Pinto v. VESSEL" SANTA ISABEL"

• Decision Date: 27 May 1980
• Docket Number: Civ. No. 77-0121-B.
• Citation: 492 F. Supp. 689
• Parties: Felix PINTO, Plaintiff, v. The VESSEL "SANTA ISABEL," Defendant. PANAMA AGENCIES COMPANY, Defendant-Third-Party Plaintiff, v. ASSOCIATED SHIPPING AGENTS, LTD., Third-Party Defendant.
• Court: U.S. District Court — Panama Canal Zone

492 F. Supp. 689

Felix PINTO, Plaintiff, v. The VESSEL "SANTA ISABEL," Defendant.

PANAMA AGENCIES COMPANY, Defendant-Third-Party Plaintiff, v. ASSOCIATED SHIPPING AGENTS, LTD., Third-Party Defendant.

Civ. No. 77-0121-B.

United States District Court, D. Canal Zone, Balboa Division.

May 27, 1980.

David J. Kiyonaga, Balboa, Canal Zone, for plaintiff.

Woodrow DeCastro, Balboa, Panama, for Vessel & third-party defendant.

Roy Phillips, Phenix City, Ala., for Panama Agencies.

OPINION AND ORDER

PITTMAN, Chief Judge.

Plaintiff Felix Pinto, an Ecuadorean national employee of the Panama Canal Company,¹ originally brought this admiralty suit in rem against the S/S SANTA ISABEL for injuries he allegedly sustained while working as a longshoreman aboard the vessel. The complaint alleged plaintiff's injuries were caused by unseaworthy conditions existing aboard the vessel or alternatively by the negligence of the master and crew of the vessel.

The complaint was amended to join as a defendant Panama Agencies Company (PAC). PAC is alleged to be jointly liable with the vessel for the alleged act of its employee who plaintiff claims was the direct cause of his injuries.

In its answer, PAC disclaimed any liability to the plaintiff and filed a Third-Party complaint against Associated Shipping Agents, Ltd. (ASA). PAC denies any employer-employee relationship between it and the employee who is alleged to be an employee of ASA.

The defendant vessel Santa Isabel has cross-claimed against PAC which in turn has counterclaimed against the vessel. The vessel does not contend that plaintiff violated any safety rules or was contributorily negligent.

All the claims are filed under the Admiralty and Maritime jurisdiction of this court. Jurisdiction is uncontested. The parties have consented that any damages issue herein shall be referred to a Special Master pursuant to Fed.R.Civ.P. 53.

FINDINGS OF FACT

Plaintiff Felix Pinto is a 42-year old Ecuadorean national who sustained injuries while working as a Panama Canal Company stevedore aboard the SANTA ISABEL on or about September 7, 1976, in the former Panama Canal Zone.

The defendant SANTA ISABEL is a bulk carrier of United States registry owned by Prudential Lines, Inc.

The defendant and third-party plaintiff PAC is incorporated in the state of West Virginia and, at all times herein material, was licensed to do and was doing business in the former Panama Canal Zone as a steamship agency with offices located in the Canal Zone.

The third-party defendant ASA is incorporated in the Bahamas and at all times hereinafter mentioned was licensed to do and was doing business in the Canal Zone as a steamship agency with offices located in the former Canal Zone.

The plaintiff Felix Pinto alleges he sustained injuries aboard the S.S. SANTA ISABEL while working as a stevedore for the Panama Canal Company in the former Canal Zone. He also claims against the defendant Panama Agencies Company as an independent contractor cleaning up debris and dunnage in Hold No. 3 of the SANTA ISABEL in the tween deck directly above where the plaintiff was working as a Panama Canal stevedore. He contends the vessel and the independent contractors are each liable. PAC, defendant and third-party plaintiff, claims against ASA alleging the agent of the SANTA ISABEL was ASA. It is claimed ASA requested through PAC the services of riggers and that PAC contacted a bosun specializing in rigging services and sent him to ASA to get his instructions and perform the service. PAC further contends that the bosun normally obtains his own rigging team, boards the vessel, and oversees the performance of the required duties. PAC claims that neither the bosun nor the riggers were employees of PAC. PAC therefore claims judgment against ASA for all sums which may be adjudged against PAC in favor of plaintiff Pinto.

Defendant SANTA ISABEL cross-claims against PAC, claiming the riggers were employees of PAC and that PAC, as employer, owned a duty, pursuant to an implied warranty, to have its employees perform their work in a safe and workmanlike manner, which they failed to do. SANTA ISABEL prays for judgment against PAC for any sum that it may be adjudged liable to plaintiff Pinto including costs and attorneys' fees.

PAC, defendant and third-party plaintiff, in its counterclaim against the SANTA ISABEL claims the riggers were not employees of PAC, but, in any event, were lent or hired to ASA and SANTA ISABEL and were subject to the direction and control of ASA and SANTA ISABEL. The counterclaim seeks judgment against SANTA ISABEL in a sum it may be adjudged liable to plaintiff Pinto together with costs and attorneys' fees.

