Davison v. Pacific Inland Nav. Co., Inc.

• Decision Date: 13 February 1978
• Docket Number: No. 75-3054,75-3054
• Citation: 569 F.2d 507
• Parties: James DAVISON, Plaintiff-Appellee, v. PACIFIC INLAND NAVIGATION COMPANY, INC., a Washington Corporation, Defendant-Appellee, and Mitsubishi International Corporation, a New York Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 507

569 F.2d 507

James DAVISON, Plaintiff-Appellee, v. PACIFIC INLAND NAVIGATION COMPANY, INC., a Washington Corporation, Defendant-Appellee and Mitsubishi International Corporation, a New York Corporation, Defendant-Appellant.

No. 75-3054.

United States Court of Appeals Ninth Circuit.

Feb. 13, 1978.

Hardy Myers (argued), of Rives, Bonyhadi & Smith, Portland, Or., for defendant-appellant.

Raymond J. Conboy and Ridgway K. Foley, Jr. (argued), Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before BARNES and ELY, Circuit Judges, and VAN PELT, Senior District Judge. ^*

VAN PELT, Senior District Judge:

This case is an appeal from a judgment entered in the United States District Court of Oregon.

Plaintiff-appellee Davison, an employee of Jones-Oregon Stevedoring Co., (Jones-Oregon), received injuries on June 22, 1973, while working as a longshoreman unloading urea from Barge 312-1, owned by Pacific Inland Navigation Co. (PAC) and voyage chartered to Mitsubishi International Corporation (MIC). Davison sued PAC and MIC, alleging that their negligence was the cause of his injury. The jury returned a verdict of $32,212 for Davison against MIC and found in favor of PAC. MIC's Motion for Judgment Notwithstanding the Verdict or For a New Trial was denied by the trial judge.

The central issue on this appeal is whether MIC was negligent under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972, 33 U.S.C. § 901 et seq. ¹ We find no evidence to sustain the jury's award and reverse and remand to the district court with instructions to enter judgment for defendant-appellant MIC and to dismiss the complaint.

The test for the appropriate grant of a judgment notwithstanding the verdict is whether, without the need for weighing the credibility of witnesses, the evidence and its inferences, considered as a whole and viewed in the light most favorable to the party against whom such motion is granted, can support only one reasonable conclusion, i. e., that the moving party is entitled to judgment notwithstanding the adverse verdict. Wagle v. Murray, 560 F.2d 401, 403 (9th Cir. 1977); Cockrum v. Whitney, 479 F.2d 84, 85-86 (9th Cir. 1973). Moreover, when a motion for a judgment notwithstanding verdict is erroneously denied by a District Court, the Court of Appeals may order that the proper judgment be entered. Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967).

The series of events leading up to this lawsuit are made more complex because of the numerous companies involved. Defendants MIC and PAC entered into a voyage charter agreement on November 14, 1972, whereby MIC chartered PAC Barge 312-1 in tow of a PAC tug to haul urea which Georgia-Pacific Corporation had purchased of MIC, from Kenai, Alaska, to Stockton, California. ² MIC in turn subchartered the barge to Mitsubishi Gas Chemical Limited (MGC) which with Collier Carbon and Chemical Co. (Collier) owns a urea plant in Kenai, Alaska. Mr. Tsuboi, who was the new business coordinator for MIC during the time relevant here, maintained at the trial that MGC and MIC were separate entities. Tsuboi testified that MIC was functioning as a freight broker by obtaining the barge and selling the urea for MGC, which still held title to it during the voyage. The voyage charter was approved by MGC prior to its making. The voyage charter provided that PAC made no warranty as to fitness of purpose of the barge and acceptance by MIC constituted an admission of suitability. The charter agreement also stated that, in the event the augers would not handle the cargo, MIC had sole responsibility for unloading the barge. Thomas Garside of PAC testified that the language of the charter agreement was to protect PAC in case the augers would not discharge urea in the same manner as grain. ³ The evidence showed the barge had mostly been used for grain, although urea had been hauled in it prior to this charter. Garside testified that the risk inherent to men never came up in drafting the language of the charter.

