Rich v. U.S. Lines, Inc.

• Decision Date: 06 March 1979
• Docket Number: No. 78-1261,78-1261
• Parties: Edward J. RICH, Appellant, v. UNITED STATES LINES, INC., Appellee.
• Court: U.S. Court of Appeals — Third Circuit

Page 541

596 F.2d 541

Edward J. RICH, Appellant, v. UNITED STATES LINES, INC., Appellee.

No. 78-1261.

United States Court of Appeals, Third Circuit.

Argued Oct. 18, 1978.

Decided March 6, 1979.

Robert C. Daniels, Philip L. Blackman, Adler, Barish, Daniels, Levin & Creskoff, Philadelphia, Pa., for appellant.

William E. Rapp, Timothy J. Abeel, Rawle & Henderson, Philadelphia, Pa., for appellee.

Before GARTH, BIGGS and MARIS, Circuit Judges.

OPINION OF THE COURT

BIGGS, Circuit Judge.

The present appeal arises under Section 18(a) of the Longshoremen's and Harbor Workers' Compensation Act, Amendments of 1972, 33 U.S.C. § 905(b) (1976), pursuant to which a longshoreman may bring a negligence action against a vessel owner upon whose ship he is injured.

The plaintiff-appellant, Rich, a longshoreman employed by J. A. McCarthy (McCarthy) in its stevedoring operations, was hurt while handling containerized cargo aboard the M/V American Alliance (Alliance), owned and operated by the defendant-appellee, United States Lines (Lines). Some of these containers were twenty feet long, others forty feet long, and they were all about eight to ten feet wide and about eight and one-half feet high. They were stored on the deck of the ship, stacked three high, and were fully exposed to weather conditions. Lashed down with wires running from the top of each container to the main deck of the vessel, they were further secured by a device known as a "pineapple," ¹ which prevents stacked containers from sliding off of the lower containers. As part of the stevedore operation, the longshoremen had to be lifted up into the air by a crane and placed on top of the cargo. ² They would then lash and unlash the containers as well as adjust the pineapples. It was during this operation, which took place at the Tioga Terminal in Philadelphia, Pennsylvania, that Rich was injured when he fell from the top of a container allegedly covered with ice. The Alliance was in navigable waters.

The Alliance left New York on February 6, 1973, at 8:12 p. m. While underway, the vessel encountered light rain and snow, although there is no indication in the record that the temperature was ever below freezing. Nevertheless, it seems clear that some ice had formed on the tops of the containers by the time the longshoremen began to work.

Zampitella, gang boss for McCarthy, and as such responsible for the safety of his gang, testified about the events leading up to the accident. He stated that the longshoremen reported to work at 1:00 p. m. on February 7, but had to wait three hours for the ship to arrive. Following his inspection of the vessel for safety the longshoremen boarded it sometime between 4:00 p. m. and 5:00 p. m. and cargo operations began at Number 2 and 3 hatches. While working there, the men discovered that there was ice on top of the containers and they complained to Zampitella, who made a request to the ship's mate for rock salt or other nonskid material. The request was made about two hours after the operation began. By midnight, following several subsequent requests, Zampitella was doubtful that Lines would provide such material.

In accordance with the stevedore's normal procedure, Zampitella additionally informed Kloss, the stevedore superintendent, of the ice. Kloss was responsible for supervising the loading and discharging of cargo on the vessel to make sure it was properly placed in the correct location. Kloss stated that the stevedore had a spare supply of nonskid material in a gear locker about 800 feet from the ship. There is no evidence that this was used to remedy the slippery condition of the containers. He also testified, over plaintiff's objection, that such a condition should be alleviated by the stevedore and that if it became too dangerous, the longshoremen could cease work.

Cargo operations continued. At 1:30 a. m., on February 8, approximately nine hours after the stevedore gang began working, the plaintiff was lifted onto the top of one of the containers which had been fully exposed to the weather during the trip from New York to Philadelphia. He noticed that a pineapple, which should not have been there, was inserted into the edge of the container, and that there was ice on top of the unit. In order to remove this pineapple, the plaintiff ventured out to the end of the container, where he slipped on the ice and fell from 25 to 30 feet down to the main deck of the vessel. He sustained injuries.

