Petition — Anuszewski v. Dynamic Mariners Corp.

Gn

JAN 3 1977

MICHAEL RODAK, JR., CLERK

In THE

Supreme Court of the United States

OcTOBER TERM, 1976

JOSEPH ANUSZEWSKI AND RONALD GUTOWSKI,

Petitioners,

v.

DYNAMIC MARINERS CORP., PANAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BERNARD SEVEL,

Attorney for Petitioners,

Joseph Anuszewski and

Ronald Gutowski,

900 One Charles Center,

Baltimore, Md. 21201,

(301) 752-1960.

The Daily Record Co., Baltimore, Md. 21202 <> |»

TABLE OF CONTENTS

r xxx

J E

Ln

STATUTORY PROVISIONS INVOLVED ee

STATEMENT OF THE CASE . . e eeeeeseeeeeeeeeeeeseeeee

REASONS For GRANTING THE WRIT

. The Decision Below Directly Con‘licts

With A Recent Decision Of The United

States Court Of Appeals For The

. .

. The Appeals Court Below Misstated The

Facts Upon Which Its Decision Was

TIE * cncistesnieiienipaiitencesdiiasiiatiadctall ideale hile caeuiieaiiaes

. The Decision Below Undermines The

Stated Objectives Of The Committee

That Drafted The Legislation (LHWCA

As Amended) With Regard To The

Concern Of The Committee That The

Legislation Not Reduce Compliance

With Appropriate Safety Regulations ..

. The Decision Of The United States

Court Of Appeals For The Fourth

Circuit In The Instant Case When Read

In Concert With The Fact Of Continu-

ing Notice On The Part Of The Defend-

ant Shipowner Resulted In A Determi-

nation Of Law By Said Court Which

Was Contrary To That Court’s Own

Guidelines Established In Bess v.

Agromar Line, 518 F.2d 738 (4 Cir. 1975)

10

12

ii

PAGE

5. The Opinion Of The Court Of Appeals

For The Fourth Circuit In The Instant

Case Fails To Conform To The Princi-

ples Announced By The Drafters Of The

Amendments To The LHWCA .............. 13

6. The Opinion Rendered By The United

States Court Of Appeals For The Fourth

Circuit In The Instant Case Provides

The Defense Of Voluntary Assumption

Of Risk To The Vessel That Tradition-

ally Has Not Been Available To Him In

The American Maritime Court. The

Creation Of This New Defense Is

Inconsistent With The Intention Of the

1972 Amendments To the LHWCA ...... 14

7. The Decisions Below Are Inconsistent

With The Principles Announced In This

Honorable Court’s Decision In Ker

marec u. Compagnie Generale, 358 U.S.

1K A 15

Sr CRPERY LNT NRE Seen 16

Opinion and Order of the United States District

Court for the District of Maryland App. 1

Opinion and Order of the United States Court of

Appeals for the Fourth Circuit ................... App. 21

Order of the United States Court of Appeals for

the Fourth Circuit Denying Petitioners’

