Pluyer v. Mitsui O. S. K. Lines, Ltd.

• Decision Date: 04 January 1982
• Docket Number: No. 79-2148,79-2148
• Citation: 1984 AMC 534,664 F.2d 1243
• Parties: Eloy S. PLUYER, Plaintiff-Appellee Cross Appellant, American Mutual Liability Insurance Company, Intervenor-Appellee Cross Appellant, v. MITSUI O. S. K. LINES, LTD., Defendant-Appellant Cross Appellee. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1243

664 F.2d 1243

1984 A.M.C. 534

Eloy S. PLUYER, Plaintiff-Appellee Cross Appellant American Mutual Liability Insurance Company Intervenor-Appellee Cross Appellant, v. MITSUI O. S. K. LINES, LTD., Defendant-Appellant Cross Appellee.

No. 79-2148.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Jan. 4, 1982.

Michael J. Mestayer, J. Dwight LeBlanc, Jr., J. Francios Allain, James R. Holmes, New Orleans, La., for defendant-appellant cross appellee.

Henderson, Hanemann & Morris, Philip E. Henderson, Houma, La., Roy, Carmouche, Hailey, Bivins & McNamara, James W. Hailey, Jr., Metairie, La., for plaintiff-appellee cross appellant.

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

Before MARKEY ^**, Chief Judge, and GEE and POLITZ, Circuit Judges.

POLITZ, Circuit Judge:

Eloy S. Pluyer, a longshoreman, sued Mitsui O.S.K. Lines, Ltd., for personal injuries he sustained during stevedoring operations on a Mitsui vessel. Finding negligence, the trial judge awarded Pluyer damages, granted judgment to the intervenor, but expressly declined to award prejudgment interest. All parties appeal. We affirm.

Facts

Pluyer and five other longshoremen employed by Strachan Shipping Company, a contract stevedore, were assigned to work on the SACRAMENTO MARU, a vessel owned by Mitsui. The men were to lash and secure several containers which had been placed on a hatch cover. This process required a chain to be fastened from the top of each container to fittings on the hatches.

The containers were approximately eight feet high and a ladder was needed to reach their tops. Since Strachan had not equipped its longshoring gang with a ladder a member of the vessel's crew furnished the longshoremen with an eight foot aluminum ladder which belonged to the vessel. The ladder did not have rubber "snubbers," a non-skid device, on the bottom. Pluyer used the ladder to fasten the chains to the tops of the containers while two co-workers attached the chains to the hatch and adjusted the turnbuckles to remove the slack. As Pluyer began to descend the ladder after attaching a chain to the top of one container, the ladder slipped and Pluyer fell to the hatch cover, injuring his back, right shoulder and arm.

Pluyer received a total of $25,640.11 in benefits under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901 et seq. He timely filed suit against the vessel pursuant to section 5(b) of the LHWCA, 33 U.S.C. § 905(b), ¹ claiming that the vessel was negligent in furnishing a ladder which was not properly equipped with non-skid devices. American Mutual Liability Insurance Company, Strachan's benefits insurer, intervened. Following a bench trial, the district court found both the vessel and the stevedore negligent. The court also concluded that Pluyer was 40% contributorily negligent. Pluyer received a net award of $9,895.89; ² the intervenor was awarded judgment fully reimbursing it for the benefits paid.

I. The Court's Findings

Mitsui contends that the trial court's findings relating to the ladder, essential to its determination of the vessel's negligence, were clearly erroneous. Conflicting testimony was presented concerning whether the ladder was equipped with non-skid devices in the form of rubber snubbers. The trial court credited Pluyer's testimony, and we will not lightly disturb such a credibility call. Rodriguez v. Jones, 473 F.2d 599 (5th Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37 L.Ed.2d 1007 (1973). We similarly view the trial court's finding that the ladder was unsafe. The captain of the vessel testified that it is unsafe to use a metal ladder on a metal deck without non-skid devices and that company policy required the use of rubber snubbers on the feet of such ladders. On the basis of the record, we are not prepared to say that the trial judge's finding that the ladder was unsafe is clearly erroneous. Therefore, our analysis of the vessel's liability proceeds on the basis that the vessel furnished an unsafe ladder to the longshoremen.

