Cox v. Flota Mercante Grancolombiana, S. A.

• Decision Date: 10 May 1978
• Docket Number: No. 424,D,424
• Citation: 577 F.2d 798
• Parties: Walter COX, Plaintiff-Appellee, v. FLOTA MERCANTE GRANCOLOMBIANA, S. A., Defendant-Appellant. ocket 77-7338.
• Court: U.S. Court of Appeals — Second Circuit

Page 798

577 F.2d 798

Walter COX, Plaintiff-Appellee, v. FLOTA MERCANTE GRANCOLOMBIANA, S. A., Defendant-Appellant.

No. 424, Docket 77-7338.

United States Court of Appeals, Second Circuit.

Argued Dec. 15, 1977.

Decided May 10, 1978.

Morris Cizner, New York City (Zimmerman & Zimmerman, New York City, of counsel), for plaintiff-appellee.

Thomas E. Stiles, New York City (Giallorenzi & Stiles, New York City, of counsel), for defendant-appellant.

Before LUMBARD, MOORE and MULLIGAN, Circuit Judges.

MOORE, Circuit Judge:

Defendant, Flota Mercante Grancolombiana, S.A. ("Flota"), appeals from a judgment against it and in favor of Walter Cox ("Cox"), entered upon a jury verdict in the amount of $75,000, awarded as a result of injuries sustained by him aboard the Ciudad De Cuenca ("Cuenca").

In 1972 the Congress, hopeful of resolving the problems created by court-made law in the field of personal injuries to longshoremen working aboard ships, loading and unloading cargo, enacted the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. The purpose of the amendments was to put at rest (as much as they can ever be) the respective rights and liabilities of shipowners, stevedores and the employees of stevedores, engaged by shipowners to handle the cargo loading and unloading operation. As so frequently happens when new statutes appear, and resourceful and imaginative lawyers are available (and they always are), a multitude of cases have been spawned, thus, in this respect, frustrating the intended purpose of the statute.

First, the facts must be stated with some observations believed to be related to the law applicable to them.

Cox, a longshoreman, was employed by Universal Maritime Services ("UMS"), a stevedoring company, which had undertaken by contract to unload cargo from the Cuenca. He was not an employee of the Cuenca.

On March 31, 1975, Cox was working in the hold ("in the very bottom of the ship"). The hatch above him was open, namely, its cover had been removed. While working, he heard a noise and shortly thereafter was struck by a falling hatch cover which caused his injuries. He did not see the falling hatch cover or know the cause of its fall. As Cox put it "I don't know what happened". (50a).

Vincent Maresca was the foreman on the job for UMS. He defined his duties as follows:

"The duty of a foreman is to discharge and load the ships and see that everything is safe for the longshoremen to work. And if there isn't I have to tell my hatch bosses, make sure everything is safe, and then I speak to the mate and I tell the mate the same thing." (58a).

When the stevedore went in at 8:00 A.M. to commence unloading he (Maresca) said:

"I told them (the hatch bosses) to open up the hatches. They get rigged up. I tell them, 'Make sure everything is safe and make sure everything is working right' before they work. And later I tell the mate in charge of the ship, 'Make sure everything is safewise to work'." (62a).

The "(o)pening (of) the hatch is done by the crew. Fixing of the booms is done by the men." (63a). As Maresca looked down into the lower hold, he observed that "(j)ust one end was open". (66a). In the morning he had told his hatch bosses, "When they take off the hatch covers make sure the beams are secured and tell the mate to lock them and put the pins in them". (67a). His hatch bosses told him that "they had the locks in place". (68a). However, Maresca, himself, did not consider the lock in itself to be sufficient to hold the beam in place as a safety measure. (69a). He thought that pins were "(m) uch better than the locks they got on the beams" (69a), which indicated to him that the beams "should be locked and pinned" because from his experience he knew that on occasion cargo being brought up from the hatch would strike the beams and boards. (70a). The pins and locks belonged to the vessel. He said, "The pins, the seamen have to do that. That isn't our job". (71a). Maresca knew that "the regulations require that no longshoreman is supposed to work until you make sure that these beams are tied down". (80a). Maresca also said that in the afternoon before the accident "I even told my hatch boss, 'Why didn't you put the pins in them?' He says, 'The crew is going to put them in'." (80a). He further testified "I looked and I told the hatch boss again, 'Get the pins in there, get the pins in the beam.' I told the hatch boss again. Then after I told the hatch boss again in the afternoon, the mate, I said, 'Make sure the pins are in'." (84a-85a).