Petition for Nasr occcccccccoccsescccessssscccocesees App. 25

TABLE OF CITATIONS

Cases

Anuszewski v. Dynamic Mariners Corp., Panama,

391 F. Supp. 1143 D. Md. 1975) .....ccceeee App. 1

Arthur v. Flota Mercante Gran Centro Ameri-

cana, S. A,, 487 F.2d 561 (5 Cir. 1973) .......... 11

iii

PAGE

Bess v. Agromar Line, 518 F.2d 738 (4 Cir. 1975) 12

Boleski v. American Export Lines, Inc., 385 F.2d

rr A Meeeeooe 12

Dunn v. Brimer, 537 S. W. 2d 164 (1976) .........06 11

Kermarec v. Compagnie Generale, 358 U.S. 625

// a 4,15

Napoli v. Trans-Pacific Carriers Corp. 536 F.2d

PO i 8

Provenzu v. American Export Lines, Inc. 324

ye £ i ee 3, 7,12

Statutes, Rules Cited

r disosicceiesinnetecnniinvtiicintuniinaccionsen 3

rr 4

U.S. Department of Labor Safety and Health

Regulations for Longshoring §1504.43(e) ..... 4,6,7

Miscellaneous

The Report of the Senate Committee on Labor

and Public Welfare 920 Congress 2d Session

Senate Report No. 92-1125 Prepared in

connection with Bill 8.2318, Longshoremen’s

and Harbor Workers’ Compensation Act

Po 13, App. 13

Journal of Maritime Law and Commerce, April,

TEE ciduneniesenantelidstlinntentipstiniideianeianatieaiaintnnne 15

Restatement (Second) of Torts 6340 10

INDEX TO APPENDIX

Opinion of District Court, Frank A. Kaufman,

TE —— . App. 1

Appendix to Judge Kaufman’s Opinion (Copied

from The Report of the Senate Committee on

Labor and Public Welfare to Accompany

Amendment to 33 U.S.C. §901 et seq) ....... App. 13

Order of District Court cncccccsccssscsccsssscccsoscccesesscesee App. 20

Opinion of The United States Court of Appeals

L ceciccsccoseccscsecsssvesedeosenees App. 21

Order of The United States Court of Appeals for

the Fourth Circuit dated October 5, 1976.. App. 25

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No.

JOSEPH ANUSZEWSKI ANx D RONALD GUTOWSKI,

Petitioners,

v.

DYNAMIC MARINERS CORP., PANAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

To THE HONORABLE, THE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

Petitioners, Joseph Anuszewski and Ronald Gutow-

ski, respectfully pray that a Writ of Certiorari issue to

review the judgment of the United States Court of

Appeals for the Fourth Circuit in this case.

2

OPINIONS BELOW

The opinion of the United States District Court for

the District of Maryland is reported at 391 F. Supp. 1143

and the Order of the United States District Court dated

March 13, 1975, entering judgment for the Defendant

below, respondent herein, appears at page 20 of the

Appendix hereto.*

The opinion of the United States Court of Appeals for

the Fourth Circuit is not yet officially reported and

appears at App. 21. The Order of the United States

Court of Appeals for the Fourth Circuit dated October

5th, 1976, denying Petitioners’ Petition for Rehearing

appears at App. 25.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Circuit denying Petitioners’ Petition for

Rehearing was entered on October 5, 1976. This Petition

was filed within 90 days of that date. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254 (1).

QUESTIONS PRESENTED

1. Within the framework of the 1972 amendments to

33 U.S.C., §901 et seq., Longshoremen’s & Harbor-

workers’ Compensation Act (LHWCA) does the vessel

owner have a duty to take remedial measures to protect

longshoremen-business invitees, where the vessel owner

has continuing knowledge of a dangerous condition and

where said dangerous condition is such that the vessel

owner can reasonably anticipate the likelihood of said

dangerous condition resulting in injury to the long-

shoremen?

2. Is the finding below that the vessel owner owes no

duty to the longshoremen, as invitees of the vessel

where the danger to them is open and obvious

Pages of the Appendix are designated “App. (page nos.)

3

tantamount to providing the vessel owner with a

defense of voluntary assumption of risk which tradi-

tionally has not been available to the vessel owner in

the American Maritime Court?

3. After having found that the Respondent (ship-

owner) was negligent in knowingly allowing the

continuing violation of the safety regulation during the

unloading operation pursuant to Provenza v. American

Export Lines, Inc., 324 F.2d 660, 665 (4th Cir. 1963), was

it erroneous for the District Court to then find that the

shipowner’s negligence was not actionable?

4. Did the 1972 amendments to the LHWCA change

the definition of negligence as pertaining to the vessel

owner’s duty to persons lawfully aboard the vessel

(other than crew members) as defined by this Honora-

ble Court in Kermarec v. Compagnie Generale, 358 U.S.

625 (1959)?

STATUTORY PROVISIONS INVOLVED

1. Longshoremen’s & Harborworker’s Compensation

Act as amended 33 U.S.C. § 905 (b):

“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 inj was caused by the

negligence of persons engaged in providing steve-

doring 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

1

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 available under this chapter.

2. Section 1504.43 (e) “Safety and Health Regula-

tions for Longshoring, 29 C.F.R. Sec. 1918.43 (e) which

provides as follows:

(e) Any beam or pontoon left in place adjacent to

a section through which cargo, dunnage, equip-

ment or other material is being worked, shall be

lashed, locked, or otherwise secured so that it

cannot be displaced by accident. All portable,

manually handled hatch covers, including those

bound together to make a larger cover, shall be

removed from any working section.

