Hess v. Upper Mississippi Towing Corp.

• Citation: 1978 AMC 331,559 F.2d 1030
• Decision Date: 23 September 1977
• Docket Number: No. 75-4353,75-4353
• Parties: Phillip HESS, Plaintiff-Appellant, v. UPPER MISSISSIPPI TOWING CORP. and Penlatex Barge Lines, Inc., Defendants- Appellees, Fidelity & Casualty Co. of New York, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1030

559 F.2d 1030

Phillip HESS, Plaintiff-Appellant, v. UPPER MISSISSIPPI TOWING CORP. and Penlatex Barge Lines Inc., Defendants- Appellees Fidelity & Casualty Co. of New York, Intervenor.

No. 75-4353.

United States Court of Appeals Fifth Circuit.

Sept. 23, 1977.

Rehearing and Rehearing En Banc Denied Oct. 25, 1977.

James A. George, Baton Rouge, La., for defendants-appellees.

David W. Robinson, Baton Rouge, La., for intervenor.

Appeal from the United States District Court for the Middle District of Louisiana.

Before GEWIN, RONEY and HILL, Circuit Judges.

RONEY, Circuit Judge:

The plaintiff worked for an independent contractor employed by defendants to "free" a barge of gasoline. An explosion burned him severely, and he sued the defendants, alleging failure to provide a safe place to work, negligent employment of an independent contractor, strict liability, and negligent maintenance of dangerous premises. At the close of plaintiff's evidence, the district court directed a verdict against him. On appeal, he alleges the district court misapplied the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 905(b) (Supp.1977), to foreclose his case. Because the Longshoremen's Act's compensation provisions afford the exclusive remedy for his injuries, we affirm.

The accident took place in 1973. Plaintiff's employer, Port Allen Marine, operated a facility on the Mississippi River for cleaning barges used to transport petroleum products. Pentalex Barge Lines, Inc. delivered to Port Allen Marine a barge owned by Upper Mississippi Towing Corp. The barge had recently carried a cargo of high-grade gasoline, but was empty except for residual gasoline and vapors which Port Allen was hired to remove. While the plaintiff was using water to flush gasoline out of the barge's piping system, an explosion occurred which burned him severely. Plaintiff collected compensation benefits from Port Allen Marine under the Longshoremen's Act, and brought this tort action against the owner and the operator of the barge.

In directing a verdict, the district court found that, at the time of the accident, the barge was in the sole control of Port Allen Marine, a specialist in gas-freeing barges. The court held the defendants did not supervise the gas-freeing process, and were not apprised of any facts which would lead them to believe Port Allen Marine was not fully qualified for the job. On appeal, the plaintiff alleges the court erred in limiting his cause of action to one stated by § 905(b) of the Longshoremen's Act; in not applying general maritime law under § 905(b); and in misapplying land-based law, including several sections of the Restatement (Second) of Torts (1965).

§ 905(b) Exclusive Remedy

The history of § 905(b) is important to the resolution of this case. The Longshoremen's Act provides compensation benefits to injured maritime workers. The Act forecloses negligence suits against the worker's immediate employer, but allows litigation against third parties. In the past, the Supreme Court adopted a liberal view of the third-party suit and held shipowners liable under a warranty of seaworthiness to injured employees of independent contractors working on board the ship. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). The seaworthiness remedy went beyond negligence in two important respects. G. Gilmore & C. Black, The Law of Admiralty 542 (2d ed. 1975). First, the shipowner was liable for "transitory" defects which arose after his opportunity to correct them had passed. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). Second, the shipowner was responsible for unsafe conditions caused entirely by the act of a third party, including the independent contractor. Alaska Steamship Co. v. Patterson, 347 U.S. 396, 74 S.Ct. 601,98 L.Ed.2d 798 (1954). In 1972, however, Congress amended the Longshoremen's Act. Congress substantially raised the compensation benefits payable, eliminated the employee's unseaworthiness action and restricted his recovery from the shipowner to negligence. In the event of a negligence recovery against the vessel, the worker's employer would not be liable to the shipowner for such damages. On the other hand, if the injury was caused by the negligence of the worker's employer engaged in repair service, no action is permitted against the vessel. The remedy provided by the statute against the vessel "shall be exclusive." The language of § 905(b) now provides:

In the event of injury to a (maritime worker) caused by the negligence of a vessel, then such person . . . may bring an action against such vessel as a third party . . . and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. . . . If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.

