winches. The boom was fifty-seven feet long and had a load capacity of twenty-five tons.

(2) The longshoreman made only the most cursory inspection of their work area. No defects in the rigging of the boom or mast were perceived.

(3) The cargo consisted for the most part of large boxes or crates. The crate being removed from the hold at the time of the mishap was quite large, being only slightly smaller in length than the hatch itself, and approximately twelve feet in height. It weighed between fifteen and twenty tons.

(4) Mr. Grace was operating one of the offshore winches which controlled a guy-wire used to swing the load laterally to the dock and back again to the ship.

(5) After the hook on the boom had been secured to the crate, the load was lifted by means of a winch operated by longshoreman Milina.

(6) The angle of the boom was controlled by a winch operated by longshoreman Bolton. After the crate had been lifted vertically to a point where its bulk had cleared the hatch by about two feet, it was swung laterally toward the dock. At this time, the angle of the boom was approximately fifty degrees.

(7) When the crate was part way through its lateral swing, two objects suddenly fell from the rigging above the longshoreman's work area. One of these struck Grace on the head, producing the injury which led to this suit.

(8) The falling objects were a steel half-collar and steel pin, which were parts of a device used to secure the jumbo boom when the ship is at sea. When not in use, the boom is held in a vertical position against the mast and fastened by a round steel collar located approximately fifty feet above deck and consisting of two semicircular pieces. One of these steel halves is permanently affixed to the mast. The other half, which is moveable and weighs approximately fifteen pounds, is fastened to the mast by two large steel pins, one on the port and one on the starboard side of the mast. These pins are about seven inches long, one inch in diameter, weigh about five pounds apiece, and are slightly tapered in shape.

(9) When the jumbo boom is being prepared for use, the pin on the port side is removed and stowed at the base of the mast. This permits the half-collar to swing open, held only by the remaining starboard side pin which operates as a sort of hinge, thus freeing the boom to be lowered from its vertical storage position.

(10) The object which struck Grace was the pin which is supposed to hold the half-collar to the mast in its open position. The other object, which missed Grace, was the half-collar itself.

(11) No credible evidence was adduced to show exactly why the collar and pin fell. It was established that the ship listed slightly to starboard with the swinging of the load, and that the laboring of the winches caused vibration, but that neither the list nor the vibration exceeded what was normal for such an operation.

(12) The ship has offered a theory; to wit, that the boom was improperly operated by the longshoremen in that it was raised too high, causing the block and wires at the mast end of the topping lift to entangle the collar and knock it down. In support of this hypothesis, deposition testimony of the chief mate was offered to prove that the collar was dislodged in this fashion when the boom was raised as high as sixty-five to seventy degrees above the horizontal. The Court is not persuaded by this version.

(13) To the contrary, Longshoreman Bolton, whose winch controlled the elevation of the boom, testified that he did not hear or feel anything to indicate that the boom gear had contacted the collar or otherwise become fouled. The pin and collar bore no visible signs of damage to suggest that they had been subjected to impact other than their fall.

(14) Additionally, the live testimony of Longshoreman Burns, who was acting as signalman and had the best opportunity to observe, was to the effect that the angle of the boom never exceeded fifty degrees. Such an angle would be fully consistent with the large dimensions of the load, and the Court finds that the angle of the boom at its maximum elevation was fifty degrees.

(15) The Court further accepts the expert testimony to the effect that it would be physically impossible for the boom at the described angle to strike the collar. It follows that improper operation of the jumbo boom did not cause the collar and pin to fall.

(16) There was a conflict between deposition and live testimony as to whether a warning was given by members of the ship's crew shortly before the occurrence. The Court accepts the consistent version of the live witnesses and finds that no warning was given. Even if an alarm were given, as maintained by defendant's deponent, it was uttered too late to have been effective and cannot be regarded as a warning.

(17) Finally, it is found as facts that:

(a) the longshoreman and stevedore were rendering workmanlike performance at the time of the accident, and

(b) the ship's gear was not reasonably fit for its intended purpose.

CONCLUSIONS OF LAW

I.

Immediately after receiving the evidence, the Court expressed the opinion that an allocation of damages upon a basis of relative fault would do justice and would produce a recovery against the ship for 75% and against the stevedore for 25%. This disposition was prompted by the Court's reluctance to completely exonerate the stevedore, in view of the fact that a more careful examination of the longshoremen's work area—including scrutiny of the equipment overhead— might well have prevented the accident. The parties were invited to brief the law respecting the applicability of comparative negligence and contribution principles in the present context. The Court also indicated that, should it develop that allocation is inappropriate, the ship should be cast in full liability. Upon review of the authorities, it now appears that this is an instance in which the vaunted flexibility and creativity of admiralty has been indeed slow to respond to what is arguably a felt need.

The development of the longshoremen's remedy through its Sieracki-Ryan¹ progression is an oft-told story which need not be repeated here.² Suffice it to say that the longshoreman has regained through judge-made substantive and procedural law more than he lost by reason of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., and has even surpassed the seaman in the variety of his remedial options. The ship which he loads or unloads now owes him an absolute duty of seaworthiness—liability without fault—which may be enforced by a suit for damages. In turn, the ship may visit its liability upon another by seeking indemnity from the stevedore-employer for breach of the latter's express or implied contractual warranty of workmanlike performance. Whatever the merits of this procedural convolution, and they have been seriously questioned,³ the upshot is that the injured longshoreman may have his workmen's compensation protection as well as a double-targeted lawsuit against the ship, and, in effect, the stevedore-employer.⁴

One irrational side-effect of the longshoreman-ship-stevedore triangle described above is that the loss of the first often falls upon either of the latter two in an indiscriminate manner which might well be described as "whole hog". Either the ship or the stevedore customarily absorbs the total judgment, notwithstanding the fact that both may have causally contributed to the mishap. This state of affairs is an anomoly in admiralty, where the salutary principles of comparative negligence and division of damages are well entrenched. Examples of this flexibility in rationally allocating the burden of accidental injury are the reduction of recoveries by reason of contributory negligence, cf. The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586 (1890), and the moiety rule in collision cases. Cf. The Schooner Catherine v. Dickinson, 58 U.S. (17 How.) 169, 15 L.Ed. 233 (1855); Griffin on Collision, 558-566 (1949); see generally Staring, Contribution and Division of Damages in Admiralty and Maritime Cases, 45 Calif. L.Rev. 304 (1957).

Prior to 1952, the lower courts experimented with shipowner/stevedore contribution in mutual fault cases. See Tetreault, Seamen, Seaworthiness, and the Rights of Harbor Workers, 39...