Mallard v. Aluminum Co. of Canada, Ltd.

• Decision Date: 15 January 1981
• Docket Number: Nos. 79-1095,79-1847 and 79-1922,s. 79-1095
• Citation: 634 F.2d 236
• Parties: Obbie MALLARD and Daisy Mallard, his wife, Plaintiffs-Appellants, v. ALUMINUM COMPANY OF CANADA, LTD. et al., Defendants-Appellees. Obbie MALLARD, Plaintiff, Daisy Mallard, his wife, Plaintiff-Appellant, v. The M/V "GERMUNDO", a Finnish flag vessel, her engine, tackle and appurtenances, etc. In Rem; Rederiaktiebolaget Gustaf Erikson and Consolidated-Bathurst Limited, In Personam, Defendants- Appellees. Obbie MALLARD and Daisy Mallard, his wife, Plaintiffs-Appellants, v. The M/V "GERMUNDO," etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 236

634 F.2d 236

Obbie MALLARD and Daisy Mallard, his wife, Plaintiffs-Appellants, v. ALUMINUM COMPANY OF CANADA, LTD. et al., Defendants-Appellees.

Obbie MALLARD, Plaintiff, Daisy Mallard, his wife, Plaintiff-Appellant, v. The M/V "GERMUNDO", a Finnish flag vessel, her engine,

tackle and appurtenances, etc. In Rem;

Rederiaktiebolaget Gustaf Erikson and

Consolidated-Bathurst Limited,

In Personam,

Defendants-

Appellees.

Obbie MALLARD and Daisy Mallard, his wife, Plaintiffs-Appellants, v. The M/V "GERMUNDO," etc., et al., Defendants-Appellees.

Nos. 79-1095, 79-1847 and 79-1922.

United States Court of Appeals, Fifth Circuit.

Jan. 15, 1981.

Reginald M. Hayden, Jr., George P. Telepas, Miami, Fla., for plaintiffs-appellants.

William B. Milliken, Miami, Fla., amicus curiae, for Rederiaktiebolaget Gustaf Erikson and Consolidated Bathurst.

Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, Fla., for defendants-appellees in 79-1095.

Todd A. Cowart, James E. Tribble, Miami, Fla., for defendants-appellees in all cases.

Fowler, White, Burnett, Hurley, Banick & Knight, Miami, Fla., for defendants-appellees in 79-1847 and 79-1922.

Appeals from the United States District Court for the Southern District of Florida.

Before HENDERSON, POLITZ and WILLIAMS, Circuit Judges.

HENDERSON, Circuit Judge:

These are three consolidated appeals ¹ arising from injuries sustained by the appellant, longshoreman Obbie Mallard, in a forklift accident while he was discharging cargo on the M/V Germundo in Port Everglades, Florida. Obbie Mallard and his wife Daisy Mallard appeal from an order dismissing the loading stevedore, Aluminum Company of Canada, Ltd. (hereinafter referred to as ALCAN), for lack of personal jurisdiction. They also appeal from an order granting summary judgment in favor of the vessel, its owner, and its charterer. Daisy Mallard appeals the order dismissing her claim for loss of consortium. ²

The M/V Germundo was owned by Rederiaktiebolaget Gustaf Erikson (hereinafter referred to as ERIKSON), a Finnish corporation, and time-chartered to consolidated Bathurst, Ltd. (hereinafter referred to as CBL), a Canadian corporation, for the purpose of carrying newsprint from Port Alfred, Quebec, Canada, to Port Everglades, Florida, and Miami, Florida. CBL hired ALCAN as stevedore for the loading operations in Canada. ALCAN stevedored the vessel for a two-year period, from 1974 to 1975, during which time the vessel continuously ran cargos loaded with newsprint between Canada and one of the two Florida ports. On this particular voyage the discharging stevedore was Lavino Shipping Company (hereinafter referred to as LAVINO).

Newsprint is packed in tiers, with rolls "nested" end to end to produce the tightest stow possible. Discovery shows that on the subject voyage the newsprint was stored in this customary manner. The newsprint was stacked three tiers high. Then a double layer of plywood walking board was laid over the newsprint in a criss-cross fashion, one layer extending fore and aft and one layer abeam the vessel. This plywood formed a solid, level surface across which forklift trucks could maneuver while loading the next layers of newsprint and a surface upon which more newsprint could be stowed. After the hold was filled, the final tier of newsprint was squared into the space of the hatch by lowering the necessary number of rolls through the hatch opening.

Under its agreement with ALCAN, CBL provided the plywood walking boards used by ALCAN in loading the vessel. CBL also assumed general responsibility for the condition of and undertook inspection of the plywood. On return voyages to Canada, the ship's crew would conduct a routine inspection of the plywood and throw all worn or defective plywood overboard, but this examination constituted the extent of the shipowner's responsibility for the walking boards. Each board was further inspected by ALCAN as it was laid and any boards which the stevedore determined to be damaged were discarded and replaced with new plywood.

