U.S. Fidelity & Guar. Co. v. Plovidba, 81-2197
| Decision Date | 28 May 1982 |
| Docket Number | No. 81-2197,81-2197 |
| Citation | 683 F.2d 1022 |
| Parties | 11 Fed. R. Evid. Serv. 578 UNITED STATES FIDELITY & GUARANTY COMPANY, Plaintiff-Appellant, v. Jadranska Slobodna PLOVIDBA, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Harney B. Stover, Jr., Davis, Kuelthau, Vergeront, Stover, Werner & Goodland, S. C., Milwaukee, Wis., for plaintiff-appellant.
Steven B. Belgrade, Joseph V. McGovern & Assoc. Ltd., Chicago, Ill., for defendant-appellee.
Before BAUER and POSNER, Circuit Judges, and LARSON, Senior District Judge. *
This is an appeal from a judgment exonerating the defendant, a Yugoslavian enterprise that owns the M/V Makarska, from negligence in connection with the death of a longshoreman, Patrick Huck, who fell into a hold.
The Makarska has five holds, numbered 1 through 5 from bow to stern, as shown in the following diagram:
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Holds 2 through 5 are identical, so far as we can glean from the record. (Oddly, no precise dimensions are given for the vessel.) Each has three decks. From top to bottom they are the weather deck, the upper 'tween deck, and the lower 'tween deck. Below the lower 'tween deck is the main cargo area of the hold. Each deck contains a hatch roughly 30 feet across. When all three hatches in a hold are open, cargo can be loaded into (or unloaded from) the main cargo area. Hatchways of the typical maritime type (smaller than regular doorways, and with high thresholds) connect the holds laterally at each deck.
Hold number 1 is different from the others: its top is raised to form a forecastle. As a result the weather deck of hold number 1 is at a higher level than the weather deck of the other four holds, its upper 'tween deck is flush with the weather decks of the other holds, and its lower 'tween deck is flush with the upper 'tween decks of the other holds.
On the morning of the day he was killed, Huck was working with a party of longshoremen on the upper 'tween deck of hold number 1. The hatch above them (in the weather deck) was open to give them light, and the hatch beneath their feet (in the upper 'tween deck) was closed. The longshoremen completed their work in hold number 1 at noon and took their lunch break. When work resumed it was in hold number 4, but by the end of the afternoon the longshoremen were working on the weather deck of hold number 2, which is to say on the same level as, and adjacent to, the upper 'tween deck of hold number 1.
After the longshoremen had completed their work in hold number 1 and broken for lunch, the ship's crew had come in and closed the hatch in the weather deck but opened the two hatches below it (the hatches in the upper 'tween and lower 'tween decks). This is a customary practice to facilitate a prompt start on loading and unloading cargo at the next port of call, for it can take as long as 30 minutes to open each hatch.
The closing of the hatch in the weather deck of hold number 1 plunged the entire hold into pitch darkness. Sometime during the late afternoon Huck, unobserved, entered hold number 1. He did so by stepping through the hatchway between the weather deck of hold number 2, where the longshoremen were then working, and the upper 'tween deck of hold number 1, now in darkness. It is unclear whether he opened the door in the hatchway or whether it was open already. It would not have been locked, but only latched, so if it was not already open he could easily have opened it. The hatch in the upper 'tween deck of hold number 1-now open, but in darkness-begins about 6 to 10 feet in from the hatchway where Huck entered. But Huck's body was found at the bottom of the forward part of hold number 1, some 40 feet in from the hatchway. This suggests that he had not walked directly into the open hatch, but rather had fallen in from the forward part of the upper 'tween deck after having successfully skirted the open hatch when he first entered.
The other longshoremen left the ship without noticing that Huck was not among them. His body was not found till the next morning. No one knows why Huck was in hold number 1. But it was stipulated that crates of liquor were stored in the forward part of the hold on the upper 'tween deck, the part from which Huck apparently fell, and it is conjectured that he was planning to steal some of the liquor on his way off the ship.
