Evans v. Transportacion Maritime Mexicana, 42

• Citation: 639 F.2d 848
• Decision Date: 05 January 1981
• Docket Number: No. 42,D,42
• Parties: Charles EVANS, Plaintiff-Appellee, v. TRANSPORTACION MARITIME MEXICANA SS "CAMPECHE", Defendant-Appellant. ocket 80-7081.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 848

639 F.2d 848

Charles EVANS, Plaintiff-Appellee, v. TRANSPORTACION MARITIME MEXICANA SS "CAMPECHE", Defendant-Appellant.

No. 42, Docket 80-7081.

United States Court of Appeals Second Circuit.

Argued Sept. 15, 1980.

Decided Jan. 5, 1981.

Joseph T. Stearns, New York City, (Sandra R. M. Gluck, Walker & Corsa, New York City, of counsel), for defendant-appellant.

Irving B. Bushlow, Brooklyn, N. Y., for plaintiff-appellee.

Before FRIENDLY and MESKILL, Circuit Judges, and BONSAL, District Judge. ^*

MESKILL, Circuit Judge:

Charles Evans, a longshoreman formerly employed by Pittston Stevedoring Company (Pittston), was injured while loading the CAMPECHE, a vessel owned by the defendant, Transportacion Maritime Mexicana (the shipowner). Pittston's insurer awarded Evans $60,484.86 in settlement of his claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 (1976). Subsequently, pursuant to § 905(b) of that Act, Evans brought this third-party negligence action against the shipowner in the United States District Court for the Southern District of New York. After a five-day trial, the jury returned a verdict of $80,000 in favor of Evans. Judge Platt entered judgment on the verdict and denied the shipowner's motion for judgment n. o. v. Because of errors in the charge, we reverse.

BACKGROUND

The events leading up to this lawsuit began the day before the accident, when a longshoring crew under the supervision of Mr. Richard Mills, a Pittston Foreman, began loading the # 2 hold of the CAMPECHE. The jury would have been justified in finding the facts as follows. The flooring of the # 2 hold consisted of wooden planking laid on top of a steel deck. Apparently, the purpose of this planking was to prevent heavy cargo from piercing the oil and ballast tanks located immediately below. On the day before the accident, Pittston was using "hi-los" ¹ to move cargo in the # 2 hold. Customarily, steel plates were laid down in these circumstances to protect the flooring from the machinery, but Pittston was not using them, either because there not enough plates or because they were the wrong size. Mills discovered that when the hi-los ran across the uncovered boards, some of the planks would pop up or shift. Accordingly, he ordered his men to nail plywood panels (dunnage) to the floor to eliminate the problem. At the end of the day, the port captain, an employee of the shipowner, told Mills that he wanted the # 2 hatch worked in the morning. Mills replied, "I am not going back to the hatch. That is, if I have to come back and if we have to work under the same conditions." The port captain did not withdraw his request, nor did he instruct the ship's crew to repair the floor.

On the day of the accident, Mills apparently had a change of heart, for he told Evans, that day's "hatch boss" for the # 2 hatch, "to go ahead and proceed with the job moving freight" into hatch # 2. The port captain, who was present when this order was given, did not try to countermand Mills' instruction. Just before the accident the holdman complained in the presence of the port captain and the mate that the floor was "torn up" and spotted with grease. Evans asked the ship personnel to try to find some dunnage, but they failed to

                produce any.  He then complained to the port captain and to Mills that dunnage was needed, 2 and proceeded with Mills and the ship's mate to search the ship and an adjacent pier for dunnage.  Evans returned empty-handed and again complained about the floor to the mate and Mills, whereupon he testified that "they told me we have to work because ... the ship had to go out that afternoon."  3 Shortly after this dictate, Evans lost his footing and sustained the injuries which are the subject of this suit
                

DISCUSSION

In attempting to determine the scope of a shipowner's liability under the LHWCA, courts have had to grapple with a problem inherent in the tripartite relationship among shipowner, stevedore and longshoreman: the extent to which a shipowner may reasonably rely on the stevedore to fulfill its primary obligation to correct known or obvious defects which, if left uncorrected, might endanger the safety of the longshoremen. This case presents the problem once again. Because other circuits have adopted differing approaches, and because the cases in our own Circuit reflect some disagreement on this issue, we feel that a thorough discussion of the problem is warranted.

