Thomas v. Plovidba

• Decision Date: 02 February 1987
• Docket Number: No. 82-C-1583,83-C-0491.,82-C-1583
• Citation: 653 F. Supp. 1300
• Parties: John THOMAS, Plaintiff, v. Jadranska Slobodna PLOVIDBA, Defendant. COMMERCIAL UNION INSURANCE COMPANY and Meehan Seaway Service, Ltd., Plaintiffs, v. Jadranska Slobodna PLOVIDBA, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

653 F. Supp. 1300

John THOMAS, Plaintiff, v. Jadranska Slobodna PLOVIDBA, Defendant.

COMMERCIAL UNION INSURANCE COMPANY and Meehan Seaway Service, Ltd., Plaintiffs, v. Jadranska Slobodna PLOVIDBA, Defendant.

Nos. 82-C-1583, 83-C-0491.

United States District Court, E.D. Wisconsin.

January 29, 1987.

As Amended February 2, 1987.

COPYRIGHT MATERIAL OMITTED

James E. Culhane and Michael P. Dunn, Milwaukee, Wis., for plaintiff.

Robert L. Elliott, Milwaukee, Wis., for defendant.

MEMORANDUM AND ORDER

WARREN, Chief Judge.

This maritime personal injury action, commenced on December 15, 1982, pursuant to Section 933 of the Longshoremens and Harbor Workers-Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., arises from the events of July 1, 1980. On that date, plaintiff John Thomas ("Thomas"), then a 52-year-old employee of Meehan Seaway Service, Ltd. ("Meehan"), suffered injuries to his right knee when he was struck by a falling Taylor forklift truck ("Taylor") aboard the M/V BIOKOVO ("BIOKOVO"). The BIOKOVO is a Yugoslavian flagship owned by defendant Jadranska Slobodna Plovidba which was docked at the Port of Milwaukee when the aforementioned accident occurred. Consequently, this matter lies within this Court's admiralty and maritime jurisdiction. It should be noted that the BIOKOVO was destroyed by fire approximately one month after the accident.

Because of injuries incurred on July 1, 1980, Thomas received $79,350.56 in worker's compensation benefits from Fireman's Fund Insurance Company ("Fireman's Fund"), Meehan's worker's compensation insurance carrier. Further, Fireman's Fund incurred $11,379.29 in medical and rehabilitation related expenses. Consequently, Fireman's Fund, although not a named party, has a subrogation lien for $90,729.85 under the LHWCA.

Other plaintiffs in this consolidated action include Commercial Union Insurance Company ("Commercial Union") and Meehan. The former possesses a subrogation claim for repairs to Meehan's forklifts in the amount of $12,923.50 and the latter has a claim of $1,000.00 pursuant to its deductible with Commercial Union. A five-day trial to the Court was held commencing November 12, 1985. Both parties have submitted proposed findings of fact and conclusions of law, and memorandum briefs in support of their respective positions. The following constitutes the Court's findings of fact and conclusions of law.

APPLICABLE LAW

The parties agree that the Supreme Court's ruling in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), sets forth the pertinent law regarding a shipowner's and stevedore's liability for injuries incurred by longshoremen during a cargo operation. In Scindia, the Supreme Court held that a shipowner has a duty to have the ship and its equipment in such condition that the stevedore may carry on its cargo operations with reasonable safety. The shipowner is liable for negligence if he fails at least to warn the stevedore of hidden danger which was known to the shipowner, or should have been known to him in the exercise of reasonable care, and this hidden danger causes injury to a longshoreman. Once the stevedore's cargo operations have begun, the shipowner has no general duty to exercise reasonable care to discover dangerous conditions developing within the confines of the stevedore's cargo operations. However, during the cargo operations, the shipowner has a duty to act where the stevedore's exercise of judgment was so obviously improvident that the shipowner, if it knew of the dangerous condition, should have realized that this condition presented an unreasonable risk of harm to the longshoremen. Under such circumstances, the shipowner has a duty to intervene and rectify the dangerous condition.

Various courts have applied and developed the ruling in Scindia. In Cameron v. Consolidated Grain and Barge Co., 654 F.2d 468 (7th Cir.1981), the Seventh Circuit found that the plaintiff longshoremen could not recover under the LHWCA from the shipowner for injuries allegedly sustained while working on the ship, absent proof of the owner's actual or constructive notice of the condition to which the longshoremen's injuries were attributed. The Fifth Circuit, in Stass v. American Commercial Lines, Inc., 720 F.2d 879 (5th Cir.1983), described the shipowner's duties post-Scindia regarding dangerous conditions that are "open and obvious" to the longshoremen working aboard a ship:

Under the "new regime" of Scindia citations omitted the shipowner has no defense that the hazard was to "open and obvious" to the longshoreman that he either was contributorily negligent or assumed the risk of the hazard by continuing to work. Citations omitted. This is so because when faced with an openly dangerous shipboard condition, the longshoreman's "only alternatives would be to leave his job or face trouble for delaying the work." Citations omitted. In short, "a longshoreman's own knowledge of a shipboard hazard will not negate a shipowner's duty of care which would exist otherwise." Citations omitted.

