Green v. City of Los Angeles

• Decision Date: 22 July 1974
• Citation: 40 Cal.App.3d 819,115 Cal.Rptr. 685
• Court: California Court of Appeals Court of Appeals
• Parties: Marjorie B. GREEN et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES and Los Angeles Harbor Department, Defendants, Cross-Defendants, Cross-Complainants, Appellants, and Respondents, and Louis Dreyfus & Co., Ltd., a corporation, Defendant, Cross-Complainant, Appellant and Respondent, and Mortimer, Rycraft & Wallace, a corporation and Los Angeles Grain Terminal, a corporation, Defendants, Cross-Defendants, Cross-Complainants, Appellants, and Respondents, and Link-Belt Division of FMC Corporation, a corporation, Defendant, Cross-Defendant, and Appellant. Civ. 41113.

Page 685

115 Cal.Rptr. 685

40 Cal.App.3d 819

Marjorie B. GREEN et al., Plaintiffs and Respondents, v. CITY OF LOS ANGELES and Los Angeles Harbor Department, Defendants, Cross-Defendants, Cross-Complainants, Appellants, and Respondents, and Louis Dreyfus & Co., Ltd., a corporation, Defendant, Cross-Complainant, Appellant and Respondent,

and

Mortimer, Rycraft & Wallace, a corporation and Los Angeles Grain Terminal, a corporation, Defendants, Cross-Defendants, Cross-Complainants, Appellants, and Respondents,

and

Link-Belt Division of FMC Corporation, a corporation, Defendant, Cross-Defendant, and Appellant.

Civ. 41113.

Court of Appeal, Second District, Division 5, California.

July 22, 1974.

As Modified on Denial of Rehearing Aug. 21, 1974.

Hearing Denied Sept. 25, 1974.

Magana, Cathcart, Marin & Pierry, by John A. Marin and Charles D. Sneathern, Wilmington, for plaintiffs and respondents.

Burt Pines, City Atty., and Walter C. Foster, Deputy City Atty., Murchison, Cumming, Baker & Velpmen, by Robert M. Schreiber, Los Angeles, Ellis J. Horvitz and Gerald H. B. Kane, Jr., Los Angeles, for defendants, cross-defendants, cross-complainants, appellants and respondents City of Los Angeles, a municipal corporation, and Los Angeles Harbor Dept.

Cooper, White & Cooper, by R. Barry Churton, and Neil L. Shapiro, San Francisco, for defendant, cross-complainant, appellant and respondent Louis Dreyfus & Co., Ltd., a corporation.

Shield & Smith, by Peter Berwick, Los Angeles, for defendants, cross-defendants, cross-complainants, appellants and respondents Mortimer, Rycraft & Wallace, a corporation and Los Angeles Grain Terminal, a corporation.

Virgil R. Wells and A. P. G. Steffes, Los Angeles, for defendant, cross-defendant and appellant Link-Belt Division of FMC Corp., a corporation.

LORING, ^* Associate Justice.

Marjorie B. Green and Gregory Jerome Green, a minor, by his guardian ad litem, Marjorie B. Green (hereafter, collectively Green) filed an action for damages for the wrongful death of Aldine R. Green (their husband and father, respectively). Jack R. Harris, Sr. (Harris) joined in the action as plaintiff to recover damages for personal injuries. Both claims arose out of an accident that occurred on March 30, 1968, at berth 174 Los Angeles Harbor in which Aldine R. Green was killed and Harris sustained personal injuries. Named as defendants, ¹ were City of Los Angeles, Los Angeles Harbor Department (hereaf-ter Associated Banning Stevedore (predecessor of Metropolitan) and Metropolitan were absolved of all liability for the accident.

collectively City), Los Angeles Harbor Grain Terminal, a corporation, Mortimer Rycraft & Wallace, Inc., a corporation, Mortimer & Wallace, Inc., a corporation, Richard B. Mortimer and Howard L. Wallace ² ('Grain Terminal'),[40 Cal.App.3d 824] Louis Dreyfus & Co., Ltd., a corporation (Dreyfus), Link-Belt Division of FMC Corporation, a corporation (Link-Belt). Metropolitan Stevedore Company (Metropolitan) asserted a lien for reimbursement of workmen's compensation expenditures. Most of the defendants filed cross-complaints against other defendants for indemnity which will be hereinafter referred to in detail only to the extent necessary to a consideration of the issues. After nonjury trial the court filed detailed findings of fact and conclusions of law and awarded judgment in favor of Green in the gross sum of $232,713.93 and in favor of Harris in the sum of $18,500; Metropolitan was allowed a lien for $12,704 against Green, and $2,274.35 against Harris. Dreyfus and Link-Belt were found to be jointly and severally liable to Green and Harris. However, Dreyfus was allowed a judgment for indemnity against City, Grain Terminal and Link-Belt for whatever portion of the judgment it paid. City and Grain Terminal were allowed a judgment of indemnity against Link-Belt for whatever portion of the judgment they paid.

