Arvidson v. DILLINGHAM CORPORATION, 25951.

• Decision Date: 26 May 1972
• Docket Number: No. 25951.,25951.
• Citation: 462 F.2d 1
• Parties: William ARVIDSON et al., Plaintiffs-Appellants, v. DILLINGHAM CORPORATION, a corporation doing business under the assumed business name of Albina Engine & Machine Works, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

462 F.2d 1 (1972)

William ARVIDSON et al., Plaintiffs-Appellants, v. DILLINGHAM CORPORATION, a corporation doing business under the assumed business name of Albina Engine & Machine Works, Defendant-Appellee.

No. 25951.

United States Court of Appeals, Ninth Circuit.

May 26, 1972.

Alex L. Parks (argued), of Parks Teiser & Rennie, Portland, Or., Edwin C. Lagerquist, of Smith, Anderson, Jacob & Lagerquist, Portland, Or., for plaintiffs-appellants.

Garry P. McMurry (argued), of McMurry, Sherry, Nichols & Cox, Portland, Or., for defendant-appellee.

Before ELY and HUFSTEDLER, Circuit Judges, and JAMESON,^* District Judge.

JAMESON, District Judge:

This is an appeal from a summary judgment in favor of defendant-appellee in four separate actions (consolidated for trial) commenced by plaintiffs-appellants, who were painters employed by appellee, for personal injuries suffered in an explosion and fire on a barge which was being constructed by appellee for its own use.¹ Appellee voluntarily commenced the payment of benefits under the Oregon Workmen's Compensation Law, Oregon Revised Statutes 656.001 et seq., and the payments were accepted by appellants.²

In their complaints appellants alleged both negligence and unseaworthiness. They later conceded that they could not recover for unseaworthiness because the vessel was not in navigation when they sustained their injuries. They contend that they have a direct cause of action against their employer for negligence in failing to furnish them a safe place to work. Appellee contends, and the district court held, that because appellants have been compensated under the Oregon Workmen's Compensation Law³ they are barred from further recovery by the Longshoremen's and Harbor Workers' Compensation Act.⁴ In granting summary judgment the district court concluded:

"Notwithstanding plaintiffs\' excellent briefs, I have concluded that the Longshoremen\'s and Harbor Workers\' Compensation Act of 1927 does preclude the actions. Moreover, because the actions are not based on unseaworthiness, they are not within the judicial exception of Seas Shipping Co. v. Sieracki, 328 U.S. 85 66 S.Ct. 872, 90 L.Ed. 1099 (1946) and its progeny: Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124 76 S.Ct. 232, 100 L.Ed. 133 (1956); Reed v. The Yaka, 373 U.S. 410 83 S.Ct. 1349, 10 L.Ed.2d 448 (1963); and Jackson v. Lykes Brothers Steamship Co., 386 U.S. 731 87 S.Ct. 1419, 18 L.Ed.2d 488 (1967)."

We agree and affirm.

Appellants argue that the decisions of the Supreme Court in Reed v. The Yaka, 1963, 373 U.S. 410, 83 S.Ct. 1349, 10 L.Ed.2d 448, and Jackson v. Lykes Bros. Steamship Company, 1967, 386 U.S. 731, 87 S.Ct. 1419, 18 L.Ed.2d 488, holding that Section 5 of the Longshoremen's Act (33 U.S.C. § 905) does not bar an action by an employee against his employer for unseaworthiness constitute a "virtual elimination of Section 5" and should be extended to permit an action for the employer's negligence.

The Court had held in Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, that a shipowner's warranty of seaworthiness extended to a longshoreman injured while loading the ship, even though the longshoreman was employed by an independent contractor. In Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, an employee of a stevedoring contractor obtained a judgment against a shipowner. The Court held that the contractor must reimburse the shipowner for damages caused by the contractor's breach of its duty to stow the cargo properly and safely. In referring to Sieracki and Ryan, the Court in Reed said in part:

"But we cannot now consider the wording of the statute alone. We must view it in the light of our prior cases in this area, like Sieracki, Ryan, and others, the holdings of which have been left unchanged by Congress. In particular, we pointed out in the Sieracki case, which has been consistently followed since, that a shipowner\'s obligation of seaworthiness cannot be shifted about, limited, or escaped by contracts or by the absence of contracts and that the shipowner\'s obligation is rooted, not in contracts, but in the hazards of the work."