720 F.2d at 882; see also Johnson v. A/S IVARANS REDERI, 613 F.2d 334 (1st Cir. 1980), cert. dismissed, 449 U.S. 1135, 101 S.Ct. 959, 67 L.Ed.2d 325 (1981); Munoz v. Flota Merchante Grancolumbiana, S.A., 553 F.2d 837 (2d Cir.1977).

PRE-ACCIDENT EVENTS AND CIRCUMSTANCES

Defendant is a Yugoslavian corporation which, on July 1, 1980, was the owner of the BIOKOVO. On June 26, 1980, the BIOKOVO docked at the Port of Milwaukee, Wisconsin, at Terminal 4. Pursuant to a previous engagement, Meehan provided stevedoring services to the BIOKOVO on July 1, 1980. On that date, at approximately 1:00 p.m., John Thomas, Fletcher Brantley, John Brodie, James Redd, John Boston and Ladale Kern, all longshoremen employed by Meehan, were assigned to and commenced stowing logs into the hold of Hatch No. 2 using the BIOKOVO's winches located at the forward end of Hatch No. 2. The hold of Hatch No. 2 is rectangular in shape and has wings which extend beneath the hatch coaming on the forward, port, starboard and aft (rear) sides of the hatch.

On July 1, 1980, James Grandberry, a Meehan employee and crane operator, was assigned to load logs into the hold of Hatch No. 3 using the BIOKOVO's crane located between Hatch No. 2 and Hatch No. 3. Grandberry commenced work on Hatch No. 3 at approximately 1:00 p.m. Prior to commencing the loading operation, a member of the BIOKOVO crew informed Grandberry that there was a 1-2 log load limit on the crane. The crane operated by Grandberry was a "Stevedore 1055 Model" electro-hydraulic crane mounted on a rotating pedestal. The pedestal permitted the crane to service the holds of Hatch No. 2 and Hatch No. 3. This crane, manufactured by Stothert & Pitt, Ltd. of Bath, England, had a safe load lifting capacity of 10 long tons or 22,000 lbs. at a 55-foot radius. The various crane movements are achieved by the use of hydraulic pressure produced by various hydraulic pumps which in turn are powered by an electric motor.

Twice during Grandberry's stint in operating the crane on July 1, 1980, the crane's electric motor failed. On both occasions crew members of the BIOKOVO attempted to repair the crane and upon completing the repair work informed Meehan that the crane was ready for use.

The crane is equipped with a hoist brake which serves as a holding and emergency brake. The hoist brake is a spring applied, normally-on, caliper disc brake. The brake is hydraulically released by hydraulic fluid pressure directed through a solenoid valve which is controlled by a micro-switch fitted to the crane's hoist lever. The hoist lever is a three position mechanical linkage controlling the hoisting and lowering of the crane's cargo hook. The hoist lever is spring loaded such that when it is released, it returns to the neutral position. To hoist a load, the hoist lever is pulled back by the crane operator. Conversely, to lower a load, the hoist lever is pushed away from the crane operator.

The operation of the micro-switch is such that when the hoist lever is moved away from the neutral position in either direction, the solenoid valve is energized to permit hydraulic fluid to flow to, and open, the brake cylinder. Conversely, when the hoist lever is returned to neutral, the solenoid valve is de-energized so as to exhaust the fluid trapped between the solenoid valve and hoist brake cylinder back to the reservoir thereby allowing the hoist brake to apply almost instantaneously. The solenoid valve also de-energizes upon a failure of the electric motor. (Plaintiff's Exh. 10, Instruction Manual, page 2.11 at paragraph 67).

At approximately 3:30 p.m. on July 1, 1980, Joe West, a Meehan employee and crane operator, relieved Grandberry as operator of the crane. In operating the crane, both Grandberry and West experienced the crane's tendency to "drift" — that is, a slow and gradual lowering of the load — while the crane's hoist lever was in the neutral position. After West loaded a few logs into Hatch No. 3, Frank Evans, West's signal man, motioned for West to swing the crane to the dock to attach a bridle for removing the two forklift trucks out of Hatch No. 2. These forklift trucks were no longer needed in Hatch No. 2 because Thomas and his gang had completed stowing logs under the wings of the forward, port and starboard sides of the hold, leaving open only the center square. Before the crane was used to raise the Taylor out of the hold, Bob Word, Meehan's ship supervisor for the stevedore crew, inquired of the BIOKOVO's third officer whether it would be necessary to do anything to the crane to enable it to lift the Taylor. The officer replied that nothing need be done to the crane.

Ladale Kern, the driver of the Taylor forklift, positioned the Taylor directly under the fall of the crane at the center of the hold near the aft wall and pointed the forklift toward the forward end of the hatch. John Boston, the driver of the other...