The jury returned a special verdict. It found that the shipowner had not been negligent but that Huck and his employer, the stevedore company (which was no longer a party to the suit), had been, and it assigned 25 percent of the responsibility for the accident to the stevedore company and 75 percent to Huck. The jury also found that Huck's survivors had sustained no damages. This appeal questions the jury instructions, the jury's obedience to them, and an evidentiary ruling by the trial court, and also argues that the undisputed facts show that the shipowner was negligent as a matter of law.
In 1946 the Supreme Court held that a longshoreman injured while working on a ship could recover damages from the shipowner under the admiralty doctrine of unseaworthiness. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). To establish unseaworthiness the longshoreman did not have to prove that the owner had been negligent, but only that the accident had been caused by the defective or unreasonably dangerous condition of the ship; the analogy to strict products liability is apparent. In Sieracki the defect was in the original construction of a part of the ship's gear and the shipowner neither knew nor had reason to know of the defect.
Under the regime of Sieracki the shipowner was liable even if the defect or unreasonably dangerous condition had been created by the stevedore, that is, by the longshoreman's employer. But in such a case the shipowner could get indemnity from the stevedore, so that liability ultimately came to rest on the party that could have avoided the accident at least cost. See Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956); Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co., 376 U.S. 315, 324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732 (1964).
All this was changed in 1972, when Congress amended the Longshoremen's and Harbor Workers' Compensation Act. The amendments, so far as they are relevant to this case, substituted negligence for unseaworthiness as the standard of liability in actions by longshoremen against shipowners and abolished the shipowner's right of indemnity against the stevedore. See 33 U.S.C. § 905(b). Congress did not attempt to define negligence; after 200 years of judicial experience with the negligence standard it would have been redundant and confusing to do so. Any necessary fine tuning was left to the courts. See S.Rep.No.1125, 92d Cong., 2d Sess. 11 (1972). Yet the courts have had trouble articulating and applying the negligence standard of the amended act-see, e.g., the long discussion of standard of liability in Johnson v. A/S Ivarans Rederi, 613 F.2d 334, 337-49 (1st Cir. 1980)-especially with regard to whether the shipowner should be required to backstop, as it were, the safety measures taken by the stevedore, or whether he can rely on the stevedore to keep the longshoremen out of harm's way.
The Supreme Court addressed that issue last year, in Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), and held that "the 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." Id. at 172, 101 S.Ct. at 1624. In Scindia, a winch that was part of the ship's gear had been malfunctioning for two days before the accident, but the stevedore continued to use it. In the Court's view, the fact that the shipowner knew of the malfunction would not in itself make him negligent; it might be reasonable for him to rely on the stevedore's judgment that the winch, though defective, was safe enough. See id. at 175, 101 S.Ct. at 1626. But if the stevedore's judgment was "so obviously improvident that (the shipowner), if it knew of the defect and that (the stevedore) was continuing to use it, should have realized the winch presented an unreasonable risk of harm to the longshoremen," then the shipowner would have a duty to intervene and repair the winch. Id. at 175-76, 101 S.Ct. at 1626. This is analogous to the common law duty of a principal to the employees or other potential accident victims of an independent contractor. See, e.g., Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1009-10 (7th Cir. 1982).
The longshoreman in Scindia was injured by something which though part of the ship's gear was being operated at the time of the accident by another longshoreman rather than by a member of the ship's crew. The liability of the shipowner for accidents resulting from conditions under the exclusive control of the ship's crew was thus not in issue. But the Court noted that if the shipowner "fails to exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas, or from equipment, under the active control of the vessel during the stevedoring operation," he is liable under the negligence standard of section 905(b). Id. 451 U.S. at 167, 101 S.Ct. at 1622. This is dictum, but so obviously right that we accept it unhesitatingly as an authoritative statement of the shipowner's duty in such circumstances.
The Court in Scindia did not attempt to define negligence under section 905(b). But we find nothing in its opinion that is inconsistent with the negligence formula proposed in Johnson v. A/S Ivarans Rederi, supra, 613 F.2d at 348, which requires "balancing the usefulness to the ship of the dangerous condition and the...
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