Slaughter v. Ronde

• Decision Date: 11 September 1974
• Docket Number: Civ. A. No. 3151.
• Citation: 390 F. Supp. 637
• Parties: Moses SLAUGHTER, Jr., Plaintiff, v. S. S. RONDE et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

390 F. Supp. 637

Moses SLAUGHTER, Jr., Plaintiff, v. S. S. RONDE et al., Defendants.

Civ. A. No. 3151.

United States District Court, S. D. Georgia, Savannah Division.

September 11, 1974.

James E. McAleer, Jr. (Downing, McAleer & Gaskin), Savannah, Ga., for plaintiff.

David S. Sipple (Chamlee, Dubus & Sipple), Savannah, Ga., for defendants.

OPINION AND ORDER

FINDINGS OF FACT AND CONCLUSIONS OF LAW

LAWRENCE, Chief Judge.

I. The Litigation

This is an action brought under general admiralty and maritime law by a longshoreman seriously injured while working aboard the S.S. "Ronde" which was taking in cargo at the ITC docks at Savannah. The defendants are the vessel and her owner, Fyffes Group Ltd.¹

The injury to plaintiff occurred when he and other employees of Strachan Shipping Company were moving a heavy roll of linerboard into the storage position in a tween-decks hold. In some way, Slaughter was pinned between the roll and a stanchion located at a corner of the "square of the hatch". His injuries permanently incapacitated him for further work as a longshoreman.

Plaintiff was injured on January 25, 1973, which was after the effective date of the 1972 amendment to the Longshoremen's and Harbor Workers' Compensation Act abolishing the sixteen-year-old doctrine enunciated by the Supreme Court in Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133. Under the Ryan rule a longshoreman injured while working aboard a vessel was accorded the benefit of the same implied warranty of shipworthiness to which a seaman was entitled. The so-called "Sieracki seaman" (Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099) no longer has a right of action against the vessel "based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred". The injured longshoreman can now sue the vessel only for negligence. See 33 U.S.C. § 905(b).

The present action began as a typical Sieracki-type claim with allegations of unseaworthiness and negligence. On motion of the defendants, the allegation as to unseaworthiness was stricken. The case proceeded to trial before the Court without a jury on the theory of negligence by the shipowner in failing to furnish plaintiff a safe place to work. Plaintiff contends that the raised hatch-cover in hold No. 2 of the tween-deck to which the rolls of the linerboard were lowered in conjunction with the considerable listing of the ship and the uneven condition of the wooden "gratings" or "slats" that overlay the decking² caused the heavy linerboard roll to get out of control and to twist around or angle with the result that plaintiff was pinned against a stanchion.

The case was tried on August 15th-16th. The testimony presented by the plaintiff consisted, in addition to himself, of that of two physician witnesses and six longshoremen who were working in the hold at the time of the injury. The "header" of the gang testified as the "Court's witness". The defendants' witnesses included the Chief Officer of the vessel, the Stevedore Foreman of Strachan Shipping Company, the official in charge of terminal operations and an expert witness on the subject of cargo storage.

II. Discussion of Law

The purpose and the effect of the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act are clearly blueprinted, in length and detail, in the Report of the Committee, House of Representatives, which considered the proposed legislation. "The purpose of the amendments," it states, "is to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as bringing a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as `unseaworthiness', `nondelegable duty', or the like." However, while persons to whom compensation is payable under the Act no longer may bring a damage suit against the vessel or its owner under the judicially-enacted doctrine of unseaworthiness, they still have the right to recover damages for negligence.

The Committee pointed out that vessels have been held to what amounts to absolute liability by decisions of the Supreme Court, commencing with Seas Shipping Co., Inc. v. Sieracki, supra, which decided that the traditional seaman's remedy based on the breach of the vessel's absolute, nondelegable duty to provide a seaworthy vessel was also available to longshoremen and others who performed work on the vessel which by tradition has been performed by seamen. The Committee rejected "the thesis" that a vessel should be liable without regard to its fault for injuries sustained by employees covered by LHWCA while working on board. However, nothing in the legislation was "intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition." Thus, for example, "where a longshoreman slips on an oil spill on a vessel's deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence. To recover he must establish that: 1) the vessel put the foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it; or 2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care by the vessel under the circumstances."

