Wright v. Adonis Compania Naviera, S. A., 77-636

• Decision Date: 03 April 1978
• Docket Number: No. 77-636,77-636
• Citation: 376 N.E.2d 4,17 Ill.Dec. 111,59 Ill.App.3d 108
• Parties: , 17 Ill.Dec. 111, 1978 A.M.C. 1241 Marshall WRIGHT, Plaintiff-Appellant, v. ADONIS COMPANIA NAVIERA, S. A., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 4

376 N.E.2d 4

59 Ill.App.3d 108, 17 Ill.Dec. 111,

1978 A.M.C. 1241

Marshall WRIGHT, Plaintiff-Appellant, v. ADONIS COMPANIA NAVIERA, S. A., Defendant-Appellee.

No. 77-636.

Appellate Court of Illinois, First District, First Division.

April 3, 1978.

Kaplan & Gold, Chicago (Arthur S. Gold and Daniel F. Gallagher, Chicago, of counsel), for plaintiff-appellant.

Bradley, McGovern, McMurray & Black, Chicago (Michael A. Snyder, Chicago, of counsel), for defendant-appellee.

GOLDBERG, Presiding Justice:

Marshall Wright (plaintiff) sustained injuries when a bundle of steel coated with grease slipped from a pile of similar bundles he and fellow longshoremen employed by the International Great Lakes Shipping Company (Stevedore) were unloading from a vessel owned by Adonis Compania Naviera, S.A. (defendant) and docked in Chicago. Plaintiff filed a complaint in the circuit court seeking damages from defendant on the basis of negligence. Upon consideration of the pleadings, both parties' memoranda of law and plaintiff's deposition, the trial court granted defendant's motion for summary judgment.

On appeal plaintiff contends the trial court erred in granting the motion for summary judgment as genuine issues of material fact remain concerning whether the cargo was turned over to the Stevedore and its longshoremen in a reasonably safe condition and whether the defendant or the Stevedore was exercising control over the work area at the time of the mishap. Defendant responds that under the facts presented to the trial court and as a matter of law no genuine issues of material fact remain regarding the reasonably safe condition of the cargo because full responsibility for cargo handling operations rests upon the Stevedore and shipowners no longer owe longshoremen employed by the independent Stevedore the nondelegable duty of providing a safe place to work. Defendant further contends plaintiff's deposition clearly established that the Stevedore was in control of the unloading operations at the time of the occurrence.

The record shows these facts: plaintiff and several fellow longshoremen employed by the Stevedore began unloading steel pipe from the bottom deck of the vessel Adonis at 8 a. m. on August 23, 1973. At 10 a. m. the longshoremen began unloading wrapped bundles of steel from the wings of the hold, directly beneath the decks of the vessel. These wrapped bundles, approximately 30 feet long and 1 or 2 feet wide, were coated with a greasy substance, apparently a rust preventive, which had seeped through the outer wrappings. The unloading procedure consisted of first bringing the bundles to the center of the hold with a forklift and placing them on the floor of the hold. A cable attached to a crane on the shore was then lowered into the hold. The workers would wrap heavy steel chain around the bundles and attach the ends of the chain to a hook on the cable, thus forming a noose-type grip allowing several bundles to be lifted from the hold in one operation.

The plaintiff, who was working in the center area of the hold, approached a small pile of bundles to pick up one of the ends of the steel chain. As he bent down, one of the bundles slid off the top of the other bundles and injured his left foot.

In his deposition the plaintiff stated the greasy condition of the bundles was a common sight to longshoremen, explaining, "a lot of times there's grease in it," and acknowledging that the grease often made the bundles slippery. The plaintiff also stated the Stevedore's foreman, who hired him, was directing the unloading operations and was in the hold at the time of the occurrence. The plaintiff stated no ship personnel were present at the time, although he recalled the presence of some ship officers in the hold at 10 o'clock that morning. The plaintiff noted that the unloading equipment, including the cables and chains, belonged to the Stevedore. There is no evidence in the record that the ship was rocking at the time of the accident.

Summary judgment should be granted "if the pleadings, depositions and admissions on file, together with the supporting affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill.2d 87, 92, 312 N.E.2d 601, 604.) We note that " 'the right to summary judgment must be clear beyond question' " (Central Ice Cream Co. v. Sweetheart Cup Corp. (1976), 40 Ill.App.3d 43, 46, 351 N.E.2d 396, 398, quoting from Powell v. R. J. Anderson, Inc. (1970), 124 Ill.App.2d 1, 5, 260 N.E.2d 103), and that "(a) reviewing court must reverse an order granting summary judgment if it is determined that a material question of fact does exist." Econo Lease, Inc. v. Noffsinger (1976), 63 Ill.2d 390, 393, 349 N.E.2d 1.

Mindful of these principles, we are unable to agree with plaintiff's contention that a genuine issue of material fact remains as to whether the defendant turned over the wrapped bundles of steel to the Stevedore and its longshoremen in a reasonably safe condition. The standard of care which shipowners owe to longshoremen employed by independent stevedores engaged in unloading cargo operations is governed by the Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. § 901 et seq. (1970 & Supp. V 1975) (hereinafter cited as LHWCA)). We note that in the type of proceeding before us state courts are required to apply the federal decisional law construing federal statutes without regard to state common law concepts of negligence. (Urie v. Thompson (1949), 337 U.S. 163, 174, 69 S.Ct. 1018, 1027, 93 L.Ed. 1282, 1295; Boyer v. Atchison, T. & S. F. Ry. Co. (1967), 38 Ill.2d 31, 34, 230 N.E.2d 173, cert. denied, 390 U.S. 949, 88 S.Ct. 1038, 19 L.Ed.2d 1140.) Upon consideration of the appropriate statutory section of LHWCA and the federal decisions interpreting this provision as it applies to negligence actions filed by injured longshoremen against shipowners, it is our opinion that, as a matter of law, the responsibility for injuries sustained by the plaintiff in the instant case had passed to the Stevedore at the time of the occurrence.

Section 5(b) of LHWCA (33 U.S.C. § 905(b) (Supp. V 1975)), provides as follows:

"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter."

This section, as presently amended, relieves the shipowner of liability if the longshoreman's injuries resulted from the negligence of those engaged in providing stevedoring services (Gay v. Ocean Transport & Trading, Ltd. (5th Cir. 1977), 546 F.2d 1233, 1239-40), and it abrogates prior law which based the liability of the vessel upon the warranty of seaworthiness. Bess v. Agromar Line (4th Cir. 1975), 518 F.2d 738, 740-41.

We recognize, as plaintiff urges, that despite the addition of section 905(b) to the LHWCA, a longshoreman injured aboard a vessel while unloading cargo may still maintain a cause of action in negligence against the shipowner if it can be shown that the shipowner failed to adhere to the appropriate standard of care. In determining the standard of care presently owed by shipowners to longshoremen under section 905(b), the federal courts have relied upon these three factors:

(1) the guidelines provided by the House Report accompanying section 905(b), with particular reference to that portion of the report stating that "the vessel will still be required to exercise the same care as a land-based person in...