Law v. Victory Carriers, Inc.

• Decision Date: 03 November 1970
• Docket Number: No. 28451.,28451.
• Citation: 432 F.2d 376
• Parties: Bill LAW, Plaintiff-Appellant, v. VICTORY CARRIERS, INC., etc., and the S.S. SAGAMORE HILL, etc., Defendants-Third Party Plaintiffs-Appellees, v. GULF STEVEDORE CORP., Third-Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

432 F.2d 376 (1970)

Bill LAW, Plaintiff-Appellant, v. VICTORY CARRIERS, INC., etc., and the S.S. SAGAMORE HILL, etc., Defendants-Third Party Plaintiffs-Appellees, v. GULF STEVEDORE CORP., Third-Party Defendant-Appellee.

No. 28451.

United States Court of Appeals, Fifth Circuit.

September 16, 1970.

Rehearing Denied and Rehearing Denied November 3, 1970.

Francis M. Thigpen, Diamond & Lattof, Ross Diamond, Jr., Mobile, Ala., for plaintiff-appellant.

George F. Wood, Mobile, Ala., for Victory Carriers, Inc.

W. Boyd Reeves, Mobile, Ala., for Gulf Stevedore Corp.

Before COLEMAN, GOLDBERG and MORGAN, Circuit Judges.

Rehearing Denied and Rehearing En Banc Denied November 3, 1970.

GOLDBERG, Circuit Judge:

In this admiralty case we must decide whether the post-Gutierrez¹ doctrine of unseaworthiness is sufficiently expansive to embrace a longshoreman moving cargo from a point on the dock toward the vessel as part of the total operation of loading the vessel. The longshoreman, plaintiff-appellant Bill Law, was injured on December 11, 1967, while working as part of a stevedore gang engaged in the loading of the SS SAGAMORE HILL. The SAGAMORE HILL, a vessel owned and operated by Victory Carriers, Inc. (Victory), was docked at the Port of Mobile, Alabama. Law's employer, Gulf Stevedore Corporation (Gulf), was in charge of the loading operation.

The record indicates that plaintiff Law had worked as a longshoreman for ten or twelve years prior to the accident. The exact situs and specific function of his work varied. On some days he drove a forklift machine on board a vessel; on some days he worked on the dock as a "hook up" man; and on some days he drove a forklift machine on the dock. On the day of his accident he was driving a forklift machine — one owned by his employer, Gulf — on the dock. He was using a forklift to carry cargo to the hook-up point on the dock alongside the vessel. The cargo consisted of bundles of metal-mesh aircraft landing mats. Law would pick up a bundle from a pile on the dock — the pile was located approximately 50 feet from the vessel — and take it to the hook-up point alongside the ship. The mats were not taken directly onto the vessel from the forklift machine. Instead, Law would set them down on the dock at the hook-up point, and they would subsequently be taken aboard the vessel by other longshoremen by use of the vessel's gear and equipment.

While Law was transporting one of the bundles of mats from the pile to the hook-up point, the overhead protection rack of the forklift machine came loose and fell on him, allegedly causing the injuries of which he now complains. The overhead protection rack, commonly called the "headache rack," is a metal frame positioned above the driver's seat to protect him from falling objects. Law's investigation after the accident allegedly revealed that the four bolts which should have secured the rack were missing.

Law filed a complaint in the district court alleging that his injuries were caused by the unseaworthiness of the SAGAMORE HILL and the negligence of Victory. The shipowner subsequently filed a third-party complaint against Gulf, seeking indemnity if Victory should be held liable to Law. After discovery both Victory and Gulf filed motions for summary judgment, to which Law responded by filing a cross-motion for summary judgment.

In ruling on the motions the district court considered only one issue — whether the warranty of seaworthiness extended to plaintiff Law.² The court concluded that Law was not "loading" the ship, that he therefore was not engaged in the service of the ship, and hence that he was not within the scope of the warranty of seaworthiness. Having thus concluded that the doctrine of unseaworthiness was not applicable to this case, the court granted the motions of Victory and Gulf and denied the motion of Law.

Law now appeals, contending that the court below erred in holding that he was not within the scope of the warranty of seaworthiness. Agreeing with Law's contention, we reverse and remand.

The doctrine of unseaworthiness has been correctly called "a child of twentieth-century federal jurisprudence."³ Brought to life by Mr. Justice Brown's famous dictum in The Osceola, 1903, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760,⁴ divorced from concepts of negligence in Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, and nurtured in the bosom of a largely sympathetic judiciary ever since, the doctrine has experienced unremitting growth and expansion.⁵ As Judge Coleman recently wrote for this court, "the doctrine is a growing concept, constantly undergoing redefinition as the risks of those protected are enlarged by changing technology and ship board technique." Dillon v. M. S. Oriental Inventor, 5 Cir.1970, 426 F.2d 977, 979.