The Committee recognized that there would be disputes as to whether the vessel was negligent in a particular case and that such issues could only be resolved "through the application of accepted principles of tort law and the ordinary process of litigation—just as they are in cases involving alleged negligence by land-based third parties."

See 3 U.S.Code Congressional and Administrative News, 1972, pp. 4703-4704.

Under the amended Act, a longshoreman can no longer recover against the ship by reason of negligence of a stevedoring contractor in methods of loading or unloading which render the ship unseaworthy. See Splosna-Plovba v. Garcia, 390 F.2d 41 (9th Cir.); Ryan v. Pacific Coast Shipping Co., 448 F.2d 525, 526 (9th Cir.); Baker v. Cristobal, 488 F.2d 331 (5th Cir.). Under the maritime law as it existed before the effective date of the 1972 amendments, a shipowner could be found guilty of negligence where the officers see or have actual visual notice of, or ample time to observe, unsafe stevedoring operations since it does not represent a safe place to work. La Capria v. Compagnie Maritime Belge, 286 F.Supp. 980 (S.D.N.Y.); aff'd. as to such holding in 427 F.2d 244 (2nd Cir.). That basis for liability still exists since, as stated, Congress did not intend to "derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition".

It has been predicted that under the 1972 amendments the admiralty bar will be more "notice" conscious when analyzing and investigating their cases and that "Involvement of vessel's officers and crew and equipment will be a primary concern". See Francis J. Gorman, "The Longshoremen's and Harbor Workers' Compensation Act—After the 1972 Amendments". 6 Journal of Maritime Law and Commerce (October, 1972), p. 17.

In the present case the second and third mates of the "Ronde" were an-signed to the particular cargo watch. Their primary duty seems to have been to make sure of proper stowage of the cargo looking to its safety and that of the ship. Safety of longshoremen working aboard the vessel appears to have been a secondary consideration as far as the watch officers were concerned. Such was regarded as the function of the Stevedoring Company which had control of the physical stowing of cargo and the methods used by its longshoremen. Theoretically, if the ship's personnel observed anything dangerous in the methods used by the stevedore and the longshoremen, they could stop the operation. By the same token, the longshoremen could complain to the stevedore foreman about working conditions. They could refuse to work and go home. They sometimes did so when they considered conditions in the hold unsafe.

Here it claimed that the ship's officers charged with the watch saw and knew about the dangerous conditions of cargo handling, namely, the slope from the top of the hatch combing to the deck (nearly 11°) and the listing of the vessel on its offshore side. Those factors combined with others made the place of work unsafe for the plaintiff. I will deal with this hereafter in the Findings of Fact.

The concept of liability to a seaman or longshoreman injured aboard a ship as a result of negligence by the vessel is completely different from liability as a result of unseaworthiness. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499, 90 S.Ct. 940, 25 L.Ed.2d 114. Lack of seaworthiness results in liability without fault while liability in the former case depends on failure of the vessel or owner to exercise reasonable care. Unseaworthiness is a condition. How it came into being, whether by negligence or otherwise, is irrelevant to the shipowner's liability for personal injuries resulting therefrom. 70 Am.Jur.2d Shipping § 12.

In Fedison v. The Vessel Wislica, 382 F.Supp. 4 (E.D., La., Civil Action No. 73-1030) which was rather similar in its facts to the case now under consideration, the District Court observed that plaintiff was trying to circumvent the express intent of the 1972 amendments. Judge Heebe stated that the imperfections in the stowage of cargo may have been sufficient to have rendered the vessel unseaworthy, but that the facts did not show negligence on the part of the vessel or shipowner with respect to the conditions in the hold, including cracks that had developed between the...