Carpenter v. Universal Star Shipping, S.A., 88-4059

• Decision Date: 12 February 1991
• Docket Number: No. 88-4059,88-4059
• Parties: Thomas G. CARPENTER, Plaintiff-Appellant, v. UNIVERSAL STAR SHIPPING, S.A., a foreign corporation, and Sealaska Timber Corporation, a foreign corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1539

924 F.2d 1539

1991 A.M.C. 1555

Thomas G. CARPENTER, Plaintiff-Appellant, v. UNIVERSAL STAR SHIPPING, S.A., a foreign corporation, and Sealaska Timber Corporation, a foreign

corporation, Defendants-Appellees.

No. 88-4059.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 1989.

Decided Feb. 12, 1991.

Abraham A. Arditi, Seattle, Wash., for plaintiff-appellant.

Mark C. Manning, Bradbury, Bliss & Riordan, Seattle, Wash., for defendant-appellee Universal Star Shipping.

Steven V. Gibbons, Lane, Powell, Moss & Miller, Seattle, Wash., for defendant-appellee Sealaska Timber Corp.

Appeal from the United States District Court for the Western District of Washington.

Before TANG, HALL and BRUNETTI, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Thomas Carpenter, a longshoreman, was injured while loading a ship. He filed suit, alleging negligence against the owner of the ship, Universal Star Shipping ("Universal") and the voyage charterer, Sealaska Timber ("Sealaska"), under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901, et seq. The district court granted summary judgment for both defendants. We affirm.

I.

The first Defendant-appellee, Universal, owned the vessel, Pacific Victory, on which Carpenter worked as a longshoreman. The second Defendant-appellee, Sealaska, is a voyage charterer for Alaskan companies that sell their timber to foreign purchasers. Sealaska voyage chartered the Pacific Victory from Daiichi Chuo Kisen Kaisha, a time charterer, and hired West Coast Stevedoring ("West Coast") to load the ship. Carpenter worked as a longshoreman for West Coast, and was loading the Pacific Victory at the time of his accident.

Universal had representatives on hand during the loading of the Pacific Victory. The ship's crew observed the loading of the Pacific Victory primarily to ensure that the logs were loaded onto the vessel correctly. If the logs were to shift during the journey, they could upset the vessel's trim.

As the voyage charterer, Sealaska performed several different tasks. First, it hired subcontractors to sort and bundle the logs according to size and length. Sealaska also provided the stevedore, West Coast, with a "line up." The "line up" prescribed the order in which the logs would be loaded; they were to be loaded in the reverse order of their intended discharge to ensure delivery to the proper buyer. In addition, Sealaska acted as a general coordinator between the various subcontractors who were involved in the overall loading of the Pacific Victory. Sealaska's on-site representative for this job was Mr. Michael York. Mr. York's duties included the supervision and inspection of cargo loading, the preparation of the log loading plan, and the assignment of logs to appropriate holds.

Prior to Appellant-Carpenter's accident, there had been several comments made about the stow to West Coast and to Sealaska, through Mr. York, by various members of the Pacific Victory's crew. Mr. Erada, the ship's chief officer, noticed some "broken spaces in the stow," holes between the piles of loaded logs, after the first day's loading. On the second day of loading, Mr. Erada informed the captain of the ship of these broken spaces. Mr. Erada was concerned about the safety of the stevedores and that the full booking of the ship would not be loaded because of the broken spaces. The captain told Mr. Erada to inform Mr. York of the broken spaces, which he did. Mr. Erada also informed West Coast's general supervisor about the danger the broken spaces represented. Later on the second day of loading, Mr. Erada and the captain again spoke with Mr. York about the broken spaces. On the morning of June 15th, the day of Carpenter's accident, Mr. Erada once again warned Mr. York of the danger. At that time, Mr. York promised to tell his superintendent and the walking bosses about the broken spaces. Later that day, while the crew was attempting to maneuver a bundle of logs into place, Carpenter slipped and fell into a thirty-foot hole between bundles of logs. Carpenter sustained a severe and permanent back injury as a result of the fall.

