Teofilovich v. d'Amico Mediterranean/Pacific Line

• Citation: 415 F. Supp. 732
• Decision Date: 11 June 1976
• Docket Number: No. CV 75-1269-JWC.,CV 75-1269-JWC.
• Parties: Milo TEOFILOVICH, Plaintiff, v. d'AMICO MEDITERRANEAN/PACIFIC LINE, Defendant.
• Court: U.S. District Court — Central District of California

415 F. Supp. 732

Milo TEOFILOVICH, Plaintiff, v. d'AMICO MEDITERRANEAN/PACIFIC LINE, Defendant.

No. CV 75-1269-JWC.

United States District Court, C. D. California.

June 11, 1976.

Joe Ling, of Ackerman, Ling & Russell, Long Beach, Cal., for plaintiff.

Ralph D. Kirwan and Michael D. Dempsey, of Lillick McHose & Charles, Los Angeles, Cal., for defendant.

Richard M. Secia, of Pinney & Tighe, North Hollywood, Cal., for plaintiff intervenor Hartford Acc. & Indemnity Co.

AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW

CURTIS, District Judge.

This cause came on regularly for trial February 24, 1976 before the Honorable Jesse W. Curtis, United States District Judge presiding. Joe Ling of Ackerman, Ling & Russell appearing for plaintiff; Richard M. Secia of Pinney and Tighe appearing for Hartford Accident and Indemnity Company, plaintiff in intervention, and Ralph D. Kirwan and Michael D. Dempsey of Lillick, McHose & Charles appearing for defendant.

Evidence, both oral and documentary, having been admitted and having heard the evidence and arguments of counsel, having considered the briefs on file and having granted the defendant's motion for directed verdict, the court now finds the facts and sets forth the conclusions of law as follows:

Plaintiff sued d'Amico Societa Di Navigazione S.p.A. ("d'Amico") for damages because of injuries allegedly suffered while working as a longshoreman on board defendant's vessel Lorenzo d'Amico on October 10, 1974. Plaintiff is a California resident and d'Amico is an Italian resident so this court has jurisdiction by virtue of the diversity of citizenship of the parties. 28 U.S.C. § 1332. Hartford Accident and Indemnity Company, the compensation carrier for plaintiff's stevedore company employer, intervened to recover compensation benefits it paid plaintiff as a result of his disability. See the Longshoremen's and Harbor Workers' Compensation Act. 33 U.S.C. § 901, et seq.

At the close of plaintiff's evidence, defendant moved for a directed verdict under Rule 50(a) of the Federal Rules of Civil Procedure upon the ground that the evidence, viewed in the light most favorable to plaintiff, did not entitle him to relief.

Plaintiff has eight years experience in the American merchant marine and more than twenty years experience as a longshoreman. During his time on the waterfront, he has assisted in the loading and unloading of cargo at more than one hundred vessels, including vessels owned by d'Amico.

On October 10, 1974, the Lorenzo d'Amico was moored at Berth 223, Terminal Island. Plaintiff and other longshoremen employed by Marine Terminals Corporation were dispatched from the union hall to the dock along side the vessel where they were met by the ship foreman, a permanent employee of the stevedore company. The ship foreman divided the men into smaller groups of ten, which are called gangs, and assigned each gang to work a separate hatch on board the vessel. Plaintiff and the members of his gang were assigned to work Hatch No. 4 under the supervision of the hatch boss, also a permanent employee of the stevedore company. Plaintiff and the other longshoremen in his gang reached Hatch No. 4 at approximately 8:00 o'clock A.M. The cargo in that hatch was stowed in the after portion. At the forward end of the stow were four or five rows of wooden crates, each approximately two feet wide and three feet long, containing small pieces of Italian marble. These crates were stowed three tiers high, and each tier was separated by dunnage from the one beneath it. Dunnage is a maritime term describing slats of wood which are placed on or between cargo to separate it from other cargo. The dunnage provides for greater stability of the load during ocean voyages and tends to facilitate discharge by providing small spaces between the cargo.

Directly behind this crated marble were crated slabs of thin marble, approximately three feet wide and four to six feet tall. These slabs of marble were stowed tightly together in upright positions. The crates of marble pieces and the slabs of marble formed a relatively flat surface upon which longshoremen could walk as they moved about the stow. On top of the stow was another smaller stow of boxes containing Italian shoes.

