Mazzanti v. Lykes Bros. S. S. Co., Inc.

• Decision Date: 12 December 1975
• Docket Number: No. 74-2869,74-2869
• Citation: 524 F.2d 961
• Parties: Joe R. MAZZANTI, Plaintiff-Appellant-Cross Appellee, v. LYKES BROTHERS STEAMSHIP COMPANY, INC., Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 961

524 F.2d 961

Joe R. MAZZANTI, Plaintiff-Appellant-Cross Appellee, v. LYKES BROTHERS STEAMSHIP COMPANY, INC. Defendant-Appellee-Cross Appellant.

No. 74-2869.

United States Court of Appeals Fifth Circuit.

Dec. 12, 1975.

Sidney L. Ravkind, Houston, Tex., for plaintiff-appellant.

Bryan F. Williams, Galveston, Tex., for defendant-appellee.

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

Before GODBOLD, DYER and MORGAN, Circuit Judges.

GODBOLD, Circuit Judge:

Plaintiff-appellant, a longshoreman, was injured when he slipped and fell aboard a Lykes Bros. vessel berthed at Galveston. The accident occurred when plaintiff was helping to control the movement of a heavy steel beam which was being removed from over a hatch area in the tween deck preparatory to discharge of cargo. The District Judge found that the cause of the accident was trash and debris, consisting of paper, boxes, cardboard, and broken pieces of cartons and crates, that the vessel had permitted to accumulate in violation of its duty to provide a safe place to work. The court also found the plaintiff was 75% contributorily negligent, and reduced the damages by 75%, because plaintiff should have reported the condition of the area to the gang foreman who could have requested that the area be cleaned by a cleanup crew or could have requested that aid be sent to the longshoremen's gang to assist them in cleaning the area.

33 U.S.C. § 941 requires the maintenance of a reasonably safe place of work. The Safety and Health Regulations for Longshoring, 29 C.F.R. § 1918.91(d), provide: "Loose paper, dunnage and debris shall be collected as the work progresses and be kept clear of the immediate work area."

Plaintiff urges us to hold that what the trial court did was to apply assumption of risk in the guise of contributory negligence, or, alternatively, at least where there is a violation of the Regulations, that as a matter of law a seaman's contributory negligence cannot exceed 50%. These are arguments we need not reach. We have examined the evidence relating to contributory fault. Without attempting to delineate every possible consideration we note several factors. The ship violated an absolute, non-delegable duty of care to all aboard who might use the debris-cluttered area. Since the plaintiff had no assigned duty of providing for the safety of co-workers he only violated a duty of care primarily to himself. ¹ The debris that caused the plaintiff to fall had been left from unloading operations conducted at the vessel's last port of call in New Orleans. Thus the ship's duty with respect to the condition, and the ship's opportunity to correct the default, extended over a considerable period of time, while plaintiff's failure was only transitory. The failure of the ship involved higher level personnel with duties to inspect, while plaintiff was only a lower level employee. Removal of the risk by the ship was neither complex nor difficult. The alternatives available to plaintiff in lieu of continuing work at the...