Bachtel v. Mammoth Bulk Carriers, Ltd., s. 77-3645
| Decision Date | 20 August 1979 |
| Docket Number | 77-3043,Nos. 77-3645,s. 77-3645 |
| Parties | 1979 O.S.H.D. (CCH) P 23,819 James D. BACHTEL and Donna Bachtel, Plaintiffs-Appellees, v. MAMMOTH BULK CARRIERS, LTD., Defendant-Appellant. Twin Harbor Stevedoring Co., Intervenor. James D. BACHTEL and Donna Bachtel, Plaintiffs-Appellants, v. MAMMOTH BULK CARRIERS, LTD., Defendant. Twin Harbor Stevedoring Co., Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert D. Duggan, Levinson, Friedman, Vhugen, Duggan, Bland & Horowitz, Seattle, Wash., for plaintiff-appellees.
John P. Sullivan and M. Bayard Crutcher, Bogle & Gates, Seattle, Wash., for defendant-appellant.
Paul C. Gibbs, Williams, Lanza, Kastner & Gibbs, Seattle, Wash., for intervenor-appellee.
Appeal from the United States District Court, Western District of Washington.
Before KILKENNY and SNEED, Circuit Judges, and WATERS, District Judge. *
Mammoth Bulk Carriers (Mammoth) appeals from a judgment entered in an action prosecuted by appellee James D. Bachtel and his wife for personal injuries sustained by him when he fell to the dock from a logload on the deck of the M/S MAMMOTH FIR, a vessel owned by Mammoth. Bachtel was employed as a longshoreman by Twin Harbor Stevedoring Co., a stevedore engaged in loading logs on board the vessel. After a trial by jury, a judgment was entered in favor of the Bachtels. Before verdict, the stevedore company intervened pursuant to 33 U.S.C. § 933 and asserted a lien against the recovery in the amount of the
worker compensation benefits it had paid. The Bachtels moved for a pro-rata contribution of attorney fees from the intervenor. The district court denied the motion. The Bachtels appeal from this denial. The parties stipulated that the two appeals should be consolidated for all permissible purposes under FRAP 3(b).
The MAMMOTH FIR, a bulk log carrier in the Pacific trade, is similar to many other log carriers in design and construction. It has five hatches, all forward of the house. It was manned by a Korean crew. The accident occurred in Aberdeen, Washington, a major log exporting port. Ninety percent of the stevedoring work in that area is the loading of log ships. The MAMMOTH FIR was moored in a berth and at the time of the accident was fully loaded. The lashing of the deck cargo of logs was the only work remaining to be done by the stevedore.
The deck load of logs was contained within steel stanchions along both sides of the vessel. The stanchions rose 20 feet from the deck and the logs rose to within a foot or two from the top of the stanchions. The load was "trimmed" to reach a height approaching 30 feet at the centerline of the ship. The deck load was to be secured with wire (cable) ropes, assisted by heavy chains. Each wire rope and chain was shackled at the lower end to a pad eye on the deck. The ropes were laid over the top of the logs from both sides of the ship, about six feet apart, and tightened by "lacing" them together at the peak or top of the load. The chains were then lifted by a winch from both sides of the ship and strung to the peak of the load to be straightened and freed by longshoremen of any twists, each chain to be secured to its opposing chain by a turn buckle. The work of straightening the chain is commonly known as "pulling."
The accident occurred while Bachtel, in his employment as a longshoreman, was helping another longshoreman pull a chain atop the starboard side of the deck load at the number two hatch. 1 While Bachtel and his co-worker were taking the twists out of the chains, Bachtel fell some 30 feet to the dock below. There is some confusion as to the manner in which he actually fell, but there is no question that he was on the top starboard side of the deck load of logs when he started his fall and he was seriously injured.
Briefly stated, the Bachtels charged Mammoth with negligence in the following particulars:
(1) Failing to provide a means of erecting a safety line or safety net at the edge of the loaded deck when it knew or in the exercise of reasonable care should have known that longshoremen would be required to work at or near the edge of the deck load and thereby be exposed to a high risk of falling.
(2) Permitting the loading of logs on its deck above the level of the stanchions when it knew or in the exercise of reasonable care should have known that safety lines or safety nets would not be rigged to minimize the risk of longshoremen personnel falling to the dock below.
