Cowsert v. Crowley Maritime Corp.

• Court: Washington Supreme Court
• Writing for the Court: DIMMICK; WILLIAM H. WILLIAMS, C.J., BRACHTENBACH, ROSELLINI, DOLLIVER, UTTER, DORE and PEARSON, JJ., and CUNNINGHAM
• Citation: Cowsert v. Crowley Maritime Corp., 101 Wn.2d 402, 680 P.2d 46 (Wash. 1984)
• Decision Date: 15 April 1984
• Docket Number: No. 49694-3
• Parties: , 1985 A.M.C. 170 Clay COWSERT, et al., Respondents, v. CROWLEY MARITIME CORPORATION, et al., Appellants.

Page 402

101 Wn.2d 402

680 P.2d 46, 1985 A.M.C. 170

Clay COWSERT, et al., Respondents, v. CROWLEY MARITIME CORPORATION, et al., Appellants.

No. 49694-3.

Supreme Court of Washington En Banc.

April 15, 1984.

Detels, Draper, Madden & Crockett, Robert H. Madden, Jane I. Fantel, Seattle, for appellants.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow, Charles A. Kimbrough, R. Franklin Wohlford, Philip A. Talmadge, Pamela Grace Rapp, Seattle, for respondents.

DIMMICK, Justice.

Appellants, Puget Sound Tug & Barge Co. (PST & B) and Crowley Maritime Corp., appeal from a jury verdict awarded respondent Clay Cowsert under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq., for injuries suffered in a work accident. ¹ Appellants maintain that the verdict was a result of the trial court's failure to properly instruct the jury as to the duty of care owed Cowsert by appellants under the LHWCA. Appellants argue that an application of the correct standard of care to the facts of this case would have entitled them to a directed verdict or judgment n.o.v. We agree, and accordingly reverse the trial court and order the case dismissed.

I

Clay Cowsert was a night shift foreman employed by Duwamish Shipyard, Inc. (Duwamish), an independent contractor hired by PST & B, the operator of Terminal 105 on the Duwamish Waterway in Seattle, to do certain welding and repair work on PST & B's barges. Mr. Cowsert's crew was assigned to work aboard the AGATTU on October 18, 1976, the night of the accident. The AGATTU was moored next to the dock, as was the general practice for barges that were to be worked on. Another barge, Barge 418, was tied to the outboard side of the AGATTU with some slack in the lines so that the barges would not damage each other. This was apparently the standard procedure for mooring barges side by side. The lines could be tightened, if the need arose, by one man. Barge 418, unlike the AGATTU, was not lighted.

Mr. Cowsert and his crew boarded the AGATTU around 4:20 p.m. on the day of the accident to begin work. All PST & B employees had left Terminal 105, as their day shift had ended. Sometime between 9:30 and 10:30 p.m., Cowsert stepped over to Barge 418 with a flashlight. While Cowsert was on Barge 418, his flashlight dimmed considerably. On the way back to the AGATTU, Cowsert walked off the edge of Barge 418, which had drifted a few feet away from the AGATTU, and fell into the water. He was rescued by fellow workers.

Cowsert testified at trial that he had been told by a PST & B employee that work would soon begin on Barge 418, and that he was going over to Barge 418 on his own initiative to see what needed to be done. Cowsert acknowledges, however, that no work was to be done by his crew on Barge 418 the night of the accident.

Indeed, in the days following Cowsert's accident, Duwamish employees worked approximately 300 man-hours to complete the work on the AGATTU prior to beginning repair work on Barge 418. Work on Barge 418 was not begun until 3 days after Cowsert's accident.

Cowsert brought a negligence action against PST & B as a third party vessel under 33 U.S.C. § 905(b). After presentation of evidence, PST & B's motion for directed verdict was denied. PST & B's proposed instructions to the jury on the duty of care owed Cowsert under 33 U.S.C. § 905 were also denied; the trial court drafted its own instructions for the jury on the issue. The jury returned a verdict for Cowsert which was reduced by a comparative negligence factor of 57 1/2 percent. When PST & B's motion for judgment n.o.v. was denied, this appeal followed.

