Shepler v. Weyerhaeuser

• Decision Date: 13 September 1977
• Citation: 279 Or. 477,569 P.2d 1040
• Parties: , 1978 A.M.C. 1590 Patricia Anne SHEPLER, Individually and as personal representative of the Estate of Oren Lee Shepler, Deceased, Plaintiff-Respondent, v. WEYERHAEUSER COMPANY, a Washington Corporation, Defendant-Appellant, and Pacific Coast Shipping Company, Liberia, Defendant-Respondent.
• Court: Oregon Supreme Court

Page 1040

569 P.2d 1040

279 Or. 477, 1978 A.M.C. 1590

Patricia Anne SHEPLER, Individually and as personal representative of the Estate of Oren Lee Shepler Deceased, Plaintiff-Respondent, v. WEYERHAEUSER COMPANY, a Washington Corporation, Defendant-Appellant and Pacific Coast Shipping Company, Liberia, Defendant-Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Feb. 8, 1977.

Decided Sept. 13, 1977.

Ridgway K. Foley, Jr., and Paul N. Daigle, of Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland, argued the cause and filed briefs for defendant-appellant.

Raymond J. Conboy, Portland, argued the cause for plaintiff-respondent. With him on the brief were Frank H. Pozzi and Pozzi, Wilson & Atchison, Portland.

Before DENECKE, C. J., and HOLMAN, HOWELL, BRYSON, LENT, LINDE and BRADSHAW, JJ.

LENT, Justice.

This is an action for damages for death by wrongful act of another brought by the personal representative of Oren Shepler. Shepler, a longshoreman in the employ of Portland Stevedore Company (Portland), was injured in a fall on December 21, 1972, during the loading of logs in the vessel M/S PACKING. He died from his injuries two days later. The action asserts a right to recover for damages resulting from negligence and involves the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. The action is against Pacific Coast Shipping Co., the owner of the PACKING, and Weyerhaeuser Co., as charterer of the vessel. The case was tried in December 1975. At the conclusion of plaintiff's case in chief, the trial court granted a directed verdict in favor of Pacific Coast. The jury found Weyerhaeuser at fault. (In using the word "defendant," we refer to Weyerhaeuser.)

Defendant appeals from the judgment entered upon this verdict. We affirm.

Defendant contends that the trial court erred in interpreting the standard of care owed by a vessel to a longshoreman under LHWCA and that a nonsuit or directed verdict should have been entered in its favor. It further complains of the failure of the trial court to instruct the jury on particular matters and attacks various instructions which were given. Additionally, defendant submits that under the LHWCA, where a jury finds the vessel to be only partially at fault it is inequitable to require the vessel to pay the entire damages assessed by the jury. Finally, defendant charges that it was error to exclude evidence that employes of Portland who were witnesses in the trial were biased because Portland had a financial stake in the outcome of the litigation. (Under LHWCA, the stevedore-employer has a lien against third-party recoveries for compensation benefits paid under the Act.) To place these claims of error in perspective, we turn first to the undisputed facts.

The primary issue is to determine whether the evidence is sufficient under the 1972 amendments to support a finding of negligence on the part of defendant. This requires us preliminarily to ascertain the nature of the duty owed under the amendments by the vessel ¹ to a longshoreman employed by a master stevedore.

UNDISPUTED FACTS

Defendant ships logs and lumber to its purchasers throughout the world. In 1972, after a trial voyage, defendant chartered the PACKING. Pacific Coast Shipping, the owner, and Weyerhaeuser executed a "Beizai Charter Party," a modified form of voyage charter, for 24 consecutive voyages, which contained the following provisions:

" * * * Charterers to load, stow and discharge the cargo free of risks and expenses to owners. Charterers to have the liberty of working all available hatches. The vessel to provide motive power, winches, gins and falls at all times and, if required, to supply light for night work on board free of expenses to charterers."

The owners retained control over cargo stowed on the weather deck, because the height of the deck load would affect the stability of the vessel.

To load the ship for its sixth voyage defendant employed Portland. Defendant had concluded that the amount of cargo carried on previous trips was insufficient. On December 6, 1972, Captain A. B. McKimmey, manager of off-shore cargo operations for defendant, wrote a letter to the master of the PACKING, with a copy to Portland, which stated:

" * * * When Weyerhaeuser Line first chartered the vessel, it was represented as having a carrying capacity of 4.5 million board feet of logs (Scribner scale).

"To date, the largest load we have been able to put on board has been 4.1 million board feet which has not allowed full use of the vessel to SS charterers.

