Hugev v. Dampskisaktieselskabet International

• Decision Date: 21 January 1959
• Docket Number: Civ. No. 20340.
• Citation: 170 F. Supp. 601
• Parties: Roy HUGEV, Plaintiff, v. DAMPSKISAKTIESELSKABET INTERNATIONAL, a corporation, Defendant. DAMPSKISAKTIESELSKABET INTERNATIONAL a corporation, Third-Party Plaintiff, v. METROPOLITAN STEVEDORE COMPANY, Third-Party Defendant.
• Court: U.S. District Court — Southern District of California

170 F. Supp. 601

Roy HUGEV, Plaintiff, v. DAMPSKISAKTIESELSKABET INTERNATIONAL, a corporation, Defendant.

DAMPSKISAKTIESELSKABET INTERNATIONAL a corporation, Third-Party Plaintiff, v. METROPOLITAN STEVEDORE COMPANY, Third-Party Defendant.

Civ. No. 20340.

United States District Court S. D. California, Central Division.

January 21, 1959.

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Mitchell Levy, Hollywood, Cal., for plaintiff.

Lillick, Geary, McHose, Roethke & Myers and Gordon K. Wright, Los Angeles, Cal., for defendant and third-party plaintiff.

Cooper, White & Cooper and George A. Helmer, San Francisco, Cal., for third-party defendant.

MATHES, District Judge.

Plaintiff commenced this action in the State court under the "saving to suitors" clause 28 U.S.C. § 1333(1) to recover damages for personal injuries alleged to have been sustained on April 19, 1955, as a proximate consequence of unseaworthiness and negligence, while plaintiff was working as a longshoreman engaged in discharging cargo from defendant's M S Castleville docked in navigable waters at the Port of Los Angeles. Pope & Talbot v. Hawn, 1953, 346 U.S. 406, 409, 411, 419, 74 S.Ct. 202, 98 L.Ed. 143; Williams v. Tidewater Associated Oil Co., 9 Cir., 1955, 227 F.2d 791, certiorari denied, 1956, 350 U.S. 960, 76 S.Ct. 348, 100 L.Ed. 834.

Defendant shipowner, a Norwegian corporation, filed a timely petition for removal of the case, upon the ground of diversity of citizenship, to the law side of this court. 28 U.S.C. § 1442; Hill v. United Fruit Co., D.C.S.D.Cal. 1957, 149 F.Supp. 470, 472.

Following removal, the shipowner filed a third-party complaint against Metropolitan Stevedoring Company, a California corporation, as third-party defendant, alleging inter alia: (1) that at the time and place of any injury to plaintiff, third-party defendant was engaged in discharging cargo from the M S Castleville pursuant to a written contract with defendant shipowner; (2) that plaintiff was then and there employed by third-party defendant and working as a longshoreman in discharging the cargo pursuant to the contract; and (3) that if at the time of any injury to plaintiff, the ship was in anywise unseaworthy or if the place where plaintiff was working was in an "unsafe and dangerous condition", such was caused or permitted to continue to exist "solely by reason of the acts of omission or commission of said third-party defendant, its agents, servants and employees."

Wherefore defendant shipowner as third-party plaintiff demanded judgment against third-party defendant stevedoring contractor "for all sums that may be adjudged in the first instance against defendant and in favor of plaintiff." Fed.R.Civ.P. 14(a), 28 U.S.C.

The stevedoring contractor-employer answered joining issue on the third-party complaint, and at pre-trial conference the parties stipulated that: plaintiff is a citizen of California; defendant and third-party plaintiff is a Norwegian corporation and the owner of M S Castleville; third-party defendant is a California corporation, and on April 19, 1955, was conducting stevedoring operations on board the M S Castleville for the shipowner pursuant to a written contract; while employed as a longshoreman by the stevedoring contractor and while working aboard the M S Castleville "moored in the navigable waters of the United States of America", plaintiff was injured on April 19, 1955; the stevedoring contractor-employer paid to plaintiff pursuant to the Longshoremen's and Harbor Workers' Compensation Act 33 U.S.C.A. §§ 901-950, but not "under an award in a compensation order" Id. § 933 (b), the sum of $175 as compensation Id. § 914(a), and the sum of $306.65 for medical services and supplies, in accordance with the Act. Id. § 907. It was conceded also that plaintiff had duly elected, under § 33(a) of the Act 33 U.S.C.A. § 933(a), to sue defendant shipowner. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 1956, 350 U.S. 124, 127, 128, 144, 76 S.Ct. 232, 100 L.Ed. 133.