STATEMENT OF THE CASE

Petitioners Joseph Anuszewski and Ronald Gutowski,

were injured on February 18th, 1973, while working

aboard the vessel M/V Tarpona, a cargo vessel owned

and operated by Dynamic Mariners Corp. That at the

time of the injuries sustained by your Petitioners, they

were employees of Nacirema Operating Company, a

longshoring company working in the Port of Baltimore.

That at the time of their ‘njuries your Petitioners were

longshoremen and members of a stevedoring gang

employed by Nacirema Operating Company. The

injuries to your Petitioners complained of occurred in

the lower hold of the No. 1 hatch of the vessel M/V

Tarpona. The cargo spaces in the vessel’s No. 1 hatch

consisted of an upper tween deck, lower tween deck and

lower hold. At the upper and lower tween deck levels the

hatch coverings consisted of hatch covers resting on

four 20-foot beams weighing approximately one ton

The following summary of facts has been extracted in

part from the findings of facts as set forth in the opinions of

the District Court below at App. 1 through 4.

—— —

5

each. These beams were equally spaced along the

length of the hatch and each spanned the width of the

hatch a distance of 20 feet and rested in slots built into

the hatch combing on either side of the hatch. On

February 17, 1973, the day before your Petitioners were

injured, the same stevedoring gang including the

Petitioners worked in the same hatch aboard the M/V

Tarpona and on February 17th, in opening the hatch

opening between the upper tween and lower tween deck

in No. 1 hatch the stevedoring gang had removed all

except one beam in the forward end of the hatch. This

same procedure was carried out when the gang finished

working the cargo in the lower tween deck and

proceeded into the lower hold. Again, in opening the

hatch between the lower tween deck and the lower hold,

they removed all of the beams described above in that

hatch opening with the exception of the beam most

forward in the hatch. The beams aforementioned which

spanned the hatch opening between the lower tween

and lower hold, although equipped for locking devices

consisting of pins similar to 6-inch threaded bolts and

nuts, were not locked in the slots into which they fit nor

were they otherwise secured in any manner. Neither the

locking devices nor rope for lashing were in the

immediate vicinity of the unsecured beams. The men of

the stevedore gang working in No. 1 hatch, including

the Petitioners, continued to work under and in the

vicinity of the unsecured beam throughout February

17th and February 18th, 1973, until the time of the

accident. The situation was not corrected and the

forward beam in the lower tween deck was never

secured in any manner.

On February 17th, 1973, the gang members dis-

charged all of the carzo from the lower tween deck.

Later the same day they proceeded to remove the hatch

covers from the lower tween deck hatch square in order

to discharge cargo from the lower hold. Again, there

6

were four beams spanning the hatch in place similarly

unsecured in the slots in which they rested. The three

aftermost beams were removed by the winchmen and

the forward beam was left in place. The longshoremen

then proceeded to discharge some of the cargo in the

lower hold and completed the work that day.

On February 18th, 1973, the same gang of longshore-

men including the Petitioners returned to the Tarpona

and continued to discharge the cargo from the vessel’s

No. 1 lower hold. Work commenced at 8:00 a.m. and

continued throughout the day until all cargo was

discharged from the lower hold. In the meantime,

however, at approximately 9:50 a.m., while the long-

shoremen including the Petitioners were working at a

position in the lower hold almost directly under the

forward beam that was still in place and approximately

ten feet below it, and while a pallet was being

discharged from the lower hold the cargo hook which

was attached to the ship’s gear caught beneath the

forward beam that was still in place in the hatch

opening, dislodged it by lifting it out of its socket, and

caused it to drop approximately ten feet into the vessel’s

— striking the Petitioners Anuszewski and Gutowski

pp. 2).

A crewman of the vessel who was present during the

discharge operation described above for the purpose of

preventing pilferage as well as one or more other

members of the ship’s crew, was in a position to see that

the beams were unfastened (App. 3).

