Sea Calm Shipping Co., S.A. v. Cooks

• Decision Date: 29 June 1990
• Citation: 565 So.2d 212
• Parties: SEA CALM SHIPPING CO., S.A., et al. v. Mattie Mae COOKS, individually and as personal representative of the estate of Theodore Cooks, Sr., deceased. 88-1116.
• Court: Alabama Supreme Court

Page 212

565 So.2d 212

1990 A.M.C. 2819

SEA CALM SHIPPING CO., S.A., et al. v. Mattie Mae COOKS, individually and as personal representative of the estate of Theodore Cooks, Sr., deceased.

88-1116.

Supreme Court of Alabama.

June 29, 1990.

Sidney H. Schell of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellant.

Richard F. Pate and J. Wesley Sowell, Mobile, for appellee.

ALMON, Justice.

This is an appeal from a judgment rendered on a jury verdict in favor of Mattie Mae Cooks, individually and as the personal representative of the estate of Theodore Cooks, Sr., and against Sea Calm Shipping Co., S.A. ("Sea Calm"), Sea Traders, S.A., and Hansa Heavy Lift Shipping GmbH ("Hansa") ¹ for $500,000 in an admiralty workmen's compensation action brought under 33 U.S.C. § 905 (1986). The issues concern the sufficiency of the evidence, the admission of expert testimony, and the instructions to the jury.

This case arose from an accident that occurred at the Port of Mobile aboard the M/V Uhenbels, a freighter owned by Sea Calm, a Greek corporation, and operated by Sea Traders, another Greek corporation. The Uhenbels was in Mobile to take on its cargo of six 90-foot shrimp boats that were to be transported to Nigeria. Each shrimp boat weighed about 140 tons. Hansa, a West German corporation, had been hired for its experience and expertise in loading bulky and heavy objects aboard freighters like the Uhenbels. Atlantic and Gulf Stevedore Company ("A & G") was hired as stevedore to provide the labor to accomplish the task of loading the shrimp boats aboard the freighter. Theodore Cooks (hereinafter "Cooks") was employed by A & G as a foreman of the "lashing gang."

The shrimp boats were to be secured to cradles that were supposed to be lashed to the deck of the freighter. Those cradles were large steel structures that weighed more than one ton each. The cradles had been placed on board the freighter prior to the loading of the shrimp boats, but had not been secured to the deck. It was Cooks's job to oversee the workers that were lashing the cradles to the deck of the freighter. The cradles were not stored flat on the deck, but were stored in a vertical position, resting on bases that were approximately 16 inches wide.

While Cooks was overseeing the operations of the lashing gang, a large crane that was on board the freighter was being prepared to raise the shrimp boats out of the water and onto the freighter. Although a number of witnesses testified that the normal practice in such situations is to turn the entire loading operation over to the stevedore and his workers, in this case the crane was being operated by Chief Officer Rousitos of the Uhenbels, at the instruction of Port Captain Puchstein, the Hansa employee who was supervising the loading process. While Rousitos was tightening the cables from the crane that were attached to one of the shrimp boats, the Uhenbels listed and two of the unsecured cradles fell to the deck. One of those cradles struck Cooks, injuring him severely.

Soon after the accident, Cooks filed an action against Sea Calm, Sea Traders, Hansa, and other defendants ² alleging, among other things, that they were negligent and that their negligence was the proximate cause of his injuries. However, 12 days after the accident, Cooks died as a result of the wounds he had received. Following Cooks's death, the action was revived by Mattie Mae Cooks in her individual capacity as Cooks's widow and in her capacity as personal representative of Cooks's estate. That action was brought under 33 U.S.C. § 905 (1986), a provision of the Longshore and Harbor Workers' Compensation Act. This statute provides the exclusive remedy for longshoremen injured or killed during the course of their employment, and it requires the application of comparative negligence concepts. Atkinson v. Gates, McDonald & Co., 665 F.Supp. 516 (S.D.Miss.1987), aff'd, 838 F.2d 808, reh'g denied, 844 F.2d 788 (5th Cir.1988); Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, reh'g denied, 549 F.2d 203 (5th Cir.1977). When an action is brought in state court for a tort that falls within the jurisdiction of the admiralty laws, the state court must apply the principles of admiralty. Kennedy Engine Co. v. Dog River Marina & Boatworks, Inc., 432 So.2d 1214, 1215 (Ala.1983).

The jury returned a verdict in Mrs. Cooks's favor in the amount of $500,000, apportioning responsibility among the appellants as follows: Hansa, 80%; Sea Traders, 15%; and Sea Calm, 5%. The trial court rendered a judgment in accordance with that verdict, and Sea Calm, Sea Traders, and Hansa appeal, arguing that the trial court erred by: (1) denying their motions for directed verdict; (2) allowing a safety expert to testify in Mrs. Cooks's behalf; (3) giving certain jury instructions requested by Mrs. Cooks; and (4) refusing to give certain jury instructions requested by the appellants.

A directed verdict in favor of the defendant is proper when there has been a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ. ³ Elder v. E.I. DuPont De Nemours & Co., 479 So.2d 1243, 1249 (Ala.1985). The appellants argue that they were entitled to a directed verdict for a number of reasons. First, they contend that Sea Calm, Sea Traders, and Hansa did not have a duty to ensure the safety of longshoremen like Cooks during cargo operations. They contend that that responsibility is borne by the stevedore during such operations. Their argument is based on a decision of the Supreme Court, Scindia Steam & Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). In that opinion, the Court, interpreting § 905(b), stated that the primary responsibility for ensuring the safety of longshoremen is on the stevedore during cargo operations, and the responsibility of the vessel (see the definition of "vessel," infra) is to keep the ship in such a condition that the stevedore will be able, by the exercise of ordinary care, to perform cargo operations with reasonable safety to longshoremen. The vessel also has a duty to warn the stevedore of any hazards that are known or that should be known. Scindia, 451 U.S. at 166-67, 101 S.Ct. at 1622, 68 L.Ed.2d at 12.

However, the Court also recognized exceptions to that limited duty:

"It is also accepted that the vessel may be liable if it actively involves itself in the cargo operations and negligently injures a longshoreman or if it fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operations."

Id. (Emphasis added.) In sum, the vessel can avoid liability for injuries to longshoremen during cargo operations only by turning over all facets of those operations to the stevedore. In the instant case, there was sufficient evidence, in the form of testimony from Port Captain Puchstein, Chief Officer Rousitos, John Scanlan, an employee of A & G, and others, to permit the jury to determine that both Puchstein and Rousitos were actively involved in loading the shrimp boats aboard the Uhenbels and had active control of equipment being used in the cargo operations. Therefore, the vessel's duty to the longshoremen was not the usual limited duty expressed in Scindia, but fell within the "active involvement" and "active control" exceptions expressed in that opinion. Id.

Because of the broad definition of the term "vessel" that is employed in cases of this kind, all of the appellants are exposed to liability if the negligence of their agents proximately caused Cooks's injuries and subsequent death. That definition is found at 33 U.S.C. § 902(21):

"[T]he term vessel means any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the...