Carpenter's claims arise under the Longshore and Harbor Workers' Compensation Act ("LHWCA" or "the Act"), 33 U.S.C. Sec. 901, et seq. Under the Act, the primary source of relief for injured longshoremen is their right to limited statutory benefits from their employer, regardless of fault. Longshoremen also have a right to sue a limited class of third parties, "vessels," for negligence. See 33 U.S.C. Secs. 905, 933; Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 268-71, 99 S.Ct. 2753, 2760-62, 61 L.Ed.2d 521 (1979). A vessel that is found liable cannot get contribution or indemnification from even a more culpable employer, since such contribution or indemnification would undermine the limited, but certain, nature of the employer's liability. 443 U.S. at 268-71, 99 S.Ct. at 2760-62. Moreover, the employer has substantial rights to an employee's recovery against a "vessel." First, the employer is entitled to any recovery received by an employee who institutes an action against a "vessel," up to the amount of the benefits received by the employee from the employer. Id. at 270, 99 S.Ct. at 2761. Second, an employer that pays statutory benefits to an employee acquires a right to sue third party "vessels" in the employee's name if the employee does not initiate suit against a "vessel" within six months. Brown v. American Mail Line, Ltd., 625 F.2d 221, 222 (9th Cir.1980). The employee's acceptance of benefits thus "operate[s] as an assignment to the employer of all rights of the person entitled to compensation." 33 U.S.C. Sec. 933(b).

Carpenter filed suit against Universal Star and Sealaska under 33 U.S.C. Sec. 905(b), alleging negligence. Both defendants filed motions for summary judgment, and the court granted both motions on the ground that neither defendant owed Carpenter a duty to intervene under section 905(b). Carpenter appeals, claiming that defendants did owe him a duty. Carpenter also claims that Sealaska may be liable on a theory of negligent hiring of the stevedore, and further that the trial court erred in refusing to consider late expert testimony.

This court reviews a grant of summary judgment de novo, Ford v. Manufacturers Hanover Mortgage Corp., 831 F.2d 1520, 1523 (9th Cir.1987), and views all facts in the light most favorable to the nonmoving party. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

II.

Defendants Universal and Sealaska both concede that they are "vessels" under LHWCA. As a result, both defendants are subject to the duty to avoid negligence that is imposed by section 905(b) of LHWCA. Sealaska nevertheless argues that, as a voyage charterer, it owes a lesser duty of care under LHWCA to longshoremen than do shipowners. We have made no such distinction, but have instead applied the same standards to shipowners and charterers. See Bjaranson v. Botelho Shipping Corp., 873 F.2d 1204, 1207-09 (9th Cir.1989); Bandeen v. United Carriers (Panama), Inc., 712 F.2d 1336, 1339-40 (9th Cir.1983); Turner v. Japan Lines, Ltd., 651 F.2d 1300, 1303-04 (9th Cir.1981), cert. denied, 459 U.S. 967, 103 S.Ct. 294, 74 L.Ed.2d 278 (1982); see also 33 U.S.C. Sec. 902(21) (giving no indication that owners and charterers should be treated differently in defining "vessel," inter alia, as the ship's "owner [and] ... charter" (sic)). ¹

III.

Carpenter claims that defendants negligently failed to intervene with the incompetent stevedore to protect him. The Supreme Court addressed the question whether a negligent failure to intervene by the shipowner could produce section 905(b) liability in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). In Scindia the Court interpreted section 905(b) in an effort to clear up confusion among the circuits. It held that "there are circumstances in which the shipowner has a duty to act where the danger to the longshoremen arises from the malfunctioning of the ship's gear being used in the cargo operations." Id. at 175, 101 S.Ct. at 1626. The court went on to state,

[The stevedore's] judgment [with regard to the defective winch] was so obviously improvident that [the shipowner], if it knew of the defect and that [the stevedore] was continuing to use it, should have realized the winch presented an unreasonable risk of harm to the longshoremen, and that in such circumstances it had a duty to intervene and repair the ship's winch. The same would be true if the defect existed from the outset and [the shipowner] must be deemed to have been aware of its condition.

Id. at 175-76, 101 S.Ct. at 1626-27 (footnote omitted). Under Scindia, then, a longshoreman must first show that the vessel knew or should have known of a defect in the ship's gear. He must then further show that the vessel knew or should have known that the stevedore's improvident decision to use the defective ship's gear created an unreasonable risk of harm to longshoremen, and that the vessel could not reasonably expect the stevedore to remedy the situation.

The Supreme Court in Scindia trod cautiously in imposing liability for failure to intervene on the shipowner. The Court was wisely concerned with the possible consequences of the interaction of the stevedore-employer's right to recover benefits paid an employee from a "negligent" vessel under section 933, and an overly broad reading of section 905(b) negligence. A stevedore who negligently causes an accident, and who as a result must pay statutory benefits to an employee, may invoke his right under section 933 to sue third parties in the name of the injured employee. Such a stevedore can sue a "vessel" under section 905(b), and can claim that the "vessel" should have intervened to cure the stevedore's own obvious negligence. If the employer-stevedore wins he will receive, inter alia, the...