Two Supreme Court decisions have particular relevance to the case at bar. The first is Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. In Sieracki the Supreme Court considered the question whether "the obligation of seaworthiness, traditionally owed by an owner of a ship to seamen," 378 U.S. at 87, 66 S.Ct. at 874, "extends to longshoremen injured while doing the ship's work aboard the ship but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship," id. at 89, 66 S.Ct. at 875. The Court answered this question in the affirmative, holding that a longshoreman injured on board a vessel could pursue his remedy for unseaworthiness against the shipowner as well as his remedy against his employer under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq. The Court's rationale for extending the warranty of seaworthiness to longshoremen injured on board a vessel was that a worker "doing a seaman's work and incurring the seaman's hazards," id. at 99, 66 S.Ct. at 880, should be entitled to the seaman's protections "regardless of the fact that he is employed immediately by another than the owner," id. at 99, 66 S.Ct. at 880.

"Historically the work of loading and unloading is the work of the ship\'s service, performed until recent times by members of the crew. Citing cases. That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker\'s hazard and should not nullify his protection." Id. at 96, 66 S.Ct. at 878.

Accordingly, the Court concluded that "when a man is performing the function essential to maritime service on board a ship the fortuitous circumstances of his employment by the shipowner or a stevedoring contractor should not determine the measure of his rights." Id. at 97, 66 S.Ct. at 878.

The Court's subsequent decision in Gutierrez v. Waterman Steamship Corp., 1963, 374 U.S. 858, 83 S.Ct. 1863, 10 L. Ed.2d 1082, further extended the applicability of the doctrine of unseaworthiness to longshoremen, for the Court in Gutierrez made it clear that the doctrine has relevance to injuries sustained off the vessel. The injured longshoreman in Gutierrez slipped on the dock on beans which had spilled out of defective bags during the unloading of a cargo of beans from the vessel. On these facts the Court concluded that the longshoreman was within the scope of the warranty of seaworthiness, holding that "the duty to provide a seaworthy ship and gear, including cargo containers, applies to longshoreman unloading the ship whether they are standing aboard ship or on the pier." 373 U.S. at 215, 83 S.Ct. at 1191, 10 L.Ed.2d 297 (emphasis added). The rationale implicit in this holding is a logical extension of Sieracki: since a longshoreman loading or unloading a vessel is doing a seaman's work and incurring a seaman's hazards, he should be entitled to the seaman's protections regardless of the fact that he is a few feet landward of the water line.

Although Sieracki and Gutierrez are the major constellations by which we steer our course in the present case, we must also be aware of several other developments in the law of admiralty which bear upon the ultimate disposition of this case. First, it is well established that the shipowner's warranty of seaworthiness extends to equipment supplied by the stevedore. Alaska Steamship Co. v. Petterson, 1954, 347 U. S. 396, 74 S.Ct. 601, 98 L.Ed. 798, affirming per curiam 9 Cir. 1953, 205 F. 2d 478; Rogers v. United States Lines, 1954, 347 U.S. 984, 74 S.Ct. 849, 98 L. Ed. 1120, reversing per curiam 3 Cir. 1953, 205 F.2d 57; see Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 84 S.Ct. 748, 11 L.Ed.2d 732. In the present case, therefore, the shipowner cannot be exonerated from liability by the mere fact that the forklift machine was owned by the stevedore rather than by the shipowner. Secondly — and this second principle ameliorates the apparent harshness of the principle just discussed — a shipowner held liable to a longshoreman for unseaworthiness may bring a third-party action against the stevedore for indemnity if the longshoreman's injury was occasioned by a breach of the stevedore's warranty (to the shipowner) of workmanlike performance. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. It is under this theory that Victory seeks indemnity from Gulf in the present case.⁶ Finally, we note that this circuit has specifically rejected the arguments (1) that the doctrine of unseaworthiness applies only to equipment which is part of the traditional gear of a ship and (2) that the doctrine applies only to equipment which is attached to or touching the ship. These arguments were laid to rest in Judge Thornberry's scholarly and well-reasoned opinion in Deffes v. Federal Barge Lines, Inc., 5 Cir. 1966, 361 F.2d 422, cert. denied, Continental Grain Co. v. Deffes, 385 U.S. 969, 87 S.Ct. 503, 17 L. Ed.2d 433. Thus the application of the doctrine in the present case cannot be defeated (1) by the fact that the...