Anuszewski v. Dynamic Mariners Corp. Panama

• Decision Date: 13 March 1975
• Docket Number: Civ. No. 73-1220-K.
• Citation: 391 F. Supp. 1143
• Parties: Joseph ANUSZEWSKI and Ronald Gutowski to their own use and to the use of Liberty Mutual Insurance Company v. DYNAMIC MARINERS CORP. PANAMA.
• Court: U.S. District Court — District of Maryland

391 F. Supp. 1143

Joseph ANUSZEWSKI and Ronald Gutowski to their own use and to the use of Liberty Mutual Insurance Company

v.

DYNAMIC MARINERS CORP. PANAMA.

Civ. No. 73-1220-K.

United States District Court, D. Maryland.

March 13, 1975.

Bernard J. Sevel, Baltimore, Md., for plaintiff.

Eugene A. Edgett, Jr., Baltimore, Md., for use plaintiff.

Randall C. Coleman, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, District Judge.

In this case which has been tried non-jury before this Court two plaintiffs seek damages resulting from injuries sustained by each of them while working as longshoremen aboard a vessel docked in the Baltimore, Maryland area. Their claims raise questions of the meaning and application of one of the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act. That amendment is set forth in 33 U.S. C. § 905(b).¹

FINDINGS OF FACT AND HOLDINGS

The accident in question occurred in the lower hold of the No. 1 hatch. The vessel arrived in Baltimore from New York after there discharging all cargo from the upper tween deck of No. 1 hatch. In the lower tween deck and the lower hold of No. 1 hatch was Baltimore cargo. A gang carrier and 23 men employed by the Nacirema Operating Co., Inc., a stevedoring company which had no connection with the prior discharge of cargo in the New York area from the upper tween deck of No. 1 hatch or from any other part of the vessel, came aboard the ship on February 17, 1973 at 8:00 a. m. and commenced work, including the removal of the hatch covers between the upper tween and the lower tween deck of No. 1 hatch. Later in the day of February 17, 1973, after the lower tween deck had been unloaded, the hatch cover between the lower tween deck and the lower hold of No. 1 hatch was removed by the longshoremen. The hatch cover over the lower tween deck, and the hatch cover between the lower tween deck and the lower hold and covering the latter, were each supported by four beams. The three aftermost beams below each such cover were removed by the gang after each such hatch cover was lifted during their work on February 17th, but the forward of the four beams below each such cover was left in place.

On February 17, 1973, the gang members discharged all of the cargo from the lower tween deck and some of the cargo from the lower hold. On February 18, 1973, they completed discharge from the lower hold. The plaintiffs were injured on February 18, 1973 during the unloading of the lower hold when the forward of the four beams, above the lower hold and which, when it was in place, supported the hatch cover over the lower hold, was dislodged by a cargo hook. That hook, during the discharge operation on February 18th, became caught under the beam, lifted the beam out of its socket and dropped it into the lower hold where it fell upon plaintiffs who were at work there.

When the gang removed the hatch covers over the lower tween deck and later over the lower hold, they found that all of the pins which held those eight beams in place were missing and that none of the eight beams was locked in place or otherwise secured by rope or other means. The lack of such locking or fastening of the beams over the lower tween deck was noted by and discussed among members of the gang when they removed the hatch cover over the lower tween deck about the time they commenced their work on February 17th. The foreman of the gang told its members to work and that the situation would be corrected. The men continued to work on February 17th and 18th but the situation was not corrected.

The weather on the two days was cold and there was not the maneuverability that would have existed on other than a cold day. However, the boom to which the hoist was attached could have been respotted at one or more times on February 17th and 18th to make it more probable that first one, and then two, of the eight beams would not be dislodged. While the evidence does not establish that respotting of the boom would have necessarily avoided the accident, respotting might have decreased the chances of the accident occurring. Further, in any event the evidence does establish that there was room to place on the weather deck the two forward beams, which were under the hatches covering the lower tween deck and the lower hold, if those two beams had been removed as were the other two respective groups of three beams each. Further, the evidence additionally establishes that there was also available at a Nacirema supply office, within a half block of the spot at which the vessel was docked, rope and probably also nuts and bolts, which could have been used to fasten the two forward beams in place in lieu of their removal or in lieu of their being left in place without fastening. In sum, there was negligence on the part of Nacirema in not achieving rather easily a condition of safety. That failure would seemingly have been obviated (a) if Nacirema had provided, as it did not, a safety man aboard ship on February 17th and 18th and if that safety man had performed his job, and (b) even without the safety man, if the gang leader had obtained rope or some other items from the Nacirema supply office and secured the beams, or had required the fastening or the removal of even just the forward beam covering the lower hold of No. 1 hatch.

A crewman of the vessel who was present during the discharge described above for the purpose of preventing pilferage, as well as one or more other members of the ship's crew, was in a position to see that the beams were unfastened. However, there is no evidence that any crewman was at any time asked by anyone employed by Nacirema to correct the situation. There were on hand in a nearby chain locker of the ship items which could have been used to fasten the beams left in place, but no one requested that such items be utilized.

The appropriate practice while any cargo was being handled in a portion of a hatch below any beam of the type of the eight beams in question was to have such beam secured through the use of the pins for which each such beam was fitted, or to have such beam otherwise secured. The failure to secure the two beams during the unloading operation on February 17, 1973 and February 18, 1973 was in violation of section 1504.43(e) of the Safety and Health Regulations for Longshoring, 29 C.F.R. § 1918.43(e).² While the primary duty under that regulation to make certain that the beams left in place during the unloading operation was upon the stevedore,³ the failure of the vessel to lock or fasten the beams constituted negligence on the part of the shipowner since the shipowner, at least in terms of knowledge of the crew member stationed to prevent pilferage, and in terms of those responsible for handling the ship from the time of its departure from New York, knew or should have known of the violation of the safety regulation. Provenza v. American Export Lines, Inc., 324 F.2d 660, 665 (4th Cir. 1963). But that negligence on the part of the ship is not actionable negligence in a post-1972 setting, for reasons which are discussed infra.

The longshoremen removed all of the unlocked beams except two. The presence of the forward beam left in place above the lower tween deck has not been proven by plaintiffs to have contributed to the accident, that is, there is no evidence that if the forward beam above the lower tween deck had not been in place, the boom would have been operated so as to have avoided the cargo hook having become attached to the forward beam above the lower hold. By way of contrast, of course, it is clear that the accident would not have occurred except for the presence of the forward beam above the lower hold. But that presence could have been eliminated by removal or fastening of that beam by the stevedore on February 17th or before the accident on February 18th. Instead, the stevedore company negligently left that beam in place and unsecured.

The issue in this case is whether the ship's continuing failure up to and including the moment of the accident to take steps to correct the condition which existed after one or both of the forward beams was left in place and unsecured renders the ship liable to plaintiffs. Before the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, that condition itself would seemingly have constituted unseaworthiness. But unseaworthiness has been eliminated as a remedy for longshoremen by the addition in 1972 of what is presently codified as 33 U.S.C. § 905(b) of that Act. That subsection provides as follows:

(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.

The applicable section of the Report of the House Committee on Education and Labor, No. 92-1441, 92d Cong., 2d Sess., prepared in connection with the 1972 amendments is set forth in 3 U.S.Code ...