Under the judgment of the court, although the initial award in favor of plaintiffs was against Dreyfus and Link-Belt, since Dreyfus and certain defendants were given rights of indemnity, the ultimate total liability was imposed upon Link-Belt. Link-Belt, City, Grain Terminal and Dreyfus all appeal from the judgment.

FACTS

The parties are in substantial agreement regarding the circumstances under which the accident occurred. It is essential at the outset, however, to understand the occupations or capacities of the various defendants: City was the owner--lessor of berth 174 at Los Angeles Harbor; Dreyfus was the owner operator of a vessel 'M. V. LA MAREA' which was afloat in navigable waters docked alongside of berth 174, in the process of being loaded with alfalfa pellets in bulk form. Grain Terminal leased from City a bulk loading facility (hereinafter described in more detail) at berth 174. Metropolitan acted as Stevedore for Grain Terminal in loading and unloading vessels at berth 174. Link-Belt sold a secondhand rebuilt crane to City which Metropolitan used in the operation of loading the alfalfa pellets which were supplied by Grain Terminal into the holds of M. V. LA MAREA. Aldine R. Green and Harris were employed by Metropolitan in the loading operation.

Grain Terminal maintained its supply of alfalfa pellets at a storage point some distance from berth 174. The pellets were transferred from the point of storage to the vessel by a conveyor belt which went over the roof of the transit shed at berth 174. The section of the conveyor belt which ran from the roof of the shed to the vessel, known as the 'K Belt' was held in place by the boom of the gantry crane (sold by Link-Belt to City) which ran on tracks affixed to the dock. The end of K Belt next to the vessel was placed in the particular open hatch of the hold of the vessel which was being loaded. When a

hold was loaded in was necessary to add a 'trimmer' to the end of the 'K Belt' in order to allow the bulk commodity being loaded to flow into the furthest area of the particular hold. When the hold was partially filled, the trimmer was removed and the bulk commodity was allowed to 'free flow' until the hold was full. Normally, as the various holds of the vessel were filled, the crane, moving along the tracks would swing the K Belt to the next open hatch of the next hold of the vessel to be filled. The crane could also raise and lower the K Belt to adjust to changing tides. This capability and flexibility allowed the vessel normally to remain stationary at one point of the berth during loading operations. However, sometime prior to March 30, 1968, a fire had occurred on the dock where berth 174 was located so that the crane was not able to move along the dock in its customary manner for a distance of more than 15 feet. On March 30, 1968, therefore, it was necessary to move the vessel along the dock in order to completely load all of the holds. The vessel was moved fore or aft along the dock as required, from time to time, by a process of moving a spring line from one bollard on the dock to another and the other end of the spring line was taken in on the ship's winch by the ship's crew so that in result the vessel was able to 'haul' itself fore or aft as required. On March 30, 1968, Aldine R. Green and Harris were engaged in the process of operating the K Belt at the open hatch on the vessel while the bulk alfalfa was in transit into the hold and they affixed and removed the trimmer as required. These services were performed on the deck of the vessel. In addition when a hold was filled to capacity and the conveyor belt was stopped preparatory to moving the K Belt to the next open hatch Green and Harris would leave the deck of the vessel, affix the appropriate spring line to the appropriate bollard so the ship could be 'hauled' fore or aft as required in order to load the next hold. These services were performed under the direction of the ship's officers and crew. After the spring line was properly affixed the vessel's crew would operate the vessel's winches to move the ship [40 Cal.App.3d 826] the required distance. These same services were performed by Green and Harris on the previous day. Prior to moving the vessel the gantry crane would raise the K Belt away from the open hatch of the hold which had just been loaded. After the vessel was moved the gantry crane would then lower the K Belt into the opening of the hatch of the empty hold which was to be loaded next in order. On March 30, 1968, just after hold number 3 had been filled and the workmen were preparing to load hold number 2, Green and Harris left the deck of the vessel and went to the dock. They affixed the crane's hook to the sling used to raise the lower the K Belt and were in the process of placing a forward moving line from one bollard on the wharf to an aft bollard so that the vessel could be 'hauled' along the wharf to a point where hold number 2 could be filled. The crane operator began lifting the K Belt from the dock, swinging it toward the open hatch of hold number 2 on the vessel. When the boom of the crane and the K Belt were directly over Green and Harris 'the shaft' on the crane fractured causing the crane boom and K Belt to fall to the dock striking Harris and falling on Green who were at that instant placing the mooring line on the bollard. The K Belt weighed several thousand pounds. Green was killed; Harris sustained personal injuries. The court found that the crane operators were not negligent and the sole cause of the accident was a defective condition of the crane hereinafter discussed in more detail.

CONTENTIONS

The contentions of the various parties may be briefly summarized as follows:

I Appellant Dreyfus contends:

A. The trial court erred in holding Federal Maritime law applied to the accident and in holding that the warranty B. The trial court erred in holding that the LA MAREA was unseaworthy as to Green and Harris.

of seaworthiness was owed by Dreyfus to Green and Harris.

II Appellant Link-Belt contends:

A. The trial court...