Smith v. Eastern Seaboard Pile Driving, Inc., 806

• Citation: 1979 A.M.C. 2021,604 F.2d 789
• Decision Date: 15 August 1979
• Docket Number: No. 806,D,806
• Parties: CA 79-3194 Evelyn G. SMITH, Administratrix of the Estate of Earl Roy Smith, Deceased, Plaintiff-Appellant, v. EASTERN SEABOARD PILE DRIVING, INC. and R. W. Denny & Buckley & Co., T/A Denny& Buckley, a joint venture, Defendant-Appellee. ocket 78-7531.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 789

604 F.2d 789

CA 79-3194 Evelyn G. SMITH, Administratrix of the Estate of Earl Roy Smith, Deceased, Plaintiff-Appellant, v. EASTERN SEABOARD PILE DRIVING, INC. and R. W. Denny &amp Buckley & Co., T/A Denny& Buckley, a joint venture, Defendant-Appellee.

No. 806, Docket 78-7531.

United States Court of Appeals Second Circuit.

Argued May 14, 1979.

Decided Aug. 15, 1979.

Edward M. Katz, New York City (Phillips & Cappiello, New York City, Adler, Barish, Daniels, Levin & Creskoff, Milton M. Borowsky Philadelphia, Pa., of counsel), for plaintiff-appellant.

Peter M. Pryor, New York City (Burlingham Underwood & Lord, William M. Kimball, New York City, of counsel), for defendant-appellee.

Before OAKES and VAN GRAAFEILAND, Circuit Judges, and CARTER, District Judge. ^*

ROBERT L. CARTER, District Judge:

This case arose out of the untimely death of Earl Roy Smith, who drowned while scuba diving to inspect a damaged dredge. Evelyn G. Smith, the decedent's wife and administratrix of his estate, filed an action seeking damages from her husband's employer. The employer, Eastern Seaboard Pile Driving, Inc. ("Eastern") prevailed when the District Court held that the plaintiff could not maintain an action under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 Et seq., because the decedent had been providing repair services at the time of the accident and was killed as the result of the negligence of other employees who were also doing repair work. We reverse.

Factual Background

In March, 1973, Earl Roy Smith was hired by Eastern to work as a leverman aboard the dredge Beverly M. As such, he was responsible for operating machinery on the dredge while the Beverly M was engaged in excavation off the shore of Jones Beach. In early April, 1973, a storm damaged the digging mechanism of the dredge, and on April 6, Robert Mutch, the president of Eastern, contacted Smith to ask if he would be willing to work as a scuba diver to examine the damage. Smith, who had previously asked Mutch to employ him as a staff diver, accepted the offer.

On the same day, Smith boarded the tug Margaret G, owned Pro haec vice by Eastern, and set off for the site of the dive. In addition to the tug crew, Mutch, who was in charge of the operation, and Bert Johnson, the master of the dredge, were aboard. When the tug arrived near the dredge, it maneuvered into position and Smith entered the water by jumping from the tug's railing. He immediately surfaced, inflated his life vest, and signalled for assistance. Mutch ran to the boat deck in order to obtain a life ring, and the tug captain began to maneuver the tug around part of the submerged dredge apparatus in order to approach the floundering diver.

When the tug was repositioned, the life ring was tossed to Smith and he was pulled to the side of the vessel. However, as the men on the tug vainly tried to hoist him aboard, Smith's scuba tank became hooked in the tire bumper on the side of the tug causing his head to be submerged. Johnson, the dredge master, ignored his personal safety and climbed over the side of the tug on to the tire bumpers in order to tie a rope around Smith. After sliding the line as far up around Smith's body as he could, Johnson scrambled back aboard the tug. However, when the men tried to pull Smith up again, the rope caught around his knees and turned him upside down with his head underwater.

By this time, the captain of the Margaret G had called for assistance from the tug Callinan which was nearby. Mutch managed to use a knife to cut off Smith's diving gear, and with the help of crew members from the Callinan, Smith was hauled aboard the Margaret G. Artificial respiration was administered, and Smith was rushed by helicopter to the Nassau County Medical Center where he was pronounced dead on arrival. An autopsy revealed that he had died of asphyxia due to drowning.