Georgia-Pacific contracted with Jones-Oregon for Jones-Oregon to unload the cargo. From the agreed facts in the Pretrial Order, which require no proof, we learn:

7. Under its agreement with G-P, Jones-Oregon was responsible for determining how to discharge the urea from the barge.

10. Neither MIC nor (PAC) had a contract with Jones-Oregon for discharging urea from the barge.

R, Vol. I, at 181. Georgia-Pacific had investigated the unloading of urea from Barge 312-1 prior to the signing of the voyage charter. An interdepartmental communication dated November 3, 1972, stated that three Georgia-Pacific employees visited Collier's urea unloading facilities at Rivergate, Oregon, on October 31 and November 1, 1972, to watch the unloading of Barge 312-1. The report makes several suggestions for improving the efficiency and reducing the manpower needed during the unloading process. None of these suggestions were ever put into effect. A copy of this report was sent to MIC's Seattle office, and the evidence showed it was seen by Mr. Tsuboi before the voyage charter was made. There was no evidence that the report was ever seen by Jones-Oregon. However, Jones-Oregon had independently investigated the unloading of urea from Barge 312-1 prior to the voyages made under the charter agreement here involved. Leland Roundtree, the Oregon Coast Manager for Jones-Oregon, testified that he had gone to Stockton and observed the urea there was dusty and "more or less" free flowing (as opposed to caked). Roundtree also observed urea in Barge 312-1 during its first visit to Coos Bay, Oregon, in March of 1973. At that time Roundtree and two other persons were buried to their waists inside one of the silos when a wall of urea gave way as they were standing there talking.

On June 22, 1973, Davison was working in one of the five silos on Barge 312-1 when a wall of urea collapsed and he was partially buried and pinned by the urea. The barge was designed to be self-unloading with three chutes in each silo floor through which the cargo was supposed to flow. Each silo had sweep augers which would rotate around the sides to draw the cargo to the middle of the floor so it would go down the chutes. The urea here was caked and hard. ⁴ The sweep augers would become embedded in the urea walls, and the urea would break off in chunks too large to go through the chutes. Longshoremen would have to go in with long poles to free the augers and break up the chunks. There were 25 to 30 foot cliffs of urea on the sides of the silo.

Jerrold Wyatt, the walking boss for Jones-Oregon, who was supervising the unloading of the urea, was unaware that Roundtree had been buried to his waist by the collapse of a urea wall. Wyatt testified he was not given any instructions by his supervisors (one of whom was Roundtree) as to the method of unloading the cargo and that he was not personally familiar with urea. The only instructions Wyatt gave the men were to stay away from the overhangs and to break up the clots so they would not clog the bottom of the troughs. Davison was breaking up chunks about ten feet from the wall when he was injured.

MIC could only be liable to Davison in this case if it was found negligent in some respect. The relevant statute here is 33 U.S.C. § 905(b), which 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.

The history of the 1972 amendments to the LHWCA has been detailed in the Congressional Reports, see H.R.Rep.No.92-1441, 92d Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Admin.News p. 4698. See also Hurst v. Triad Shipping Co., 554 F.2d 1237, 1241-44 (3d Cir.), cert. denied, --- U.S. ----, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977); Munoz v. Flota Merchante Grancolombiana, S. A., 553 F.2d 837, 839-40 (2d Cir. 1977). Suffice it to say that prior to the 1972 amendments the compensation to which an injured employee was entitled from his stevedore employer was usually inadequate. The employee then sought additional compensation by suing the vessel, which was held liable regardless of fault by the courts under a theory of "seaworthiness." As the House Report notes, a vessel could be found unseaworthy even though the condition was caused, created or brought into play by the stevedore or its employees. (1972) U.S.Code Cong. & Admin.News at p. 4702. The vessel in turn was allowed by the courts to sue the stevedore company for reimbursement if the stevedore was partially negligent. The 1972 amendments changed all this by increasing the compensation for the injured worker, eliminating the doctrine of unseaworthiness so that vessels could no longer be held liable solely because of the stevedore's negligence, and...