Prohoroff v. Kawasaki Kisen Kaisha, Ltd.

• Decision Date: 19 March 1979
• Citation: 153 Cal.Rptr. 287,90 Cal.App.3d 640
• Court: California Court of Appeals Court of Appeals
• Parties: , 1979 A.M.C. 952 John PROHOROFF, Plaintiff and Respondent, v. KAWASAKI KISEN KAISHA, LTD., a corporation, Defendant, Defendant in Intervention and Appellant. Civ. 53201.

Page 287

153 Cal.Rptr. 287

90 Cal.App.3d 640, 1979 A.M.C. 952

John PROHOROFF, Plaintiff and Respondent, v. KAWASAKI KISEN KAISHA, LTD., a corporation, Defendant, Defendant in Intervention and Appellant.

Civ. 53201.

Court of Appeal, Second District, Division 4, California.

March 19, 1979.

Graham & James by Thomas A. Vyse, Long Beach, for defendant, defendant in intervention and appellant.

Richard C. Devirian, Wilmington, for plaintiff and respondent.

JEFFERSON, Associate Justice.

Plaintiff John Prohoroff brought an action for personal injuries against defendant Kawasaki Kisen Kaisha, Ltd., a corporation, pursuant to section 905(b) of the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 901, et seq.), hereinafter sometimes referred to as LHWCA. Continental Insurance Company filed a complaint in intervention, seeking reimbursement from defendant for compensation benefits provided Prohoroff.

Trial was by jury. A special verdict was returned; the jury found defendant liable to plaintiff in the amount of $318,000 because of the defendant's negligence, and that compensation benefits of $29,058.36 had been provided to plaintiff by the complainant-in-intervention. Ten percent of the combined negligence of plaintiff and defendant was attributed to plaintiff. Defendant made motions for judgment notwithstanding the verdict and for a new trial; both motions were denied. Judgment was accordingly entered awarding plaintiff $283,294.16 and Continental $29,058.36.

Defendant has appealed from the judgment.

I The Procedural Background

The accident occurred on April 14, 1974, on the deck of defendant's vessel, the Golden Gate Bridge, as it was docked at Pier 232 in Los Angeles-Long Beach Harbor.

Plaintiff Prohoroff, a longshoreman employed by International Transportation Service, Inc., a stevedore company, came aboard the vessel at 8 a. m., as part of a crane gang consisting of four longshoremen (including himself), two crane drivers and the hatch boss, Shoults. All of these individuals were in the employ of International, and were supervised by more senior members of International.

Prohoroff's assigned task was to place cones in containers which were to be placed in the hatches; he was unable to proceed, however, because a container which fitted under the pontoon closing one of the hatches was too high. At some time before 8:30 a. m., plaintiff was standing on a bay five feet above the deck and observed a Japanese crewman greasing turnbuckles located in the thwartship passageway between two hatches; this crewman was slopping grease on the turnbuckles; it took the crewman approximately seven to ten minutes to complete this task.

Subsequently, Prohoroff entered the passageway and, as he placed his foot on what was referred to at trial as a crescent stiffener, i. e., a crescent-shaped cutout of the girder running along the hatches providing access through the passageway, he slipped in some grease on the stiffener. Prohoroff testified that the grease in which he slipped was similar to that which had been applied earlier to the turnbuckles by the crewman. Plaintiff fell and sustained what turned out to be a severe and permanent injury to his lower back. At the time of his fall, he was able to rise, wipe up the grease, and leave the vessel. He filled out an injury report and went to a hospital for treatment. Three witnesses testified for plaintiff. Witness Holland saw plaintiff get up and saw him wiping something up with his glove; witness Valles had also observed the greasing operation; witness Flores saw the fall and saw plaintiff clean up something after getting up.

At the time of the accident, plaintiff was a 38-year old longshoreman with many years of experience; he had not completed high school but had spent his working life as a longshoreman, often working extra shifts when they were available. He had two minor children. After the accident, plaintiff was largely incapacitated for 19 months; he had lower back surgery in July 1974. In January 1976, against medical advice, he returned to work. He had refused a second surgery needed to stabilize his lower back; this was according to medical testimony. Plaintiff had been urged to seek less strenuous employment; at the time of trial, he was losing two days work a week due to continuous lower back pain and was restricted on the job to lighter assignments. His pain was constant, necessitating four codeine pills a day. The medical prognosis indicated that he would cease being able to continue to work as a longshoreman sometime within the next five years, or before he was 43 years of age.