The Statutory Purpose

The events leading up to the enactment of the 1972 Amendments to the LHWCA have been thoroughly chronicled by both courts and commentators, ⁴ and need not be reviewed here. For present purposes, it is sufficient to state that Congress extinguished vessel liability predicated upon the negligence of the stevedore or upon the "unseaworthiness" of the ship. 33 U.S.C. § 905(b) (1976). The longshoreman's third-party action against the vessel, while preserved by the Amendments, was limited to injuries "caused by the negligence of a vessel." Id. The contours of the shipowner's liability for negligence are not explained in the statute, and the legislative history, while providing some general guidance, seems to embrace many of the same conflicting principles that have troubled the courts. Nevertheless, certain conclusions may be drawn from the statute and its history.

First, Congress was concerned about safety in the longshoring industry. At the time of the 1972 Amendments, longshoring was the nation's second most dangerous industry (behind only coal mining), and the Senate Committee sought to apply "every appropriate means ... toward improving the tragic and intolerable conditions which take such a heavy toll upon workers' lives and bodies in this industry." S.Rep.No.92-1125, 92d Cong., 2d Sess. 2 (1972). The House Report states that permitting actions against the vessel based on negligence "will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work." H.R.Rep.No.92-1441, 92d Cong., 1st Sess. 6 reprinted in (1972) U.S.Code Cong. & Ad.News, pp. 4698, 4704 (hereinafter cited as House Report). The Committee emphasized that "nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition." Id.

Second, Congress sought to eliminate longshoremen's actions against the shipowner based on the unseaworthiness of the vessel or the negligence of the stevedore, replacing those remedies with a standard of care derived from land-based principles of negligence:

The purpose of the amendments is 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", "nondelegable duty", or the like.

Persons to whom compensation is payable under the Act ... cannot bring a damage action under the judicially-enacted doctrine of unseaworthiness. Thus a vessel shall not be liable in damages for acts or omissions of stevedores or employees of stevedores subject to this Act.

Id. at 4703. As Judge Friendly has pointed out, any interpretation of the Act which imposes upon the vessel liability without fault will place the shipowners in a worse position than before, since the vessel's indemnity action against the stevedore was also eliminated by the 1972 Amendments. Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 687 (2d Cir.) (Friendly, J., dissenting), cert. denied, 439 U.S. 929, 99 S.Ct. 316, 58 L.Ed.2d 322 (1978).

Third, while directing courts to use a land-based standard of negligence, Congress specifically incorporated the admiralty concept of comparative negligence in place of the traditional terrene doctrines of contributory negligence and assumption of the risk:

(T)he Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee's own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of "assumption of risk" in an action by an injured employee shall also be applicable.

House Report at 4705.

Finally, Congress made clear that the stevedore is to have the primary responsibility for the safety of the longshoremen. Section 941 requires the stevedore to "furnish and maintain employment and places of employment which shall be reasonably safe for his employees" and to comply with the regulations promulgated under the Act. 33 U.S.C. § 941(a) (1976). See Canizzo v. Farrell Lines, Inc., supra, 579 F.2d at 688 (Friendly, J., dissenting); Cox v. Flota Mercante Grancolombiana, 577 F.2d 798, 802-03 (2d Cir.), cert. denied, 439 U.S. 881, 99 S.Ct. 222, 58 L.Ed.2d 195 (1978); Hurst v. Triad Shipping Co., 554 F.2d 1237, 1248-49 (3d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977). See also Hazen & Toriello, Longshoremen's Personal Injury Actions Under the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 53 St. John's L.Rev. 1, 9 (1978); Comment, Developing a Consistent Theory of Vessel Liability to Injured Longshoremen Under the LHWCA, 45 Brooklyn L.Rev. 731, 749-55 (1979). Since the stevedore is an independent contractor in control of the cargo operation and is hired specifically for his expertise, the stevedore is ordinarily in the best position to prevent accidents which might arise in the course of loading or unloading the ship.

The Judicial Response

Faced with the task of interpreting these various policies "uniformly," ⁵ this Court adopted Restatement...