Price v. SS YARACUY

• Decision Date: 20 September 1967
• Docket Number: No. 23107.,23107.
• Citation: 378 F.2d 156
• Parties: Robert PRICE, Appellant, v. SS YARACUY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

378 F.2d 156 (1967)

Robert PRICE, Appellant, v. SS YARACUY, Appellee.

No. 23107.

United States Court of Appeals Fifth Circuit.

May 25, 1967.

Rehearing Denied September 20, 1967.

COPYRIGHT MATERIAL OMITTED

Garland R. Rolling, Metairie, La., for appellant.

Leon Sarpy, J. Dwight LeBlanc, Jr., Chaffe, McCall, Phillips, Burke, Toler & Hopkins, New Orleans, La., for appellee.

A. R. Christovich, Jr., Christovich & Kearney, New Orleans, La., for J. P. Florio & Co., impleaded respondent, appellee.

Before WISDOM and GODBOLD, Circuit Judges, and McRAE, District Judge.

GODBOLD, Circuit Judge:

Appellant Price, a longshoreman, filed a libel against the S/S Yaracuy¹ for personal injuries sustained while working in the hold of the ship. He alleged the ship was unseaworthy because provided with defective winches and improper personnel and that his injuries were caused by negligence of the employees of the vessel.² The District Court held the sole proximate cause of the accident was improper operation of the winch by an employee of the stevedore; the ship therefore was held not unseaworthy and the libel dismissed.

Price was working in the No. 5 hold of the Yaracuy. Loaded drums were being placed in the ship, lifted six at a time by two of the ship's winches. Controls for the winches were located on deck near the No. 5 hatch, on separate metal stands, each stand having on top a wheel turning in a horizontal plane, which controlled the speed of the electric motor that furnished motive power for lifting and lowering of the winch cable. The two wheels were 7' 8" apart, center to center, and the stands about four or five feet apart.

The stevedore furnished two operators for the winches, but they alternated, each running both winches for a period while the other rested or waited. (The accident happened while the first operator for the day was still in his first work period.) To operate the controls of both winches concurrently the operator bolted across the horizontal surface of each control wheel a wood arm known as a "stick", which extended outward, and when moved horizontally in lever fashion caused the wheel to turn. By use of these attachments the operator could position himself between the two control stands and by operating a stick with each hand control both winches simultaneously. With control wheels as far apart as those on the Yaracuy a pipe extension was added to one stick. The use of the sticks was customary at the port; the operators themselves made and furnished them. This particular stevedore allowed use of sticks if securely bolted to the control wheels.

During the first hours of work on the morning of the accident Perez, the ship's electrician, was advised (it is not clear by whom) that the winch at No. 5 hold was not operating properly, and he checked on it. It appears he found the operator, Leber,³ was using the controls improperly and in a manner he considered negligent, causing the winches to "cut out".⁴ Leber advanced each control wheel too rapidly instead of pausing at each of four or five wheel settings or points, which caused the winch to pick up speed too fast. This would cause a circuit breaker to cut off the electric power to the winch, whereupon the winch brake automatically would take hold and the load stop where then in position. To restore power the control wheel had to be returned to its original zero setting and advanced again.

Perez attempted as best he could to show Leber how to use the controls, but Leber spoke no Spanish, Perez no English, and Perez did not know whether the operator understood him. Although Perez considered that Leber's method of operating was improper and negligent he thought the matter too insignificant to report to any ship's officer or to necessitate that he get an interpreter to explain to Leber how the winches properly should be operated.⁵ There was testimony that after this visit to the scene Perez himself gave the loading crew a signal that it was all right to go back to work.⁶

Later in the morning but before the accident, Leber told Matthews, another employee of the stevedore, that the winches were cutting out. Shortly before Price was hurt one of the winches cut out, and Leber sent Matthews to get Perez.⁷ Matthews reported the situation to the electrician as requested, but Perez did not come to the scene.⁸ Matthews then reported the situation to the superintendent who went looking for Perez. Meanwhile work at No. 5 hatch stopped for eight to ten minutes. Then Leber "fooled with" the handle and found the stopped winch would run. He went back to loading. Shortly thereafter, and before Matthews got back to the hatch, one of the winches made a noise and cut out, which caused the load to swing round, spin like a top, and strike Price.

