Van Horn v. Gulf Atlantic Towing Corporation

• Decision Date: 09 January 1968
• Docket Number: No. 11318.,11318.
• Citation: 388 F.2d 636
• Parties: Bobby L. VAN HORN, Appellant, v. GULF ATLANTIC TOWING CORPORATION, Defendant and Third-Party Plaintiff, and COLONNA'S SHIPYARD, INCORPORATED, Third-Party Defendant, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

388 F.2d 636 (1968)

Bobby L. VAN HORN, Appellant, v. GULF ATLANTIC TOWING CORPORATION, Defendant and Third-Party Plaintiff, and COLONNA'S SHIPYARD, INCORPORATED, Third-Party Defendant, Appellees.

No. 11318.

United States Court of Appeals Fourth Circuit.

Argued November 9, 1967.

Decided January 9, 1968.

Henry E. Howell, Jr., Norfolk, Va. (Howell, Anninos & Daugherty, Norfolk, Va., on brief), for appellant.

Roy L. Sykes, Norfolk, Va. (Jett, Sykes & Berkley, Robert M. Hughes, III, and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellees.

Before SOBELOFF, CRAVEN and BUTZNER, Circuit Judges.

SOBELOFF, Circuit Judge:

Predicating its decision upon the pleadings, affidavits and pre-trial discovery and relying primarily upon this court's opinion in Union Carbide Corp. v. Goett, 256 F.2d 449 (1958),¹ the District Court granted defendant's motion for summary judgment on both bases of the complaint, unseaworthiness and negligence. From this judgment the plaintiff appeals, claiming that he is entitled to a jury trial in this civil action in which jurisdiction is founded upon diversity of citizenship.

The instant case does indeed bear a marked factual resemblance to Goett. In each, an employee of a ship repair yard was allegedly injured while laboring aboard a barge, moored and lying afloat on navigable water and awaiting extensive drydock repairs. More particularly here, Bobby Van Horn, plaintiff, was pulling along the barge's deck a heavy pump to be used in removing water from the holds when he allegedly slipped on a residue of soy beans and/or wheat and ruptured an intervertebral disc. He contends that the slippery condition resulted from the defendant barge owner's negligent failure to clean the deck after the completion of the barge's prior voyage, and breached the warranty of seaworthiness owing Van Horn.

After delivering its cargo of grain to a Chesapeake, Virginia warehouse, the barge Bimbo, owned by defendant Gulf Atlantic Towing Corporation (Gatco), was transported to the yard of Van Horn's employer, Colonna Shipyard, Inc., on February 10, 1966, for extensive repairs and renewals in preparation for its biennial Coast Guard inspection. Afloat on the Elizabeth River, moored to the eastern side of Colonna's #1 hauling dock, the barge was left without any Gatco employee on board or in attendance. The defendant contends and the District Court decided that the barge was in the exclusive custody and control of Colonna on February 11, 1966 when Van Horn was allegedly injured.

Among the contemplated repairs, totaling $17,891.82, were the renewal of steel bilge turn plates on both starboard and port sides, the renewal of transition and transverse plates, sandwashing and painting bottom sides to light load line. This work necessitated the hauling of the barge upon marine railways; the hauling in turn necessitated pumping to lighten the load. In fact, the second item on the work sheet prepared by Gatco instructs Colonna to "pump water from all void compartments preparatory to hauling."

Preparing to perform this task on the morning of February 11, Colonna's foreman ordered several employees, including Van Horn, to board the barge and begin pumping. Van Horn admits that he observed the slippery residue shortly after boarding the barge and before the accident. While pulling a pump from one hold to another, Van Horn slipped and fell backwards, the pump landing on him. As a result, he spent nearly a month in the hospital where he underwent a spinal fusion.

On the motion for summary judgment, the District Court correctly drew all possible inferences favorable to the plaintiff. Accordingly, the court assumed for purposes of the motion, that the grain residue made the deck slippery and was the proximate cause of the accident. We make the same assumptions for purposes of this appeal.

The District Court correctly interpreted Goett, which held that there is no warranty of seaworthiness, even assuming a dock worker is doing traditional seaman's duty, when the vessel has been withdrawn from navigation and placed in the custody and control of a drydock company. Goett also held that in these circumstances, the only duty a shipowner owes shipyard employees is to warn of hidden dangers or latent defects. In the absence of a breach of that duty, Goett maintains, there can be no cause of action for negligence.

Since it is admitted here that Van Horn observed the grain residue before slipping, there can be no contention that the condition of the deck constituted a hidden or latent defect. Nor can it be denied that this barge had been temporarily withdrawn from navigation. Therefore, if both propositions for which Goett stands are still valid in light of later Supreme Court decisions, the judgment of the District Court in this case must be affirmed. However, we find that while the seaworthiness aspect of Goett has been confirmed by West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959), Goett's statements about negligence no longer appear sound.

No citation follows the statement in Goett that the shipowner's only duty is to warn of hidden defects, but the invocation, at the end of the paragraph containing that language, of treatise sections dealing with land law indicates that the proposition finds its source in the common law's treatment of visitors upon land and the obligations owed them by owners or occupiers. The rule to be culled from the cited sources is that an owner or occupier of land is liable in negligence to an invitee only when he fails to warn of dangers of which he is aware but the invitee is ignorant.

Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959), decided after Goett, specifically rejected the "conceptualistic distinctions" of the land law and declared them foreign to admiralty's "traditions of simplicity and practicality." In that case...