Futo v. Lykes Bros. S.S. Co., Inc.

• Citation: 742 F.2d 209
• Decision Date: 24 September 1984
• Docket Number: No. 83-3449,83-3449
• Parties: Mrs. Maria Toth FUTO, Plaintiff-Appellant, Insurance Company of the State of Pennsylvania, Intervenor-Appellant, v. LYKES BROS. STEAMSHIP CO., INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 209

742 F.2d 209

1985 A.M.C. 1030

Mrs. Maria Toth FUTO, Plaintiff-Appellant, Insurance Company of the State of Pennsylvania, Intervenor-Appellant, v. LYKES BROS. STEAMSHIP CO., INC., Defendant-Appellee.

No. 83-3449.

United States Court of Appeals, Fifth Circuit.

Sept. 24, 1984.

Opinion on Rehearing Nov. 19, 1984.

Peter L. Hilbert, Jr., New Orleans, La., for intervenor-appellant.

Alonzo T. Stanga, III, William R. Mustian, III, Metairie, La., for Futo.

Terriberry, Carroll & Yancey, William E. Wright, New Orleans, La., for defendant-appellee.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

John Futo, a machinist employed by Dixie Machine Welding & Metal Works ("Dixie"), died as a result of a fall on October 7, 1977 aboard a vessel owned by the defendant, Lykes Brothers Steamship Company, Inc. ("Lykes"). Futo was covered under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. Secs. 901, et seq. His widow, alleging negligence on the part of the shipowner, sued Lykes as authorized under sections 5(b) and 33 of the LHWCA, 33 U.S.C. Secs. 905(b) and 933. ¹ The district court granted summary judgment in favor of the defendant-shipowner, Lykes. We affirm.

I. FACTS

Dixie entered into a contract to perform a variety of repairs to the SS SHIRLEY LYKES in conjunction with a five-year survey required by Coast Guard regulations. Dixie began the survey work on September 30, 1977 and completed the repairs about five weeks later, on November 5. Throughout this interval, the ship was docked at the Andry Street wharf in the city of New Orleans. Although the vessel remained afloat on the Mississippi River, it had no power other than electrical power provided from ashore. No facilities were maintained for eating or sleeping aboard ship.

The usual crew for the SS SHIRLEY LYKES was not present during the repair work. However, employees of Lykes boarded the vessel daily to ensure the security of the ship and to check on the progress of Dixie's work. These included Captain Edward Powell, who was assigned to the vessel only during the repairs; Chief Engineer Otis Ratly, a long-time Lykes employee and a member of the vessel's regular crew; and Port Engineer Charlie Blay, an employee from the Lykes office in New Orleans. In addition, a Lykes shore crew The contract between Dixie and Lykes contained a number of detailed specifications for the work to be performed by Dixie on the vessel. On October 7, a Dixie supervisor had assigned Futo to work on the booms of the ship, a Dixie task described under item number 44 of the specifications. Item number 44 also imposes responsibility on Dixie to erect any scaffolding necessary for Dixie's employees to carry out the boom repairs and to remove any such scaffolding upon completion. At the time of his fall, Futo was attempting to remove a pin from the boom housing, a task that required him to work about ten to fifteen feet above the deck. A Dixie employee had constructed a scaffold for this purpose. Dixie intended to add a guardrail to the scaffold but had not yet done so. ² Futo was not wearing any type of safety line or belt to prevent his fall. He slipped and fell to the deck below, suffering a fatal head injury.

came onto the vessel at times to perform routine maintenance tasks.

John Futo's widow, the plaintiff Maria Toth Futo, sued the vessel owner, Lykes, for negligence, claiming that Lykes was negligent in failing to warn about and to correct a hazardous condition aboard the vessel--the missing railing of the scaffold--which led to her husband's death. About two years later the defendant filed a motion for summary judgment and the district court granted this motion on September 12, 1979. This Court affirmed without opinion. The United States Supreme Court, however, granted Mrs. Futo's petition for writ of certiorari on May 4, 1981, vacated our decision, and remanded the case to this Court "for further consideration in light of Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981)." Futo v. Lykes Brothers Steamship Company, Inc., 451 U.S. 966, 101 S.Ct. 2040, 68 L.Ed.2d 344 (1981). This Court then remanded, without opinion, to the district court "for further proceedings consistent with Scindia," following which the defendant again filed a motion for summary judgment. The district court denied this motion and set the case for trial. On February 8, 1983, however, the defendant filed a motion for rehearing on its summary judgment motion. The court granted this motion and entered summary judgment for the defendant. This appeal followed.

