Duty v. East Coast Tender Service, Inc.
| Decision Date | 01 September 1981 |
| Docket Number | 79-1541,Nos. 79-1540,s. 79-1540 |
| Citation | 660 F.2d 933 |
| Parties | William H. DUTY, Jr., Appellant, and Raymond International, Inc. and Peter Kiewitt Sons Company and Tidewater Construction Corporation, a joint venture d/b/a Raymond-Kiewitt-Tidewater, Intervening Plaintiffs, v. EAST COAST TENDER SERVICE, INC., Appellee. William H. DUTY, Jr., Plaintiff, and Raymond International, Inc. and Peter Kiewitt Sons Company and Tidewater Construction Corporation, a Joint Venture d/b/a Raymond-Kiewitt-Tidewater, Appellants, v. EAST COAST TENDER SERVICE, INC., Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Paul D. Bekman, Baltimore, Md. (William H. Engelman, Harriett E. Cooperman, Kaplan, Heyman, Greenberg, Engelman & Belgrad, P. A., Baltimore, Md., on brief), for appellant in 79-1540; (James W. Bartlett, III, Francis J. Gorman, David R. Owen, Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellant in 79-1541.
George J. Koelzer, Red Bank, N. J. (Thomas D. Monte, Jr., Red Bank, N. J., George Beall, Baltimore, Md., Evans, Koelzer, Marriott, Osborne & Kreizman, Red Bank, N. J., Miles & Stockbridge, Baltimore, Md., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and MURNAGHAN, Circuit Judges.
The case involves two mistakes, one by counsel for the plaintiff, one by the district judge. The mistakes relate to the language of a jury instruction. Are we to reverse for judicial error or should we affirm because of counsel's failure to draw pertinent authority to the court's attention which would have readily alerted him to his error, and permitted him to correct it? That is the question. 1
Plaintiff William H. Duty, a carpenter foreman, was employed by the contractor in charge of construction of a liquified natural gas (LNG) port facility located on the navigable waters of the Chesapeake Bay, approximately one mile off the Western Shore of the Bay, near Cove Point, Maryland. Access to and from the job site was provided by East Coast Tender Service, Inc.
Among the vessels utilized by East Coast for such work crew ferrying purposes was the M/V Chandeleur. A certificate of inspection for the Chandeleur, 2 issued by the United States Coast Guard, required operation by a Coast Guard licensed ocean operator, with a deckhand as crew.
On April 26, 1976, the work crew engaged in constructing the LNG port facility of which the plaintiff was the foreman arrived at the LNG platform in the early morning hours. However, the weather deteriorated, leading to high waters and rough seas. East Coast sent the M/V Chandeleur to retrieve Duty's crew.
Robert Jarvis, who was in possession of a valid Coast Guard ocean operator's license, normally commanded the Chandeleur. Douglas Kohlhoff, who served as a deck hand, did not possess a valid Coast Guard ocean operator's license, motor vessel operator's license, or motorboat license. Robert Jarvis was on vacation during the week of April 26, 1976, and Kohlhoff was assigned to operate the Chandeleur for the pick-up on April 26, 1976 of Duty's crew.
Kohlhoff attempted a stern approach to the landing platform at the LNG facility. Upon reversal of the Chandeleur's engines, the stern of the vessel went under the loading platform, the pitch of the vessel in the rough seas causing it to strike the wooden loading platform, thereby separating from its fastenings a vertical ladder used by embarking and disembarking personnel. Duty, who was descending the vertical ladder in the course of preparing to board the Chandeleur was thrown and suffered the injuries which were the subject of the law suit. 3
Duty received Longshoremen and Harbor Workers' Compensation from his employer. The present action against East Coast charging negligence then was filed alleging diversity of citizenship. The complaint was cast in traditional negligence terminology. It did, however, contain a statement that the "cause of action arises under the General Maritime Law of the United States as hereinafter more fully appears." The sole additional "maritime" allegations (1) alluded to operation of the Chandeleur "on navigable waters of the United States;" and (2) asserted "negligent failure of the Defendant to provide and maintain a safe and seaworthy vessel." The jury returned a general verdict in East Coast's favor.
