Byrd v. Reederei

• Decision Date: 12 March 1981
• Docket Number: No. 78-3064,78-3064
• Citation: 638 F.2d 1300
• Parties: Willie Mae BYRD, As Administratrix of the Estate of Lawrence Byrd, deceased, Plaintiff-Appellant-Cross Appellee, v. Heinrich Schmidt REEDEREI, Defendant-Appellee-Cross Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1300

638 F.2d 1300

Willie Mae BYRD, As Administratrix of the Estate of Lawrence

Byrd, deceased, Plaintiff-Appellant-Cross Appellee, v. Heinrich Schmidt REEDEREI, Defendant-Appellee-Cross Appellant.

No. 78-3064.

United States Court of Appeals, Fifth Circuit.

Unit B

March 12, 1981.

Joel D. Eaton, Walter H. Beckham, Jr., Miami, Fla., Roger Vaughan, Wagner, Cunningham, Vaughan & Genders, Tampa, Fla., for plaintiff-appellant, cross-appellee.

Fowler, White, Gillen, Boggs, Villareal & Banker, Nathaniel G. W. Pieper, Dewey R. Villareal Jr., Tampa, Fla., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Middle District of Florida.

Before KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges and ALLGOOD ^*, District Judge.

KRAVITCH, Circuit Judge:

This action under the Longshoremen's and Harbor Workers' Compensation Act ¹ arises from the death of Lawrence Byrd, a longshoreman killed while loading freight aboard a ship owned by appellee, Heinrich Schmidt Reederei. The jury found Reederei negligent and assessed total damages of appellant Willie Mae Byrd, Byrd's widow and the administratrix of his estate, at $125,000. The jury also found Byrd 50% at fault. The court rendered judgment for appellant Byrd in the amount of $62,500, half the damages assessed. Two issues confront us: 1) whether, as a matter of law under the Act (LHWCA) as amended in 1972, a longshoreman may be found contributorily negligent for failing to stop work after a shipowner has been notified of a dangerous condition and fails to remedy it; ² and 2) whether a jury instruction not to consider inflation in calculating damages was erroneous. We conclude that the court improperly applied contributory negligence but did not err in its jury instruction regarding inflation; Johnson v. Penrod Drilling Co., 510 F.2d 234 (5th Cir. 1975) (en banc), prohibiting instructions contra, remains the law of this circuit. We affirm in part, reverse in part and remand with directions that the district court enter judgment for appellant in the full amount, $125,000, found by the jury.

I.

The facts are not in dispute. Shortly after midnight on July 28, 1975, the German ship M/V ANTARES arrived at Port Manatee, Florida to be fully loaded with densely compacted old cardboard cartons (hereafter, "OCC"). Reederei, the vessel's owner, had retained as stevedore Eller & Co. to carry out the loading operations. Lawrence Byrd was one of several independent longshoremen Eller & Co. hired at the local union hall on the morning of July 28 to load the ship.

The stevedoring hierarchy, insofar as it is relevant, was as follows: Eller's "ship superintendent" Michael O'Kash was in charge. Below him were two "ship foremen," Willie Doby and Hugh Overton. Under the ship foremen were four "headers," each of whom was responsible for overseeing the loading of one of the ship's four holds, and the longshoring "gang" assigned to that hold. Rudy Logan was the "header" in charge of the number 3 hold; his gang consisted of nine men: two "landers" on the pier, who tied the bales of OCC to the crane-like cargo boom; a "winchman" operating the cargo boom on board the deck; a "flagman" directing the winchman; a forklift operator in the hold who placed the lowered bales into a stowed position; three "pullers" in the hold who detached the bales from the cargo boom's hook after they were lowered; and an additional longshoreman who rotated between the winch and forklift, freeing one man from work.

The bales of OCC, each measuring five feet by five feet by three and a half feet, tied with wire, and weighing approximately 1500 pounds, were thus lifted from the pier and lowered through the narrow opening in the top of each hold by the cargo boom, detached from the boom by the "pullers," and moved to the sides of the hold and stowed in stacks six high by the forklift operator. Eller & Co. selected this method of stowage. ³

On July 28, Byrd, who had 22 years' experience as a longshoreman and was qualified to be a header, was hired as a puller and assigned to the number 3 hold. With him as pullers were Lucious Holden and William Avant. Holden had five years' experience as a longshoreman and Avant slightly less than that. With respect to complaints regarding working conditions, the stevedoring hierarchy was strictly enforced: "pullers" were to complain only to "headers" who in turn could speak only to the ship foremen who, with O'Kash, could complain directly to the vessel's crew. Anyone, however, could complain to the crew of very serious conditions.

