Jackson v. Lloyd Brasileirs Patrimonio Nacional
| Decision Date | 22 December 1970 |
| Docket Number | No. 68-G-158.,68-G-158. |
| Citation | 324 F. Supp. 556 |
| Parties | J. D. JACKSON v. LLOYD BRASILEIRS PATRIMONIO NACIONAL v. ATLANTIC AND GULF STEVEDORES, INC. |
| Court | U.S. District Court — Southern District of Texas |
S. Ravkind, Mandell & Wright, Houston, Tex., for plaintiff.
V. W. Rehmet and J. I. Smith, Jr., Barrow, Bland & Rehmet, Houston, Tex., for defendant third party plaintiff.
A. J. Watkins, Watkins, Hamilton & Kolb, Houston, Tex., for third party defendant.
This is an action by a longshoreman to recover damages for personal injuries he sustained while working aboard the S. S. Marila. The cause was tried to the Court sitting without the assistance of a jury on the issues of liability only. The Court has jurisdiction.
The parties' contentions were summarized in the pretrial order. The plaintiff longshoreman contended that his injuries were the proximate result of the ship's winches being maintained in an unseaworthy condition, and of the negligence of the ship's crew for failing to: (1) repair the winches; (2) order the stevedore to repair same; and (3) order the longshoremen to cease operating same until they were in a seaworthy condition. The defendant shipowner denies the plaintiff's allegations, and contends the plaintiff negligently caused his own injuries. Seeking indemnification, the shipowner impleaded the stevedore who employed the plaintiff. The shipowner predicates its indemnification claims upon an express condition in the agreement entered between the shipowner and the stevedore; and, secondly, upon its belief that the stevedore breached its implied contractual warranties. The third party defendant stevedore answered that it was not obligated to indemnify the shipowner because: (1) the shipowner's breach of its promise to provide adequate winches for the use of the stevedore released the stevedore from its contractual obligations; and (2) its belief that: (a) it did not breach its warranties; and (b) if it did breach its warranties, that the shipowner's conduct was a substantial cause of the injury and precluded indemnification.1
On April 20, 1968, J. D. Jackson was injured while working aboard the S. S. Marila as a longshoreman. The vessel was owned by the defendant. Jackson was employed by the third party defendant to perform stevedoring services aboard the vessel.
Prior to the occurrence and injury in question, the shipowner and the contracting stevedore had entered a written contract governing the respective obligations of the parties in connection with the loading and unloading of the shipowner's vessels by the stevedore.2 Of importance in this litigation was the shipowner's promise to provide the stevedore adequate booms and winches to perform its services,3 and the stevedore's promise to indemnify the shipowner against personal injury claims arising during the stevedoring work even though caused by the indemnitee's tortious conduct.4
On the day plaintiff was injured he was a member of a gang of longshoremen assigned the task of cleaning out the lower hold adjacent to hatch No. 3 of the S. S. Marila. To accomplish this, the stevedore ordered its men to use the boom and winch equipment provided by the ship. The longshoremen attached a topless fifty-five gallon steel drum to a cable. The cable was then run through the guides on the ship's boom, and was attached to the vessel's winch apparatus. The winch was used to raise and lower the drum. The winches were electrically powered. The winch operator would lower the drum through the hatch in the main deck, down to and through the hatch in the tween deck, and down to the deck of the lower hold. When the drum reached the lower hold, the longshoremen assigned the chore of cleaning the hold would fill the drum with refuse to be discarded from the ship. The winch operator would then cause the winch to raise the drum to the main deck where another longshoreman would pull the drum away from the hatch by the use of a tag line attached to the drum, and empty the drum. Because the winch operator could not watch the progress of the drum upon its journey to and from the lower hold, a longshoreman was stationed adjacent the main deck hatch. This man would watch the drum's progress and signal the winch operator when to start, stop, or regulate the speed of the winch. To facilitate the drum's passage through the tween deck hatch, a longshoreman was stationed there to guide the drum. Complicating the drum's passage through the tween deck hatch was the fact that the longshoremen had reduced the size of the hatch opening by placing hatch boards across the hatch. This was done to facilitate the loading of cargo. The opening which remained was of sufficient size to allow the drum to pass through, but one which required the constant attention of a longshoreman to insure that the drum did not strike the hatch boards.
