Tallmon v. Toko Kaium KK Kobe

• Citation: 278 F. Supp. 452
• Decision Date: 21 August 1967
• Docket Number: Civ. No. 65-598.
• Parties: Dorothy Leona TALLMON, Individually and as Administratrix of the Estate of Kenneth Le Verne Tallmon, Deceased, and Kenneth W. Tallmon, Plaintiffs, v. TOKO KAIUM K.K. KOBE, a corporation, Defendant.
• Court: U.S. District Court — District of Oregon

278 F. Supp. 452

Dorothy Leona TALLMON, Individually and as Administratrix of the Estate of Kenneth Le Verne Tallmon, Deceased, and Kenneth W. Tallmon, Plaintiffs, v. TOKO KAIUM K.K. KOBE, a corporation, Defendant.

Civ. No. 65-598.

United States District Court D. Oregon.

August 21, 1967.

COPYRIGHT MATERIAL OMITTED

Frank Pozzi, Pozzi, Levin & Wilson, Portland, Or., for plaintiffs.

Kenneth E. Roberts, Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for defendant.

OPINION

KILKENNY, District Judge:

Actions by Dorothy Leona Tallmon, individually and as Administratrix of the estate of Kenneth Le Verne Tallmon, deceased, and Kenneth W. Tallmon for damages for wrongful death brought under the provisions of the Oregon Employers' Liability Law and the general maritime law. Decedent was employed as a longshoreman aboard defendant's vessel, the MEITOKU MARU, while the vessel was berthed at Portland. The decedent and other longshoremen aboard the vessel were employees of a master stevedore company, Scrap Loaders, Inc., and were engaged in loading a cargo of scrap metal aboard the vessel. While decedent was operating a bulldozer owned by his employer in a hold of the ship, his head was caught between the overhanging and the machine he was operating, as a result of which he died. One of the provisions of the charter under which the MEITOKU MARU was being operated provided that:

"The stevedores, although appointed by Charterers, Shippers, Receivers, or their agents, to be under the direction and control of a Master."

(1) IS THE OREGON EMPLOYERS' LIABILITY LAW APPLICABLE?

The Oregon Employers' Liability Law has no specific provision for a "third party action" where the plaintiff employee, as here, attempts to recover against one other than his immediate employer. The Oregon Court has, however, allowed recovery in such cases where it has been shown that the defendant had a certain degree of control over the work out of which the injury arose. The statutory basis for these decisions is the "and generally" clause of the Oregon Employers' Liability Law, ORS 654.305, which reads:

"Generally, all owners, contractors or subcontractors and other persons having charge of, or responsible for, any work involving a risk or danger to the employes or the public, shall use every device, care and precaution which it is practicable to use for the protection and safety of life and limb, limited only by the necessity for preserving the efficiency of the structure, machine or other apparatus or device, and without regard to the additional cost of suitable material or safety appliance and devices."

The statutory test is met if the defendant exercised "primary control of the physical instrumentalities immediately in use and which are the media of the injuries or death giving rise to a claim of damage", Myers v. Staub, 201 Or. 663, 272 P.2d 203 (1954); if the defendant "participated" in the enterprise, Thomas v. Foglio, 225 Or. 540, 358 P.2d 1066 (1961); if there was an "operational commingling" of the employees of the two employers, Pruett v. Lininger, 224 Or. 614, 356 P.2d 547 (1960); if there is an active and direct participation on the part of the employer, Byers v. Hardy, 216 Or. 42, 337 P.2d 806 (1959). In Thomas, the Oregon Supreme Court explained that an employer is "in charge" of the work within the meaning of ORS 654.305 if he is only in charge of an activity which forms a "component part" of a common enterprise.

Defendant argues that here it did not provide any dangerous instrumentality or equipment, that it was not in charge of or responsible for the alleged piece of defective equipment (the bulldozer), and that there was no active cooperation by it in any way directly affecting the deceased. Furthermore, defendant points out that there was no contract between it and decedent's employer, as its contract was with the charterer, who, in turn, contracted with the stevedore. These facts, claims the defendant, preclude coverage under the Act and the above cases construing it.

I disagree. The charter under which this vessel operated contained a provision, set out above, whereby the defendant agreed that the stevedores were to be under the "direction and control" of the master. One need not be a semanticist in order to hold that this phrase clearly falls within the statutory language "having charge of or responsible for".

The vessel's chief mate had specific responsibilities in loading the cargo, which included the preparation of a cargo plan, conferences with representatives of the stevedore company relating to the work, and his remaining available to direct the crew to give necessary assistance, if any, to the stevedore company. He had other duties which included aiding the stevedore company in preparing a stowage plan and seeing that it was implemented. The third mate's duties included inspection of the vessel for damage done while loading. In addition, a crew was on board at all times performing the normal duties of maintenance and upkeep. It would seem that these facts meet the language of Pruett to the effect that there must be an "operational commingling" of the employees of the two employers.

A similar case is Hess v. United States, 282 F.2d 633 (9th Cir. 1960). The decedent was working on a tug owned and operated by an independent contractor, which was repairing portions of Bonneville Dam. As plaintiff was working on the tug below the dam, employees of the Government positioned the spillway gates, causing turbulence, in which the tug overturned, thus resulting in decedent's death. The Ninth Circuit stated:

"In our view, however, an owner who remains in possession and through its own employees continues active work thereon must accept responsibility for the risks and dangers associated with such work, despite any contractual arrangement it may have to perform that work in a manner requested by others. It may no more delegate its responsibility in this regard than may an employer."

The Court went on to say that a shoulder-to-shoulder commingling of the employees of the two employers was not required:

"There was here a commingling of function or duty between Graham and the employees of the government. A contractual relationship existed between their respective employers, and the positioning of the spillway gates by the government's employees had a direct effect upon the performance of Graham's duties. A shoulder-to-shoulder commingling is not required."

It is clear that a shipowner must exercise reasonable care to provide a subcontractor or stevedore's employees a safe place to work, despite the fact that the vessel itself might be turned over to the exclusive control of a subcontractor, stevedore, or independent contractor. Lusich v. Bloomfield S. S. Co., 355 F.2d 770 (5th Cir. 1966); Halecki v. United New York and N. J. Sandy Hook Pilots Assn., 282 F.2d 137 (2d Cir. 1960); 302 F.2d 840 (2d Cir. 1962); Albanese v. N. V. Nederl. Amerik Stoomv. Maats., 382 U.S. 283, 86 S.Ct. 429, 15 L.Ed.2d 327 (1965). These cases, in the light of the Ninth Circuit's opinion in Hess, point to the conclusion that the Oregon Employers' Liability Law should be applied in this situation. Additionally, the evidence supports a finding that had the stevedore's workers been told to remove the Caterpillars on the ground that they were unsafe, they would have done so and had they been told to change them, they would have made the change. Defendant's argument that, as a practical matter, there is no control of the operations of a stevedore does not stand against the assault of common sense. To abdicate control does not point to a lack of...