Garrett v. GUTZEIT O/Y

• Decision Date: 08 February 1974
• Docket Number: No. 73-1468.,73-1468.
• Citation: 491 F.2d 228
• Parties: George GARRETT, Appellant, v. Enso GUTZEIT O/Y, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

491 F.2d 228 (1974)

George GARRETT, Appellant, v. Enso GUTZEIT O/Y, Appellee.

No. 73-1468.

United States Court of Appeals, Fourth Circuit.

Argued November 6, 1973.

Decided February 8, 1974.

COPYRIGHT MATERIAL OMITTED

Sidney H. Kelsey, Norfolk, Va. (Kelsey & Kelsey, Norfolk, Va., on brief), for appellant.

Charles F. Tucker, Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellee.

Before CLARK, Associate Justice,^* BOREMAN, Senior Circuit Judge, and BUTZNER, Circuit Judge.

BOREMAN, Senior Circuit Judge:

On January 7, 1971, the SS FINNCLIPPER, a vessel owned and operated by Enso Gutzeit O/Y (shipowner), was berthed at Chesapeake & Ohio Railroad's Pier B, Newport News, Virginia, preparing to discharge a cargo of bales of pulp paper. Tidewater Stevedoring Corporation (Tidewater) had been employed by shipowner as an expert stevedore to unload the cargo.¹ The plaintiff, George Garrett, a longshoreman, was a member of the gang employed by Tidewater in connection with the discharge of the cargo of pulp paper.

At 8:00 A.M. the longshoremen began unloading the cargo. As is customary in the stevedoring industry the gang was divided into functional work groups; some were ordered to work on the ship while various duties were assigned to others on the pier. Garrett and others were to stack the cargo as it was delivered to them by other members of the "dock gang" in a storage shed located on the pier.

The cargo consisted of bales of pulp paper measuring approximately 2½ feet by 2½ feet by 1½ feet and weighing approximately three to five hundred pounds. Each bale was compressed and held together by four wire bands, "two of which were wound in each direction" as found by the district court, Garrett v. Gutzeit O/Y, 352 F.Supp. 1257, 1259 (E.D.Va.1973). The cargo was removed from the ship in the customary manner.² Once the cargo was removed from the ship's hold and placed on the dock the bales would be disconnected from the ship's gear. Members of the "dock gang" then moved the bales one at a time via hand trucks into a shed on the pier some twenty-five or more feet from the side of the ship. Garrett's work gang was instructed to stack the bales four high as they arrived in the shed. The cargo was transferred from the pier apron and stacked in the shed to facilitate the removal of more bales from the hold.³

Tidewater's superintendent Powell ordered Garrett and the others on the dock to use longshore hand hooks to handle the bales. They were instructed to place the hooks under the junction of two bands and thus lift the bales. Garrett and others in his work gang were attempting to jump a bale up to the fourth tier of a stack. At least one (two as found by the court) of the four bands on this particular bale was missing. The men inserted their hooks under the remaining bands and lifted the bale from the floor. Under stress one of the remaining bands broke, causing the bale to fall on Garrett who thus sustained a severe back injury.

The accident occurred at approximately 11:30 A.M., some 3½ hours after work started. During the 3½ hours of unloading, bands on the cargo had been breaking. Some bands were breaking before the bales could be lifted from the hold while others broke during discharge, permitting several bales to fall to the pier. Superintendent Powell testified that bands broke because of the way the bales had been wedged in the hold of the ship; that shifting weight during the voyage and the strain of removing the wedged bales had caused breakage; that the ship's crew was on duty during the unloading and had observed the defective condition of many of the bands.

Garrett brought this action against the shipowner, claiming that his injuries were caused by both the unseaworthiness of the vessel and the negligence of the ship's crew. The shipowner denied these allegations and impleaded Tidewater, claiming indemnity. The issue of unseaworthiness was submitted to the jury; the judge did not submit the negligence issue, stating that the shipowner owed no duty to Garrett. The jury returned a verdict of $45,000 for Garrett. The shipowner then moved to set aside the verdict and enter judgment in its favor.

