Lucas v. " BRINKNES" SCHIFFAHRTS GES., Civ. A. No. 73-1120

• Citation: 379 F. Supp. 759
• Decision Date: 05 August 1974
• Docket Number: 73-2150.,Civ. A. No. 73-1120
• Parties: Robert H. LUCAS v. "BRINKNES" SCHIFFAHRTS GES. FRANZ LANGE G. m. B. H. & Co., K. G. v. NORTHERN METAL CO. Dennis A. FARRO v. ETERNITY CARRIERS, INC. v. NORTHERN METAL CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

379 F. Supp. 759

Robert H. LUCAS v. "BRINKNES" SCHIFFAHRTS GES.

FRANZ LANGE G. m. B. H. & Co., K. G. v. NORTHERN METAL CO.

Dennis A. FARRO v. ETERNITY CARRIERS, INC. v. NORTHERN METAL CO.

Civ. A. Nos. 73-1120, 73-2150.

United States District Court, E. D. Pennsylvania.

August 5, 1974.

Milton M. Borowsky, Philadelphia, Pa. (73-1120), Arnold C. Grossman, Philadelphia, Pa. (73-2150), for plaintiffs.

E. Alfred Smith, Carl A. Putz, Phildelphia, Pa. (73-1120), H. Wallace Roberts, Philadelphia, Pa. (73-2150), for defendants.

James B. Doak, Philadelphia, Pa., for 3rd party def. in both cases.

William G. Downey, Philadelphia, Pa., filed amicus curiae brief on behalf of Moore-McCormack Lines, Inc. and Companhia De Navegaco Maritima Netumar seeking denial of motion to dismiss 3rd party complaint.

Before LORD, Chief Judge, and LUONGO and HUYETT, District Judges.^*

OPINION

HUYETT, District Judge.

Congress in 1972 gave careful consideration to the compensation scheme provided by the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C. § 901 et seq. (1970). Among the matters extensively treated in the 1972 Amendments to the Act, 33 U.S.C. § 901 et seq. as amended (Supp. II 1972), was the question whether third-party suits should be allowed by the longshoreman against the vessel which caused the longshoreman to be injured. Congress did provide for such suits when the vessel's negligence caused the injuries. 33 U.S.C. § 905(b) (Supp. II 1972). The cases before us present the question whether any recovery obtained by the longshoreman as a result of the vessel's negligence should either be diminished or be allowed against the longshoreman's employer — the stevedore — when its negligence is a concurrent cause of the injuries.

In each case a longshoreman seeks to recover damages against the defendant vessel owner as a result of injuries caused while working on the vessel.¹ The basis for recovery is alleged to be that the vessel owner was negligent. The vessel owners have filed third-party complaints against the longshoremen's employers alleging that the third-party defendant stevedores were negligent in causing injury to plaintiffs and failed in their contractual duty to perform their services in a competent and workmanlike manner causing injury to plaintiffs. In the alternative it is alleged that if the acts or omissions of the third-party defendants contributed to plaintiffs' injuries, the vessel owners are entitled to a credit or reduction of 50% of any damages awarded to plaintiffs.²

The second amended third-party complaints seek (1) full or partial indemnity from third-party defendants for some or all of the damages which may be awarded to the plaintiffs in the proceedings, as well as all legal fees, costs and expenses incurred and expended by defendants and third-party plaintiffs, (2) a credit or reduction of 50% of any and all damages adjudged and awarded to the plaintiffs in these proceedings, (3) contribution from third-party defendants for a proportionate share of any amount of damages adjudged and awarded to plaintiffs in these proceedings, or (4) contribution or indemnity from third-party defendants to the extent of all medical expenses and compensation paid or payable pursuant to third-party defendants' legal liability therefor under the terms and provisions of the Longshoremen's and Harbor Workers' Compensation Act, said amount to be applied as a credit or set off against whatever damages are awarded to plaintiffs in these proceedings.

The third-party defendant stevedores have moved to dismiss the second amended third-party complaints for failure to state claims upon which relief can be granted. And the plaintiff in Lucas has moved to strike the vessel's answer setting forth a 50% credit as a defense if the stevedore's negligence also caused plaintiff's injuries. We will grant these motions.

