Gill v. Hango Ship-Owners/AB

• Decision Date: 01 July 1982
• Docket Number: No. 81-2033,SHIP-OWNERS,81-2033
• Citation: 682 F.2d 1070
• Parties: James R. GILL, Appellant, v. HANGO/AB, a Foreign Corporation, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1070

682 F.2d 1070

James R. GILL, Appellant, v. HANGO SHIP-OWNERS/AB, a Foreign Corporation, Appellee.

No. 81-2033.

United States Court of Appeals Fourth Circuit.

Argued March 3, 1982.

Decided July 1, 1982.

John V. Murphy, Washington, D. C. (Jerome E. Michaelson, Baltimore, Md., on brief), for appellant.

Warren B. Daly, Jr., Baltimore, Md. (Randall C. Coleman, Ober, Grimes & Shriver, Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, ERVIN, Circuit Judge, and JONES, ^* District Judge.

HARRISON L. WINTER, Chief Judge:

In a suit by a longshoreman against a shipowner alleging actionable negligence, the district court granted judgment for the defendant and plaintiff appeals. We reverse and remand for further proceedings.

I.

Plaintiff, James R. Gill, brought this action under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950, as amended (1972) to recover damages for an injury to his back suffered as a result of an accident on April 12, 1977. We largely repeat the district court's apt summary of the case:

The parties do not dispute how the accident occurred. The M/V HANGETE called at the Port of Baltimore on April 12, 1977 for the purpose of discharging a cargo of rolls of paper. The HANGETE is owned by defendant Hango Ship-Owners/AB and, at the time of the accident, was under a time charter to Swedish Gulf Lines/AB. On that date, plaintiff was working as a longshoreman in the employ of Robert C. Herd and Company, Inc., a stevedoring contractor. Herd had been hired to unload the rolls of paper from the HANGETE. The rolls of paper were loaded on end, with the axes of the rolls aligned vertically. In order to discharge at least the first few rolls of paper, steel breakout clamps owned and maintained by Herd were used. These clamps were fitted over the ends of the rolls of paper by the longshoremen, and the rolls were then lifted out of the vessel's hold by the ship's cranes. The accident involved in the case at bar occurred when a clamp, placed on the end of a roll of paper by plaintiff, slipped off while being hoisted from the vessel's hold. The clamp struck plaintiff, causing the injuries for which plaintiff seeks to recover damages in this action.

In addition to the facts as described by the district court, the parties do not dispute that the rolls of paper were tightly stowed and that this condition was open and apparent. An expert witness for the plaintiff, John D. Marks, whose qualifications as an expert are not in question, made affidavits to the effect that the rolls of paper could not be unloaded without employing tong-like breakout clamps, so that the use of such clamps was inevitable, and that such clamps were inherently dangerous. ¹

Plaintiff contended that these facts presented a jury question as to whether Hango was negligent in packing the paper rolls too tightly, and whether Hango was liable to plaintiff for this negligence because neither the stevedore nor plaintiff could avoid utilizing the inherently dangerous breakout clamp due to the manner in which the paper rolls were stowed.

The district court gave summary judgment for Hango. It held that the shipowner may be liable for injuries incurred by a longshoreman during unloading operations when the danger which has caused the injury is open and obvious if either of two situations are presented. First, by applying the Restatement (Second) of Torts § 343A (1965), the shipowner

is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

Second, relying on Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the district court held that the shipowner may be liable if the ship's gear malfunctions during unloading and the stevedore's decision to continue to use the malfunctioning gear is "so obviously improvident" that "an unreasonable risk of harm to the longshoremen" is created.

Applying these principles, the district court found that Hango should not have anticipated the harm which occurred, apparently on the grounds that (1) the injury was so unprecedented that it was not reasonably foreseeable, and (2) the shipowner was entitled to rely on the stevedore to select unloading equipment which would rectify the open and obvious danger posed by the manner in which the cargo was stowed. As to the duty of care set forth in Scindia, the district court held that it had not been breached in this case because (1) the malfunctioning gear was provided by the stevedore, not the shipowner, and (2) the stevedore's decision to use the breakout clamps was not "obviously improvident."

Although we agree, in large part, with the district court's description of a shipowner's responsibilities vis-a-vis longshoremen during unloading operations, we do not agree with the conclusion that Hango was not responsible for plaintiff's injury in this case as a matter of law.