The only other witness was Nicholas Simeone, a hatch boss employed by UMS. Cox was not in his gang. As he described it "there was two gangs that day. One was working in the lower hold and we were in the top deck, in the after end." (90a). Maresca had said to him, "Before you start working make sure the beams are secured", and when he looked he "noticed that the beams were not secured". (92a). The beam was in place and in the slot but "(i)f anything hits it it could fall". (92a). He told a mate several times that the pins were missing and the mate said, "We're going to take care of it". (93a). Simeone did not witness the accident but he saw a beam and hatch covers in the lower hold. On cross-examination he confirmed Maresca's orders saying, "the foreman instructed me to make sure that the beams are secured, you know, see that the beams are secured". (100a). Simeone saw that the beam was not secured. "There was no pin in it". (106a).

There was no testimony from any observer as to the cause of the accident, namely, the dislodging and fall of the beam and hatch covers. The closest clue is to be found in Simeone's testimony that "The beam was in place, it was in the slot, but it wasn't if you just touch it it will come up. If anything hits it it could fall". (92a).

This, in substance, was plaintiff's case against which the shipowner's motion for a directed verdict and post-trial motion must be judged. As a further ground, the shipowner claims error in the charge and the refusal to give various requests which "permitted the jury to find liability on erroneous legal standards." (Appellant's Br. p. 2).

Although in light of the many cases already decided with respect to the 1972 legislation the law is not undeveloped in this field, the trial judge set as his standard Napoli v. Hellenic Lines, 536 F.2d 505 (2 Cir. 1976), saying: "Napoli is this circuit. I am bound by that, aren't I?" (115a) and later "I am not interested in cases outside the Circuit, and Anuszewski is outside the Second Circuit." (118a). ¹

The trial court's theory of the action was that the shipowner owed a duty to Cox to make sure that during the stevedoring operation the beams on the upper level were pinned. In short, the ship hence was unseaworthy a theory which might well have been argued before the 1972 LHWCA enactments.

The shipowner on the other hand argues that it is not liable to an employee of an independent contractor for injuries sustained as the result of a dangerous condition, latent or open and obvious, known to and within the control of such a contractor.

Court's and defense counsel's arguments actually are travelling in parallel lines never to meet. The Court viewed the case as one by a longshoreman vis-a-vis the shipowner; defense counsel as one against the stevedore, who is protected by workmen's compensation and the 1972 Amendments, absent proof the shipowner's negligence as the proximate cause of the accident.

The tendency of the law constantly to look for precedential guidance may be at the root of the problem here, but when Congress, by legislation clearly directed at, and attempting to solve, the unseaworthiness-seamen-longshoremen-Sieracki-Ryan problem, ² has wiped these cases off the judicial slate completely, new writing must be expected to appear. It has.

In this Circuit, the reasons prompting the 1972 legislation, the changes it accomplished and the resulting decisions therefrom cannot be better stated than in the opinion of Chief Judge Kaufman, in which Judges Lumbard and Van Graafeiland joined, in Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (1977). ³ There, after decision on motions for a directed verdict at the close of the plaintiff's case and at the close of trial had been reserved, the case was sent to the jury for a special verdict on six questions. The appeal was from the denial of the motions and to set aside the verdict.

This Court not only reversed but dismissed the complaint, saying, in part:

"It would, in our view, contravene the clear congressional intent and scheme to approve recovery against Grancolombiana in this case. The shipowner had no duty to supervise the minute details of work totally entrusted to the competence of the stevedore. Indeed, commercial reality and applicable union regulations preclude a rule that would require a non-expert constantly to intrude on the work of a master stevedore in the deepest recesses of the ship.

A careful consideration of the testimony below has convinced us that Munoz is barred as a matter of law from recovering damages from Flota Merchante Grancolombiana. Moreover, the appellee has not brought to our attention, either in his brief or at argument, any grounds that would warrant a new trial in the event the verdict is set aside by this court, nor are we of the view that such relief would be appropriate. . . . " Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, at 840-841 (1977).

Following Munoz some three months later, this court had a somewhat similar appeal in Ruffino v. Scindia Steam Navigation Co., Ltd., 559 F.2d 861 (2d Cir. 1977), which affirmed the dismissal of the complaint and the grant of the motion for judgment n. o. v. Judge Van Graafeiland for the Court said:

"In enacting the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., Congress intended to relieve shipowners...