The appeal concentrates on the role to be assigned operation of the Chandeleur by a person without the required Coast Guard ocean operator's license. Plaintiff presented a requested jury instruction to the effect that the absence of a licensed ocean operator for the Chandeleur constituted negligence per se. 4 The district judge, however in denying the requested instruction, concluded that, inasmuch as the action arose on a diversity claim, without Duty's including a separate admiralty claim, state law should apply. Consequently, he instructed that the failure to provide a Coast Guard licensed operator was "evidence of negligence." 5 Such was the proper standard, if the negligence law of Maryland governed. New Amsterdam Casualty Co. v. Novick Transfer Co., 274 F.2d 916, 923 (4th Cir. 1960). 6 Plaintiff's counsel excepted to the failure to grant the "negligence per se " instruction laconically, inadequately, and indeed wrongly by simply stating:
Your Honor, we have one exception and that would be with respect to the failure to grant what has been marked as Plaintiff's request for Instruction No. 12. The basis for the exception is that it is the Plaintiff's position that, although in the complaint no specific reference was made to Rule (9)(h), that the Plaintiff has provided in the first cause of action a diversity claim based upon the savings to suiters (sic) clause and that it is a maritime claim, which would make the maritime law applicable. The incident occurred on navigable waters and it's our position that the maritime law would apply.
Accordingly, the Provenza and Venable cases which have been cited, along with the Kernan case, would require an instruction that a violation of the Coast Guard regulation would be negligence per se as opposed to being evidence of negligence and that if the jury were to find that as a proximate result of that violation, the Plaintiff was injured, then it is negligence in and of itself. That would be
The status of the plaintiff as someone already compensated by his employer, under the Longshoremen's and Harbor Workers' Compensation Act, was manifest. A companion case had been consolidated under which the employer asserted a lien for reimbursement of LHWCA benefits paid against any recovery by the plaintiff in the third-party negligence action against the owner of the vessel.
Prior to amendment in 1972 of the LHWCA, it was manifest that suit under that Act was maritime, both jurisdictionally, on the one hand, and substantively, or respecting the rules governing liability, on the other. 7 In any case in which negligence was pertinent, if there was any difference between maritime negligence law and land-based negligence law, maritime law prevailed. 8 However, in 1972 substantial amendments were made, and, since the accident in Duty's case occurred in 1976, the 1972 amendments to the LHWCA unquestionably applied.
Following the 1972 amendments, 33 U.S.C. § 905(b) provided recovery for "negligence of a vessel." The theretofore existing right to sue for unseaworthiness was abrogated. 9 Recovery was described as exclusive of all other remedies against the vessel, with an exception not here pertinent for remedies otherwise provided in the LHWCA. The legislative history makes clear the purpose of the 1972 amendments:
to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as bringing a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as "unseaworthiness", "non-delegable duty", or the like.... (T)he vessel shall not be liable ... unless it is proven to have acted or have failed to act in a negligent manner such as would render a land based third party in non-maritime pursuits liable under similar circumstances.
H.R.Rep.No.92-1441, 92d Cong., 2d Sess. (1972), 3 U.S.Code Cong. & Admin.News, pp. 4698, 4703-4704 (1972). 10
By the 1972 amendment, a LHWCA cause of action under § 905(b), while clearly remaining "maritime" in a jurisdictional sense since the accident occurred on navigable waters, 11 was divested of all special maritime claim characteristics. Anuszewski v. Dynamic Mariners Corp., Panama, 540 F.2d 757, 759 (4th Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977) (); Riddle v. Exxon Transportation Co., 563 F.2d 1103, 1110 (4th Cir. 1977) ().
A fundamental change, therefore, was brought about by the 1972 amendments. Formerly maritime for all purposes, a § 905(b) action now had a dual nature: jurisdictionally maritime, but substantively land-based. Unseaworthiness was no more, and negligence as defined for certain maritime purposes, such as the non-delegable duty to provide a safe place to work, was also gone. Negligence, henceforth, was to be defined solely on land-based, common law principles, divorced from all maritime "negligence" concepts if, and to the extent there was a variance.
Practically, that sweeping change rendered cases involving pre-1972 accidents of little use in ascertaining a negligence rule which should apply in a case arising under the amended statut...
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