II

The issue before us is whether the trial court erred in denying appellants' motions for directed verdict and judgment n.o.v. A judgment n.o.v. is proper when, viewing the evidence and reasonable inferences therefrom most favorable to the nonmoving party, the court can say as a matter of law that there is no substantial evidence supporting the verdict. Hojem v. Kelly, 93 Wash.2d 143, 145, 606 P.2d 275 (1980). Evidence is substantial if it would convince an unprejudiced, thinking mind of the truth of the declared premise. Hojem, at 145, 606 P.2d 275. A similar standard exists for directed verdicts. See Bertsch v. Brewer, 97 Wash.2d 83, 640 P.2d 711 (1982). Appellant vessel owners contend that, even viewing the evidence in the light most favorable to respondent, they have breached no duty of care owed respondent under applicable maritime law.

A

Prior to 1972, the criteria for recovery from a vessel owner for onboard accidents under the LHWCA was whether the vessel was "unseaworthy". Proof of unseaworthiness required no showing of fault on the part of the vessel owner. The existence of an unsafe, injury-causing condition on the vessel was enough to impose liability, even though the condition may have been caused by the plaintiff's employer (usually a stevedore) or plaintiff's co-workers. In 1972, however, the LHWCA was amended to limit the owner's liability to those injuries caused by the "negligence of the vessel." 33 U.S.C. § 905(b). The purpose of the modifications was "to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore ... and not to endow him with any special maritime theory of liability or cause of action ..." S.Rep. No. 1125, 92d Cong. 10 (1972) (hereafter Rep.). The 1972 amendments were designed to encourage safety by placing the duty of care on the party best able to prevent accidents. Clemente v. Farrell Lines, Inc., 465 F.Supp. 728 (E.D.N.Y.1979).

B

While section 905(b) imposes a negligence theory of recovery, it fails to define the parameters of such a standard. Much was left to be resolved through the "application of accepted principles of tort law and the ordinary process of litigation." Rep., at 11. It was not until 1981, in Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), that the Supreme Court spoke definitively on the duty owed by a vessel to independent contractors and their employees engaged to work aboard the vessel. Plaintiff in Scindia was a longshoreman-employee of an independent contractor-stevedore company engaged by the vessel to load bags of wheat. Plaintiff was injured while working in the ship's hold when he was struck by cargo that fell from a pallet being held in suspension by a winch. The winch was part of the ship's gear, and was being operated by another longshoreman. The winch's braking mechanism had allegedly been malfunctioning for the 2 days preceding the accident. There was a dispute as to whether the vessel owner knew or should have known of the alleged defect. Plaintiff sued the vessel owner under 33 U.S.C. § 905(b). The District Court granted summary judgment for the vessel owner, holding that under section 905(b) a shipowner is not liable for dangerous conditions created by the stevedore's negligence while the stevedore is in control of the work, and that even if the shipowner knew or should have known of the defective winch, a shipowner has no duty to warn the stevedore or its employees of obvious defects. The Court of Appeals reversed, holding that a shipowner had a duty to continue to inspect the condition of the vessel even if it had been turned over to the stevedore in safe condition.

The Supreme Court rejected the analysis used by both the lower courts and set out its own standard [T]he vessel owes to the stevedore and his longshoremen employees the duty of exercising due care "under the circumstances." This duty extends at least to exercising ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work.... The shipowner thus has a duty with respect to the condition of the ship's gear, equipment, tools, and work space to be used in the stevedoring operations; and if he fails at least to warn the stevedore of hidden danger which would have been known to him in the exercise of reasonable care, he has breached his duty and is liable if his negligence causes injury to a longshoreman.

(Citation omitted.) Scindia, 451 U.S. at 166-67, 101 S.Ct. at 1622. The vessel owner is therefore responsible for eliminating hidden dangerous conditions existing at the outset of the independent contractor's operations which are known to the vessel or should be known to it in the exercise of reasonable care.

The Court went on to summarize the vessel's general duty once the independent contractor has begun operations:

We are of the view that absent contract provision, positive law, or custom to the contrary--none of which has been cited to us in this case--the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore. The necessary consequence is that the shipowner is not liable to the longshoremen for injuries caused by dangers unknown to the owner and about which he had no duty to inform himself. This conclusion is plainly consistent with the congressional intent to foreclose the faultless liability of the shipowner based on a theory of unseaworthiness or nondelegable duty. The shipowner, within limits, is entitled to rely on the stevedore, and owes no duty to the longshoremen to inspect or supervise the cargo operations....