Defendant introduced the testimony of the hatch boss, Shoults, whose account of events surrounding the accident differed sharply from that of other witnesses. Also testifying for defendant was Wetmore, an expert on maritime practices. Wetmore offered the opinion that the greasing of turnbuckles was an activity usually conducted at sea rather than in port when stevedoring operations were commencing. No employee of the vessel was called as a witness. As indicated, the jury returned a substantial verdict in favor of plaintiff.

II Background Discussion of Federal Maritime Law

In considering defendant's contentions on this appeal, we note first of all that the case is governed by applicable principles of federal rather than California law. (Pope & Talbot, Inc. v. Hawn (1953) 346 U.S. 406, 409-410, 74 S.Ct. 202, 98 L.Ed. 143.) Maritime tort law is inherently federal and should be uniform, applying the same standards regardless of the location where the injury has occurred. (Kermarec v. Compagnie Generale (1959) 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550.) However, this goal of uniformity has not been realized in the appellate courts of the federal system, at least insofar as defining the scope of the longshoreman's cause of action for negligence against a vessel owner. We undertake the task of ascertaining the concepts and the principles acceptable in the federal courts of the Ninth Circuit, which encompasses matters of federal jurisdiction in California (Keith v. S. S. Goldstone (1978) 81 Cal.App.3d 699, 704, 146 Cal.Rptr. 639), recognizing that there are even divergent approaches within the Ninth Circuit. (Davis v. Inca Compania Naviera S.A. (W.D.Wash.1977) 440 F.Supp. 448, 451-452.)

Some background discussion is required. Prior to 1972, the judicial development of the doctrine of "seaworthiness" had imposed upon the vessel owner what amounted to absolute liability in tort for injuries sustained by a longshoreman aboard a vessel; the vessel owner's duty to render the vessel safe was perceived to be so broad that longshoremen who were injured there usually recovered judgment. This occurred despite the fact that often the negligence or the dangerous condition involved was actually attributable to the stevedore, the independent contractor with the vessel owner. The stevedore was the employer of the longshoreman and was charged with loading or unloading the ship. (Seas Shipping Co. v. Sieracki (1946) 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099.) Prior to 1972, the stevedore faced liability for the injury to a longshoreman on two fronts: the stevedore was responsible for payment of compensation benefits to its employee and was often required, after an indemnity action by the vessel owner, to pay to the owner the damages in tort which said owner had become obligated to pay the longshoreman. (Ryan Co. v. Pan-Atlantic Corp. (1956) 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133.)

III The Change in the Seaworthiness-of-the-Vessel Doctrine

In 1972, Congress decided to revamp the entire structure of tort liability in this area by amendments to the Longshoremen's and Harbor Workers' Compensation Act. As a result, the duty of a vessel owner to maintain the "seaworthiness" of the vessel was discarded as a basis upon which a longshoreman's tort suit could be prosecuted. The primary responsibility for the safety of longshoremen aboard the vessel was shifted from the vessel owner to the stevedore the longshoreman's employer. (Ramirez v. Toko Kaiun K.K. (N.D.Cal.1974) 385 F.Supp. 644.) The longshoremen benefited by the amendments because they enjoyed greatly expanded compensation benefits if hurt on the job. While the stevedore employer was obligated to pay these benefits, the stevedore was no longer subject to a suit for indemnity by the owner of the vessel.

IV The Liability of the Vessel Owner to Longshoremen for Negligence Limited to Certain Types

However, Congress did not totally terminate the legal responsibility of the vessel owner to meet some standard of due care with respect to longshoremen; it enacted a statute (33 U.S.C. § 905(b)), which provided in pertinent part for the issue before us, that "(i)n the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, . . . may bring an action against such vessel . . . ." In enacting this section, Congress did not further delineate the scope of this negligence action, leaving that duty to the federal courts. In one legislative report, however, Congress declared that "(p)ermitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work." (H.R.Rep.No.92-1441, 92nd Cong., 2d Sess., reprinted U.S.Code Cong. & Admin.News 1972, pp. 4698, 4703-4704.)

The reference by Congress to "land-based" concepts of tort law has influenced some federal courts to attempt application to the vessel owner of the land-based common law negligence concepts set forth in Restatement of Torts 2d, sections 342, 343 and 343A. It has also been stated that "the shipowner is subject to liability if it knows of, or has reason to know of, a condition on the vessel, should realize that the condition involves an unreasonable risk of harm to a longshoreman, should...