Deffes v. Federal Barge Lines, Inc.

• Decision Date: 06 July 1966
• Docket Number: No. 21868.,21868.
• Citation: 361 F.2d 422
• Parties: Ernest O. DEFFES, Appellant, v. FEDERAL BARGE LINES, INC. and Gulf-Canal Lines, Inc., et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

361 F.2d 422 (1966)

Ernest O. DEFFES, Appellant, v. FEDERAL BARGE LINES, INC. and Gulf-Canal Lines, Inc., et al., Appellees.

No. 21868.

United States Court of Appeals Fifth Circuit.

May 26, 1966.

Rehearing Denied July 6, 1966.

Edgar N. Quillin, Arabi, La., Sherman F. Raphael, New Orleans, La., for appellant.

Edmond C. Salassi, Thomas J. Wyllie, New Orleans, La., for appellees.

Before JONES and THORNBERRY, Circuit Judges, and SLOAN, District Judge.

THORNBERRY, Circuit Judge:

The plaintiff, a stevedore employed by Continental Grain Company (Continental), was injured while unloading grain from Barge FBL 625 which is owned by Federal Barge Lines, Inc. (Federal) and chartered by Gulf-Canal Lines, Inc. (Gulf). Plaintiff sued Federal and Gulf for damages, and the defendants filed a third-party complaint against Continental as the employer of the plaintiff. The district court held for the defendants. 229 F.Supp. 719.

The injury resulted from an alleged defect in a marine leg, a mechanical elevator device, owned by Continental. The marine leg is basically a conveyor belt to which buckets are attached. It is permanently attached to the dock at all times and is designed for use in unloading grain from barges. The power for raising, lowering and operating the leg is supplied by shore-based facilities, and all the equipment used is owned by Continental.

The unloading operation is performed in four stages: (1) The marine leg is introduced through the open hatch of the barge into the grain, and grain is, in effect, "dug" out by the buckets on the conveyor belt. During this stage, there is no contact with the barge. (2) Large scoops, generally called "air buckets," operated by means of pulleys and cables, are utilized to bring the grain from the ends of the barge to the marine leg. The pulleys are attached to the barge at various places by means of hooks and are connected with the marine leg by cables. All this equipment is stored in the marine leg when not in use. (3) When the grain level has been lowered sufficiently, the air buckets are detached and stored and small bulldozers serving essentially the same purpose as the air buckets are brought into use. (4) The last phase of the process is the "sweeping up," during which stevedores sweep up the grain and shovel it into the marine leg. At this stage, the marine leg rests on the bottom of the barge. The injury occurred during this last phase of the unloading.

Plaintiff claimed that a piece of metal from a worn bucket broke off and hit him in the eye. He received compensation from his employer, Continental, under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. Plaintiff sought recovery against Federal and Gulf on the theory that the allegedly defective marine leg and the failure of Continental to supply goggles in compliance with the Safety and Health Regulations for Longshoring, 29 C.F.R. § 9.1, rendered the barge unseaworthy.

The district court noted that

"an owner of a vessel may be liable for an unseaworthy condition which has been caused by an independent contractor and that the doctrine has been extended to include equipment brought aboard and used and controlled exclusively by stevedores in loading and unloading a vessel. Alaska Steamship Company v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954); Rogers v. United States Lines, 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120 (1954)."

Deffes v. Federal Barge Lines, Inc., E.D. La.1964, 229 F.Supp. 719, 721.

The court, citing McKnight v. N. M. Paterson & Sons, 6th Cir. 1960, 286 F.2d 250, cert. denied, 368 U.S. 913, 82 S.Ct. 189, 7 L.Ed.2d 130, and Sherbin v. S.Ct. Embiricos, Ltd., E.D.La.1962, 200 F. Supp. 874, found that the Petterson and Rogers cases involved equipment which was "traditionally a part of a ship's appurtenant appliances and equipment." Ibid. Since the marine leg was not "equipment traditionally found aboard and used in unloading operations," the court held that a defect in the marine leg would not cause the barge to be unseaworthy.

The court also concluded that a "violation of a safety regulation applicable to a stevedore does not render a vessel unseaworthy unless the violation creates a dangerous condition aboard the vessel, which would constitute a defect in the vessel's hull, gear, stowage and appurtenant appliances and equipment," and that the barge owner had discharged his duty of reasonable care by hiring a reputable firm to handle the loading and unloading of the barge. Id., 721-722.

