Boncich v. MP Howlett, Inc.

• Decision Date: 11 November 1976
• Docket Number: 75 C 394 and 75 C 1039.,No. 74 C 1837,74 C 1837
• Citation: 421 F. Supp. 1300
• Parties: Regina BONCICH, Administratrix of the Estate of John Boncich, Deceased, Plaintiff, v. M. P. HOWLETT, INC. and American Chain & Cable Company, Inc., Defendants. Complaint of M. P. HOWLETT, INC., Plaintiff, as owner of the BARGE M. P. HOWLETT # 19, in a cause of Exoneration from or Limitation of Liability. BALTIC STEAMSHIP COMPANY, Plaintiff, v. INTERNATIONAL TERMINAL & OPERATING COMPANY, INC., and American Chain and Cable Company, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

421 F. Supp. 1300

Regina BONCICH, Administratrix of the Estate of John Boncich, Deceased, Plaintiff, v. M. P. HOWLETT, INC. and American Chain & Cable Company, Inc., Defendants.

Complaint of M. P. HOWLETT, INC., Plaintiff, as owner of the BARGE M. P. HOWLETT # 19, in a cause of Exoneration from or Limitation of Liability.

BALTIC STEAMSHIP COMPANY, Plaintiff, v. INTERNATIONAL TERMINAL & OPERATING COMPANY, INC., and American Chain and Cable Company, Inc., Defendants.

Nos. 74 C 1837, 75 C 394 and 75 C 1039.

United States District Court, E. D. New York.

October 26, 1976.

Corrected in Supplemental Mem. and Order November 11, 1976.

Alexander, Ash, Schwartz & Cohen, New York City, for defendant Am. Chain & Cable.

Kreindler & Kreindler, New York City, for plaintiff Boncich; Paul Edelman, New York City, of counsel.

Macklin, Hanan & McKernan, Hyde, Dickerson & Reilly, New York City, for defendant Howlett; Charles Tomaselli, New York City, of counsel.

Haight, Gardner, Poor & Havens, New York City by Richard Licata, New York City, of counsel, for plaintiff Baltic.

Hill, Rivkins, Carey, Loesberg & O'Brien, New York City, for defendant and third party plaintiff I.T.O.; Robert E. Daley, New York City, of counsel.

MEMORANDUM AND ORDER

GEORGE C. PRATT, District Judge.

PRELIMINARY STATEMENT

On March 5, 1974, the floating steel barge M. P. HOWLETT # 19 was engaged in loading and unloading cargo containers from the Soviet vessel m/v NOVOLVOVSK at a Brooklyn, New York pier. At about 5:30 P.M. a topping lift cable of the barge's crane parted and the boom fell to the deck of the barge. After the incident, two longshoremen, John Boncich and Frank Mignano, employees of the International Terminal and Operating Company, were found injured and the m/v NOVOLVOVSK sustained damage to its hull. John Boncich subsequently died from his injuries.

To date, this occurrence has spawned a total of six actions which are now pending before this court:

74 C 1837. By Regina Boncich, as administratrix of the estate of John Boncich, for wrongful death and conscious pain and suffering against M. P. Howlett, Inc., (Howlett) the barge owner, in negligence; and against American Chain and Cable Company, the purported manufacturer and seller of the allegedly defective crane cable, for negligence, breach of warranty, and strict tort liability.

75 C 394. By Howlett, for exoneration and limitation of liability pursuant to 46 U.S.C. §§ 182-88.

75 C 1039. By Baltic Steamship Company, the owner of the m/v NOVOLVOVSK, for property damage against International Terminal and Operating Company, the stevedore, for negligence and breach of warranty of workmanlike service; and against American Chain and Cable for negligence, breach of warranty, and strict tort liability.

75 C 1549. By Baltic Steamship Company against Jones and Loughlin Steel Corp., as purported designer, manufacturer, assembler, inspector, and vendor of the allegedly defective cable, for negligence, breach of warranty, and strict tort liability.

75 C 1550. By Regina Boncich against Jones and Loughlin Steel Corp. for negligence, breach of warranty, and strict tort liability.

76 C 310. By Frank Mignano, the other injured longshoreman, against Howlett, for personal injuries in negligence. (Proceedings against original codefendant American Chain and Cable were discontinued by Mignano without prejudice.)