"On this voyage we intend to full load the vessel to capacity to determine just how much of a load she will actually carry. Our object is to make use of all her cubic space under deck $ $ $.

"Your cooperation with the Surveyors, Stevedores, and our Supercargo will be appreciated * * ."

The owner responded that carrying capacity is a function of the type of logs stowed as well as the method of storage and observed that the charter agreement was " * * * that you are to have full use of the cubic space under deck." Another representative of defendant rejoined that Captain McKimmey was "new to Weyerhaeuser" and "not entirely familiar with all the chartering arrangements," and that the original letter was "not intended to force a greater tonnage than we are allowed under our charter." ²

The sixth voyage of the PACKING under the charter commenced with the loading of logs in Astoria, Oregon. The loading of the No. 1 hatch was deferred until the vessel moved up the Columbia River to the Weyerhaeuser dock at Longview, Washington, in order to obtain a better selection of logs and use of a shoreside crane.

There were peculiar difficulties in the loading of the PACKING because of its outmoded design. On modern vessels designed for the stowage of logs, the hatch openings extend nearly the full length of the hatch. On the PACKING, converted as a log carrier, the hatch opening or "square" was considerably smaller than the hatch itself, creating a forward trunk (that part of the hatch forward of the square) of nearly 29 feet and an aft trunk of 24 feet. As in most log ships, there are no intermediate decks, and the hatch is open from the main deck to the ship's bottom, a depth of approximately 40 feet.

Because of the hatch configuration, stowed logs could not be butted tightly against the aft bulkhead because, as the longshoremen attempted to swing and land the load aft of the square, the slings used to carry the load would strike the hatch coaming.

The physical work of loading logs aboard the vessel, both at Astoria and Longview, was performed by Portland pursuant to its contract with defendant. The contract called for a "cost-plus, fixed-fee commodity rate." In other words, defendant was to pay the actual cost of labor in addition to a fixed fee determined by the quantity of stowage.

Loading operations commenced at Longview on December 20, 1972. Two Weyerhaeuser employes, a loading superintendent and a "supercargo," were in the vicinity during the loading. Supervisory persons of Portland, also, worked on or about the ship. These were the stevedore superintendent, the "walking boss," and, below the "walking boss" in the hierarchy, the gang (or "hatch") boss, who was the immediate supervisor of Shepler.

In an attempt to obtain a tight stow, the longshoremen were "dead-ending." Dead-ending involves securing a "wire" (cable) with a device called a "bear claw" to a stable object and running the wire under the material to be moved. By lifting the load with the crane, the load moves in the direction of the anchored end of the wire. By this method the longshoremen hoped to move logs from the center of the hold to the bulkheads and into the wings.

On December 21, 1972, the hold in Hatch No. 1 was partially loaded. A gap between the stow and the aft bulkhead had developed due to the impossibility of butting the logs tightly against the bulkhead. This gap, or "hole," was approximately 26 feet deep, and the longshoremen climbed over and about the logs next to the hole in order to place the wire and bear claw and down over the ends to unfasten the wire and retrieve the bear claw from the anchoring logs.

Shepler was injured that afternoon while engaged in trying to retrieve a buried bear claw after a load of logs had been moved by dead-ending. Shepler fell and sustained head injuries, from which he died.

TRIAL RESULT

Two of plaintiff's several allegations of negligence were submitted to the jury; namely, that defendant was negligent: (a) in failing to "authorize" the use of a bull winch ³ under the circumstances, and (b) in requiring the dead-ending of the log drafts. The case was submitted to the jury on special interrogatories, and the jury found that Shepler was not negligent and that defendant's negligence was 28% responsible for Shepler's death and Portland's negligence was 72% responsible.

SUFFICIENCY OF EVIDENCE

Defendant assigns as error the failure to grant its motions for involuntary nonsuit, for a directed verdict and to strike plaintiff's two specifications of negligence which were submitted to the jury. This requires us to determine whether there was sufficient evidence to submit the case to the jury upon those two specifications.

Neither party directs our attention to the scope of review which we exercise in a case arising under 33 U.S.C., § 905(b). It could be argued that our scope of review is the same as that of a United States Court of Appeals reviewing a federal district court decision. If that were so, our task would be to determine whether as a matter of law the record is "critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Marant v. Farrell Lines, Inc., 550 F.2d 142, 144 (3d Cir. 1977), quoting from Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969). On the other hand, if our scope of review is that which we...