District Court Proceedings

Appellant originally based this action on three separate sources of law: the Jones Act, 46 U.S.C. § 688; § 5(b) of the LHWCA, 33 U.S.C. § 905(b); and the admiralty principles of Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959). The Jones Act claims were tried to a jury while the remaining claims were reserved by stipulation of the parties for determination by the District Court following the jury trial. The jury rendered a special verdict finding that Smith was not a seaman for purposes of the Jones Act, and the District Court therefore proceeded to consider the remaining issues. Construing Smith's relation to Eastern as that of an independent contractor, the District Court held that the Kermarec principles applied. It found Eastern negligent for (1) failing to have a standby or emergency plan for the rescue of Smith, (2) failing to have immediately available a rescue line, life ring, life raft, or other similar equipment, and (3) failing to attach a ladder or platform to the tug to facilitate Smith's return to the vessel. 1978 A.M.C. 2068, 2075 (E.D.N.Y.). The court explicitly found that the employees of Eastern committed no negligent acts after Smith had entered the water and during the ill-fated rescue operation. However, the District Court did hold Smith at fault for his failure to take precautions for his own safety, and it accordingly reduced the damage figure by sixty percent. ¹ Id. at 2076. In total, the District Court awarded appellant $230,428.80. Id. at 2084.

Subsequent to that decision, however, the parties brought to the attention of the District Court that they had stipulated that Smith had been an employee of Eastern rather than an independent contractor. They also agreed that in view of this stipulation the Kermarec rules were inapplicable. Therefore, the court vacated its prior decision and went on to evaluate the LHWCA claims. 1978 A.M.C. 2555 (E.D.N.Y.). In its new opinion, the District Court found that Smith had been working in connection with the dredge rather than the tug at the time he was drowned and that the employees of the dredge were in no way responsible for the accident. According to the District Court, Smith's widow was not entitled to damages under the LHWCA because Smith had been killed while doing repair work on the dredge, and the cause of his death was the negligence of the employees on the tug who were also involved in the provision of repair services. The District Court thus considered the case to be governed by the clause in § 905(b) which immunizes a shipowner from a damage action by an employee who is injured while doing longshoring, ship building, or repair work as a result of the negligence of other employees of the vessel involved in the same activities. ² This appeal followed.

Appellant's Contentions

Appellant now advances several theories for reversing the determination of the District Court. First, it is urged that neither Smith nor the employees aboard the tug were engaged in repair work, since they were only making an inspection preliminary to any future overhaul. Second, Eastern's negligence as shipowner rather than the negligence of its employees acting as repairmen caused the drowning, and thus the immunity provided by § 905(b) is unavailable in this case. Third, in order to establish a nexus between the vessel on which the accident occurred and the negligent employees, appellant argues that Smith drowned while working in connection with the tug, not the dredge. Alternatively, appellant contends that the dredge may be considered the liable vessel since its master, Johnson, and the overall supervisor, Mutch, were connected with the dredge and were the negligent parties. Finally, it is argued that if Eastern is found liable, the doctrine of comparative negligence cannot be invoked to reduce the award because Smith's drowning was the proximate result of negligence in effecting his rescue, an operation over which Smith had no control.

Discussion

Although the 1972 amendments to the LHWCA defy facile construction, there is no doubt that Congress sought to simplify the procedural tangle that had developed under court decisions designed to provide equitable relief to injured employees who otherwise could only secure decidedly inadequate compensation under the original LHWCA even for grave injuries and to place the cost of each injury on the party best able to prevent the accident. ³ Hickman v. Jugoslavenska Linijska Plovidba Rijeka, Zvir, 570 F.2d 449, 452 (2d Cir. 1978); Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 839 (2d Cir. 1977). Accordingly, the land-based employee's action against the shipowner for unseaworthiness was abolished, and the vessel could not be held liable for accidents occurring when work had been entrusted to the competence of a stevedore. Cox v. Flota Mercante Grancolombiana, S.A., 577 F.2d 798, 802 (2d Cir. 1978); Munoz v. Flota Merchante Grancolombiana, S.A., Supra, 553 F.2d at 840-41; Kalogeros v. Brasileiro, 446 F.Supp. 175, 178 (S.D.N.Y.1978) (Bryan, J.). Furthermore, the shipowner was no longer saddled with a non-delegable duty to provide a safe place to work. Cox v. Flota Mercante Grancolombiana, S.A., supra, 577 F.2d at 803.

However, the 1972 amendments did not wholly immunize vessels from actions by land-based employees. The shipowner remains liable for its own failure to exercise care. Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861, 862 (2d Cir. 1977); Munoz v. Flota Merchante Grancolombiana, S.A.,supra, 553 F.2d at 840; Kalogeros v. Brasileiro, supra, 446 F.Supp. at 177. For example, the owner retains the responsibility for supplying a safe place to work, although the stevedore assumes that responsibility when it is given exclusive control over the workplace. See Lubrano v. Royal Netherlands S. S. Co., 572 F.2d 364, 374 (2d Cir. 1978) (dissent); Espinoza v. United States Lines, Inc., 444 F.Supp. 405, 410 (S.D.N.Y.) (Goettel, J.), Aff'd,586 F.2d 832 (2d Cir. 1978). Thus, under the 1972 amend...