Canizzo v. Farrell Lines, Inc.

• Decision Date: 02 June 1978
• Docket Number: 488,Nos. 346,D,s. 346
• Citation: 579 F.2d 682
• Parties: Anthony CANIZZO, Plaintiff-Appellee and Cross-Appellant, v. FARRELL LINES, INC., Defendant-Appellant and Cross-Appellee, and Universal Terminal and Stevedoring Corp., Defendant-Appellee and Third Party Plaintiff. FARRELL LINES, INC., Third Party Plaintiff-Appellant, v. FRANK J. HOLLERAN, INC., Third Party Defendant-Appellee. ockets 77-7292, 77-7332.
• Court: U.S. Court of Appeals — Second Circuit

Page 682

579 F.2d 682

Anthony CANIZZO, Plaintiff-Appellee and Cross-Appellant, v. FARRELL LINES, INC., Defendant-Appellant and Cross-Appellee, and Universal Terminal and Stevedoring Corp., Defendant-Appellee

and Third Party Plaintiff.

FARRELL LINES, INC., Third Party Plaintiff-Appellant, v. FRANK J. HOLLERAN, INC., Third Party Defendant-Appellee.

Nos. 346, 488, Dockets 77-7292, 77-7332.

United States Court of Appeals Second Circuit.

Argued Dec. 8, 1977.

Decided June 2, 1978.

Jeffrey V. Boxer, New York City, Lilly, Sullivan & Purcell, New York City, for Farrell Lines, Inc.

Richard J. Cardali, New York City, Cohen & Cardali, New York City, for Anthony Canizzo.

Albert S. Commette, New York City (Commette, Quencer & Annunziato, New York City, Robert K. Marzik, New York City, of counsel), for Universal Terminal and Stevedoring Corp.

John T. Shean, New York City (J. Robert Morris, New York City, of counsel), for Frank J. Holleran, Inc.

Before FRIENDLY, SMITH and NESKIEL, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Farrell Lines, Inc. ("Farrell") appeals from a decision and order of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, finding Farrell liable for injuries sustained by appellee Anthony Canizzo in an accident on board Farrell's ship, the S.S. African Comet. The court found Farrell liable for damages in the net amount of $65,628.60, after a deduction which included $8500 per year for remaining earning ability and 40% Contributory negligence, and Canizzo cross-appeals from this reduction in the damage award.

For the reasons adduced below, we affirm in part and reverse in part the judgment of the district court and remand the case for further proceedings consistent with this opinion.

I.

This suit commenced with the filing of a complaint against Farrell and Universal Terminal and Stevedoring Corp. ("Universal"), an independent stevedore loading cargo on board the African Comet on the day of the accident. Farrell impleaded Frank J. Holleran, Inc., Canizzo's employer, as a third-party defendant, and filed a cross-claim against Universal. Universal then filed a cross-claim against Holleran. The district court dismissed Canizzo's action against Universal, Farrell's cross-claim against Universal, Farrell's third party complaint against Holleran and Universal's cross-claim against Holleran.

On January 12, 1973, the day of the accident, Universal was employed by Farrell to load the African Comet. Holleran provided lashing and carpentry personnel to secure the cargo after it was loaded by Universal. Canizzo worked for Holleran as a carpenter. At approximately 5:00 p. m. Canizzo was instructed to move from one part of the ship to another in order to continue his work. In so doing, he was forced to traverse a narrow passageway between a locomotive stowed on the inshore area of the deck and a nearby hatch coaming. While walking through this passageway, Canizzo slipped on a patch of grease which was partially covered by a pile of wires which lay on the deck. Canizzo sustained permanent injury to his knee, and as a result, is unable to work as a marine carpenter or longshoreman. He is not, however, totally disabled.

The trial court found that the ship's crew placed cluster lights and their attached electrical wires in the passageway in question after 4:00 or 4:30 p. m., but at least one-half an hour before Canizzo's accident. The lights, wires, and other clutter which lay on top of the greasy deck created an "obviously dangerous" condition which would have been obvious to any prudent person. The court found that Farrell had actual or constructive notice of this condition inasmuch as the ship's personnel should have seen the grease on the deck when they put out the cluster lights. Furthermore, the crew should have anticipated that Canizzo would be unable to avoid the dangerous condition on the deck. This, the district court believed, was sufficient to bring Farrell within the negligence standard of § 343A of the Restatement (Second) of Torts (1965), ¹ which was adopted in this court's opinion in Napoli v. (TransPacific Carriers Corp.) Hellenic Lines, 536 F.2d 505 (2d Cir. 1976).