At the trial plaintiff presented a stipulation signed by defendant shipowner, as follows: "That on April 19, 1955, the M S Castleville was unseaworthy due to insecure hatchboards at No. 1 hatch, and that as a result of said condition plaintiff did fall and sustain personal injuries" cf. Crumady v. The Joachim Hendrik Fisser, 3 Cir., 1957, 249 F.2d 818, certiorari granted, 357 U.S. 903, 78 S.Ct. 1150, 2 L.Ed.2d 1154; 79 S. Ct. 445; and "That plaintiff has been damaged in the sum of $2,000 exclusive of the benefits received by him under the * * * Act and provided to him by the stevedoring contractor-employer Metropolitan Stevedore Company."

With this stipulation, both plaintiff and defendant rested. Thereupon defendant shipowner, as third-party plaintiff, presented the testimony of plaintiff longshoreman and rested, and third-party defendant stevedore contractor presented testimony from its employee, the ship foreman or "boss" at the time of the accident, and rested.

From the facts as stipulated and the evidence thus adduced, it appears that at the time the cargo was loaded at a foreign port the "queen beam" belonging in the No. 1 main deck hatch was erroneously placed under the hatch boards on the forward section of No. 1 'tween deck hatch. Since the slots did not fit, this error caused the hatch boards on the forward section of No. 1 'tween deck hatch to wobble or seesaw and to be insecure, and to give way when plaintiff walked thereon in the performance of his duties. As a result plaintiff fell through the 'tween deck hatch into the hold below, sustaining injuries to his right hand and arm.

Prior to the accident, the contracting stevedore, through its ship foreman, became aware of the misplaced "queen beam" and the insecure hatch boards covering the forward section of No. 1 'tween deck hatch, ordered the stevedoring work halted, and complained of the condition to the ship's mate in charge. The mate made an inspection, told the stevedore's foreman that the wrong "queen beam" had been put in place at another port, and instructed the ship boss to clear the cargo of bales of sponge rubber from the hatch boards covering the forward section of No. 1 'tween deck hatch, then remove the hatch boards, substitute the proper "queen beam", and replace the hatch boards securely. Following this inspection and authorization by the mate, the stevedore's foreman ordered the longshoremen to proceed accordingly.

The contract between the shipowner and the stevedoring company, as independent contractor, was received in evidence, and provides for "all loading and discharging of all cargo in vessels owned or operated by" the shipowner, the "handling of dunnage", and the "initial and final handling of hatch beams, hatch-covers * * *", at agreed "Commodity Rates" covering all time, including "lost or standby time", spent by the stevedore company in doing the work, with compensation for "extra labor when authorized by ship's officers * * *."

As was the case with all the stevedoring company's work under the contract with the shipowner, the mode and manner and method to be adopted in clearing the baled rubber cargo from the hatch boards were matters exclusively within the discretion of third-party defendant. See McGeeney v. Moran Towing Corp., 2 Cir., 1945, 149 F.2d 791, 793.

Unnecessarily, as the work proceeded, the stevedoring contractor's foreman required or permitted the longshoremen, including plaintiff, to walk upon and across the wobbly hatch boards covering the forward section of No. 1 'tween deck hatch. As a result, while plaintiff was engaged in helping with the work of clearing the hatch boards of cargo, one of the insecure hatch boards upon which he stepped gave way, permitting him to fall into the hold below, thereby sustaining permanent deforming injuries to one of the fingers of his right hand.

In electing an unsafe method of clearing the cargo from the hatch boards, third-party defendant stevedoring contractor was negligent, and such negligence, as well as the conceded unseaworthiness of the No. 1 'tween deck hatch, was a proximate cause of plaintiff's injuries. The evidence does not establish any negligence on the part of defendant shipowner, or any contributory negligence on the part of plaintiff longshoreman.

Defendant shipowner now advances two contentions: first, as to plaintiff's complaint, that the stevedore employer is not entitled to reimbursement for—hence plaintiff is not entitled to recover—the $481.65 paid to plaintiff as compensation and medical expense under the Longshoremen's and Harbor Workers' Compensation Act; and, second, as to the third-party complaint, that the shipowner is entitled to a judgment against the stevedoring contractor for the amount of any judgment awarded plaintiff.

The gist of the argument in support of defendant's first contention is that, since the stevedoring contractor-employer's negligence was one of the proximate causes of plaintiff's damage, the negligent employer should not be entitled to reimbursement at the shipowner's expense out of plaintiff's recovery from the shipowner.

That identical argument was advanced by the shipowner, and considered by the Supreme Court, in Pope & Talbot, Inc. v. Hawn, supra, 346 U.S. at pages 411-412, 74 S.Ct. at page 206. The Court there said: "* * * The shipowner Pope & Talbot says that if the injured longshoreman Hawn keeps the money paid under the Act he will have a double recovery and that to allow him to repay his employer Haenn would give an unconscionable reward to an employer whose negligence contributed to the injury. A weakness in this ingenious argument is that § 33 of the Act has specific provisions to permit an employer to recoup his compensation payments out of any recovery from a third person negligently causing such injuries. Pope & Talbot's contention if accepted would frustrate this purpose to protect employers who are subjected to absolute liability by the Act. Moreover,...