II. Section 905(b) Liability

We must determine the extent of a vessel's duty to longshoremen under 33 U.S.C. § 905(b), and the impact, if any, of the recent Supreme Court decision in Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. ----, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), on the law in this circuit concerning the specific negligence issue now under consideration. If Scindia changed the law as previously applied in this circuit we must examine the present case in light of the new standards. If Scindia occasions no change regarding the situation before us, we must determine whether the trial judge correctly applied the controlling rules. We conclude that Scindia did not change the pertinent law heretofore recognized in this circuit regarding the narrow issue here presented and that the trial judge committed no error in resolving the liability issue.

The Scindia Rule

A brief overview of the development of shipowners' liability to injured longshoremen is helpful in placing the Scindia decision in proper perspective. Prior to the 1972 amendments to the LHWCA, a longshoreman injured while performing stevedoring operations was entitled to compensation benefits and judgment against the vessel if the injury was caused by unseaworthiness or negligence attributable to the vessel. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Liability for unseaworthiness was imposed without regard to fault; the injured person had only to prove an unsafe, injury-causing condition on the vessel. If the injury-causing condition was occasioned by the stevedore, the shipowner could recoup its losses from the stevedore for breach of the warranty to handle the cargo in a reasonably safe manner. Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).

The 1972 amendments made dramatic changes beyond substantially increasing benefits. The longshoreman's right to recover for unseaworthiness and the stevedore's obligation to indemnify the shipowner were abolished. The longshoreman's right to recover for negligence was preserved by section 905(b), but the section did not specify what acts or omissions would constitute actionable negligence. The legislative history provides only limited assistance and, perhaps not unexpectedly, a divergence of opinion developed among the circuits. The divergence was most critical concerning the vessel's duty when hazardous conditions arose during the stevedoring operations. The Scindia decision seeks to resolve that conflict.

In Scindia, a defective ship's winch that was being operated by longshoremen caused a sack of wheat to fall and injure a longshoreman. The longshoremen were aware that the winch had been malfunctioning for two days but continued to use it. There was no evidence that any member of the ship's crew was aware of the malfunction.

In considering the ship's negligence, the Supreme Court first observed that "the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore." 451 U.S. at ----, 101 S.Ct. at 1624. The Court went on to state, however, that if a defect exists from the outset of the stevedoring operation, or if a vessel knows or is chargeable with knowledge of a hazardous condition which develops during the operation, and if the vessel knows or reasonably should anticipate that the stevedore is exercising improvident judgment concerning the hazard, the shipowner has a duty to intervene. The Court concluded that a summary judgment should not have been granted because a jury question was presented whether "the shipowner was aware of sufficient facts to conclude that the winch was not in proper order, or that the winch was defective when the cargo operations began and that Scindia was chargeable with knowledge of its condition." 451 U.S. at ----, 101 S.Ct. at 1627.

The case before us presents a different situation from that posed in Scindia which was concerned only with the liability of the vessel for dangerous conditions which develop during the stevedoring operations. The present case involves the vessel's liability for hazards that antedate or are coincident with the commencement of the cargo operations. Further, in Scindia the negligence was passive; the complaint was based on the vessel's failure to act. In the instant case the negligence is active; the vessel furnished an unsafe ladder. The policy considerations which militate against imposing a duty on the shipowner to constantly monitor the stevedore's work are therefore not applicable. ³

Although the Court did not directly address the precise question now before us the opinion affords some guidance. In commenting on the duty of a shipowner turning a vessel over to the stevedore, the Court stated:

This duty extends at least to exercising ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work. The shipowner thus has a duty with respect to the condition of the ship's gear, equipment, tools and work space to be used in the stevedoring operations; and if he fails at least to warn...