The basic question presented on this appeal is whether a defect in a shore-based marine leg can cause a barge to be held unseaworthy. Similar questions have been considered by several courts and have resulted in a sharp conflict between the circuits. The opinion of the district court relies on the Sixth Circuit decision in the McKnight case and is also supported by the Second Circuit's opinion in Forkin v. Furness Withy & Co., 2d Cir. 1963, 323 F.2d 638. The opposite view has been espoused by the Ninth Circuit in Huff v. Matson Navigation Co., 9th Cir. 1964, 338 F.2d 205, cert. denied, 380 U.S. 943, 85 S.Ct. 1026, 13 L.Ed.2d 963 and by the Third Circuit in Spann v. Lauritzen, 3rd Cir. 1965, 344 F.2d 204, cert. denied, 382 U.S. 1000, 15 L.Ed.2d 489. After carefully considering these cases and the Supreme Court cases which have developed the doctrine of unseaworthiness, we conclude that the decisions of the Ninth and Third Circuits correctly state the law and that, therefore, the holding of the district court must be reversed.

The doctrine of unseaworthiness was conceived by the Supreme Court in The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760, as a device for imposing liability on ship owners for injuries to seamen. Since that time there has been a steady expansion of the scope and coverage of the doctrine. Thus, in Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 89, 66 S.Ct. 872, 875, 90 L.Ed. 1099, the Supreme Court considered the question "whether the shipowner's obligation of seaworthiness extends to longshoremen injured while doing the ship's work aboard but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship." The Court discussed at length the rationale of the doctrine and noted that

"the hazards of marine service which unseaworthiness places on the men who perform it. * * *, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the owner regardless of his fault. * * * The owner * * * is in position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost.

* * * * * *

"This policy is not confined to seamen who perform the ship\'s service under immediate hire to the owner, but extends to those who render it with his consent or by his arrangement. All the considerations which gave birth to the liability and have shaped its absolute character dictate that the owner should not be free to nullify it by parcelling out his operations to intermediary employers whose sole business is to take over portions of the ship\'s work or by other devices which would strip the men performing its service of their historic protection. The risks themselves arise from and are incident in fact to the service. * * * The owner\'s ability to distribute the loss over the industry is not lessened by the fact that the men who do the work are employed and furnished by another. Historically the work of loading and unloading is the work of the ship\'s service, performed until recent times by members of the crew. * * That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker\'s hazard and should not nullify his protection.

* * * * * *

"It seems, therefore, that when a man is performing a function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights."

Id. at 93-97, 66 S.Ct. at 877-879. (Emphasis added.)

The Court also found that the stevedore's remedy for unseaworthiness against the shipowner was in addition to his statutory remedy against his own employer. Id. at 100-102, 66 S.Ct. at 872.

The coverage of stevedores under the doctrine of unseaworthiness was further developed in Alaska Steamship Co. v. Petterson and Rogers v. United States Lines, supra. The stevedore's injury in Petterson was caused by a defective block which the Court assumed had been brought on board the ship by the stevedoring company. The Ninth Circuit found the vessel to be unseaworthy, Petterson v. Alaska Steamship Co., Inc., 9th Cir. 1953, 205 F.2d 478, and the Supreme Court affirmed per curiam, citing Seas Shipping Co. v. Sieracki, supra, and Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. In Pope, the Supreme Court has reaffirmed Sieracki and stated that "Sieracki's legal protection was not based on the name `stevedore' but on the type of work he did and its relationship to the ship and to the historic doctrine of seaworthiness." Id. at 413, 74 S.Ct. at 207. (Emphasis added.) The injured man in Pope was a carpenter who was repairing the loading apparatus and was hurt when he fell through an uncovered hatch hole.

The Third Circuit in Rogers was concerned with an allegedly defective land fall runner, a device used in unloading cargo. In its discussion, the Court stated:

"Admittedly then, the alleged unseaworthy condition was not created by the ship. The runner was owned, produced and fastened to the winch by Lavino the stevedoring company, which was in charge of and performing the unloading operation. And there is no indication that the ship

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