DEVELOPMENT OF THE THIRD-PARTY SUIT³

Longshoremen's remedies historically have been subject to the crosswinds sweeping o'er land and sea. Although employed by the land-based stevedore, the longshoreman typically performs his services on the vessel while it is in navigable waters. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914), held that admiralty has jurisdiction over a suit by a longshoreman against his employer for injuries occurring on the vessel while it is in navigable waters. With respect to the maritime nature of the longshoreman's work the Court stated: "Formerly the work was done by the ship's crew; but, owing to the exigencies of increasing commerce and the demand for rapidity and special skill, it has become a specialized service devolving upon a class `as clearly identified with maritime affairs as the mariners.'" Atlantic Transport Co. v. Imbrovek, 234 U.S. supra at 62, 34 S.Ct. at 735. The theme that work performed on the vessel afforded longshoremen the benefit of admiralty remedies has been the source of much of the conflict Congress sought to resolve in the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act.

A. ENACTMENT OF A WORKMEN'S COMPENSATION SCHEME

Tension between the two great bodies of law governing affairs of the sea and of the land began when the Court in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), asserted that a state compensation scheme providing benefits for a longshoreman injured on navigable waters was incompatible with the need for uniformity in maritime law. In rapid succession the Court struck down two further attempts by Congress to bring longshoremen within the ambit of state compensation acts. Knickerbocker Ice Co v. Stewart, 253 U.S. 149, 40 S.Ct. 438, 64 L.Ed. 834 (1920), held unconstitutional an amendment to the "saving to suitors clause"⁴ allowing application of state compensation laws to injuries occurring on the vessel. Washington v. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924), invalidated a statutory amendment similar to that involved in Stewart.

True to its reasoning in Imbrovek the Court then held that longshoremen were seamen within the meaning of the Jones Act, 46 U.S.C. § 688, and could, therefore, recover under that Act against the stevedore-employer for the latter's negligence. International Stevedoring Company v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926). The Jones Act provided the longshoreman with an attractive negligence remedy against his employer. The Jones Act plaintiff was not subject to the assumption of risk or contributory negligence defenses. This situation was altered, however. when Congress enacted the Longshoremen's and Harbor Workers' Compensation Act making the longshoreman's remedy under the Act the exclusive method of relief against the employer.⁵ See Swanson v. Marra Brothers, Inc., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946) (holding that the Harbor Workers' Act provided the exclusive remedy by the longshoreman against his employer and that he could not sue under the Jones Act).

Liability of the employer under the Act likewise was to be "exclusive and in place of all other liability of such employer to his employee, his legal representative, husband or wife, parents, defendants, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death * * *." § 5, 44 Stat. 1426, as amended, 33 U.S.C. § 905 (1970). The Act permitted the longshoreman, however, to bring an action against any third party who may have caused the injuries. § 33, 44 Stat. 1440, as amended, 33 U.S.C. § 933 (1970). The admiralty remedy of unseaworthiness became the predominant relief sought in these third-party actions.

B. THE DOCTRINE OF UNSEAWORTHINESS

Historically, the vessel's duty to provide a seaworthy ship was available only to the seaman and then only in limited circumstances. The seaman could not recover for the operating negligence of the master in giving an order which caused the seaman injury. The OSCEOLA, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903).⁶ Furthermore, "the shipowner's liability in American Courts, as in the English, was limited to cases in which he had failed to use reasonable care to provide proper appliances, and liability did not attach where mariners' injuries resulted from the failure of those aboard the vessel to make proper use of such appliances." F. Tetreault, Seamen, Seaworthiness, and the Right of Harbor Workers, 39 Cornell L.Q. 381, 392 (1954) (footnote omitted).

Later cases, however, have established the doctrine of seaworthiness of the vessel as an absolute non-delegable duty without regard to negligence owed to the seaman, the longshoreman and other harbor workers injured on the vessel. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944), established the warranty of seaworthiness to be absolute. Harking back to the maritime nature of the longshoremen's work articulated in Imbrovek, supra, the Court in Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), held that the warranty of seaworthiness was available to the longshoreman. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L. Ed. 143 (1953), extended the warranty of seaworthiness to other harbor workers injured on the vessel. The warranty was also available to the harbor worker even though he was directly employed by the vessel. Reed v. Yaka, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963).

The scope of the liability imposed on the vessel by the doctrine of seaworthiness was broad. As stated by one commentator:

"Since Mahnich, courts have found liability under the warranty of seaworthiness for such conditions as defects in cargo containers,33 improper stowage of cargo,34 the presence of extraordinarily hostile or aggressive seamen,35 the requiring of two men to do the work of four,36 faulty ship's structure37 and equipment,38 defective equipment brought aboard by the

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