Turner v. Costa Line Cargo Services, Inc., 83-2422

• Decision Date: 25 October 1984
• Docket Number: No. 83-2422,83-2422
• Parties: Hurman Lee TURNER, Plaintiff-Appellee, v. COSTA LINE CARGO SERVICES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 505

744 F.2d 505

Hurman Lee TURNER, Plaintiff-Appellee, v. COSTA LINE CARGO SERVICES, INC., Defendant-Appellant.

No. 83-2422.

United States Court of Appeals Fifth Circuit.

Oct. 25, 1984.

Ben L. Reynolds, Howard R. King, Houston, Tex., for defendant-appellant.

Jamail, Kolius & Mithoff, Marty R. Akins, Joseph D. Jamail, Houston, Tex., for plaintiff-appellee.

Appeal From the United States District Court for the Southern District of Texas.

Before GEE, RANDALL, and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

Hurman Lee Turner, a longshoreman, instituted this action against Costa Line Cargo Services, Inc. (Costa Line), a vessel owner, under section 5(b) of the Longshoremen's and Harbor Workers' Compensation Act ¹ seeking redress for injuries sustained when Turner slipped and fell aboard the M/V CORTINA, a vessel owned by Costa Line. The case was tried to the district court, which issued thorough findings of fact and conclusions of law holding Costa Line liable for Turner's injuries and awarding Turner $181,575.00 in damages. Costa Line appeals to this Court alleging that the district court misinterpreted existing precedent on the duty owed by a ship owner to a longshoreman once stevedoring operations have begun and that the district court's fact findings are clearly erroneous. This Court affirms the district court's judgment.

I. Background and the District Court's Fact Findings

Costa Line's vessel, the M/V CORTINA, arrived in Houston, Texas on Sunday, January 25, 1981, and its contract stevedore, Strachan Shipping Company, commenced loading operations which continued through the following day. On the following Tuesday, the vessel was shifted to another dock and the stevedore continued operations to complete unloading and to load and secure new cargo.

On the following Friday, at 7 a.m., Hurman Turner came aboard the M/V CORTINA for the first time as a member of the cargo-securing crew. It is undisputed that he had not served with the earlier stevedore crews. When the crew arrived on the scene, both Turner and his foreman, a Mr. Goatcher, testified that they observed a pile of debris--dunnage--just aft of the number 4 hatch. The dunnage consisted of board, rags, sawdust and oil or grease. The dunnage was leaking oil across the deck. Significantly, the court found that the pile of dunnage and its associated slick were not in the work area of the securing gang for the number 4 hold; the dunnage and oily slick were on the main deck aft of the number 4 hold and against the engine room. Turner's duties, as deck man for the securing gang, included obtaining the gear that the gang needed in order to secure the cargo. Both Goatcher and Turner testified that this gear customarily is available to a gang by the hatch where a gang is working. In this case, however, the gear was not by the hatch but instead was aft from where the gang was working. Consequently, Turner was required to make three or four trips across the oily area in order to secure the gang's gear. On the last of these trips, Turner slipped and fell in the oily area at 7:15 a.m. Goatcher testified that even in the brief period of time before the injury to Turner, he asked the crew of the M/V CORTINA to clean up the slippery condition and repeatedly called the problem to the attention of a ship's officer. Goatcher related that the first of these occasions was at 7:03 a.m., and that he received the response, "in a moment."

After hearing the evidence, observing the witnesses and examining the documentary evidence, the district judge, as finder of fact in the instant case, made the following relevant findings:

A pile of dunnage composed of boards, rags, sawdust and oil or grease was stacked on the main deck aft of the no. 4 hold against the engine room. The pile of dunnage was the source of the slippery substance aft of the no. 4 hold. The pile of dunnage and its associated slick were present on the M/V CORTINA prior to Turner's boarding the vessel at 7:00 A.M., Friday, January 30, 1981. The pile of dunnage and its associated slick were not in the work area of the securing gang for the no. 4 hold.

No members of the crew of the M/V CORTINA warned any members of the securing gang for the no. 4 hold of the existence of the pile of dunnage and the slippery main deck area. Harold Goatcher, gang foreman for the securing gang, twice requested the crew of the M/V CORTINA to clean up the slippery condition.

