Johnson v. A/S Ivarans Rederi

• Decision Date: 11 January 1980
• Docket Number: No. 79-1118,79-1118
• Citation: 613 F.2d 334
• Parties: Roger JOHNSON, Plaintiff-Appellee, v. A/S IVARANS REDERI, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 334

613 F.2d 334

Roger JOHNSON, Plaintiff-Appellee, v. A/S IVARANS REDERI, Defendant-Appellant.

No. 79-1118.

United States Court of Appeals First Circuit.

Argued Sept. 7, 1979.

Decided Jan. 11, 1980.

Richard A. Dempsey, Boston, Mass., with whom Glynn & Dempsey, Boston, Mass., was on brief, for appellant.

Hiller B. Zobel, Boston, Mass., with whom Nathan Greenberg, and Brown, Rudnick, Freed & Gesmer, Boston, Mass., were on brief, for appellee.

Before COFFIN, Chief Judge, KUNZIG, Judge, U.S. Court of Claims ^* and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Plaintiff-appellee, Roger Johnson, a longshoreman employed by the New Bedford Stevedoring Company, was severely injured when he stepped into the open No. 3 tween deck hatch of the general cargo ship M/V SALVADOR and fell thirty feet into the hold of the vessel. Following a three day trial, the jury found that Johnson's injuries were caused by the sole negligence of the defendant-appellant shipowner, A/S Ivarans Rederi. Final judgment was entered for Johnson in the amount of $488,333.35, including interest. On appeal, defendant alleges the commission of three errors by the district court: failure to properly charge the jury; denial of its motion for judgment n. o. v.; and denial of its motion for a new trial.

The chief issue is the standard of care applicable in an action by a longshoreman against a vessel for injuries received while on the ship under section 905(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 905(b).

THE FACTS

The M/V SALVADOR carries general cargo between ports in North and South America. New Bedford, the site of this accident, is the ship's northernmost port of call. The ship has five cargo hatches, numbered sequentially from fore to aft, and three working levels: the "weather" or top deck; the "hold" or bottom of the vessel; and an interior deck, known as the "tween" deck, which runs through the three middle hatches at a level approximately one-third of the distance between the weather deck and the hold. The five cargo hatches are loaded through opened hatch covers in the weather and tween decks. The cargo hatches are separated by vertical partitions known as bulkheads. Wide openings in the port and starboard sides of the bulkheads separating the No. 2, No. 3 and No. 4 hatches allow horizontal movement on the tween deck between those hatches. Vertical movement between the three working levels of the ship is accomplished by the use of ladders in the hatches.

On the day of Johnson's fall, a crew from New Bedford Stevedoring Company (the stevedore) boarded the ship at 8:00 a. m. to load cargo into the deep tanks of No. 2 hatch, the lower hold of No. 4 hatch and the lower tween deck of No. 5 hatch. No cargo was to be loaded into No. 3 hatch. Johnson was assigned to work with a five person crew unloading bags of fertilizer from pallets lowered by power winch into No. 2 deep tanks. When Johnson's crew descended into No. 2 deep tanks, the two seventeen foot wide openings in the bulkhead separating No. 2 and No. 3 hatch on the tween deck were not blocked off. The weather deck hatch covers of No. 3 hatch were closed, but the tween deck hatch covers of No. 3 hatch had been left open by a ship's crew that had been removing debris from the hold. The No. 3 tween deck was dark, due to the absence of artificial lighting and the fact that the weather deck hatch covers were closed. The open tween deck hatch covers in No. 3 left a square opening in the tween deck measuring approximately twenty feet by twenty feet. The opening had not been roped off and no hatch coaming or safety net had been used to protect a person from falling into the hold.

Prior to the commencement of work in No. 2 hatch, the open tween deck hatch covers in No. 3 hatch and the openings in the bulkhead leading to No. 3 hatch were noticed by Robert Duarte, the signalman for No. 2 hatch. It is the signalman's responsibility to warn the crew in the hatch of the approach of loads from above and to coordinate the work of the winch operator and the crew. Duarte informed the ship's mate of his observations and asked him to either rope off the bulkhead openings or close the hatch covers. The mate said he would take care of it right away.

