Moore v. M/V Angela, 02-30441.

Citation353 F.3d 376
Decision Date09 December 2003
Docket NumberNo. 02-30441.,02-30441.
PartiesSylvia MOORE, et al., Plaintiffs, Sylvia Moore, Plaintiff-Appellee, v. ANGELA MV, Defendant, Angela Maritime Shipping Ltd., Claimant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Reginald James Laurent (argued), Slidell, LA, for Plaintiff-Appellee.

Robert H. Murphy (argued), Peter Brooks Sloss, Scott Edward Oliphant, Murphy, Rogers & Sloss, New Orleans, LA, for Claimant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DUHÉ EMILIO M. GARZA and DeMOSS, Circuit Judges.

DUHÉ, Circuit Judge:

Appellant Angela Maritime Shipping, Ltd. ("Angela"), claimant of the in rem defendant, M/V ANGELA, appeals a judgment in a § 905(b) action by Sylvia Moore, the surviving spouse of longshoreman Horace Moore ("Moore"). The district court held for the Plaintiff, finding vessel negligence and finding the decedent five percent at fault. We hold the award of non-pecuniary damages to be excessive and hold that the court exceeded its authority in increasing the security posted in lieu of the vessel. Accordingly, we remand for a reduction in the total damage award.


Sylvia Moore sued under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b), the M/V ANGELA in rem for the wrongful death of her husband, who was struck by falling cargo while working for Stevedores, Inc. in the M/V ANGELA. Section 905(b) provides a negligence remedy to a longshoreman or his family against the vessel.1 Plaintiff had the vessel arrested, and Angela filed a claim of owner, reserving all rights and defenses and requesting the court to set security for release of the vessel. The court set security at $500,000 and ordered the vessel released upon posting of a Letter of Undertaking in that amount. The vessel then departed the jurisdiction.

The M/V ANGELA is a seven-hold bulk carrier equipped with four cranes. The district court found that Moore's death was caused in part by vessel negligence relating to the vessel's no. 4 crane, which was being used to offload T-bar ingots of aluminum from the vessel's no. 7 hold. Moore was operating a forklift in the hold when a T-bar fell from a load carried by the ship's crane approximately 75 feet above the floor of the hold, striking Moore on his forklift. The district court found vessel liability under section 905(b) and Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981).

Scindia outlined three duties shipowners owe to longshoremen: 1) the "turnover duty," relating to the condition of the ship upon the commencement of stevedoring operations; 2) the duty to prevent injuries to longshoremen in areas remaining under the "active control" of the vessel; and 3) the "duty to intervene." Howlett v. Birkdale Shipping Co., 512 U.S. 92, 98, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994) (citing Scindia, 451 U.S. at 167, 175-76, 101 S.Ct. 1614). Due largely to problems with the crane, the district court found a violation of all three duties. First, the district court found that the vessel owner failed to warn on turnover of hidden defects of the crane. Second, the court found that the injury was caused by a hazard under control of the ship. Third, the court found that the vessel violated its duty to intervene when it clearly knew of the crane's problems. The court concluded that the defective crane caused Moore's death, assessing comparative fault 65% to Angela, 30% to Stevedores, and 5% to Moore himself.

The total damage award was $907,469.11, including $750,000 in non-pecuniary damages for loss of society. The court entered a judgment for $862,095.66 and granted Plaintiff a post-trial increase in security sufficient to cover the judgment.

Angela requested mandamus review of the district court's ruling on the increase of security, which this Court denied without opinion. Angela timely noticed this appeal.


The district court had subject matter jurisdiction because this is an admiralty action against the vessel. 28 U.S.C. 1333(1); Fed.R.Civ.P., Supp. Admiralty & Maritime Claims Rule C. Jurisdiction is in rem only.


We must first determine whether the district court clearly erred in finding Angela breached a Scindia duty owed to the longshoreman. We review factual findings only for clear error. McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954); see also Theriot v. United States, 245 F.3d 388, 394 (5th Cir.1998).