At approximately 7:15 A.M. on Friday, January 30, 1981, Turner slipped in the oil or grease from the pile of dunnage aft of the no. 4 hold. Turner's injuries were the result of his fall on the M/V CORTINA and not due to any prior injuries or ailments.

The Defendants negligently failed to provide Turner a safe place to work, failed to warn Turner of an unreasonable risk of harm on the M/V CORTINA and failed to remove, eliminate or abate the dangerous condition.

Record Vol. I at 17-18.

Once again, significantly, the district court found that the dunnage and its associated oily slick were not in the work area of the crew. Clearly, the district court concluded as a factual matter that an unreasonably dangerous condition (the oil spill) existed when Turner boarded the vessel, ² that the stevedore's gang foreman twice expressly urged the vessel owner to eliminate the dangerous condition, ³ and that the vessel owner negligently failed to remove, eliminate or abate the dangerous condition. ⁴ It is well settled that these fact findings must be accepted by this Court unless the findings are clearly erroneous. See Fed.R.Civ.P. 52(a); United States v. United States Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948); and Hill v. Texaco, 674 F.2d 447, 450 (5th Cir.1982).

The record reveals that the trial court's finding that the vessel owner was repeatedly requested to eliminate the inherently dangerous condition is fully supported by the evidence presented at trial. ⁵ Undoubtedly, the vessel owner had actual knowledge of the dangerous condition, and it is clear that the dangerous condition was allowed to persist even though the vessel owner was expressly urged to remove the hazard on at least two separate occasions. The trial court's findings in these respects cannot be held to be clearly erroneous and, hence, the district court's findings are upheld. This Court will not substitute its opinion for that of the district court simply because our review of the cold record might lend support to a different interpretation of the facts.

II. The Trial Court's Fact Findings and Existing Precedent

As we have seen, the district court, as fact finder, concluded (1) that the oily area in which Turner fell was not in the stevedore gang's work area; and (2) that the vessel owner had actual knowledge of the unreasonably dangerous condition prior to Turner's injuries and that the vessel owner failed to remove the hazardous condition even though twice requested to do so. We conclude that both of these findings independently support the district court's judgment under established precedent.

A. Vessel Owner's Liability for Ship Areas Remaining Within Its Control

In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court stated: "[T]he shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore." Scindia, 451 U.S. at 172, 101 S.Ct. at 1624 (emphasis added). Generally, the vessel owner is entitled to rely on the stevedore to protect his employees from conditions that "develop within the confines of the cargo operations that are assigned to the stevedore." Id. However, the vessel owner is not relieved of responsibility for conditions arising outside the area assigned to the stevedore. See Helaire v. Mobil Oil Co., 709 F.2d 1031, 1036 (5th Cir.1983) (the owner has a duty to avoid exposing the longshoremen to harm "from hazards under the act or control of the vessel.") (citing Scindia, 101 S.Ct. at 1626). Thus, the vessel owner is relieved of liability only if the condition arises in an area turned over to the stevedore for cargo operations.

As we noted earlier in this opinion, Turner was required to cross over the oil slick in order to obtain ship's gear to be used in securing the number 4 hatch. However, this does not mean that the oil covered area was within Turner's work area. In fact, as the district court found, the site was outside the work area of the number 4 hatch, in an area normally not traversed by longshoremen. This finding is fully supported by the record. During direct examination of gang foreman Goatcher, the following exchange occurred:

Q: You have been a longshoreman how long, 27 years?

A: 26 years.

Q: Excuse me. In your 26 years as being a longshoreman, when you go aboard a boat and you are going to use the ship's gear, where is this gear under normal and routine practice, where is this gear located?

A: Normally, it's near the hatch where we are working.

Record Vol. II at 16. Goatcher then explained how the ship's gear on the M/V CORTINA was not in the normal place--by the hatch--but was scattered all over the vessel. See Record Vol. II at 20-23. Clearly, Turner was required to venture outside the area of normal and routine cargo operations to areas within the ship's control and was forced to cross the oil slick in a location outside of his work area. This theory was argued to the able and experienced district judge by Turner's counsel, see Record Vol. II at 5, and after hearing the evidence and observing the witnesses, the district judge made a clearly supported finding of fact that the slick area was not in the stevedore's work area.

Thus, the site in which the slick area was found--and in which Turner fell--was not an area turned over to the stevedore for cargo operations. ⁶ Under Scindia and Helaire, the vessel owner...