In ruling on the shipowner's motion, the judge relied upon the basic premise that, in order to recover on an unseaworthiness theory, Garrett had to establish that he was engaged in work traditionally performed by a seaman. He refused to rule as a matter of law under the facts of the case that Garrett was engaged in such traditional work and concluded that this question should not have been submitted to the jury since the record was devoid of sufficient evidence upon which reasonable men could evaluate the nature of Garrett's work. Therefore, the court granted the shipowner's motion, set aside the verdict and entered judgment for shipowner. On appeal Garrett contends that the court erred in setting aside the verdict and in refusing to submit the negligence issue to the jury.⁴

I

The district judge denominated jurisdiction as the threshold issue, analyzed the subject in some detail, and concluded that, under the facts here, admiralty jurisdiction did exist. Although we agree with his conclusion on this point and most of his analysis we think it appropriate to further re-examine and review the subject of admiralty jurisdiction. There appears to be no little confusion concerning restrictions upon the right to recover under maritime law. This confusion is attributable, in great measure, to the fact that the scope of admiralty jurisdiction is not always equal to the breadth of the seaworthiness warranty.⁵ Thus careful consideration of the limits of admiralty jurisdiction is essential and these limits must be applied solely to the jurisdictional issue; any attempt to apply analogous restrictions upon the scope of warranty coverage could easily lead to error.

Admiralty jurisdiction may exist where a shore-based injury is involved, but, if so, it must be predicated on the Admiralty Extension Act. 46 U. S.C. § 740. In pertinent part the Act provides that:

"The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land."

Clearly the Act extends admiralty jurisdiction to shore-based injuries. We find that a close reading of Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), and Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), is more than helpful in our efforts to determine the limits of admiralty jurisdiction under the Act.

In Gutierrez the Court held that admiralty jurisdiction exists when a shipowner commits a tort while or before the ship is being unloaded and the impact is felt ashore at a time and place not remote from the wrongful act. Gutierrez, a longshoreman working on the dock, was injured when he slipped on loose beans that had leaked from defective cargo container bags. The shipowner had allowed the cargo to be discharged in defective bagging and should have realized the danger. The Court concluded that an unseaworthiness claim could be predicated upon the use of defective cargo containers.

Naturally Gutierrez had an expansive effect on the scope of jurisdiction in admiralty cases. In Victory Carriers the Court clarified the scope of this jurisdiction as broadened by Gutierrez in its application of the Act. Bill Law, a longshoreman working on the docks, was injured by a defective forklift truck while loading a ship. The forklift was owned by the stevedoring company and was not a part of the ship's gear. In denying recovery against the shipowner the Court stressed that the plaintiff was not injured by an appurtenance of the ship, an essential element if admiralty jurisdiction is to be invoked under the Act. The Court approved its holding in Gutierrez, noting that the jurisdictional question posed in Gutierrez turned, not on the function the longshoreman was performing at the time of his injury (i. e., whether engaged in the traditional work of a seaman) but, rather, upon the fact that his injury was caused by an appurtenance of the ship, the defective cargo containers. The Court stated that reliance upon the "gangplank line" as the presumptive boundary of admiralty jurisdiction is best, except for cases where a ship's appurtenance causes damage ashore. Thus, Victory Carriers and Gutierrez, read and considered together, combine to formulate the following rule: Admiralty jurisdiction extends to shore-based workers who are injured by an appurtenance of the ship at a time and place not remote from the wrongful act of the shipowner. It must be remembered, however, that the Court in Victory Carriers addressed itself only to jurisdiction. We do not interpret Victory Carriers to affect in any way the limits of warranty coverage.

Apparently the district court had little difficulty in finding the existence of admiralty jurisdiction under the facts here. We, too, find jurisdiction established. The instrumentality of the injury was a ship's cargo container (the wire bands around the bales).⁶ Cargo containers coming from a vessel's hold satisfy the appurtenance requirement of Victory Carriers.⁷ Once cargo is accepted the shipowner becomes responsible for any injury caused by a defective condition of the cargo containers whether the injury occurs aboard the vessel or on the dock.⁸ From the record it is clear that the ship's crew observed cargo containers leaving the ship in a defective condition for over three hours.⁹ The accident occurred between twenty-five and fifty feet from the side of the ship, during a discharge operation that was continuous. We agree with the district court that the requirement of Gutierrez that "the injury not be remote in time and place from the wrongful act" has been satisfied. For these reasons w...