Gallardo v. Westfal-Larsen & Co. A/S

• Decision Date: 03 June 1977
• Docket Number: No. C-76-040 WHO.,C-76-040 WHO.
• Citation: 435 F. Supp. 484
• Court: U.S. District Court — Northern District of California
• Parties: Frank D. GALLARDO, Plaintiff, v. WESTFAL-LARSEN & CO. A/S, Defendant.

435 F. Supp. 484

Frank D. GALLARDO, Plaintiff, v. WESTFAL-LARSEN & CO. A/S, Defendant.

No. C-76-040 WHO.

United States District Court, N. D. California.

June 3, 1977.

COPYRIGHT MATERIAL OMITTED

Thomas C. Knowles, Boccardo, Blum, Lull, Niland, Teerlink & Bell, San Francisco, Cal., for plaintiff.

Warren W. Wilson, Lillick, McHose & Charles, San Francisco, Cal., for defendant.

ORRICK, District Judge.

This action for damages for personal injuries brought by the plaintiff longshoreman against defendant, Westfal-Larsen & Co. A/S (hereinafter Westfal or shipowner) presents two issues which have received varied and conflicting analyses by courts in other circuits: (1) the appropriate standard of care which a vessel owner owes to an employee of an independent stevedore engaged in cargo operations under the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (hereinafter cited as LHWCA), 33 U.S.C. § 901 et seq.; and (2) the applicability of the regulations promulgated under the LHWCA, 33 U.S.C. § 941(a), and adopted under the Occupational Safety and Health Act of 1970 (hereinafter cited as OSHA), 29 U.S.C. §§ 655, 657, to establish the negligence per se of a shipowner. For the reasons stated below, the Court modifies the standard of care stated in its previous decision in Ramirez v. Toko Kaiun K.K., 385 F.Supp. 644 (N.D.Cal. 1974), rejects the use of OSHA maritime regulations to establish the negligence per se of a shipowner, and denies plaintiff's claim for damages.

I. FACTS

Plaintiff was an experienced winch-driver/hatch-tender employed by the Crescent Wharf and Warehouse Company (hereinafter Crescent or stevedore). Westfal was the owner of the S.S. Siranger M/V (hereinafter Siranger). Crescent, under contract with Westfal, dispatched plaintiff and other longshoremen to load and unload cargo aboard the Siranger. During the course of these operations, the plaintiff had occasion to ascend a ladder to the fo'c'sle deck to operate a set of winches which drove cargo cables needed for work in hatch number two. The plaintiff testified that a fifty gallon oil drum at the base and to the starboard side of the ladder blocked his approach and forced him to move to the port to secure a hold for his first steps.¹ After operating the winches, the plaintiff descended the same ladder. As his foot touched the main deck, his shoe allegedly came into contact with a slippery substance which caused him to fall and injure his left knee and left middle finger. The Court received much testimony regarding the nature of the slippery substance, its source, and the shipowner's knowledge of its presence. After careful consideration of all the evidence, the Court finds that the shipowner had neither actual nor constructive knowledge of any dangerous condition beneath the starboard ladder to the fo'c'sle deck before the accident.

The plaintiff concentrated upon three main areas of contention: (1) the adequacy of pre-work inspections on the night of the accident; (2) the safety responsibilities of shipowners, stevedores, and longshoremen during cargo operations; and (3) the precise location of the starboard ladder to the fo'c'sle deck in relation to any appurtenance of the ship or item of cargo loaded during plaintiff's shift which might have shed a slippery substance onto the deck. Plaintiff argued that the shipowner failed to prepare a reasonably safe place to work or, alternatively, that the shipowner prepared a reasonably safe place to work but learned of a hazardous condition at the base of the star-board ladder to the fo'c'sle deck during cargo operations which it did not remedy. The plaintiff failed, however to establish the factual bases of his argument by a preponderance of the evidence.

As regards pre-work inspections, the evidence revealed three separate checks of the ship prior to the start of plaintiff's shift. The chief officer (or chief mate) of the Siranger on October 25, 1974, Egil Rokkones, testified by deposition that Westfal ships normally receive a thorough check before entering the first U.S. port on any voyage.² Between ports, the crew replaces newly damaged or worn equipment and cleans slippery substances observed on any walking surface. The chief mate customarily oversees each inspection by personally walking the decks.³ Furthermore the officers aboard the Siranger have a policy of noting any safety violations discovered by ship's personnel or by longshoremen in the deck log, but the pages for the period prior to the accident contained no such entries.

