Hite v. Maritime Overseas Corporation, Civ. A. No. B-73-CA-354.
| Court | United States District Courts. 5th Circuit. United States District Court of Eastern District Texas |
| Citation | 380 F. Supp. 222 |
| Decision Date | 16 August 1974 |
| Parties | Hayes HITE v. MARITIME OVERSEAS CORPORATION. |
| Docket Number | Civ. A. No. B-73-CA-354. |
380 F. Supp. 222
Hayes HITE
v.
MARITIME OVERSEAS CORPORATION.
Civ. A. No. B-73-CA-354.
United States District Court, E. D. Texas, Beaumont Division.
August 16, 1974.
Harold J. Eisenman, Waldman & Smallwood, Beaumont, Tex., for plaintiff.
Ned Johnson, Benckenstein, McNicholas, Ball, Oxford, Radford & Johnson, Beaumont, Tex., for defendant.
MEMORANDUM OPINION
STEGER, District Judge.
The plaintiff's cause of action for damages was filed, pursuant to diversity of citizenship requirements, against Maritime Overseas Corporation for injuries allegedly sustained on May 2, 1973. Mr. Hite was a ship repairman, working in the course and scope of his employment for Southern Valve & Machine Works, Inc., who had contracted to perform various repairs and cleanup work aboard the defendant's vessel, the SS OVERSEAS JOYCE, while she was docked at the Coastal Marine Services, Inc.'s facilities in Port Neches, Texas.
The following testimony was presented during the course of the plaintiff's case:
Mr. Hite boarded the SS OVERSEAS JOYCE between 5 and 7 p. m. on May 2, 1973 to perform cleanup work in the No. 8 tank of the vessel. The plaintiff, who was a pusher and in charge of the men in the tank, proceeded into the No. 8 tank with nine other employees of Southern Valve & Machine Works, Inc. There were no members or officers of the ship's crew that were present in the tank during the time that the plaintiff and his crew were performing the cleanup work. The vessel's logs demonstrate that the crew of the OVERSEAS JOYCE had been paid off at 5 p. m. on May 2, although there were various officers that remained aboard the vessel during the period of time in question.
Mr. Hite received a shock at approximately 11 p. m. from a defective drop cord that was attached to a vertical rod in the tank for illumination. The shock caused the plaintiff to fall between sixteen and forty feet to the bottom of the tank. Neither Mr. Hite nor his witness, Mr. Brooks, were able to testify as to the ownership of the defective drop cord. The evidence was clear that both Mr. Hite and Mr. Brooks knew that the drop cords that were being used aboard the OVERSEAS JOYCE were in a worn, frayed, and defective condition prior to Mr. Hite's fall. Mr. Brooks testified that there were actually visible raw wires showing through the insulation on the drop cord that shocked the plaintiff. He noticed this condition of the drop cord before the accident. Mr. Hite testified, during his deposition which is in evidence, that it was the duty of the electrician for Southern Valve & Machine Works, Inc. to check the light cords for defects before they were placed into the tanks. During the course of the trial, he changed this testimony to a presumption that it was the
At the conclusion of the plaintiff's case, the defendant moved for a directed verdict contending that the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 provide for the application of land-based negligence concepts to third party suits by ship repairmen against a vessel owner. The defendant argued that the consensus of the law of the various maritime states relating to the duty of care owed by the owner of a premise (vessel owner) to an independent contractor and his employees (business invitees) does not include the duty to warn said invitees of open and obvious dangerous conditions in the work area which said invitees knew or should have known existed upon the premise.
The plaintiff contends that maritime negligence concepts apply to this fact situation, to wit: that the defendant maintains a nondelegable duty to provide a reasonably safe place to work for those business invitees that board the vessel to perform contract work for the vessel owner. In essence, the plaintiff argues that the vessel owner maintains a duty to correct unsafe working conditions as they are created in the work area, and to inspect the equipment that is being used by said business invitees prior to and during the performance of their work. The plaintiff further contends that the defective light cord was in an open and obvious defective condition which the vessel owner knew or should have known existed prior to the plaintiff's injury. The plaintiff alleges that the defendant failed to warn the plaintiff about this condition or to eliminate the hazard.
This Court has been given the opportunity to judicially interpret the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972. In determining whether Congress intended third party litigation to be controlled by land-based or maritime principles of law, the Court has reviewed the Legislative History of the Act as stated in the Senate and House Committee reports. The 1972 Amendments, which were effective November 26, 1972, contain the following statutory language regarding third party litigation:
"Sec. 5(b) In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act, 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 stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. 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 Act."1
The Senate and House Committees provided the following comments relating to third party actions pursuant to Sec. 5(b):
"* * * The Committee intends that on the one hand an employee injured on board a vessel shall be in no less favorable position `vis a vis' his rights against the vessel as a third party than is an employee who is injured on land, and on the other hand, that the vessel shall not be liable as a third party unless it is proven to have acted or have failed to act in a negligent manner such as would render a landbased third party in non-maritime suits liable under similar circumstances."2 "The purpose of the amendments is to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as bringing...
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...the 1972 amendments as requiring direct application of land-based tort concepts. See, e. g., Hite v. Maritime Overseas Corporation, 380 F.Supp. 222, 226 The circuit courts of appeals that have considered the question of the applicability of land-based standards are divided into two schools ......
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Hurst v. Triad Shipping Co., No. 74-1143
...by replacing maritime concept of liability with 'a new cause of action for negligence. . . .' "); Hite v. Maritime Overseas Corp., 380 F.Supp. 222 (E.D.Tex.1974) ("It is apparent, from the review of the Senate and House Committee Reports, that it was the intent of Congress to prov......
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Gallardo v. Westfal-Larsen & Co. A/S, No. C-76-040 WHO.
...M/V Triton, 384 F.Supp. 198 (E.D. Tex. 1974); Fedison v. Vessel Wislica, 382 F.Supp. 4 (E.D.La. 1974); Hite v. Maritime Overseas Corp., 380 F.Supp. 222 (E.D.Tex. 1974); Lucas v. "Brinknes" Schiffahrts Ges., 379 F.Supp. 759 (E.D.Pa. 12 Gorman, The Longshoremen's and Harbor Workers' Compensat......
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Gay v. Ocean Transport and Trading, Ltd., Nos. 75-2729 and 75-2441
...v. M/V Triton, 384 F.Supp. 198 (E.D.Tex.1974); Fedison v. Vessel Wislica, 382 F.Supp. 4 (E.D.La.1974); Hite v. Maritime Overseas Corp., 380 F.Supp. 222 (E.D.Tex.1974); Lucas v. "Brinknes" Schiffahrts Ges., 379 F.Supp. 759 8 Restatement (Second) of Torts § 343, comment a (1965), instructs th......
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Johnson v. A/S Ivarans Rederi, No. 79-1118
...the 1972 amendments as requiring direct application of land-based tort concepts. See, e. g., Hite v. Maritime Overseas Corporation, 380 F.Supp. 222, 226 The circuit courts of appeals that have considered the question of the applicability of land-based standards are divided into two schools ......
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Hurst v. Triad Shipping Co., No. 74-1143
...by replacing maritime concept of liability with 'a new cause of action for negligence. . . .' "); Hite v. Maritime Overseas Corp., 380 F.Supp. 222 (E.D.Tex.1974) ("It is apparent, from the review of the Senate and House Committee Reports, that it was the intent of Congress to provide longsh......