The Court continued:

"In the light of this whole body of law, statutory and decisional, only blind adherence to the superficial meaning of a statute could prompt us to ignore the fact that Pan-Atlantic was not only an employer of longshoremen but was also a bareboat charterer and operator of a ship and, as such, was charged with the traditional, absolute, and nondelegable obligation of seaworthiness which it should not be permitted to avoid."⁵ 373 U.S. at 414-415, 83 S.Ct. at 1353.

In Jackson, a longshoreman, employed by a shipowner in navigable waters, died from inhalation of noxious gases. His widow sued in Louisiana State court alleging that his death was proximately caused either by the shipowner's negligence in operating the ship or by the ship's unseaworthiness.⁶ The Louisiana courts held that the action was barred by § 5 of the Longshoremen's and Harbor Workers' Act, distinguishing Reed v. The Yaka, supra, on the ground that it involved an action in rem and the intervention of a third party. In reversing, the Supreme Court followed Reed and held that a longshoreman employed on a ship, whether by an independent contractor or by the shipowner, can recover for the unseaworthiness of the ship.

It is conceded that all of the cases in which the Supreme Court has permitted recovery by a longshoreman from his employer were based on a charge of unseaworthiness.⁷ Subsequent to Jackson, the Court has continued to recognize a clear distinction between liability based on unseaworthiness and liability based on negligence—most recently in Usner v. Luckenbach Overseas Corp., 1971, 400 U.S. 494, 498-499, 91 S.Ct. 514, 27 L.Ed.2d 562,⁸ where the Court said:

"A major burden of the Court\'s decisions spelling out the nature and scope of the cause of action for unseaworthiness has been insistence upon the point that it is a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by statute or under general maritime law. More specifically, the Court has repeatedly taken pains to point out that liability based upon unseaworthiness is wholly distinct from liability based upon negligence. The reason, of course, is that unseaworthiness is a condition, and how that condition came into being—whether by negligence or otherwise—is quite irrelevant to the owner\'s liability for personal injuries resulting from it.

"We had occasion to emphasize this basic distinction again in Mitchell v. Trawler Racer, 362 U.S. 539 80 S.Ct. 926, 4 L.Ed.2d 941, * * * What has evolved in our case law, we said, is the `complete divorcement of unseaworthiness liability from concepts of negligence.\' 362 U.S. at 550 80 S.Ct. at 933."

Thus the Court in emphasizing the basic distinction between unseaworthiness and concepts of negligence has recognized that a shipowner is charged "with the traditional, absolute, and nondelegable obligation of seaworthiness" (Reed), and that a cause of action based on unseaworthiness is "a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by statute or under general maritime law (Usner)." There is no parallel in the area of maritime negligence. There is no absolute or non-delegable obligation on the part of the employer and no additional or independent cause of action.

The Longshoremen's and Harbor Workers' Act was designed to provide compensation to employees engaged in maritime employment where recovery through workmen's compensation might not validly be provided by state law. Nogueira v. N.Y., N.H. & H.R. Co., 1930, 281 U.S. 128, 131, 50 S.Ct. 303, 74 L.Ed. 754. For those employees entitled to compensation, the remedy is exclusive under Section 5. South Chicago Coal & Dock Co. v. Bassett, 1940, 309 U.S. 251, 256, 60 S.Ct. 544, 84 L.Ed. 732.⁹ Where the employer is also a shipowner, Section 5 does not preclude an action for unseaworthiness, but we find nothing in any of the decisions of the Supreme Court to suggest that this additional right of recovery would be extended to an action for negligence.

Affirmed.

* Honorable William J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

1 The barge was being constructed on appellee's marine railway located on the Willamette River in Portland, Oregon. The lower portion of the railway extends into the Willamette at...