The language of the statute defeats the plaintiff's claim that § 905(b) is not his exclusive avenue of remedy. Furthermore, the elimination of the warranty of seaworthiness evinces congressional intent to curtail shipowner liability for conditions arising when the vessel is not within the owner's control and for injuries caused solely by independent contractors. Remaining is the maritime worker's right to sue for negligence only.

General Maritime Law Under § 905(b)

The legislative history, as recently discussed by this Court in Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (5th Cir. 1977), discloses an intent that the negligence action be a matter of uniform federal law, and, with certain exceptions, be designed to give the maritime worker the same rights against third parties as his land-based counterparts would have. One articulation of those rights, Gay noted, is the Restatement (Second) of Torts (1965). Accordingly, the plaintiff's second allegation of error must also be rejected. General maritime law no longer governs third party actions by maritime workers except to the extent that the maritime concepts have an analogy in land-based law. For instance, the Committee expressly intended that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence would apply, and that the admiralty rule precluding "assumption of risks" as a defense would be applicable. But these concepts are not exclusively maritime, and do not alter the fact that general maritime law, as such, does not control outcome of these third party actions.

Negligence Under Land-Based Law Concepts

To evaluate the plaintiff's third claim, that the court misapplied land-based law to the facts of this case, it is necessary to examine each of the plaintiff's theories of liability.

I. Duty to Provide a Safe Place to Work

The plaintiff invokes the doctrine that a shipowner has a duty to provide invitees with a safe place to work. To the extent that doctrine encompasses liability without fault, a maritime concept, it no longer applies under § 905(b). Gay, 546 F.2d at 1239; Bess v. Agromar Line, 518 F.2d 738 (4th Cir. 1975). The doctrine does, however, have a land-based counterpart based on negligence. See Prosser on Torts § 80 (4th ed. 1971); Annot., 31 A.L.R.2d 1375.

In this case, however, the doctrine does not provide a basis for recovery by the plaintiff. Under traditional interpretation the duty to provide a safe place to work does not extend to protect employees of an independent contractor from dangers the contractor was hired to correct. Whitlow v. Seaboard Air Line R. R., 222 F.2d 57 (5th Cir. 1955). The plaintiff's reliance on Halecki v. United New York & N. J. Sandy Hook Pilots Ass'n, 302 F.2d 840 (2d Cir.), cert. denied, 371 U.S. 825, 83 S.Ct. 46, 9 L.Ed.2d 64 (1962), is misplaced. In that case the shipowner directed the contractor's method of repair. Halecki v. United New York & N. J. Sandy Hook Pilots Ass'n,282 F.2d 137, 142 (2d Cir. 1960), cert. denied, 364 U.S. 941, 81 S.Ct. 461, 5 L.Ed.2d 372 (1961). In contrast, the defendants here made no attempt to control the details of the work done by Port Allen Marine.

II. Duty on Employers of Independent Contractors

Plaintiff alleges the district court misapplied several sections of the Restatement which impose liability on those who employ negligent independent contractors. See Restatement (Second) of Torts §§ 411, 413, 416, 423, 427 (1965). Freely admitting that Congress foreclosed any maritime liability of a shipowner to the employee of an independent contractor for negligence of that contractor, the plaintiff invokes land-based law which holds an employer responsible for negligence of his independent contractors when the work involves danger. He cites § 411, which imposes a duty to select a contractor carefully, and § 413, which says an employer should take steps to ensure that an independent contractor will take special precautions when performing work creating a peculiar, unreasonable risk of harm. Plaintiff also cites several sections which impose vicarious liability on the employer. Included are § 416, which imposes liability if the contractor ignores the employer's instructions and fails to take precautions; § 423, which makes the employer equally liable with the contractor when the work involves maintaining an instrumentality used in highly dangerous activities; and § 427, which imposes joint liability if the contractor fails to take precautions with respect to work involving inherent danger. These sections of the...