Frasca v. Prudential-Grace Lines, Inc.

• Decision Date: 30 April 1975
• Docket Number: Civ. No. B-74-272.
• Citation: 394 F. Supp. 1092
• Parties: Frank E. FRASCA v. PRUDENTIAL-GRACE LINES, INC.
• Court: U.S. Bankruptcy Court — District of Maryland

394 F. Supp. 1092

Frank E. FRASCA v. PRUDENTIAL-GRACE LINES, INC.

Civ. No. B-74-272.

United States District Court, D. Maryland, Baltimore Division.

April 30, 1975.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Fred Ginsberg and Eugene A. Edgett, Jr., Baltimore, Md., for plaintiff.

Randall C. Coleman, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

BLAIR, District Judge.

I. Facts

This is a maritime "slip'n fall" case arising under the provisions of the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905(b) (Pocket Pt. 1974). The plaintiff, a longshoreman, was injured when he slipped and fell off a ladder leading into the No. 4 hatch on the defendant's ship, the S.S. SANTA CLARA. The jury returned a special verdict finding the shipowner, the plaintiff's stevedoring employer, I.T.O. Corp., and the plaintiff all negligent in the amounts of 40 percent, 50 percent, and 10 percent respectively. Total damages were found to be $21,000. This court accordingly entered judgment in favor of plaintiff in the amount of $8,400, or 40 percent of $21,000. The shipowner timely moved for a judgment notwithstanding the verdict under Fed.R.Civ.P. 50(b), having made a motion for a directed verdict at the close of all the evidence. The defendant does not seek a new trial. In its motion, the defendant challenges the sufficiency of the evidence to show a breach of the defendant's duty to the plaintiff under the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905 (Pocket Pt. 1974).

The standard for granting a judgment notwithstanding the verdict is the same as the standard for directing a verdict, and the motion for judgment n.o.v. can be granted only if the motion for directed verdict should have been granted. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2537, at 599 (1971) hereinafter cited as Wright & Miller. Hence, in determining whether the evidence is sufficient to create an issue of fact for the jury,

the court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Instead it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence.

Id. § 2524, at 543-45. Thus, the motion for a judgment n.o.v. should be denied

if, giving the plaintiff the benefit of every legitimate inference in his favor, there was evidence upon which the jury could reasonably return a verdict for him . . ..

Mays v. Pioneer Lumber Corp., 502 F.2d 106, 107 (4th Cir. 1974); see Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). The movant is not entitled to prevail if, based on the applicable law, the evidence raises questions upon which reasonable minds may differ. See Harner v. John McShain, Inc. of Md., 394 F.2d 480, 481 (4th Cir. 1968); 9 Wright & Miller § 2528, at 564. The evidence as construed most favorable to the plaintiff is as follows:

The accident occurred on May 29, 1973, a cloudy, overcast day, with an on-and-off drizzle. The longshoremen crew of which plaintiff was a member reported to work at 8:00 a. m. to finish unloading No. 4 hatch on the S.S. SANTA CLARA, which they had begun unloading the day before. They had quit work at noon the previous day due to inclement weather.

The No. 4 hatch opening had four covers, of which the port side forward cover was open on the morning of May 29. On top of the closed covers were various large containers or crates lashed to the deck. Surrounding the hatch is a "coaming," which is 12-18 inches wide extending upward from the deck about three feet. The hatch's port ladder is attached to the inside of the coaming equidistant from either end of No. 4 hatch; the ladder extends down to the upper 'tween deck. The top rung of the ladder is about 12 inches below the top of the coaming. The rungs are 18 inches wide, but the closed after hatch cover extended over part of the top rung, and hence only nine inches of the top rung were visible and available for use.

To descend into the hatch using this ladder, a person had to swing one foot over the coaming and feel for the top rung, while holding on to the deck lashing with one hand and the hatch coaming with the other. The other foot would then be swung over the coaming and placed on the ladder. Thus, the lashing wires provided the only firm hand hold.

When the members of plaintiff's gang descended into the lower hold on the morning of May 29, they noticed that the lashing wires, the coaming, and the ladder were all covered with a fine film of oil or grease. There was also water and grease on the surface of the lower hold deck. Because of the latter condition, the longshoremen requested and were provided with "Stay-Dry," which is a substance that will absorb water and oil or grease and provide traction for the "hi-lo" tractor used by the longshoremen to move cargo inside the hatch. The longshoremen also noticed a tippedover "hi-lo" tractor on the upper 'tween deck, from which oil or hydraulic fluid was leaking. This fact was called to the attention of the stevedore's foreman, and a mate was called in order to point out the tractor's condition to him.

