Hurman Lee Turner v. Costa Line Cargo Services, Inc.

GEE, Circuit Judge,

dissenting:

As I do not agree that the fact findings of the district court support its judgment under today’s precedents of our court, I respectfully dissent.

The Law

About a month after the trial court made its findings quoted above and entered judgment for Turner based upon them, we had occasion in Helaire v. Mobil Oil Co., 709 F.2d 1031 (5th Cir.1983), to review the law in this area. Discussing the Supreme Court decision in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 , 101 S.Ct. 1614 , 68 L.Ed.2d 1 (1981), we observed:

While the opinion itself does not address every issue of vessel owner liability under § 905(b), several principles do emerge. The most basic of these is that the primary responsibility for the safety of the longshoremen rests upon the stevedore____ Once the stevedore’s cargo operations have begun, absent contract provision, positive law, or custom to the contrary, the owner has no general duty by way of supervision or inspection to discover dangerous conditions that develop in the area assigned to the stevedore. The Court explained that the owner is not liable to the longshoremen for injuries caused by dangers “about which he had no duty to inform himself,” but rather “is entitled to rely on the stevedores, and owes no duty to the longshoremen to inspect or supervise the cargo operations.” Id. 101 S.Ct. at 1624 .

Despite these broad areas of immunity, however, there are circumstances where the owner cannot escape liability by reliance upon the stevedore. First, before turning over the ship to the stevedore, the owner has a duty to warn the longshoremen of hidden defects that would be known to the shipowner in the exercise of reasonable care. He must also exercise care to deliver to the stevedore a safe ship with respect to gear, equipment, tools, and work space. Second, the owner has a duty to avoid exposing the longshoremen to harm “from hazards under the act or control of the vessel.” Third, even though the owner is generally relieved of responsibility for accidents which occur once the unloading process has begun, “if [the stevedore’s] judgment ... was so obviously improvident that [the owner], if it knew of the defect and that [the stevedore] was continuing to use it, should have realized the [defect] presented an unreasonable risk of harm to the longshoremen, ... in such circumstances [the owner] had a duty to intervene” and eliminate or neutralize the hazard. Id. 101 S.Ct. at 1626 .

Helaire, 709 F.2d at 1036 (footnote omitted) (emphasis added).

Further on in our opinion, at 1038-39, we addressed the situation presented today:

Although the circumstances in which this Court before Scindia indicated an owner might be held to a duty to anticipate harm which resulted from the stevedore’s negligence are not frequent, they do exist. The critical fact for our analysis is that imposition of liability upon the vessel in the absence of actual knowledge is not foreclosed under the Restatement standard and under our earlier holdings. But it clearly is foreclosed un *512 der Scindia. We must conclude, therefore, that Scindia did alter the law in this Circuit with respect to the specific negligence issue now under consideration. Once loading operations have begun, the vessel owner can be held liable for injuries to employees of the stevedore resulting from open and obvious dangers only in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation. 12

Helaire, 709 F.2d at 1038-39 (emphasis original).

More recently, in Stass v. American Commercial Lines, Inc., 720 F.2d 879, 884 (5th Cir.1983), we spoke directly to the precise hazard at issue today:

ACL [the shipowner] had no duty to supervise or inspect Louisiana Dock’s repair operations, absent as here contrary contract, law, or custom. It could rely on Louisiana Dock to avoid exposing its employees, like Stass, to unreasonable hazards. Louisiana Dock, not ACL, was obliged to erect protective “guards” around open hatches, remedy slippery footing, and require proper procedures to be followed in opening grain doors,

(emphasis added) (footnotes omitted). 1

The Law Applied

From the above it is immediately apparent that the trial court’s findings do not suffice to support its judgment under the law of our circuit as it exists today. That law is that once unloading operations have begun, the stevedore has the chief and primary responsibility for the safety of his employees within the area of the ship that is under his control, that the shipowner has no duty to monitor the stevedore’s operations or inform himself regarding them, and that — with three narrow and specific exceptions — the shipowner is not responsible for injuries sustained in these circumstances. The exceptions are:

1. for failure to warn on turning over the ship of hidden defects of which he should have known,

2. for injury caused by hazards under the control of the ship, and

3. for failure to intervene in the stevedore’s operations when he has actual knowledge both of the hazard and that the stevedore, in the exercise of “obviously improvident” judgment, means to work on in the face of it and therefore cannot be relied on to remedy it.

