Young v. Armadores de Cabotaje, S.A.

• Citation: 617 So.2d 517
• Decision Date: 31 March 1993
• Docket Number: No. 90-CA-1107,90-CA-1107
• Parties: Jerry YOUNG v. ARMADORES de CABOTAJE, S.A. and K & B Equipment Company, Inc.
• Court: Court of Appeal of Louisiana — District of US

Page 517

617 So.2d 517

Jerry YOUNG v. ARMADORES de CABOTAJE, S.A. and K & B Equipment Company Inc.

No. 90-CA-1107.

Court of Appeal of Louisiana Fourth Circuit.

March 31, 1993.

Rehearing Denied May 12, 1993.

Fredericka Homberg Wicker, Lawrence S. Kullman, Lewis & Kullman, New Orleans, for plaintiff/appellee.

Miles P. Clements, Andrew S. De Klerk, Lemle & Kelleher, New Orleans, for defendant/appellant Empresa Nacional Siderurgica, S.A.

Gerard T. Gelpi, Randall C. Coleman, III, Gelpi, Sullivan, Carroll & Gibbens, New Orleans, for defendant/appellant Armadores de Cabotaje, S.A.

Before WARD, ARMSTRONG and PLOTKIN, JJ.

ARMSTRONG, Judge.

Defendants, Armadores de Cabotaje, S.A ("ARCASA") and Empresa Nacional Siderurgica, S.A. ("ENSIDESA"), vessel owner and vessel charterer, respectively, appeal a trial court judgment awarding plaintiff, Jerry Young, a longshoreman, $1,700,000.00 in damages for personal injuries sustained while offloading the M/V LORENA. The trial court also dismissed cross-claims filed by ARCASA and ENSIDESA against each other.

ENSIDESA is a Spanish company which manufactures and ships steel from a port in Aviles, Spain, to, among other ports, the Port of New Orleans, Louisiana. This appeal centers around ENSIDESA's October 1982 shipment of a cargo of 60-foot steel "I-beams" to New Orleans aboard the M/V LORENA, a ship owned and crewed by ARCASA. ENSIDESA was the charterer of the M/V LORENA, as well as the shipper and owner of the steel beams transported on the ship. The agreement between the parties was a time charter, a contract by which the owner of a vessel lets a vessel to another person for a specified time or use. The owner continues to operate the vessel with its master and crew who remain servants of the owner.

The cargo of steel beams, which were banded together in bundles, was loaded aboard the M/V LORENA in the port of Aviles, Spain by ENSIDESA stevedores. The "I beams" were "stowed" in the "H" formation. That is, if one were looking at the end of the beams down their length, the ends resembled the letter "H". Beams may also be stowed so that the ends resemble the letter "I". Pieces of wood, or "dunnage," were placed between the layers or tiers of beams.

Cooper Stevedoring Company, Inc. ("Cooper"), had contracted with ENSIDESA to offload the steel beams in New Orleans. Plaintiff was a longshoreman employed by Cooper. The offloading began on November 21, 1982. Plaintiff was working in the hold of the ship with a work "gang" gathering and securing bundles of steel beams to be lifted out of the hold by a crane situated on a barge moored in the Mississippi River between the M/V LORENA and the dock. The members of plaintiff's gang, including those working in the hold with him, the foreman, the "flagman" or man who signals the crane operator, and the ship "superintendent," were all Cooper employees. The crane being used to unload the steel was owned by Cooper, was situated on a barge owned by Cooper, and was operated by a Cooper employee. The offloading operation was under the sole direction of Cooper personnel without any assistance whatsoever from ENSIDESA or ARCASA personnel.

Present during the offloading were the longshoremen in the hold of the ship, including plaintiff, a foreman, and a flagman who positioned himself where he could observe the men in the hold and the crane. The operator of the crane manipulated the crane only at the direction of the flagman. The ship superintendent, the senior Cooper employee, was also present during the offloading.

The beams were in bundles and the men were lifting no more than three or four bundles at a time, apparently limited by the capacity of the crane. The deeper the men got into the hold, the more crushed they found the wooden dunnage. As a result of the crushed dunnage, bundles of beams were resting directly on the bundles underneath, rather than being separated by dunnage.