The hatch boards were not placed tightly together. Instead, the boards were arranged so that grain could pass between them and pass into the lower hold. The openings between the boards, however, were not large enough to prevent a man from walking safely over them.
In order to perform his tasks properly, the guide man was required to stand upon the grid formed by the hatch boards and to use his hands to guide the drum through the tween deck hatch. The job of guiding the drum through the tween deck was a one-man job.
Plaintiff was an experienced longshoreman, familiar with the requirements of the tasks assigned to him on the day when he was injured. He commenced work on the morning of April 20, 1968, at approximately 7:00 a. m. and was injured at approximately 11:00 a. m. of the same day.
Leslie Charping was the gang foreman assigned by the stevedore to supervise Jackson's crew. The stevedore's walking foreman was Mr. Morgan. Morgan was charged with the duty of supervising all the stevedore's employees on the vessel that day.
Prior to the accident, a longshoreman named Harry C. Rhew had been running the two ship's winches which were adjacent to hold No. 3 where Jackson's crew was working. Either of the winches would normally have been adequate to hoist the fifty-five gallon drum being used in the cleanup operation.
Rhew testified by deposition5 and at the trial that neither of the winches were operating properly. He stated that neither winch would respond accurately to its controls. He stated that without a command from the winch operator the winch would change speed and would raise or lower cargo at a fast unsafe speed. Rhew pointed out that the winch to which the drum was rigged was the more unpredictable of the two winches, and therefore the more dangerous for the longshoremen to use in the cleanup operations. He also pointed out that he had operated numerous winches of a similar type on the Galveston, Texas waterfront, and that these winches normally did not operate in such an erratic manner.
Rhew testified that he informed the stevedore's representatives—namely its gang foreman and walking foreman—of the winches' behavior. The two foremen then informed the shipowner's representative —the ship's officer on duty, a mate —of this problem.
Rhew and Charping6 both testified that they informed the stevedore's walking foreman of the winches' behavior, and that the two foremen sent for the ship's mate and informed him of this fact.
Although the testimony of Rhew and Charping is not as clear on this point as the trier of fact might prefer, the reasonable inferences to be drawn from their testimony preponderate to the conclusion that the following conversation took place between the two foremen and the ship's mate. The testimony persuades the Court that the mate and the two foremen agreed that the longshoremen should continue using the winch rather than cease work. They reached this conclusion because they believed the cleanup crew's need for the winch was almost completed, and because they preferred to risk the safety of the longshoremen rather than to take the time to repair the winch, or to rerig the drum to the better operating winch and repair it. This conversation leads the Court to the obvious and inescapable conclusion that the representatives of the stevedore and the shipowner, like the ship's officers in Eugene O'Neill's play, The Hairy Ape, were more concerned with the speed in which the job could be completed than with the safety of the crew.7
Prior to Jackson's injury, the gang foreman, Mr. Charping, assumed the controls of the winch hoisting the drum. Having relieved Rhew, Mr. Charping directed him to serve as guide man, and directed Jackson to serve as the signalman on the main deck. After a few loads were removed from the hold, Charping directed Jackson to assume the guide position on the tween deck hatch boards because Rhew had little experience at this task and Jackson was considered an able man. Rhew replaced Jackson at the signalman position. He then commenced to watch the hoisting operations and to signal the winch operator.
None of the parties offered evidence informing the Court why it was necessary to substitute Jackson for Rhew at the guide position. It is reasonable to infer from the evidence which was submitted, however, that the switch was occasioned because the erratic behavior of the winch caused Charping to conclude that Jackson's experience would enable him to handle any problems which might arise. Therefore, it is further reasonable to infer that when Jackson assumed the guide position, he was prepared for trouble of the nature which a sudden increase in the speed of the drum could cause and would have been very attentive to the drum's progress and to his own safety.
After Jackson assumed the guide position, the drum made one and one-half complete trips to and from the lower hold. During the drum's upper journey from the lower hold, it struck him.
Jackson and Rhew were the only persons in a position to see the accident and injury to Jackson. Although...
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