Turning to the facts of today’s case, it is clear that although the latter two exceptions have possible application, the first does not: Turner testified that the presence of the oil was apparent at a glance. 2

The second exception may apply if the oil spot was located in an area over which the shipowner retained control despite the stevedore’s general control of the ship as a result of the owners “turning over the ship to the stevedore____” Helaire, 709 F.2d at 1036 . To be sure, the trial court did find that the oil was “not in the work area of the securing gang for the no. 4 hold.” Under Helaire , however, this finding is not dispositive. Instead, what signifies for this purpose is not whether the oil was in the *513 work area of Mr. Turner’s gang, but whether it was in the area over which the shipowner had relinquished control to Turner’s employer, the stevedore, rather than in some enclave of the vessel over which the shipowner had reserved control while otherwise turning the vessel over to the stevedore. If so, it was the primary-obligation of the stevedore to remedy the hazard.

The majority achieves its result by extending the trial court’s fact-finding quoted above that the oil was “not in the work area of the securing gang for the No. h hold” into one that it “was not in the stevedore’s work area” or in “an area turned over to the stevedore for cargo operations.” (Majority op. p. 509, all emphasis in quoted matter added). The record indicates that five hatches — Nos. 1, 2, 3, 4 and 5 — were being worked by the stevedore, thus it is patent that the finding of the trial court regarding the No. 4 hold will not stretch to cover the entire area turned over to the stevedore. In my view, therefore, we should remand to the trial court to permit it to make an adequate finding under the law as it exists today.

There remains the final exception. If this is to apply, the court must determine that the shipowner should, in the twelve minutes between first complaint and injury, have deduced from the complaints of Goatcher about the presence of the oil, or in some other manner, that the stevedore could not be relied on to remedy the hazard but would, in the exercise of “obviously improvident” judgment, work on in the face of it so that the shipowner was required to intervene in the stevedore’s operations. The trial court found as to this exception only that the ship’s crew did not warn Turner or his colleagues about the presence of the oil and that Goatcher, the foreman, twice asked the crew to clean it up. The first finding is not of any significance, since it is undisputed that Turner and Goatcher knew of the condition and therefore required no warning. The second is something to the purpose. It clearly falls short of a determination, however, that the stevedore could not be relied on either to wait “a moment” or to throw some sawdust on the spot, but would — in the Supreme Court’s phrase, not our’s — in the exercise of “obviously improvident” judgment, work on in the face of the hazard rather than stop work or take the measures, trivial in this case, required to remedy it. 3

Our precedents following Scindia seem to me plainly to establish a simple and workable rule: that once the shipowner turns the vessel over to the stevedore for loading or unloading operations, primary responsibility for the safety of the stevedore’s employees rests with him, subject only to the narrow exceptions that I have noted. The trial court’s findings do not address any of these exceptions, as scarcely they could have: Helaire , in which they took definitive form, came down after the findings were made. Nevertheless, the majority affirms, ignoring the circumstance that the factual determinations of the trial court do not mesh with current precedent. I cannot join in so Procrustean an approach.

I would vacate the judgment of the trial court and remand the cause for further proceedings at which the trial court could address the correct issues in the case in light of our current precedent. Since the majority does otherwise, I respectfully dissent.

The opinion in Scindia recognized that the owner’s actual knowledge of a dangerous condition which later injured a longshoreman would not in itself make him negligent. It might well be "reasonable” for the owner to rely on the stevedore's judgment that the condition, though dangerous, was safe enough. 101 S.Ct. at 1626 .

. Rather than remedying the "slippery footing” here by simply throwing sawdust on the oil, as was its primary obligation, the stevedore contented itself with calling on the ship to do what was the stevedore’s duty.

. Turner attempts to argue that the shipowner owed him a duty to clean up after his employer during the wee-hours interval when stevedoring operations ceased at midnight and before they resumed at 7:00 on the morning of his injury, suggesting that unless stevedoring proceeds continuously and without any interruption, a new "turn-over” of the ship occurs every time it recommences. I reject this contention, nor does the majority espouse it. In the usual case, when stevedoring operations have commenced and are proceeding with only the customary breaks for sleeping hours and the like, it is reasonable to view the stevedore’s control over areas turned over to him as continuous.

. Scindia, 451 U.S. at 175 , 101 S.Ct. at 1626 (“obviously improvident").