Chagois v. Lykes Bros. Steamship Company

• Decision Date: 02 November 1970
• Docket Number: No. 29639 Summary Calendar.,29639 Summary Calendar.
• Citation: 432 F.2d 388
• Parties: Joseph CHAGOIS, Plaintiff-Appellee, Cross-Appellant, v. LYKES BROS. STEAMSHIP COMPANY, Inc., Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 388 (1970)

Joseph CHAGOIS, Plaintiff-Appellee, Cross-Appellant, v. LYKES BROS. STEAMSHIP COMPANY, Inc., Defendant-Appellant, Cross-Appellee.

No. 29639 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 30, 1970.

Rehearing Denied November 2, 1970.

COPYRIGHT MATERIAL OMITTED

Terriberry, Carroll, Yancey & Farrell, New Orleans, La., Holt & Woodley, Lake Charles, La., for defendant-appellant, cross-appellee; Edmund E. Woodley, Lake Charles, La., of counsel.

Joseph E. Bass, Lake Charles, La., for plaintiff-appellee, cross-appellant.

Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.

WISDOM, Circuit Judge:

In this case a longshoreman engaged to assist in loading a ship was injured while he was on the pier adjacent to the ship. The injury was allegedly caused by unseaworthy equipment owned and under the control of the stevedoring company. The district court held that the warranty of seaworthiness applied, and gave judgment for the longshoreman against the shipowner. We affirm.

The plaintiff, Joseph Chagois, is a longshoreman employed by Lake Charles Stevedores, Inc. Defendant Lykes Bros. Steamship Company, Inc., is the owner of the SS SUE LYKES. The Supreme Rice Milling Company engaged Stevedores to load bulk rice from railroad boxcars on the pier into the hold of the SS SUE LYKES. Chagois was one member of the "gang" of longshoremen assigned to do the job.

Early on the morning of August 18, 1966, the longshoremen went on board the ship to uncover the hatch and prepare the hold to receive the bulk rice. After cleaning the hold and lining the bottom with polyethylene sheeting to protect the rice, some of the men remained on the vessel to assist in getting the rice into the hold. Others, including Chagois, were directed to work on the pier.

The rice was to be conveyed from the boxcars to the vessel by means of a marine leg or grain elevator Stevedores had constructed as a permanent installation at the pier. The ship was moored alongside the marine leg. The boxcars were brought alongside the hopper of the elevator, and a bridge was extended from the hopper to the boxcar to receive the rice from the bottom of the car when the door was opened. When the boxcar door was opened, some of the loose rice spilled naturally into the hopper. To get all of the rice out of the boxcar and into the hopper, Stevedores employed a screw conveyer or auger.

The auger was twenty-four feet long and was powered by an electric motor. When in operation, the auger rotated rapidly and channeled loose rice toward the car door and into the hopper. One member of the gang was assigned to hold the auger in a stationary position as it rotated. He could do this by grasping a handle, similar to a lawn-mower handle, attached at the far end of the auger. While he held the auger in place, several other men stood in the car and shoveled rice into the revolving screw.

At the time of the accident, the longshoremen were transferring the contents of the third or fourth boxcar into the vessel. Chagois was standing in the loose rice and holding the handle of the auger. As the rice reached a low level in the car, the rotating auger struck the floor of the boxcar. The bouncing auger threw Chagois off balance and caught his leg in its revolving screw.

The district court found that Chagois had never seen or worked with the auger before the day of the accident, that there was no guard or housing surrounding the auger, and that there was no off-on switch at any point on the auger except on the electric motor, which was situated outside of the boxcar on the pier. Moreover, no safety drill or demonstration had ever been given to Chagois or the other men concerning the operation of the auger.

In the circumstances, the court concluded, Stevedores' use of the auger constituted unseaworthiness, and this unseaworthiness was the proximate cause of Chagois's injury. The court awarded Chagois damages in the amount of $80,000.

Lykes appealed to this Court on the ground that the warranty of seaworthiness owed by the shipowner does not extend to a longshoreman injured while engaging in activities on the shore over which the shipowner has no control or responsibility. Specifically, Lykes contends that Chagois was not loading the ship at the time of his injury and thus was not protected by the seaworthiness doctrine. Chagois has cross-appealed and asks that the award of damages be increased and that interest be allowed from the date of judicial demand. In all respects, we affirm the judgment of the district court.

I.