II. DISCUSSION

This case involves the scope of the shipowner's duty to intervene as expressed in the Supreme Court's decision in Scindia when the owner has knowledge of a dangerous condition. Lykes contends that this duty applies only when the dangerous condition involves the ship's gear or equipment. The appellant avers that a shipowner may be responsible for any dangerous situation aboard the ship provided only that the owner or its crew has knowledge of the condition. In granting summary judgment, the district court adopted the position asserted by Lykes, finding that Scindia did not apply and that the controlling test is instead that expressed in two pre-Scindia cases, Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5th Cir.1977), and Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (5th Cir.1977).

LHWCA Amendments

The liability of a shipowner for injuries to longshoremen or other LHWCA-covered employees of independent contractors changed significantly with passage of the 1972 LHWCA amendments. Before these amendments a longshoreman injured while performing his duties on the ship could recover from the shipowner if his injury was caused either by the ship's unseaworthiness or the owner's negligence. The liability of the shipowner for unseaworthiness was without regard to fault and extended even to conditions caused by the stevedore or its employees. See Helaire v. Mobil Oil Company, 709 F.2d 1031 (5th Cir.1983). Where the stevedore was at fault, however, the shipowner could recover In the 1972 amendments, Congress abolished the longshoreman's right to recover for unseaworthiness and the stevedore's obligation to indemnify the shipowner. ³ Id. Section 905(b) of the LHWCA preserved the longshoreman's right to recovery against the vessel for its negligence, ⁴ but did not define the contours of the shipowner's liability. This task was left to be " 'resolved through the application of accepted principles of tort law and the ordinary process of litigation.' " Helaire, 709 F.2d at 1035, quoting S.Rep. No. 92-1125, 92d Cong., 2d Sess. 11 (1972); H.R.Rep. No. 92-1441, 92d Cong., 2d Sess. 7 (1972), U.S.Code Cong. & Admin.News 1972, p. 4698.

                over against the stevedore.   Pluyer v. Mitsui O.S.K. Lines, Ltd., 664 F.2d 1243, 1246 (5th Cir.1982)
                

Pre-Scindia Jurisprudence

Prior to Scindia this Court had determined that actions brought under section 905(b) should be analyzed according to the land-based standards expressed in the Restatement (Second) of Torts, Secs. 343 and 343A. ⁵ Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1238 (5th Cir.1977). In applying these standards, the Court in Gay refused to impose liability on the defendant-shipowner for an injury to a longshoreman that occurred because the stevedore had stacked pallets in an unsafe manner, thus creating an obviously dangerous condition. While rejecting the notion "that a vessel has no duty concerning any danger which is open and obvious to the stevedore or its employees," this Court agreed with the district court that the sole cause of the injury was the stevedore's negligence. 546 F.2d at 1240. The Court reasoned that "[e]ven though the crew of the vessel was aware of the dangerous condition presented by the stack of pallets, it was the stevedore who created the hazard in the first place and it was the stevedore that failed to tie the pallets down and then carelessly knocked one into the hold." Id. at 1242.

A similar rationale was applied in Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5th Cir.1977). That case involved an injury to an employee of the stevedore caused by an oversized rack on a forklift that was used in cleaning a cargo hold. The stevedore, who had supplied both the rack and the forklift, was aware of the potential problem posed by the unstable rack but chose to do nothing. This Court based its affirmance of the district court's summary judgment in favor of the defendant-shipowner on two reasons: (1) the hazard was solely the product of the stevedore's work on the ship, and (2) the stevedore and its employees were in a better position to rectify the problem than was the defendant-shipowner. 550 F.2d at 336. The Court specifically noted that the shipowner had no duty under these circumstances even if the ship's crew was aware of the danger. Id.

Our jurisprudence thus established that a shipowner would not be held liable under section 905(b) for dangerous conditions created by the stevedore and causing injury to its employees. This standard applied even where the owner had actual knowledge of the unsafe condition.

Differences developed among the Circuits, however, over the nature of the vessel's duty to the longshoreman. While the Second and Fourth Circuits also adopted the Restatement approach applied in Gay and Brown, the First and Third Circuits rejected this approach, "holding that the owner could be negligent only if it were participating in the activity and the stevedore were not in exclusive control of the work area." Helaire, 709 F.2d at 1035. The Ninth Circuit applied a more generous formulation, imposing a continuing duty on the shipowner to inspect conditions of the ship during the stevedoring operations. ⁶

The Scindia Principles

In Scindia Steam...