When plaintiff, his fellow longshoremen and the stevedore supervisors entered the hatch they observed that several crates containing marble pieces had fallen down out of the stow. Plaintiff and the other longshoremen picked up these crates and cleaned up some of the pieces of marble that had spilled out. Upon the direction of the hatch boss, the longshoremen then began discharging the crates of marble from the front of the stow. This discharge operation went on most of the day. By approximately 4:00 o'clock P.M., the longshoremen, by means of a forklift, had discharged most of the boxes from the center of the stow. They discharged the boxes in such a way that they formed "stairs" in the front of the stow leading up to the stow of slabs of marble. By stepping from one box to the next the longshoremen, including plaintiff, were able to reach the boxes of Italian shoes stowed on top of the upright slabs of marble.

At approximately 4:00 o'clock P.M., shortly before plaintiff's accident occurred, plaintiff and other longshoremen were working on top of the stow. The plaintiff then decided to climb down off the stow to perform some work in the square of the hatch. He proceeded forward across the top of the stow, then started to climb down by stepping from one crate to another which formed the "stairs." He stepped first on one crate and then on a second crate. The second crate teetered and he fell approximately six feet to the deck, injuring his shoulder. Plaintiff was helped to his feet by his work partner and the two men inspected the crate which had teetered. Plaintiff testified that the strips of dunnage beneath the crate were parallel to each other, but so close together that the dunnage, instead of acting as a stabilizer under the crate, acted as an axle and caused the crate to tilt.

Plaintiff admitted that although he and the nine other longshoremen in his gang had worked in the hatch nearly the entire shift from 8:00 o'clock A.M. to 4:00 o'clock P.M., neither he nor anyone else detected this alignment of the dunnage. Plaintiff also admitted that the crate which tilted had been two or three rows deep in the stow of cargo. Plaintiff admitted that he did not see anything unusual about the crate moments before he stepped on it, that the work area was under the exclusive control of the longshoremen and had been since 8:00 A.M., that no vessel officer or crewman was seen in the hatch all day, and that the vessel officers and crew are not allowed in the hatch during loading or discharge except under exceptional circumstances. Plaintiff did not know whether the dunnage was improperly aligned before the longshoremen began working the stow in Hatch No. 4, or whether the alignment was changed by their work with a forklift during discharge.

Plaintiff offered no further proof and rested his case. Defendant moved for a directed verdict. In opposition to defendant's motion, plaintiff argued that the vessel owed a non-delegable duty to inspect the work performed by the loading stevedore, an independent contractor employed by d'Amico to load this cargo in a foreign port. Plaintiff also argued that the discharge of cargo from a merchant vessel involved a peculiar risk of harm to a longshoreman and that the vessel is subject to liability for bodily harm caused to plaintiff by the failure of the stevedore company to take special precautions to avoid bodily harm, unless the vessel has taken reasonable precautions itself to avoid such risk. These arguments are embodied in the Restatement (Second) of Torts sections 413 and 416.

In support of his argument that sections 413 and 416 apply `to a maritime cause of action, plaintiff relied upon the recent California state court decision in Johnson v. Canadian Transportation Company, Ltd., 54 Cal.App.3d 827, 127 Cal.Rptr. 72 (1976). There, the California District Court of Appeal held that the trial court erred in granting defendant shipowner's motion for summary judgment on the grounds that the trial court should have applied those sections of the Restatement to lawsuits brought under the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act. This court believes the Johnson decision is at odds with the congressional intent behind the 1972 Amendments and conflicts with the many post Amendment decisions which have become a part of the Federal Maritime Law.

It is well settled that federal law governs lawsuits between an injured longshoreman and a shipowner. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409-10, 74 S.Ct. 202, 98 L.Ed. 143 (1953). Federal law is set forth in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq. The Act first became law in 1927. It required stevedore companies to make compensation payments and to provide medical benefits for the disability or death of longshoremen if the disability or death resulted from injury occurring upon navigable waters of the United States. In addition to receiving compensation benefits from his employer, the stevedore company, an injured longshoreman was permitted to sue the owner of a vessel on which he was injured for negligence and breach of the warranty of seaworthiness. Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Under the warranty of seaworthiness, shipowners were held vicariously liable for injuries caused by unseaworthy conditions created by the negligence of an independent contractor stevedore company. In turn, the shipowner was permitted to recover indemnity from the stevedore. Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Italia Societa Per Azioni Navigazione v. Oregon Stevedoring Co., 376 U.S. 315...