According to the chief mate's deposition, ALCAN's stevedoring personnel were actually in charge of getting the cargo into the M/V Germundo and properly stowed. The mate testified that he exercised no authority over the method by which the cargo was loaded or discharged, and that his concern was to insure that the cargo was loaded so as to be secure during the sea voyage. Ship's officers were not assigned to each hatch during the loading operation, nor were officers sent into the holds to look for damage to or correct improper stowage of cargo.

There is conflicting testimony on whether objections to the manner in which ALCAN loaded the newsprint had been lodged with the vessel owner prior to Mallard's accident. The chief mate said no one representing Florida's discharging longshoremen had reported instances of improper stowage to him. Yet a LAVINO employee stated that the vessel had received warnings previously that unless a tighter stow were achieved dangerous voids would occur.

At the time of his injury, Mallard was discharging cargo in Hold No. 1 of the M/V Germundo, the hold closest to the bow of the vessel. Several longshoremen testified that Hold No. 1 is a more dangerous hold within which to work because its peculiar configuration makes a uniformly tight stow difficult. The tier of newsprint squared in the hatch of Hold No. 1 had already been removed at the time of Mallard's injury. He was operating his forklift atop the plywood walking boards in the center of Hold No. 1. He had removed one roll of newsprint and was backing away from the tier, when the plywood beneath the right wheel of the forklift either broke or gave way. The wheel slipped into an unusually large void beneath the newsprint rolls stowed below, and the forklift toppled on its side, pinning Mallard underneath and so seriously injuring his lower torso that he will probably be permanently confined to a wheelchair. The vessel's chief mate was unable to relate the circumstances of the accident. Neither he nor the other ship's officers were supervising the discharge operations at Hold No. 1.

Mallard brought suit against ALCAN, and against ERIKSON and CBL, for negligence in permitting old, worn out plywood to be used and in ignoring the presence of unreasonably large voids between the newsprint rolls in Hold No. 1. Mallard stated that the boards appeared to be "in good condition for working on." Other members of the LAVINO crew, however, characterize the condition of the boards as "old and worn out," "thin, real thin," "frazzled" and "rotted." The void was almost uniformly described as being at least one and a half feet by two feet in area, as opposed to the average gap of approximately six inches. It was hidden from view by the plywood boards. All deponents agree that Mallard was operating the forklift in a careful fashion; contributory negligence is not an issue.

In response to ALCAN's motion to dismiss, Mallard asserted that the federal district court could exercise personal jurisdiction over ALCAN in Canada via the Florida Long-Arm Statute. ³ The district court, however, dismissed Mallard's suit against ALCAN in its entirety for lack of personal jurisdiction over ALCAN and we affirm that decision. Each federal court is empowered to utilize the jurisdictional statutes of the state in which it presides. Gordon v. John Deere Co., 466 F.2d 1200 (5th Cir. 1972); Woodham v. Northwestern Steel & Wire Co., 390 F.2d 27 (5th Cir. 1968). See generally, 2 Moore's Federal Practice P 4.41-1(3), at 4-666 (2d Ed. 1979). The court's authority is limited, however, to the scope of the state's statute, even if it does not reach as far as federal due process allows. Florida's Long-Arm Statute, in relevant part, exerts jurisdiction over any nonresident who causes injury to persons or property in Florida by act or omission in another state, if products that the nonresident processed, serviced or manufactured cause injury during use or consumption in Florida. Florida state courts have repeatedly held that the Florida statute requires more activities or contacts to sustain personal jurisdiction than demanded by the Constitution. Youngblood v. Citrus Associates of the New York Cotton Exchange, Inc., 276 So.2d 505 (Fla. 4th Dist.Ct.App.1973). See Escambia Treating Co. v. Otto Candies, Inc., 405 F.Supp. 1235 (N.D.Fla.1975). Furthermore, language setting forth the contacts required by long-arm jurisdictional statutes must be strictly construed. American Baseball Cap, Inc. v. Duzinski, 308 So.2d 639 (Fla. 1st Dist.Ct.App.1975). In light of these considerations, we hold that the Florida statute, Fla.Stat.Ann. § 48.193(1)(f)(2) (West 1973), is intended to reach out-of-state manufacturers in products liability actions. Where, for example, a car has been repaired out-of-state and some time later the repairs fail during an in-state sojourn causing injury, personal jurisdiction over the out-of-state repairman is concededly present under this statute. Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st Dist.Ct.App.1977). ⁴ But the statutory language cannot be so expansively read as to embrace ALCAN's activity in the instant case. ALCAN merely loaded a vessel. The stevedoring company did not service a product in any common sense understanding of the phrase. Nor was Obbie Mallard "using" or "consuming" either the vessel or its newsprint.

We next address the Mallards' appeal from the summary judgment granted by the district court in favor of ERIKSON and CBL. Under the 1972 Amendments to the Longshoremen and Harbor Workers Compensation Act, 33 U.S.C.A. § 905(b) (1978), a longshoreman is entitled to recover damages for those injuries caused by the negligence of the vessel. ⁵ The district court concluded that ALCAN, as loading stevedore, had full responsibility and control over the stowage of the newsprint, and that neither CBL, as time charterer, nor ERIKSON, as vessel owner and employer of her...