The "turnover duty" relates to the condition of the ship upon the commencement of stevedoring operations. Scindia, 451 U.S. at 167, 101 S.Ct. 1614. This duty requires a vessel to exercise

"ordinary care under the circumstances" to turn over the ship and its equipment ... "in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he should reasonably expect to encounter ... will be able by the exercise of ordinary care" to carry on cargo operations "with reasonable safety to persons and property."

Howlett, 512 U.S. at 98, 114 S.Ct. 2057 (quoting Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 416-17, n. 18, 89 S.Ct. 1144, 22 L.Ed.2d 371 (1969)). The duty extends to warning the stevedore of hazards with respect to its equipment known to the vessel that would likely be encountered by the stevedore and would not be obvious to him. Scindia, 451 U.S. at 167, 101 S.Ct. 1614.

The court's finding that the turnover duty was breached is supported by the evidence. The court found that Angela was aware that there were serious problems with the crane as a result of complaints made to it by Coastal Cargo,2 a stevedoring company that had used the crane for a few days just before Stevedores. After multiple breakdowns and repairs, the crane had weight limitations and restrictions on movement, and it moved erratically, jerking and surging at times. The court found that the problems with the crane were hydraulic, and that the crane had a poor maintenance record.3 The district court found that, had Stevedores known the problems Coastal encountered with crane no. 4, this would have affected their operations. This finding is supported by the evidence.4

Angela argues that a vessel has no duty to warn of dangers that would be obvious to a longshoreman of reasonable competence, such as a jerking crane. This exception to the turnover duty applies if the defect causing the injury is open and obvious and one that the longshoreman should have seen. Scindia, 451 U.S. at 167, 101 S.Ct. 1614; Pimental v. Ltd Canadian Pacific Bul, 965 F.2d 13, 16 (5th Cir.1992). The exception does not apply, however, if the longshoreman's only alternatives to facing the hazard are unduly impracticable or time-consuming or would force him to leave the job. Pimental, 965 F.2d at 16; Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir.1990); Teply v. Mobil Oil Corp., 859 F.2d 375, 378 (5th Cir.1988).

The district court found both that the condition was not open and obvious and that the longshoremen's only alternatives to facing the hazards were unduly impractical, time consuming, and costly. These findings, too, have support in the evidence. No one told Stevedores' crane operator, for example, of the problems Coastal experienced, even after he complained of similar problems. Rather, a vessel representative told him to "slam" the control stick when he had problems with the crane.5 One might conclude that the vessel owner was suggesting mistakenly that any problem was operational, hiding the real problem that was hydraulic. See, e.g., Scindia, 451 U.S. at 167, 101 S.Ct. 1614 (recognizing ship owner's duty to warn of "hidden danger" known to him).6

To the finding that alternatives to facing the hazard were unduly impractical or time consuming, Angela contends that switching cranes would have involved no additional time or expense. Support for the court's contrary finding lies in evidence that the other crane (no. 3) that could reach this hold was already in use and had problems of its own; that the vessel owner had in the past refused to accept responsibility for standby time of stevedores refusing to unload cargo due to repairs; and that longshoremen refusing to work might lose business because the trade is competitive.

The district court's account of the evidence is plausible in light of the entire record. "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer, N.C., 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). After reviewing the record, we are not left with a "firm and definite conviction" that a mistake has been made. Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th Cir.), cert. denied, 513 U.S. 1014, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994). Accordingly, we find no clear error in the findings that the vessel owner violated the turnover duty and that the "open and obvious" exception did not exempt the vessel from the turnover duty.7


Appellant next questions whether vessel negligence was a legal cause of the accident. Angela argues that the accident was caused not by the malfunctioning crane but by Stevedore's assembling the T-bars into loads of 18, a configuration it asserts is inherently dangerous. The district court found vessel fault "clearly contributed" to the accident, citing the vessel's failure to revisit the hydraulic pressure issues with the crane and the failure to inform Stevedores about the crane problems experienced by Coastal.

The evidence supports the district court's finding that erratic motions such as jerking of the crane caused the T-bar to fall from the load. Trial testimony also supports the inference that, had Stevedores been duly warned about problems with the crane, it would have conducted its operations differently. To be a legal cause of a plaintiff's injury,...

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