Rich sued pursuant to 33 U.S.C. § 905(b). ³ He alleged in his complaint, Inter alia, that his injury was proximately caused by the defendant's negligence in failing to remedy the icy condition of the containers. The case was permitted to go to the jury. It found that Lines was negligent, that this negligence was the proximate cause of Rich's accident, and that Rich himself was 50% contributorily negligent. Accordingly, his stipulated damages in the amount of $30,000 were reduced to $15,000. The court did not charge on the liability of Lines.

I. JURISDICTION

This court has jurisdiction of the appeal. Lines filed post-trial motions for judgment N.O.V. and alternatively, for a new trial. The lower court granted defendant's motion for judgment N.O.V., but failed to rule on the motion for a new trial as required by F.R.C.P. 50(c). The new trial motion has not been decided but the following appears in Lines' brief: "(D)efendant hereby waives determination of its motion for new trial and therefore, certifies this Court has jurisdiction pursuant to 28 U.S.C. § 1291." Whether or not the waiver aids jurisdiction is an issue which we need not discuss. See, Readnour v. Commercial Standard Ins. Co., 253 F.2d 907 (10th Cir. 1958); Robinson v. Isbrandtsen Co., Inc., 203 F.2d 514 (2d Cir. 1953); Mays v. Pioneer Lumber Corp., 502 F.2d 106, 110 (4th Cir. 1974), Cert. denied, 420 U.S. 927, 95 S.Ct. 1125, 43 L.Ed.2d 398 (1975); Posttape Associates v. Eastman Kodak Co., 68 F.R.D. 323 (E.D.Pa.1975), Rev'd on other grounds, 537 F.2d 751 (3d Cir. 1976). See and compare Lowenstein v. Pepsi-Cola Bottling Co. of Pennsauken, 536 F.2d 9 (3d Cir. 1976), Cert. denied, 429 U.S. 966, 97 S.Ct. 396, 50 L.Ed.2d 334 (1976). We can see no reason why the learned district judge did not obey the rule which is cogently stated and easily understandable. He should have done so.

II. LAW

Plaintiff raises three issues on appeal. First, he argues that the trial judge erroneously granted judgment notwithstanding the verdict ⁴ in favor of Lines. Specifically, appellant alleges that there was sufficient evidence for his case to be submitted to the jury based on Section 414 and/or Sections 281-283 and 302A of the Restatement (Second) of Torts. ⁵ Second, he contends that the district court mischaracterized its own charge by concluding that it was based on an incorrect theory of ultimate control when it was entirely consistent with our former decisions construing Section 905(b); and that therefore, the jury verdict was arrived at properly and should be reinstated. Third, appellant alleges that the issue of Rich's contributory negligence was improperly submitted to the jury since the trial record was devoid of any evidence supporting such a finding. In view of our decision, for the reasons stated immediately hereinafter, that the district court properly granted judgment notwithstanding the verdict, it is unnecessary for us to pass upon the second and third issues raised by Rich.

A

Section 905(b), in pertinent part, provides: "In 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 as a third party . . . and the employer shall not be liable to the vessel for such damages . . . . If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel." Thus, the only time a longshoreman may maintain a suit against a vessel owner is when the latter is negligent and when this negligence is the proximate cause of the longshoreman's injury. The vessel owner is prohibited from seeking indemnification from the stevedore ⁶ and the longshoreman is prohibited from maintaining suit against the stevedore-employer. ⁷

By enacting Section 905(b), Congress achieved three basic goals, albeit with various degrees of success. First, it overruled Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) and Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The former extended the strict liability doctrine of unseaworthiness to longshoremen thereby permitting them to recover damages from a vessel owner when injured while working aboard his ship even though the injury resulted solely from the stevedore's conduct. The latter, perhaps an inevitable result of the former, permitted a ship owner forced to pay damages as a result of the stevedore's conduct to bring an action against the employer for indemnification. The action would be brought on the grounds that the employer breached its implied warranty of workman-like performance. Thus, the stevedoring company was no longer to be held "circuitously liable for injury to its employee by allowing the employee to maintain an action for unseaworthiness against the vessel and allowing the vessel to maintain an action for indemnity against the employer." Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 113 n. 6, 94 S.Ct. 2174, 2178, 40 L.Ed.2d 694 (1974).

Second, Congress placed a maritime employee injured while working on a vessel in the same position he would have been in had he been injured in a non-maritime work place. Therefore, a longshoreman injured while working on a vessel was no longer to be endowed with "any special maritime theory of liability or cause of action under whatever judicial nomenclature it...