On the morning of September 7, 1976, at about 8:00 a. m., the plaintiff, as a member of a gang of Panama Canal Company stevedores boarded the SANTA ISABEL while she was docked at Pier 18, Balboa, Canal Zone. The plaintiff and his co-workers went aboard the vessel to discharge cargo in the vessel's holds. At the time he sustained his injuries, plaintiff was working in the number 3 hold of the vessel, storing bags of cocoa beans at the bottom of the hold.

At the same time plaintiff's longshore crew boarded the vessel, so did a clean-up crew. Sometime within the hour after plaintiff came aboard and began work in the number 3 hold, the clean-up crew, at the instruction of the ship's officer, started to work cleaning the top tween deck in the number 3 hold. They were working directly above the plaintiff's longshoring gang. Their clean-up work required them to remove from the top tween deck trash, dunnage and turnbuckles remaining after cargo had been discharged from the top tween deck. They accomplished this task by throwing the materials through a hole in the top tween deck to the bottom tween deck. One of these thrown metal turnbuckles, about two to two and one-half feet long and weighing about eight pounds, slid across the lower tween deck and fell to the bottom of the hold, injuring the plaintiff.

ASA acted as agents for the SANTA ISABEL and other Prudential Lines ships, a role which had previously been played by PAC. One of the conditions for ASA's obtaining the Prudential Lines agency was that ASA would continue to use PAC to obtain clean-up crews who would be familiar with Prudential Lines' vessels. To comply with this requirement of its agency contract, ASA ordered clean-up crews from PAC.

ASA would first determine the number of clean-up crew members it needed to service a particular ship. ASA would then inform PAC of its requirements. PAC in turn would send one C. Davis, a bosun also known as "Snowball," to report to ASA for instructions.² ASA would tell Brown how many men were needed and provide him with a pass for he and his crew to enter the pier. Davis selected his crew from among casual laborers and reported to the ship for instructions. Specific work instructions were given to Davis by the ship's officer, either directly or through one of ASA's employees. No orders were given to the clean-up crew by PAC, although they sometimes received instructions directly from the ship's officer.

After completion of a job, Davis reported the names of and hours worked of each by his crew members. PAC would pay the workers, then bill ASA for 133% of the amount paid. The additional 33% represented PAC's commission and also covered workman's compensation payments and PAC's administrative expenses.

The SANTA ISABEL directed the clean-up crew to perform clean-up operations on the top tween deck area of hold number 3. In doing so, it was aware that plaintiff's stevedoring crew was performing longshoring work at the bottom of hold number 3. The vessel was in direct violation of the following Occupational Safety and Health Administration regulations:

29 C.F.R. § 1918.91 Housekeeping.

* * * * * * (b) Gear or equipment, when not in use, shall be removed from the immediate work areas, or shall be so placed as not to present a hazard.

* * * * * *

(d) Loose paper, dunnage and debris shall be collected as the work progresses and be kept clear of the immediate work area.

* * * * * *

§ 1918.95 Longshoring operations in the vicinity of repair and maintenance work.

* * * * * *

(b) Longshoring operations shall not be carried on in the hold or on deck beneath men working in the rigging overhead when such overhead work creates a hazard of falling objects.

Injury to the plaintiff was a reasonably foreseeable consequence of violating the above OSHA regulations.

The clean-up crew conducted its operations in an unreasonably careless manner.

CONCLUSIONS OF LAW

I.

The OSHA regulations referred to above were designed to protect longshoremen like the plaintiff against the type of risk which caused his injuries. Their violation by the vessel, which violation was a proximate cause of plaintiff's injuries, constitutes negligence per se, Arthur v. Flota Mercante Gran Centro Americana, S. A., 487 F.2d 561, 564 (5th Cir. 1973), and rendered the vessel unseaworthy. Lacaze v. Oldendorff, 526 F.2d 1213, 1218-1220 (5th Cir. 1976). The unseaworthy conditions proximately caused plaintiff's injuries and cannot be characterized as mere momentary unseaworthiness. The debris, dunnage and turnbuckles had accumulated in the top tween deck before plaintiff came to work on the vessel. It may have been left over from unloading operations conducted at the vessel's last port of call. The "ship's duty with respect to the condition, and the ship's opportunity to correct the default, extended over a considerable period of time . . ." Mazzanti v. Lykes Bros. S. S. Co., 524 F.2d 961, 962 (5th Cir. 1975).³

With regard to this court's holding that plaintiff may recover on his unseaworthiness claim, the following explanation seems appropriate. The Sieracki-Ryan doctrine, see infra, was apparently exported to the Panama Canal Zone by the case of Sandoval v. Mitsui Sempaku K. K. Tokyo, 460 F.2d 1163 (5th Cir. 1972). The Sandoval court held that Panama Canal...