“The stevedore is specifically hired for its expertise in coping with the dangers inherent in loading and unloading cargo”
How later courts described this case
- “The stevedore is specifically hired for its expertise in coping with the dangers inherent in loading and unloading cargo”
- Longshoreman’s judgment against shipowner may not be reduced by amount of stevedore’s compensation lien on basis that stevedore is real party in interest to the extent of its lien
- rejecting the doctrines of contributory negligence and assumption of risk as incompatible with the LHWCA’s legislative history
- “Congress specifically incorporated the admiralty concept of comparative negligence in place of the traditional terrene doctrines of contributory negligence and assumption of the risk .... ”
Written by the judges who cited it.
The opinion
BONSAL, District Judge
(dissenting):
Early in his opinion Judge Meskill states that a jury would have been justified in finding the facts which he sets forth. Then in footnote 3, Judge Meskill states that “. . . the jury could have found that the facts were as [plaintiff] Evans related them.” I agree with the facts as stated by Judge Meskill and from them the jury could have concluded that (1) the shipowner was on notice of the dangerous condition of the flooring in hatch # 2; (2) the shipowner knew, or should have known, that this condition posed an unreasonable risk of injury to the longshoremen; and (3) the shipowner took no steps to correct the condition nor did it require the stevedore to do so, the shipowner insisting only that the ship was to go to sea at the end of the day on which the accident occurred.
The court charged the jury in part that “to recover for negligence the plaintiff must prove that the defendant actually was given notice of or reasonably should have noticed the claimed dangerous condition and should have reasonably foreseen the possibility that someone there might thereby be injured.” (A 232-33).
*865 On the facts and the foregoing charge, the jury could have found, and did find, that the shipowner was negligent, and assessed damages. It is true that the district judge included in his charge matters not called for by the facts and committed error in giving the pre-1972 charge that the shipowner had a continuing nondelegable duty to furnish longshoremen with a safe place to work and in failing to charge that the stevedore had a primary responsibility for the safety of the longshoremen during loading and unloading operations. However, I don’t believe this made any difference since the jury reached the proper result on the facts of the case.
Since the jury were the sole judges of the credibility of the witnesses and believed the plaintiff and his witnesses, it is difficult to see how the jury could have reached a different verdict as to liability, and of course, as the majority points out, the matter of damages was for them to decide and there is nothing this court can do about the somewhat anomalous result which they reached.
The evolution of the law as to the shipowner’s liability following the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act has been murky in this circuit, as in others. Judge Meskill’s opinion will be extremely useful in dispelling some of the confusion which has existed. However, I do not think that this calls for a reversal. It seems to me unnecessary to send this case back for a new trial with the attendant burden on the court and the expense and delay to the parties. As recently stated by former Chief Judge Lumbard in discussing the role of appellate judges: “As a matter of common sense and judicial administration, you just can’t do things over again unless the error, if you find there was error, was sufficiently important so that it really affected the result.” A Conversation with J. Edward Lumbard, Charles Evans Hughes Press, 1980, at page 80. I do not believe that the errors in the court’s charge affected the result. For that reason, I would affirm.