The general greasy condition of the lashing wires, hatch coaming, and ladder was not directly called to the attention of the ship's personnel by any of the longshoremen. However, a member of the ship's crew did descend into the hold by way of the port hatch ladder to open the lower hatch when the longshoremen first descended in the morning. A ship's crew member also descended into the hatch to close the upper 'tween deck lid at about 1:00 p. m. Neither the ship's crew nor the stevedoring company or its employees made any attempts to correct the oily and greasy conditions on the lashing wires, hatch coaming, and ladder.

The factual cause of the greasy conditions in the area was not certain. The condition could have been caused by ship's crew or longshoremen previously tracking the oil from the upper 'tween deck onto the ladder, coaming, and lashing wires, and/or from the presence of grease in the grooves of the hatch cover rollers on the top of the coaming. The greasy conditions were present when the longshoremen reported for work that morning. The condition became worse throughout the day due to the tracking of oil by the longshoremen as they went up and down the ladder.

From 8:00 a. m. until the time of plaintiff's fall shortly after 3:00 p. m., eight longshoremen used the ladder at least three times each. The plaintiff himself used the ladder four times. He admitted that he noticed the greasy and oily conditions when he first descended in the morning and remained aware of the condition until the time of his injury. Another ladder, known as the "escape hatch" ladder, was available for use in the after end of No. 4 hatch. After 1:00 p. m. on May 29, however, this ladder became more difficult to use because the longshoremen would have had to climb over two large air conditioners that had been stowed in the after end of the upper 'tween deck in No. 4 hatch. None of the longshoremen used the escape hatch ladder, as their usual practice was to use the ladder leading directly into the hatch. The plaintiff was not instructed to use the escape hatch ladder rather than the port hatch ladder.

Shortly after 3:00 p. m. on May 29, the plaintiff ascended the ladder to get some coffee and use the restroom. He returned to No. 4 hatch, and, while attempting to swing his right foot over the coaming and descend the ladder, his left foot slipped off the top rung of the ladder, causing his hands to slip from the lashing wire and coaming. The plaintiff fell approximately 15 feet to the upper 'tween deck and suffered severe injuries. The question presented is whether these facts constitute sufficient evidence from which a reasonable jury could find that the defendant shipowner breached any duty that it owed to the plaintiff longshoreman.

II. The Shipowner's Duty

Before the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act, a longshoreman could recover against a shipowner for injury suffered during the course of his employment on board ship under either or both of two distinct theories: the doctrines of seaworthiness and negligence. Under the former, the shipowner's liability was in the nature of strict liability: he had an absolute, continuing duty to provide the longshoreman with a reasonably safe place to work. See Provenza v. American Export Lines, Inc., 324 F.2d 660, 662-63 (4th Cir. 1963); Ramirez v. Toko Kaiun K.K., 385 F.Supp. 644, 648-49 (N.D.Cal.1974). However, the 1972 Amendments have eliminated unseaworthiness as a remedy for longshoremen injured on a vessel; only the longshoreman's action in negligence has been retained. 33 U.S.C.A. § 905(b) (Pocket Pt. 1974).

The legislative history of the 1972 amendments makes clear that

land-based principles of law apply to longshoremen's claims for damages against third parties and that a ship has no different liability to longshoremen employed to work aboard it by a stevedoring company than the owner of land-based property owes to the employees of an independent contractor who performs work on that property.

Anuszewski v. Dynamic Mariners Corp. Panama, Civil No. 73-1200-K, 391 F. Supp. 1143 at 1146 (D.Md.1975); Ramirez v. Toko Kaiun K.K., 385 F. Supp. 644, 651 (N.D.Cal.1974); see H.R.Rep.No. 1441, 92d Cong. 2d Sess. (1972), in 1972 3 U.S.Code Cong. & Admin.News, p. 4698. In determining this land-based duty, the federal courts must develop and apply a uniform federal law. Anuszewski v. Dynamic Mariners Corp. Panama, supra at 1147; Hite v. Maritime Overseas Corp., 380 F.Supp. 222, 226 (E.D.Tex.1974).

The stevedoring company that unloaded the S.S. SANTA CLARA in this case was an independent...