The unloading involved "breaking out" bundles of beams so that two chains could be pulled underneath and attached to each end of a "spreader bar" which was lowered by the crane. The spreader bar, here twenty feet long with cables and hooks attached at each end, allowed the crane to safely lift long cargo items, such as the sixty-foot beams, with two points of attachment. In the breaking out process, a "breakout wire," (cable), was slipped approximately six inches under one end of the beams. A man in the hold would then signal the flagman who in turn would signal the crane operator who would lift the end of the beams up approximately three and a half feet so that a chain could be thrown underneath. Then, on a signal from the flagman, the crane operator would lower the beams. The process would then be repeated for the other end of the beams. The two chains would be wrapped around the beams, attached to the spreader bar cables, and the beams lifted out of the hold by the crane.

Normally, the dunnage separating the tiers of beams allowed the breakout wire to be slipped far enough under the beams so that the crane could safely lift the beams so the men could throw the chains underneath. However, the dunnage on the M/V LORENA was so badly crushed that many of the beams were resting on the ones underneath, making it impossible to get the breakout wire far enough underneath. So, the men had to "nip" the beams. "Nipping" involved getting the breakout wire as far under the beams as possible, sometimes just under the edge of one beam. Often, such as on this occasion, pry bars would be used to separate the beams so that the breakout wire could be inserted. After putting the wire under the edge of the beams, on signal, the crane operator would lift the beams slightly, and a longshoreman standing by would place a piece or pieces of dunnage under the beams. The crane would lower the beams and, ideally, the dunnage would support them until the relaxed breakout wire could be moved further underneath so that the ends of the beams could be safely lifted and the chains thrown underneath. One witness testified that sometimes it might be necessary to nip the beams three or four times before getting the wire far enough under the beams to lift them and throw the chains underneath.

In the mid-afternoon hours of November 22nd, the second day of offloading, the men proceeded to nip some beams which were resting on the tier of beams underneath. Plaintiff's job was to place a piece or pieces of dunnage under the beams when the crane lifted them up. The breakout wire was placed as far under the edge of the beam as the men could get it. They signalled to the flagman who signalled to the crane operator to lift up. As the crane began to lift up and the breakout wire tighten, the wire suddenly popped off. The spreader bar began wobbling, swinging the attached breakout wire. The flagman shouted for the men to run but as plaintiff attempted to get out of the way he was struck with the breakout wire or cable and fell, resulting in his sustaining personal injuries.

The case revolves around the condition of the stow. That is, the condition presented by the badly crushed dunnage, requiring the longshoremen to nip the edge of the beams in order to breakout the beams. It is undisputed that the manner in which the beams were stowed, i.e., stacked in the "H" configuration, with the edges resting on the wood dunnage, resulted in the dunnage being crushed to a much greater extent than it would have been had the beams been stowed in the "I" configuration. The edges of beams stowed on the "H" tend to cut the wood.

There was conflicting testimony regarding the safety of the stow. Plaintiff, himself, offered no testimony that the stow was particularly dangerous. He said the work was basic longshoring work--offloading steel. He had used the tools, a pry bar and breakout wire, for years, and had offloaded that type of cargo before. He confirmed that he had used a breakout wire many times on steel stowed like that on the M/V LORENA. According to plaintiff, it was a typical workday, nothing out of the ordinary.

There was testimony by plaintiff in an earlier deposition that he had thought perhaps the boom of the crane had moved, causing the breakout wire to slip off the beams and subsequently strike him. He also stated in a deposition that he thought the cause of the accident may have been the longshoremen trying to lift out too many bundles of beams at one time, i.e., more than four. At trial he explained that these were the things he thought may have contributed to or caused the accident; but that he didn't know the cause. Other witnesses, however, testified that the boom of the crane did not move just prior to the accident, and that the men were not trying to lift out more than four bundles of beams at the time of the accident.

The foreman of plaintiff's work gang on the day of the accident, who was retired at the time of trial, viewed a photograph of the M/V LORENA's cargo hold and testified that he saw nothing dangerous about the stow. He had seen that type of stow many times before, and said it was a "perfect," "safe" stow. He said the people who loaded the steel beams knew what they were doing. He said he would have stopped the work if he had seen something unsafe while the plaintiff and the other men were offloading the vessel.

An ENSIDESA employee, Mr. Garcia, the director of a private section of the Port of Aviles, Spain, testified that in 1982 all steel beams loaded at the Port of Aviles were loaded in the "H" method. They did not begin loading in the "I" method until 1983. He later stated that from 1956 to 1985, 29 years, ENSIDESA loaded steel beams on the "H." From 1985 to the time of trial, April 1989, 80% of the steel beams ENSIDESA loaded were stowed on the "H." Only 20% of steel beams, bound for the United States and Canada, were loaded on the "I." Today, if a customer requests it, ENSIDESA loads steel beams using the "I" method. This is done primarily for ships bound for the United...