Alaska Steamship Company v. Garcia
| Decision Date | 18 April 1967 |
| Docket Number | No. 20823.,20823. |
| Citation | 378 F.2d 153 |
| Parties | ALASKA STEAMSHIP COMPANY, a corporation, and SS TONSINA, her tackle, engines, and appurtenances, Appellants, v. Arnold H. GARCIA, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Thomas J. McKey, Bogle, Gates, Dobrin, Wakefield & Long, Seattle, Wash., for appellants.
Milton H. Soriano, Soriano & Soriano, Seattle, Wash., for appellee.
Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.
Arnold H. Garcia brought this libel in rem against Alaska Steamship Company (Company), and the SS TONSINA to recover damages for personal injuries sustained while serving as a longshoreman aboard the vessel. The Company was both the owner of the vessel and the employer of Garcia. The trial court entered a decree in favor of Garcia. The Company appeals.
Garcia and other members of his "gang" of longshoremen boarded the SS TONSINA at pierside in Seattle, preparatory to loading cargo from the port side. The vessel's boom at No. 3 hatch was to be used for this purpose. The boom, however, and a guy line leading from the rail of the ship to the upper end of the boom, had been improperly rigged for the portside cargo loading operation. Because of this faulty rigging, the boom topped (swung into an upright position) while Garcia and his fellow longshoremen were using the boom to lift a heavy piece of cargo from the dock. The topping of the boom caused the topping lift cable to slacken.
No one was injured as the boom swung into an upright position and the topping lift cable slackened. The result, however, was that the boom and topping lift cable were left in dangerous positions, due to the possibility that the boom might fall.
Garcia and the other members of his longshoremen's gang were called upon to remedy the defective condition by lowering the boom. In an effort to do so, Lewis B. Wirth, foreman of the gang and also employed by the Company, ordered other longshoremen to release the improperly placed guy line. The order was obeyed by longshoremen other than Garcia. As the boom fell, the topping lift cable became taut, and the taut line caught Garcia and pinned him to the masthouse at No. 3 hatch, injuring Garcia.
Appellants seek reversal of the decree against them upon the ground that section 5 of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1426 (1927), 33 U.S.C. § 905 (1964) immunizes the Company, as the stevedore employer, from personal liability for Garcia's injuries, notwithstanding the fact that the Company was also the owner of the vessel, and thus ordinarily personally liable under the doctrine of unseaworthiness. There being no personal liability, appellants contend, an in rem libel against the vessel may not be maintained.
This precise contention has twice been rejected in recent decisions of this court. See Pacific Inland Navigation Company v. Course, 9 Cir., 368 F.2d 540; Grace Line, Inc. and S.S. SANTA JUANA v. Kanton, 9 Cir., 366 F.2d 510. We adhere to the holdings in those cases.
Appellants urge reversal upon the additional ground that the proximate cause of Garcia's injuries was not the upright position of the boom which resulted from the improperly rigged boom and guy line. Rather, they contend, the proximate cause of Garcia's injuries was the negligent effort by members of the longshoremen's gang to correct this unseaworthy condition. Appellants therefore assert that since the trial court dismissed Garcia's negligence count on the ground that appellants had a valid "fellow-servant negligence" defense, no liability attaches to the appellants.
Appellants do not deny that the upright position of the boom, with its slack topping lift cable, together with the improper rigging described above, rendered the SS TONSINA unseaworthy. They point out, however, that the boom and guy line remained in their precarious positions for a period of from twelve to twenty-four minutes, and during this period Garcia was not injured. They urge that the cause of Garcia's injuries was the negligence of other longshoremen in releasing the guy line so as to cause the boom to fall, and in doing so while Garcia was in a position of danger.
Appellants defend upon the ground that it was this intervening negligence of fellow-servants which caused Garcia's injuries, and not a continuing unseaworthy condition of the SS TONSINA.1
It is not denied that the SS TONSINA was rendered unseaworthy by reason of the improperly rigged boom and attached guy line. This unseaworthiness was enhanced when, by reason of such improper rigging, the boom swung into an upright position, leaving a slack topping lift cable. The danger resulting from such unseaworthiness continued until the boom could be safely lowered or rerigged.
The liability of the shipowner arising from this unseaworthy condition therefore continued until such correction could be made and, in our opinion, embraced any method or act employed in correcting the dangerous condition. Garcia was injured because the risk that the boom might fall materialized. This being the case, it is without legal significance that the unseaworthy condition might have been corrected in a manner which would have prevented the boom from falling.
Appellants point out that Garcia's injuries occurred as a direct result of, and within a few moments of the assertedly negligent release of the guy line attached to the boom. Because of this, appellants ask us to apply the so-called doctrine of "instant unseaworthiness." Under this doctrine, liability does not attach on the ground of unseaworthiness if the injury was sustained by the negligent use of a seaworthy appliance at the very moment of injury. This court adheres to that doctrine.2
The concept of "instant unseaworthiness"...
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Tim v. American President Lines, Ltd.
...unsafe condition subsequently resulting in injury but does not if the act and resulting injury are simultaneous. Alaska S.S. Co. v. Garcia, 378 F.2d 153, 155 (9th Cir. 1967); Huff v. Matson Navigation Co., 338 F.2d 205, 216 n. 14 (9th Cir. 1964), cert. denied, 380 U.S. 943, 85 S.Ct. 1026, 1......
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Ryan v. Pacific Coast Shipping Co., Liberia
...U.S. 494, 91 S.Ct. 514, 27 L. Ed.2d 562 (1971); Tim v. American Pres. Lines, Ltd., 409 F.2d 385 (9th Cir. 1969); Alaska Steamship Co. v. Garcia, 378 F.2d 153 (9th Cir. 1967). Ryan, on the other hand, denies shipowner's premise; he asserts that unseaworthiness, in the form of an unsafe metho......
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Griffin v. United States
...by the stevedore is nonetheless an unseaworthy condition in the workman's action against the shipowner. E. g., Alaska Steamship Co. v. Garcia, 378 F.2d 153 (9th Cir. 1967). We hold that the finding implicit in the district court's dismissal of Griffin's case is clearly erroneous. The ship w......
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Griffin v. U.S., 73-2811
...by the stevedore is nonetheless an unseaworthy condition in the workman's action against the shipowner. E. g., Alaska Steamship Co. v. Garcia, 378 F.2d 153 (9th Cir. 1967)." Griffin v. United States, 469 F.2d 671, 672 (9th Cir. 1972). On the previous appeal, this court held that the ship wa......