Chavis v. Finnlines Ltd., O/Y
| Decision Date | 22 May 1978 |
| Docket Number | No. 77-1126,77-1126 |
| Citation | 576 F.2d 1072 |
| Parties | , 1978 O.S.H.D. (CCH) P 22,785 Augustus CHAVIS, Appellant, v. FINNLINES LTD., O/Y, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
C. Arthur Rutter, Jr., Norfolk, Va. (John H. Klein, Breit, Rutter & Montagna, Norfolk, Va., on brief), for appellant.
John B. King, Jr., Norfolk, Va. (Charles F. Tucker, Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, RUSSELL, Circuit Judge, and HOFFMAN, * Senior District Judge.
Appellant, a longshoreman, brought suit against appellee, a shipowner, under the diversity statute, 28 U.S.C., section 1332. More specifically, plaintiff sought damages for injuries he received on February 17, 1975, during the course of his employment in loading cargo aboard the vessel FINNSAILOR at Newport News, Virginia. He alleged negligence on the part of the shipowner under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, as amended in 1972, 33 U.S.C., section 901, et seq. (hereinafter referred to as the Act). On December 2, 1976, the case was tried before the Honorable John A. MacKenzie and a jury. The jury returned a verdict in favor of defendant-appellee Finnlines Ltd., O/Y (hereinafter referred to as the shipowner), and the plaintiff appealed. The only issues involve the correctness of the jury instructions. We affirm.
On February 17, 1975, the vessel FINNSAILOR was being loaded at Newport News. Tidewater Stevedoring Corporation (hereinafter referred to as Tidewater) had been engaged by the shipowner to load the cargo aboard the vessel.
The appellant, an employee of Tidewater, was a member of a longshore gang which was sent to the number six hatch, lower hold, of the FINNSAILOR to load certain cargo. The men in the gang were working under the supervision of the hatch boss, Ralph Sessoms. Appellant and his fellow gang members had been assigned by the stevedore foreman, also an employee of Tidewater, to work in the number six hatch, and plaintiff was advised by Sessoms that a cargo of logs was to be loaded into the lower hold.
The evidence was that the logs were covered with a red clay mud, which created a smooth, slippery surface. The longshoremen commenced loading, and while there was testimony to the effect that the logs were wet, the longshoremen loaded the logs in the usual manner and apparently had no particular difficulty in handling the logs. (Tr. 24) It rained throughout the day, and the logs were exposed to such weather due to the fact that the hatch was left open. (Tr. 10)
The loading of the logs was completed in the latter part of the afternoon of February 17. Thereafter, the longshoremen began to load bales of herbs. The bales were to be stowed on top of the logs. The men working in the hold, including the appellant, were told that the bales were coming in by the gangwayman, also a Tidewater employee. (Tr. 25) The header in the hatch, Isaiah Battle, made the decision to bring the bales of herbs into the hatch, and Battle testified that the gangwayman could not signal the winchman to bring in the drafts containing the bales until Battle told him to do so. (Tr. 26)
The evidence as to what transpired at this point was sharply conflicting. There was testimony from the appellant and his fellow longshoreman, Isaiah Battle, to the effect that one of the vessel's mates was in the tween deck of the number six hatch. Battle testified that he asked the mate for some plyboard to put on top of the logs. Battle further testified that this mate who, according to Battle, was wearing a uniform and cap, told him there was no plyboard available on the ship, but to load the bales directly on top of the logs. (Tr. 15-16; 29-30) Appellant's witnesses testified it was the custom and practice for Finnlines' vessels, being loaded in Newport News, to supply any plyboard that was necessary for the loading operations.
The vessel's chief officer testified that the vessel's mates do not wear uniforms and, in addition, that the vessel never stations a mate in the hatch while logs and bales of herbs are being loaded. (Tr. 87-88) Upon reviewing the vessel's log book, the chief officer noted that heavy lift cargo was being loaded in the number two hatch, and that under normal procedure all of the vessel's mates would be in that hatch watching over the loading of the heavy lift. (Tr. 87) He also testified that the ship always carries plyboard. However, there was no evidence that he received any request for such.
While the appellant and several of his fellow longshoremen did testify that the vessel's mate told them there was no available plyboard on the ship, it was uncontradicted that neither the appellant nor any of the other men advised the hatch boss, Sessoms, or the stevedore foreman that they required plyboard before loading the bales of herbs. (Tr. 32, 59) It was also uncontradicted that, under normal procedure, there is plyboard available on the pier. The appellant testified that he and his fellow longshoremen knew that this plyboard was available on shore for their use. Appellant acknowledged that in the past he and his fellow workers had obtained plyboard from shore for use on various vessels. (Tr. 63-64) However, neither appellant nor any of the other longshoremen attempted to obtain the plyboard from shore.
While handling one of the bales, the appellant injured his back. However, the evidence surrounding the nature of the accident was conflicting. Appellant testified that, while he was maneuvering one of the bales, his feet slipped on the slippery logs and he fell, injuring his back. However, on the day of the accident, appellant reported to the timekeeper for Tidewater, James Davis, who prepared an accident report based upon what the appellant told him. Nowhere in the report is there any indication that a fall on wet logs caused the appellant's injury. (Tr. 100-101; Defendant's exhibit No. 2)
Furthermore, on February 18, 1975, the day after the accident, the appellant completed and signed a workmen's compensation form 1 in which he described his accident as follows:
We were loading bales of herbs weighing approximately 200 pounds on top of some logs we had already loaded. One of the bales fell down between some logs and had to be moved because it was in the way of the rest of them to come. I proceeded to move it when I felt something give in my lower back. (Tr. 69-70)
No mention was made of slippery conditions or the alleged fact that he had slipped on the logs and fallen, thus injuring his back.
Assuming arguendo that, under the stated facts, it was proper to submit the case to the jury, appellant contends that the trial court erred in its refusal to grant an instruction that the shipowner had a responsibility to provide a reasonably safe place to work. Such omission, it is argued, resulted in the jury's failing to receive a proper statement of the law. 2
Our consideration of this issue, as well as of the balance of the issues raised, must be guided by the principle that in considering errors in instructions, this court must look to the entire charge, and if the instructions, taken as a whole, fairly and adequately state the pertinent legal principles involved, then affirmance of the court below is required. Nitto Shosen K.K. v. Johnson, 350 F.2d 399 (9 Cir. 1965); Garrett v. Campbell, 360 F.2d 382 (5 Cir. 1966).
In order to determine whether the given charge was correct, it is necessary to evaluate the complexion of the Act as it exists in light of the 1972 amendments. In particular, section 905(b) of the Act, as amended, must be taken into consideration. The subsection provides:
(b) In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.
In Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977), we held that, subsequent to the 1972 Amendments to the Act, the shipowner has no nondelegable duty to provide a longshoreman working aboard a vessel with a safe place to work. We stated:
The legislative history clearly supports the conclusion of the district court that the 1972 Amendments eliminated the absolute and non-delegable duty of a vessel to provide longshoremen a safe place to work. 540 F.2d at 758.
We quoted with approval excerpts from the legislative history in which Congress clearly evidenced its intent to eliminate the doctrine of unseaworthiness and to place a longshoreman injured on board a vessel in the same position he would be if injured in nonmaritime employment ashore. 3
Appellant cites the House Committee Report for the proposition that Congress...
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