At least since the decision of the Supreme Court in Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, it has been clear that a shipowner is liable for injuries to seamen caused by the unseaworthiness of his ship or its equipment. Shortly thereafter, it became equally clear that the warranty of seaworthiness extends also to longshoremen injured on board ship while working in the service of the ship. Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. Moreover, as long as the longshoreman is actually working in the services of the ship, it does not matter that his injury occurs on the shore; the shipowner is still liable for any unseaworthiness of his vessel that causes the longshoreman harm. Gutierrez v. Waterman S.S. Corp., 1963, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297; Thompson v. Calmar S.S. Corp., 3 Cir. 1964, 331 F.2d 657. The warranty of seaworthiness then depends not on plaintiff's status or location but primarily upon the type of work he does and its relationship to the ship. Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. The work of loading and unloading the ship is, without a doubt, work in the ship's service, and any longshoreman injured while loading or unloading a ship may avail himself of the unseaworthiness remedy. Seas Shipping Co. v. Sieracki, supra; Deffes v. Federal Barge Lines, Inc., 5 Cir. 1966, 361 F.2d 422, 425.

Lykes's appeal is based on its contention that at the time of the accident Chagois was not engaged in loading the ship. Lykes argues that he was merely unloading the boxcar, which had to take place before the loading operation could begin. In Lykes's view, loading of the vessel did not commence — and thus the warranty of seaworthiness could not apply — until the rice had started from the hopper of the marine leg into the vessel.

We agree with the district court that Chagois was participating in the work of loading the ship at the time of his injury and thus that he was entitled to the protection of the doctrine of seaworthiness. Chagois was a member of a gang of longshoremen employed to move bulk rice from boxcars on the pier into the hold of the SS SUE LYKES. To accomplish the job, the gang first prepared the ship's hold to receive the rice. Then the boxcars were brought alongside the hopper of the marine leg. By means of shovels and the auger, the loose rice was fed into the hopper, which moved the rice rapidly to the top of the elevator and then poured it down the spout into the ship's hold. From the moment the loose rice was started on its way by the revolving auger until it flowed into the ship's hold, only a brief interval of time — approximately 15 seconds — elapsed. As soon as one boxcar was emptied and its contents deposited in the hold, another car was moved up to take its place. At the time the accident occurred, the gang was working on its third or fourth carload of rice. Chagois was injured while he was holding down the auger; his work — as much as that of the longshoremen stationed on the ship — was an essential part of an unbroken sequence of moving the rice from the pier to the ship.¹

We find support for our conclusion in the case law. Spann v. Lauritzen, 3 Cir. 1964, 344 F.2d 204, and Hagans v. Ellerman & Bucknall S.S. Co., 3 Cir. 1963, 318 F.2d 563, are mirror images of the instant case. In each of those cases the longshoreman was injured during an unloading operation, and the question was whether he was working in the service of the ship. In Spann the plaintiff operated the control handle of a hopper situated on the pier. A large crane would shovel the cargo — nitrate of soda — out of the ship's hold and drop it into the hopper. The plaintiff would then open the door of the hopper to let the nitrate fall into trucks waiting below. The plaintiff was injured when a load of nitrate was dropped into the hopper; because of a defective release mechanism the handle swung down suddenly and prematurely and struck him. In response to the contention that the plaintiff was engaged in loading the trucks rather than unloading the cargo, the Third Circuit said,

He is no less within the protection of the maritime jurisdiction because modern ingenuity suggested the desirability of combining the unloading of the vessel with the loading of the trucks. It has frequently been said that the doctrine of unseaworthiness is not to be rigidly construed so as to exclude from its scope modern labor saving methods and the use of modern machinery to do the work traditionally done in loading or unloading vessels. Huff v. Matson Navigation Company, 338 F.2d 205 (9th Cir. 1964); Rodriguez v. Coastal Ship Corporation, 210 F.Supp. 38 (S.D.N.Y.1962). The labor saving method here used which facilitated the removal of the cargo by motor vehicles may not be held to eliminate the unloading of the cargo from the area of traditional work of the seamen in the service of the vessel.

344 F.Supp. at 206. If the plaintiff in Spann was engaged in unloading the vessel as he directed the movement of nitrate from the shore-based hopper into the trucks, in the converse situation Chagois was surely engaged in loading the ship as he helped move grain from the railroad cars into the hopper.

In Hagans the injury occurred one step further along in the unloading process. One hundred pound bags of sand were lowered from the ship into flat...