The lines tying the ship to the pier descend from the ship to the pier. As the ship is loaded, riding lower in the water, they slacken, ⁴ allowing the ship to roll and creating the possibility that stacked freight can fall. (With slack lines, the ship rolls inshore each time a cargo boom lifts cargo from the pier.) ⁵ The lines must therefore be continually tightened during loading. The parties agree that tight lines and a stable ship are essential to safe loading and that on board the ANTARES these conditions were solely the responsibility of the ship's crew and not of the stevedore or of individual longshoremen, who were forbidden to touch the lines. The parties further agree that on July 28 the lines slackened throughout the day, the ship rolled considerably, and stevedore employees repeatedly complained of this condition to the ship's crew. Reederei also admits that although the ship's rolling and the complaints continued into the afternoon, ⁶ the crew tightened the lines only once, at approximately 10:15 a. m.

At 3:50 p. m., Byrd, Holden and Avant were in the number three hold with the forklift operator awaiting delivery of additional bales. The men stood on the offshore side of the hold in front of a number of bales which had already been stowed, since this was their safest location when the cargo boom brought the cargo in over the inshore side of the hatch. Without warning, several bales fell from the stacks in the offshore wing toward the center of the hold, striking the forklift and the three men. Two bales fell on Byrd, crushing his chest. He died approximately 25 minutes later. Holden and Avant were injured.

In her complaint, appellant alleged that the shipowner's negligence was a proximate cause of her husband's death. Holden and Avant brought like suits; the three were consolidated for trial. Reederei denied liability and alleged alternatively that the three men, having continued to work under conditions they knew to be dangerous, were contributorily negligent. ⁷ The court denied plaintiffs' motion for a directed verdict on the contributory negligence issue, stating that the evidence of plaintiffs' negligence "may be slight or nil" but that continuing to work under dangerous conditions after protesting to no avail "could arguably constitute negligence." Hence, it submitted the question to the jury. Over plaintiffs' objection, the court also charged the jury that they were not to increase any damages awarded to plaintiffs because of an expectation of future inflation. The jury found Reederei negligent, and Lawrence Byrd, Holden and Avant 50%, 20% and 10% at fault, respectively. It assessed appellant's damages at $125,000, ⁸ and the court entered judgment for her in the amount of $62,500. Willie Mae Byrd's motions for a new trial and for judgment notwithstanding the verdict were denied.

On appeal Byrd raises three issues: 1) that the trial court erroneously denied her motions for a directed verdict and for judgment notwithstanding the verdict on the issue of contributory negligence, instead submitting it to the jury, 2) alternatively, that the trial court erroneously denied her motion for new trial on the ground that the jury's assignment of three different percentages of fault to Byrd, Holden and Avant and its finding that Byrd was equally at fault with the shipowner for failing to stop work were irrational and against the manifest weight of the evidence, and 3) that the court erred in refusing to allow the jury to consider the effects of inflation in awarding damages.

II.

Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969) (en banc) governs our review of motions for directed verdict. Unless there was "a conflict in substantial evidence," 411 F.2d at 375, the court improperly submitted the question to the jury. Appellant Byrd argues that there was no evidence favoring appellee on this issue, because holding a longshoreman contributorily negligent for failing to stop work after he has complained to no avail of dangerous working conditions is tantamount to holding that he assumed the risk, a now impermissible defense. Reederei counters that contributory negligence properly applies in this situation, especially under the 1972 amendments to the LHWCA. In this guise the issue is drawn; Reederei does not argue that Byrd (or his co-workers Holden and Avant) was negligent in any respect other than failing to stop work.

We first note that there is no question ⁹ that assumption of the risk is not a permissible defense to actions brought under the LHWCA, as was made clear in Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1238 (5th Cir. 1977):

(C)ertain common land-based principles of state law are not to be carried over into the federal law governing LHWCA suits. Assumption of risk may not be utilized as a defense....

Thus, our primary question is whether, as appellant claims, the trial court impermissibly applied the assumption of risk defense, albeit by another name contributory negligence or whether, as appellee contends, this is merely a factual inquiry to which contributory negligence properly applies.

In Schlemmer v. Buffalo, Rochester & Pittsburgh Railway Co., 205 U.S. 1, 27 S.Ct. 407, 51 L.Ed. 681 (1907), the Supreme Court faced a similar question. A railroad employee was killed while performing his job and the statute under which his administrator sued abrogated an assumption of the...