II.

Prior to the 1972 amendments to the Act, a longshoreman injured while unloading a vessel could recover from the shipowner if the injury was caused by the ship's unseaworthiness or negligence. Scindia, 451 U.S. at 163-164, 101 S.Ct. at 1619-1620, 68 L.Ed.2d at 10-11. Unseaworthiness of the vessel was proven solely by showing the existence of an unsafe condition on the vessel; the shipowner was liable to the injured longshoreman without proof of fault on its part if that unsafe condition caused or contributed to the longshoreman's injury, and liable even if the unsafe condition was caused or created by the longshoreman's employer, the stevedore. Id. at 164, 101 S.Ct. at 1620, 68 L.Ed.2d at 11.

The 1972 amendments abolished the shipowner's liability for unseaworthiness; by the amendments "Congress intended to make the vessel answerable for its own negligence and to terminate its automatic faultless responsibility for conditions caused by the negligence or other defaults of the stevedore." Id. at 168, 101 S.Ct. at 1622, 68 L.Ed.2d at 13.

One of the difficulties in applying the amended Act is determining when, if ever, a shipowner's conduct can be characterized as negligent, thus providing a longshoreman with a basis for recovery, even though the stevedore's conduct has also been negligent. Before Scindia was decided, the circuits disagreed as to the shipowner's liability in these circumstances. The Courts of Appeals for the Second, Fourth and Fifth Circuits had adopted the approach of the Restatement (Second) of Torts (1965), as set forth in §§ 343 and 343A. ² According to this view, the longshoreman could be characterized as an invitee, and the shipowner as a possessor of land. Pursuant to § 343A, the shipowner was not liable for harm to longshoremen caused by an open and obvious danger on the ship unless the shipowner "should anticipate the harm despite such" obviousness. Generally, the shipowner should not anticipate harm which results from the stevedore's negligence and, accordingly, is not liable for harm which is the stevedore's duty to prevent. See, e.g., Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1238-1239 (5 Cir. 1977); Anuszewski v. Dynamic Mariners Corp., 540 F.2d 757 (4 Cir. 1976), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977).

On the other hand, the First and Third Circuits had rejected the Restatement approach, holding that the shipowner could be negligent and liable to a longshoreman even if the stevedore had also been negligent, at least so long as the stevedore is not in exclusive control of the condition which caused the harm. See Sarauw v. Oceanic Navigation Corp., 622 F.2d 1168, 1172-1173 (3 Cir. 1980), vacated 451 U.S. 966, 101 S.Ct. 2039, 68 L.Ed.2d 344 (1981), aff'd on rehearing, 655 F.2d 526 (1981). According to this view, the shipowner could be liable if it did not use "reasonable care under the circumstances," and reasonable care could require rectifying conditions caused by the stevedore's negligence.

The Supreme Court in Scindia did not conclusively adopt or reject either of these views. But it did hold that "reasonable care under the circumstances" does not mean that an owner owes a duty to inspect and supervise unloading operations. Scindia, 451 U.S. at 168, 101 S.Ct. at 1622, 68 L.Ed.2d at 13. However, the owner has a duty to prevent harm that may result from an "obviously improvident" failure of the stevedore to take proper precautions in the face of an obvious and unreasonably dangerous defect, if the owner knows of the defect and of the stevedore's failure to rectify the defect. Id. at 174-175, 101 S.Ct. at 1625-1626, 68 L.Ed.2d at 17-18. This duty is the same whether the defect existed prior to or arose during the course of the unloading operations. Id. at 175, 101 S.Ct. at 1626, 68 L.Ed.2d at 18.

The standard of care adopted in Scindia apparently imposes a greater duty on the shipowner than does the Restatement view. Compare Scindia, 451 U.S. at 180, 101 S.Ct. at 1628, 68 L.Ed.2d at 20 (Brennan, J., concurring) with Scindia, 451 U.S. at 180, 101 S.Ct. at 1628, 68 L.Ed.2d at 20 (Powell, J., concurring). Consequently, the owner owes a duty of care at least as stringent as that imposed by the Restatement and, in certain circumstances, a greater one.

III.

The district court correctly concluded, then, that Hango may have been negligent if...