Price was lifted from the hold on a board raised by the two winches, each operated by a separate operator, and without trouble. In subsequent loading that day Leber had "a little trouble with the winches now and then", with them "kicking off". In at least some of the work carried on during the rest of the day two operators were used concurrently, one on each control stand. The sticks were not removed from the control wheels and were continued in use.

Appellant does not take issue with the District Court's ruling that operational negligence of otherwise seaworthy equipment by a fellow longshoreman does not make a vessel unseaworthy. The District Court correctly stated the law of this circuit. Antoine v. Lake Charles Stevedores, Inc. et al., 376 F.2d 443 (5th Cir., 1967). See also Judge Hunter's extensive discussion in the District Court opinion in the same case. 249 F.Supp. 290 (W.D.La., 1965).⁹

The unsettled issue is whether there was negligence by the ship's crew which contributed to the longshoreman's injury and for which he is entitled to recover under general maritime law.¹⁰ A person working on a ship for an independent contractor or otherwise rightfully transacting business on the ship can recover under general maritime law for negligence of the shipowner, even if he also shares with crew members the right to sue for unseaworthiness. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953).¹¹ A libel by a longshoreman for negligence resulting in injury to him while aboard ship and engaged in loading operations is within admiralty jurisdiction under 46 U.S.C.A. § 740, Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963).

The ship has no duty to actively supervise loading work, but if the ship has knowledge of a condition dangerous to the longshoremen or, in the exercise of ordinary care it would have had such knowledge, it owes them a duty to use reasonable care to prevent injury to them. Gutierrez v. Waterman Steamship Corp., supra; Albanese v. N.V. Nederl. Amerik Stoomv. Maats, 346 F.2d 481 (2d Cir.), rev'd on other grounds, 382 U.S. 283, 86 S.Ct. 429, 15 L.Ed.2d 327 (1965); Misurella v. Isthmian Lines, Inc., 328 F.2d 40 (2d Cir., 1964). For example, a shipowner may be guilty of negligence in failing to forbid an unsafe method of discharging cargo. Ferrante v. Swedish American Lines, 331 F.2d 571 (3rd Cir.) cert. dismissed, 379 U.S. 801, 85 S.Ct. 10, 13 L.Ed.2d 20 (1964); Hroncich v. American President Lines, Ltd., 334 F.2d 282, 286 (3rd Cir., 1964). Obviously the same principle governs unsafe methods of loading. Cf. D/S Ove Skou v. Hebert, 365 F.2d 341 (5th Cir., 1966).¹²

We need not discuss all the substantial evidence of various forms of negligence by the ship, but we will mention some that we think significant. Perez failed to report or halt operations of the winch controls in a manner he observed and thought improper and negligent, considering the matter insignificant. He attempted to instruct Leber in the proper manner of operating the winches, but left the scene without determining whether, over a language barrier, Leber understood him.

The testimony of the owner's marine expert was that the winches were so located that safety required an operator for each. All loading during the morning, with knowledge of ship's officers, had been with one operator.¹³ At some time after the accident two-man operation began and was continued throughout the day. Leber explained this as "By that time we didn't want to take no more chances with that winch."

There is evidence that the use of sticks and extension was itself improper and negligent, other evidence that "winch control extension levers" were a violation of "Safety and Health Regulations for Longshoremen" of the United States Department of Labor, unless provided by either the ship or the employer, and these were not. At no time did anyone on the ship's crew direct that sticks or extensions not be used. The ship had no formal regulation against use of a pipe extension, but ship's policy was that it was up to the officer on watch to call attention to the fact it should not be used because it might damage the equipment.¹⁴ The first mate, who was deck officer watching the loading, observed operation of the winches before the accident and gave no such warning.¹⁵

Reversed and remanded for hearing on the issue of whether there is liability under general maritime law based on negligence by the ship's crew contributing to the libelant's injury.

1 The vessel was Venezuelan, Spanish was the language of at least some of the crew, here a factor of significance.

2 The stevedore's insurer intervened and the shipowner impleaded the stevedore.

3 A winch operator with 20 years experience.

4 Significant parts of Perez's testimony are:

"A. I went to check it and found out that it was negligence on the part of the individual that was operating it.

Q. Did you find anything wrong with the winch?

A. The winchman called my attention to the fact that it stopped but in checking it I told him the reason for that was because he wasn't setting the points properly. The winch has various points of stoppingness but instead of...