At approximately 8:30 a. m., Johnson obtained permission to go ashore to replace his defective safety helmet. Johnson climbed the ladder to the No. 2 tween deck, where Duarte told him to get out of the way of a pallet of fertilizer bags being lowered into No. 2 hatch. Johnson then walked through the offshore opening in the bulkhead towards No. 3 hatch. After taking from five to seven steps, he fell into the hold through the open hatch.

THE APPLICABLE STANDARD OF LIABILITY

The backbone of the charge given by the district court was derived from sections 343 and 343A of the Restatement (Second) of Torts (the Restatement). ¹ Although this court has, on previous occasions, reached into the Restatement for principles to guide it in admiralty cases, See, e. g., Pino v. Protection Maritime Insurance Co., Ltd., 599 F.2d 10 (1st Cir. 1979) (Restatement of Torts § 766); Anderson v. Iceland S. S. Co., 585 F.2d 1142 (1st Cir. 1978) (Restatement (Second) of Torts § 414A), we have never utilized the provisions of the Restatement that describe the duties owed by landowners to invitees upon their land. We approached the question of the applicability of these sections in Anderson, noting the concern expressed by other courts about the incorporation of the prohibited defenses of assumption of the risk and contributory negligence, but concluded that the sections were not controlling under the facts of that case. Anderson v. Iceland S. S. Co., 585 F.2d at 1146-48. ²

Today, we face squarely the question of whether sections 343 and 343A of the Restatement should be the basis of the standard of care in a longshoreman's action against the vessel for personal injuries. This requires a review of the legislative history of the statute and an analysis of the pertinent case law and legal authority.

Section 905(b) of the Act ³ gives longshoremen a negligence action, exclusive of all other remedies, against the vessel for injuries received through the fault of the vessel. Since the term "negligence" is not defined in the statute, we look to the legislative history of the Act for assistance in determining how "negligence" is to be construed and applied.

The report of the House Committee provides the most assistance. See H.Rep. No. 92-1441, 92nd Cong., 1st Sess., Reprinted in (1972) U.S.Code Cong. & Admin.News, p. 4698 (House Report). After detailing the infirmities of the existing doctrines of unseaworthiness and indemnification and the system of workmen's compensation, the House Report described the role the concept of negligence would play in the new law:

Accordingly, the Committee has concluded that, given the improvement in compensation benefits which this bill would provide, it would be fairer to all concerned and fully consistent with the objective of protecting the health and safety of employees who work on board vessels for the liability of vessels as third parties to be predicated on negligence, rather than the no-fault concept of seaworthiness. This would place vessels in the same position, insofar as third party liability is concerned, as land-based third parties in non-maritime pursuits.

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 a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as "unseaworthiness", "nondelegable duty", or the like.

Id. at 4703. We interpret this portion of the legislative history, particularly those phrases beginning with "insofar," as requiring the establishment of a doctrine of negligence liability Similar or analogous to the terrene legal doctrine on which suits based on the negligence of the owner or occupier of land are based. See Anderson v. Iceland S. S. Co., supra, 585 F.2d at 1146.

The overriding purpose of the 1972 amendments was to create incentives for safety ⁴ in the nation's second most dangerous profession: ⁵

Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition.

So, for example, where a longshoreman slips on an oil spill on a vessel's deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence. To recover he must establish that: 1) the vessel put the foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it; or 2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care by the vessel under the circumstances. The vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore.

House Report, supra, at 4704. This portion of the legislative history unequivocally asserts the intention of Congress that the vessel shall exercise a constant concern for the safety of longshoremen. In addition, it strongly implies that Congress believed the 1972 amendments continued, rather than created, a duty on the part of the vessel to maintain a safe place to work. Although the last sentence acknowledges the stevedore's primary responsibility for safety in the work area, it also indicates that the vessel and the stevedore can be...