Ramirez v. Toko Kaiun KK

• Decision Date: 21 November 1974
• Docket Number: No. C-73-2272 WHO.,C-73-2272 WHO.
• Citation: 385 F. Supp. 644
• Court: U.S. District Court — Northern District of California
• Parties: Jose H. RAMIREZ and Ernest Guerrero, Plaintiffs, v. TOKO KAIUN K.K., a Foreign Corporation, Defendant.

385 F. Supp. 644

Jose H. RAMIREZ and Ernest Guerrero, Plaintiffs, v. TOKO KAIUN K.K., a Foreign Corporation, Defendant.

No. C-73-2272 WHO.

United States District Court, N. D. California.

November 21, 1974.

Kay & Solvin, Francis J. Solvin, Van H. Pinney, San Francisco, Cal., for plaintiffs.

Lillick, McHose, Wheat, Adams & Charles, Tristam B. Brown, James R. Thompson, San Francisco, Cal., for defendant.

MEMORANDUM OPINION AND ORDER

ORRICK, District Judge.

This case presents for the first time in this Circuit the effect of the 1972 Amendments¹ (which became effective November 26, 1972, and are hereinafter called the "Amendments") to the Longshoremen's and Harbor Workers' Compensation Act² (the "Act") upon the standard of care owed to longshoremen employed by an independent stevedore contractor doing work upon a vessel owned by a third party. This Court has jurisdiction pursuant to 28 U.S.C. § 1333 and The General Maritime Law.

For the reasons hereinafter discussed, I hold that under the Amendments the defendant ship owner owes to the plaintiffs longshoremen the same standard of care that a land-based owner of a premises owes to a business invitee (See Restatement (Second) of Torts § 343A (1965)). In this instance, the ship owner must (1) exercise ordinary care to place the ship and equipment in such condition that an experienced stevedore will be able, when exercising ordinary care, to discharge the cargo in a workmanlike manner and with reasonable safety to persons and property, and (2) give the stevedore warning of any concealed or latent defects that are known by the shipowner.³ This standard will be applied to the following facts:

I. FACTS

On May 9, 1973, the M. S. Toten Maru, a cargo ship owned by defendant, Toko Kaiun K.K., docked at the 9th Avenue Pier in Oakland, California. On that day the cargo, primarily steel pipe, was inspected by an independent cargo appraiser, and the cargo was certified to have been safely stowed. The unloading operations were turned over to Marine Terminals Corporation ("Marine Terminals"), an independent stevedore contractor who is not a party to this action.⁴ Marine Terminals assumed complete control of the unloading; there is no evidence that any member of the crew or other employee of Toko Kaiun K.K. was in any way involved in the operation.

A. Method of Unloading

Stevedoring "gangs" from Marine Terminals commenced unloading the night of May 9, but on the morning of May 10 the operation was not yet completed. On that morning plaintiffs, Ramirez and Guerrero, both "A-men", experienced longshoremen, reported for work at Marine Terminals and were assigned to the "gang" who were to work the No. 3 hatch. This gang consisted of six men, including Ramirez, Guerrero, and the two less-experienced "B-men", to work in the hold. In addition to the "hold men", the gang was assigned a "hoist man" who worked the crane-like boom and winches, and a "hatch tender" whose job it was to relay signals between the men in the hold and the hoist operator, as these men could not see each other. There was also a "gang boss" who supervised the work of the gang to see that they were working properly and safely. This gang boss was supervised by a "walking boss", who, in turn, was responsible to the "cargo superintendent." All members of the gang, as well as the gang boss, walking boss and cargo superintendent, were employed by Marine Terminals.

Before the gang began working that morning, the gang boss made a further inspection of the hold. He described the hold as large, approximately 40 feet by 30 feet, and open, allowing good illumination of the cargo all day. The cargo consisted of two large piles of pipe, some to be unloaded for the San Francisco area and some that was destined for Los Angeles that was to remain with the ship. At the time of his inspection, the pile to be unloaded in Oakland was not level due, among other things, to the fact that previous gangs had already unloaded a portion of the pile in a manner that left it uneven. The pipes were not all of the same type. Most of the pipes were loose, although some were in bundles. The evidence was not clear as to the exact size of the pipes, but it appears that there were several different diameters from 1 to 8 inches mixed together, and the lengths were between 20 and 40 feet. All of the pipe was coated with oil to prevent rust, making them slippery and hard to handle. The pipe was loaded in a manner known as a "solid block stow", that is, there were no layers separated with wooden blocks or dunnage that would make the unloading easier. The ends of the pipe were not even; the pipe was stowed so that some of the ends protruded further than others. These conditions continued unchanged throughout the unloading that day, and no new hazards were uncovered as the men worked down through the pile. The men complained to the gang boss about these conditions, and this complaint was forwarded to the walking boss and cargo superintendent. The men were told to do the best they could, and no adjustments were made, nor were any complaints made to any member of the ship's crew.