The court found further, however, that Canizzo had been contributorily negligent in failing to walk with sufficient caution, or alternatively, in failing to avoid the wires by taking a different route to the No. 6 hatch. It was further held that Canizzo's damages were reduced, inasmuch as he was capable of earning $8500 per year. Accordingly, the trial court awarded Canizzo $109,381.00 reduced by reason of contributory negligence to $65,628.60.

II.

This suit is brought pursuant to the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 Et seq., as amended. Amendments to the Act passed in 1972 increased levels of compensation payable to injured longshoremen, eliminated the doctrine of unseaworthiness as it pertained to shipowners, made a shipowner's negligence a necessary condition of his liability, and immunized independent stevedore-employers from liability in excess of compensation payments. In the words of the House Report:

The Committee believes that where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in non-maritime pursuits are liable for damages when, through their fault, a worker is injured.

(But) the Committee believes that especially with the vast improvement in compensation benefits which the bill would provide, there is no compelling reason to continue to require vessels to assume what amounts to absolute liability for injuries which occur to longshoremen . . . who are injured while working on those vessels.

Accordingly . . . it would be fairer to all concerned . . . for the liability of vessels as third parties to be predicated on negligence, rather than the no-fault concept of seaworthiness.

(Report of the House Education and Labor Committee, H.R.Rep.No.92-1441, 92nd Cong., 2d Sess., 1972 U.S.Code Cong. & Admin.News, p. 4698 at 4702-03.)

See Lubrano v. Royal Netherlands Steamship Co., 572 F.2d 364 (2d Cir. 1978); Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861 (2d Cir. 1977); Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (2d Cir. 1977); Napoli v. TransPacific Carriers Corp., supra, 536 F.2d 505; Landon v. Lief Hoegh & Co., 521 F.2d 756 (2d Cir. 1975), Cert. denied, 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 642 (1976).

Under the relevant provisions of the Restatement (Second) of Torts (1965), possessors of land, and hence shipowners, are liable for physical harm caused to invitees by dangerous conditions which are not obvious to the invitee (§ 343), but are absolved from liability when dangerous conditions are known or obvious, except when the possessor should anticipate the harm despite the invitee's knowledge or the obviousness of the condition. (§ 343A.)

Thus in Napoli, supra, we held that where a longshoreman had fallen from unsecured planks, there was sufficient evidence of the shipowner's knowledge of "obviously dangerous conditions" that were unlikely to be avoided by the longshoreman, that the case should have gone to a jury for a determination of the shipowner's negligence under § 343A of the Restatement (Second) of Torts. 536 F.2d 505.

A shipowner, however, can only be liable under § 343A if he knows or should have known of the obviously dangerous, but unavoidable, condition. Ruffino v. Scindia Steam Navigation Co., supra, 559 F.2d at 862; Munoz v. Flota Merchante Grancolombiana, S.A., supra, 553 F.2d 837.

While these principles are reasonably clear, considerable legal uncertainty remains in cases in which the negligence of a shipowner combines with the negligence of an independent stevedore to cause injury to a longshoreman. Similarly, when harm is caused by an independent stevedore given complete control over the loading of a ship, it is unclear whether, everything being equal, a shipowner is liable for that harm even when he has knowledge of the dangerous condition caused by the stevedore. See Restatement (Second) of Torts, §§ 409-429; Lubrano v. Royal Netherlands Steamship Co., supra, 572 F.2d 364 at 367 (Moore, J., dissenting); Hickman v. Jugoslavenska Linijska Plovidba Rijeka, "Zvir", 570 F.2d 449 (2d Cir. 1978).

Too strict a view of a shipowner's liability in these situations would do much to diminish the salutary effects of the 1972 amendments by, in effect, making shipowners liable, once again, on what is akin to an unseaworthiness standard, but without recourse to contribution on the part of a negligent stevedore. Too lax a view would specifically contradict the congressional intention to make shipowners liable for their own negligence under the amended statute. See Report of the House Education and Labor Committee, H.R.Rep.No.92-1441, Supra, at 4701-02. We are faced, then, with a difficult problem of line drawing which, at this stage in the development of the legal doctrine, is best undertaken on a case by case basis.

In the instant case, the trial court found Farrell liable on either of two alternative legal theories. First, it found that the ship's crew placed cluster light wires on top of a patch of grease, thereby creating the dangerous condition which was the proximate cause of Canizzo's injury. Second, it found that, in placing the cluster lights on the deck, the crew observed or should have observed the greasy patch, and was therefore on notice of the obviously unsafe condition aboard ship.

These findings rest on the trial court's assessment of the credibility of plaintiff and of two of plaintiff's witnesses, Mazze and Trovato, both of whom were fellow employees and friends of plaintiff and both of whom had unrelated injury claims pending. The court found both biased in plaintiff's favor and rejected portions of the testimony of each,...