By the instant motion, Regina Boncich seeks to amend her complaint in the negligence action against Howlett, (74 C 1837) and her claim and answer in the exoneration/limitation proceeding (75 C 394) to include a claim in strict tort liability against Howlett. In addition, the motion seeks to consolidate both these actions with the Baltic Steamship action for property damage (75 C 1039). For the reasons discussed below, both motions are in all respects denied.

STRICT TORT LIABILITY CLAIM

Regina Boncich's claims against Howlett, for wrongful death and pain and suffering are governed by the Longshoremen's and Harbor Workers' Compensation Act (LAHWCA), 33 U.S.C. §§ 901-50. Of particular importance is § 905 of the LAHWCA which provides:

(a) The liability of an employer prescribed in section 904 of this title shall be exclusive * * * on account of such injury or death.

(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 on 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.

Specifically, the question to be answered is whether § 905 bars this attempt by Regina Boncich to assert an independent basis of recovery in strict tort liability in addition to her negligence claim against the vessel owner.

Prior to 1972, a longshoreman could sue the owner of a vessel on which he was working or by which he was employed for breach of the warranty of seaworthiness of the vessel. In 1972, however, Congress eliminated all unseaworthiness claims by longshoremen and limited a longshoreman's recovery to compensation under the LAHWCA and, when applicable, to a claim against the vessel owner for negligence. 33 U.S.C. §§ 904-05, 933. Nonetheless, in Streatch v. Associated Container Transportation, Ltd., 388 F.Supp. 935 (C.D.Cal.1975), the district court interpreted the phrase "exclusive of all other remedies against the vessel" in § 905 to apply only to all other maritime remedies, and despite the inclusiveness of the words "all other remedies" permitted the imposition of a strict tort liability claim. This court finds Streatch unpersuasive in the instant case.

First, as the legislative history of the 1972 amendments indicates, "persons to whom compensation is payable under the Act retain the right to recover damages for negligence against the vessel, but under these amendments they cannot bring a damage action under the judicially-enacted doctrine of unseaworthiness." House Report No. 92-1441, 92d Congress, 2d Session (1972), U.S.Code Cong. & Admin.News 1972, pp. 4698, 4703. Significantly, the amendments specifically eliminated an unseaworthiness claim against the vessel owner resulting from defective gear or equipment of stevedores. Id. Moreover, among the conditions which might render a vessel unseaworthy, and thereby impose liability on a vessel owner, were defective gear and appurtenances. See, e. g., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944) (defective rope); Avena v. Clauss & Co., 504 F.2d 469 (C.A.2 1974) (defective loading strap); T. J. Stevenson & Co. v. George W. Whiteman Towing, Inc., 331 F.Supp. 1038 (D.La.1970) (defective heaving line).

Since the allegedly defective cable on the HOWLETT # 19 constituted gear, appliances, or appurtenances once covered by the seaworthiness doctrine, and the 1972 amendments expressly eliminated claims based on unseaworthiness, a claim based on the "defective" cable cannot be made cognizable under the LAHWCA merely because it is couched in terms of strict tort liability rather than unseaworthiness or nondelegable duty.

Second, the legislative history provides additional insight to the purpose of the LAHWCA and its exclusiveness of remedies provisions.

Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition. House Report, supra at 4704.

In Ianuzzi v. South African Marine Corp., 510 F.2d 950 (C.A.2 1975), the Second Circuit followed this reasoning and, treating the issue of a defective winch as a negligence claim, found that "notice of the particular defect causing the accident is necessary if a shipowner is to be held liable in negligence for failing to take defective equipment off the line." Id. at 955; accord, Rice v. Atlantic Gulf & Pacific Co., 484 F.2d 1318, 1320 (C.A.2 1973). Moreover, "having abolished the doctrine of unseaworthiness as a basis of liability, Congress did not intend that a concept of negligence approximating no-fault liability should take its place." Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, at 507 (C.A.2 1976). See Bess v. Agromar Line, 518 F.2d 738, 741 (C.A.4 1975). To permit a claim for strict tort liability within the context of the LAHWCA would add nothing to the legislative intent of promoting a vessel owner's responsibility; rather, it would permit recovery on the "no-fault" basis denounced by the Second Circuit. In fact, even the legislative history to the 1972 amendments notes that "the Committee also rejected the thesis that a vessel should be liable without regard to its fault * * *" House Report No. 92-1441, supra at 4702.

Finally, the conclusion...