The method chosen by Marine Terminals to unload the Toten Maru required the use of the ship's winches, boom and main cable. This equipment functioned normally throughout the procedure. The end of the ship's cable contained a large spherical swivel to which earlier Marine Terminals' employees had attached the rigging, or "bridle", used to unload the pipes. All of the bridles, cables, wire and hooks used to attach the pipes to the line of the hoist were supplied and attached by Marine Terminals. The basic arrangement consisted of four large cables each attached at one end to the swivel and at the other end to one of four hooks. This bridle was suspended from the hoist with the four hooks dangling, and was raised, lowered and moved from side to side by the hoist man in response to signals from the men in the hold.

The men in the hold were required to work on top of the pile of pipes to be unloaded. Ramirez and Guerrero had to kneel near the edge of the pipes and thread a ½ inch cable about 10 feet long, called the "pick-up wire", under the ends of the pipes about 2 feet down the stack. The ends of this pick-up wire were then attached to two of the four hooks on the bridle. When the pick-up wire was secure, Ramirez signaled to the "hatch man" who relayed the signal to the hoist man, and the ends of the pipes were raised about three feet. The pipes then had one end suspended by the pick-up wire and the other resting on the pile. The purpose was to separate a bundle of pipes approximately three feet in diameter from the pile long enough for Ramirez and Guerrero to whip two larger cables between the pipes now raised at an angle and the rest of the pile. Ramirez and Guerrero would then hand one of these cables to the B-men to put in place as far down toward the low end as possible. After the B-men had positioned their cable, Ramirez and Guerrero would then place the other cable in a corresponding position under the high end of the pipes. When the two cables were in position, Ramirez would signal the hatch tender, and the pipes were lowered onto these cables. The pick-up wire was then removed and the main cables were attached to the four hooks of the bridle. Another signal was given and the pipes were raised up and out of the hold.

B. The Accident

The men had been working in this manner without incident from 8:00 a. m. in the morning until 2:30 p. m. in the afternoon when the accident occurred. At the most precarious point in the operation, when the pipe was suspended at an angle by the pick-up wire and the men were attempting to position the main cables, the load of pipe "spilled", and a bundle of pipes landed on plaintiff Guerrero's foot. The pick-up cable flew off the hooks, and the bridle, relieved of its load, began spinning wildly. One of the whirling hooks struck plaintiff Ramirez in the chest, knocking him on his back. Neither man was seriously hurt, and both were able to climb out of the hold under their own power. They filled out accident reports, then took a taxi to the hospital where they were examined and released. Both were unable to return to work for approximately ten weeks.

The precise cause of the accident was never satisfactorily established at the trial. It was clear, however, that the unloading operation required skillful workmanship by each member of the gang to be successful. The boom must be positioned, "spotted", correctly for each load. The "purchase", or angle at which the pick-up wire joins the pipes must be correct. The "A-men" must choose an appropriate number of pipes when threading the pick-up wire. Failure to perform any of these operations correctly can cause the load to spill. It is normal for the ship to vibrate from the hoist engines and to move as a result of waves or the discharge of cargo by gangs in other holds. On the day in question, the bridle hooks supplied by Marine Terminals were designed with safety clips to prevent the cables from slipping off after they have been attached. These clips had been removed by Marine Terminals. Also, there was evidence that the method chosen by Marine Terminals to unload was not the safest that could have been employed. Had the men been supplied with wooden blocks, these blocks could have been used as "on-the-spot dunnage". With on-the-spot dunnage, the pipe is raised only a few inches with the pick-up wire thus reducing the danger of "spilling". Once the pipe ends are lifted enough, dunnage is slipped under, and the main cables can be positioned while the pipes are resting safely on the dunnage. All witnesses agreed that it was the responsibility of the stevedore company, and not the ship, to provide on-the-spot dunnage.

It is true that if the pipe had been stowed in layers separated by dunnage, that the unloading would have been safer. This method of using dunnage is often employed in U. S....