(3) Directing the design of the logload on its deck at levels which created an unreasonable risk of harm to longshore personnel without providing the means for erecting safety lines or nets or other equipment to minimize such risk.
(4) Failing to require the stevedore to take precautions to prevent the risk of falling when Mammoth knew that the contracted work created a risk of harm by falling, this contention being based on the land based standard of care imposed on contractors under Restatement of Torts (Second).
(5) Violating OSHA's Safety and Health Regulations for longshoring, 29 C.F.R. § 1918.32(b).
At the close of the Bachtels' case, Mammoth moved for a directed verdict. This motion was denied and Mammoth went forward with its case. At the close of the
evidence and before submission to the jury, Mammoth failed to again move for a directed verdict. It did, however, propose a jury instruction to direct a verdict in Mammoth's favor, which was refused by the district court. After instructions and arguments, the jury returned a verdict in favor of Bachtel for damages in the sum of $305,109.00 and in favor of his wife for loss of consortium in the sum of $50,000.00. In arriving at its verdict, the jury found that Bachtel was guilty of negligence to the extent of 25% And accordingly reduced the recoveries to $266,331.75. Mammoth then moved for a judgment notwithstanding the verdict pursuant to Rule 50(b), FRCivP. Mammoth's assignments of error are grounded upon the denial of this motion.
I. Did the court err in denying appellant's motion for judgment notwithstanding the verdict?
II. Was Mammoth guilty of "negligence" as that word is used in 33 U.S.C. § 905(b)?
III. Was one of the court's instructions erroneous as a matter of law?
IV. Did the court err in denying the Bachtels' motion to allocate attorney fees between themselves and the stevedore?
In reviewing the issues before us, we must look to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 Et seq. (the Act). Bachtel brought his action under the 1972 amendments to the Act; in particular, 33 U.S.C. § 905(b). These amendments radically changed the law in this field. By virtue of these amendments, the longshoreman is entitled to increased workers' compensation benefits, but these benefits now constitute his sole remedy against the stevedore. However, the longshoreman has a cause of action against the vessel owner on a negligence theory, the former "unseaworthiness" brand of strict liability being abolished by the Act. Additionally, the shipowner, if liable, has no cause of action for indemnity against the stevedore.
If, under the provisions of the Act, the injured longshoreman fails to bring an action against the shipowner within six months, the stevedore or its compensation carrier, has the right to do so on his behalf. If the stevedore brings the action, the statute provides for the manner in which the recovery is to be distributed. 33 U.S.C. § 933(e). The statute is silent as to distribution of proceeds when the longshoreman brings the suit, but it is clear that the stevedore has a lien against the longshoreman's recovery for the amount of benefits it has paid. The statute also does not define negligence. However, Congress clearly did not intend to use the word in its common law sense. We shall touch upon this subject later in the opinion.
In the light of our conclusion that the evidence of Mammoth's negligence is substantial, if not overwhelming, we find no reason to examine in detail the merits of Mammoth's contention that the court erred in failing to grant its motion for judgment notwithstanding the verdict. As to the Bachtels' contention that the procedural provisions of FRCivP 50(b) 2 preclude our consideration of this issue, no doubt the district court considered Mammoth's motion for a directed verdict at the close of the plaintiff's case and in addition its request for an instruction requiring the jury to return a verdict in Mammoth's favor. These procedural steps placed the issue of the sufficiency Although Guerrero v. American-Hawaiian Steamship Co., 222 F.2d 238, 244 (CA9 1935), uses strong language in support of a strict enforcement of Rule 50(b), what is there said must be viewed in the light of the fact that a summary judgment was involved and the judge, rather than a jury, decided the case.
of the evidence directly before the court. Consequently, the court had jurisdiction to pass on the sufficiency of the evidence under the Rule 50(b) motion even though there was no motion for a directed verdict as required by the rule.
Our view, as above expressed, is supported by Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814, 817 (CA2 1970); Jack Cole Co. v. Hudson, 409 F.2d 188, 191 (CA5 1969) (); and 9 Wright & Miller 2539, p. 608. We decline to follow the demagogic approach expressed in DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193 (CA3 1978), or Martinez-Moll v. Levitt & Sons of Puerto Rico, Inc., 583 F.2d 565 (CA1 1978). Accordingly, we hold that the district court properly denied Mammoth's Rule 50(b) motion on the ground that the evidence was sufficient to support the verdict.
Before the 1972 amendments to the Act, the...
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