The second and third inspections were made by employees of Crescent. Pieter Suttorp, the stevedore superintendent on October 25, 1974, testified that he normally begins work one hour before the gangs⁴ to make a safety check and to familiarize himself with the type of cargo operations which the longshoremen will perform. He stated that the inspection usually consumes a small portion of the time used to prepare for the arrival of the longshoremen and that ten minutes is sufficient to check three hatches.⁵ However, Suttorp had no independent recollection of the events of October 25, 1974, at the time of trial, and, therefore, described his check with reference to the Safety Inspection Sheet which he completed for Crescent. The sheet revealed that the lighting, gear, housekeeping (i.e., deck condition), and ladders were satisfactory for work in hatch numbers two, three, and five.⁶

The walking boss,⁷ Foster Ward, made the remaining inspection on the evening of the accident. A walking boss does not customarily prepare a written report of his survey, and Ward had to speak from memory alone. Ward's deposition does not describe the extent of the inspection made on the night of the accident, but Ward stated at trial that he did not check forward of the center of hatch number two.

The record of the case, therefore, contains no conclusive indication that an employee of the stevedore or of the shipowner inspected the starboard ladder to the fo'c'sle deck before the plaintiff boarded the Siranger. Nonetheless, the Court finds insufficient evidence to conclude that either the stevedore or the shipowner failed to inspect the vessel for safety hazards in a manner consistent with custom and practice in the industry.⁸

The testimony at trial regarding safety responsibility confirmed neither plaintiff's view that a shipowner has a continuing duty, coextensive with the duty of a stevedore, to inspect a vessel before and during cargo operations nor Westfal's view that the duty of a ship to make safety inspections ceases when longshoremen begin work. The evidence reveals a less categorical differentiation of responsibilities. For instance, all longshoremen retain some voice in the safe conduct of their work. Suttorp and Ward indicated that if they find an unsafe condition during a pre-work inspection or learn of a hazard during cargo operations, they normally inform a member of the ship's crew and leave the correction to the vessel. Less often, they will direct a longshoreman to resolve the problem (e.g., spread sand or sawdust on slippery substances) without involving the ship. If the unsafe condition poses a threat of injury, they can halt cargo operations until the problem is resolved. The remaining longshoremen who handle cargo do not inspect work areas for safety hazards before or during work. However, every longshoreman should report any unsafe conditions to the gang boss or to the walking boss. Furthermore, a longshoreman may legitimately refuse to work if he has reason to believe that a condition threatens his safety or the safety of his co-workers.

The evidence concerning vessel owners revealed that the officers of ships from many lines, including Westfal, remain safety conscious both before and after the commencement of cargo operations. Rokkones stated that the policy aboard the Siranger was to have the first or second mate (also known as the cargo officer, deck officer, or watch hand) and at least one seaman on deck with the longshoremen whenever work was in progress. The testimony of Rokkones and Suttorp disclosed that the deck officer may become involved in cargo operations in several respects. For example, he may accompany the stevedore superintendent during the pre-work inspection to advise him of the work required in each hatch. Once loading or unloading has begun, the deck officer leaves the immediate supervision of the longshoremen to the walking boss and gang bosses but will walk the deck near the hatches in which people are working to see that the appropriate cargo is removed and that oncoming cargo is properly stowed. If he notices a safety hazard or receives information regarding an unsafe condition, he will normally direct a crewman to correct the problem. In addition, the deck officer retains the authority to suspend cargo operations until a hazard is removed. Rokkones stated that the officer on duty may not assume a neutral posture toward safety problems once the longshoremen have commenced work. The officer should actively watch for conditions which may pose a threat of injury to anyone.

The overlap of safety responsibilities does not compel a conclusion that any employees of Westfal had knowledge of a hazard beneath the starboard ladder to the fo'c'sle deck on the night of October 25, 1974. The Court has already found that the ship met its obligation to inspect for safety problems before the onset of cargo operations. The Court further finds that no officer or member of the ship's crew learned of an unsafe condition near any working area during cargo operations which he failed to rectify.

The evidence concerning the precise location of the starboard ladder to the fo'c'sle deck in relation to appurtenances of the ship or to items of cargo which might have shed a slippery substance does not support plaintiff's contention that the shipowner either caused or had knowledge of a hazardous condition near the site of the accident. The...