The appropriate practice while any cargo was being

handled in a portion of a hatch below any beam of the

type of the beams described herein was to have such

beams secured through the use of the pins for which

each beam was fitted or to have such beam otherwise

secured. The failure to secure the beams during the

unloading operation on February 17, 1973, and Febru-

ary 18, 1973, was in violation of Section 1504.43 (e) of

7

the Safety and Health Regulations for Longshoring, 29

C.F.R. Section 1918.43 (e) (App. 4).

A suit was instituted against Dynamic Mariners

Corp. by Petitioners Joseph Anuszewski and Ronald

Gutowski in the United States District Court for the

District of Maryland. Jurisdiction was based on

Admiralty and Maritime Jurisdiction pursuant to rule

9(h) of The Federal Rules of Civil Procedure. By pretrial

arrangement, the case was bifurcated with all matters

except primary negligence being reserved for later

determination following a determination by the District

Court on the issue of primary negligence on the part of

the defendant, vessel owner. At the conclusion of the

case, the Court entered judgment for the vessel owner

finding that there had been a violation of the safety

regulations for longshoring, that the vessel owner had

knowledge of the violation of the safety regulations,

and that the failure of the vessel to lock or fasten the

beams constituted negligence on the part of the ship

owner in accordance with Provenza v. American Export

Lines, Inc., 324 F.2d 660, 665 (4th Circuit, 1963). The

court, however, went on to say, “but that negligence on

the part of the ship is not actionable negligence in the

post-1972 setting . . (App. 4).

From the Court’s Order entering judgment for the

Defendant, vessel owner, your Petitioners, Plaintiffs

below, appealed to the United States Court of Appeals

for the Fourth Circuit.

After submission of briefs, oral argument was held

before the Court on December 2, 1975, and on Sep-

tember 8, 1976, the decision of the Lower Court was

affirmed. Petitioners petitioned the United States Court

of Appeals for the Fourth Circuit for Rehearing, which

said Petition for Rehearing was denied by the Order of

the Court dated October 5, 1976.

8

REASONS FOR GRANTING THE WRIT

1. The decision below directly conflicts with a recent

decision of the United States Court of Appeals for the

Second Circuit.

Essentially the same legal issues were presented to

the Court on Appeal in the case of Antonio Napoli, v.

Trans-Pacific Carriers Corp. and Universal Cargo

Carriers, Inc., Hellenic Lines, Ltd., 536 F.2d 505

(United States Court of Appeals 2nd Circuit argued

April 12, 1976, decided May 25, 1976).

The Fourth Circuit in the decision below indicated

that where the dangerous condition which caused the

injury was “open and obvious and apparent and known

to the Plaintiffs” the right of the Plaintiffs to recover in

negligence against the vessel owner for their injuries

would be foreclosed, even though the vessel owner had

continuing knowledge concurrent with the stevedoring

company of the danger. In contrast, the Second Circuit

in Napoli, supra, on page 508 said,

Where dangers are unreasonable, their obvious-

ness, standing alone, should not necessarily relieve

a defendant of all responsibility for their presence.

Although the invitee (or in this case the employee)

may be under a duty to avoid harm likely to result

to him from open and obvious dangers, he may not

be in a position to fully appreciate the risk or to

avoid the danger even though aware of it.”

In the instant case the Fourth Circuit placed great

stress on land-based principles of negligence and found

that under land-based law, the open and obvious

concept would prevent recovery, wherens the Second

Circuit in Napoli, supra, on page 508, stated as follows:

Moreover, we do not think that instructions which

flatly negate the duty to protect against obvious

danger properly portray the present day obliga-

tions owed by a landowner to one whom he invites

upon his premises.”

It is respectfully submitted that what is actually at

stake transcends the resolution of the claims of the

9

Petitioners herein. The result of allowing the decision of

the instant case to stand in the face of the decision of

the Second Circuit in Napoli, supra, creates an obvious

division of opinion as between the two circuits as to

what constitutes the appropriate standard for determin-

ing negligence in matters such as these. The obvious

problems resulting from this situation will be to allow a

far more stringent test for negligence to exist in the

Fourth Circuit than that which will exist in the Second

Circuit. Besides the confusion in subsequent cases in

other circuits citing as authority these two decisions,

additional problems will result from the forum-

shopping which will undoubtedly take place in that

the legal principles most favorable to the Plaintiff

will determine the forum in which the suit is brought. It

is further urged that such « situation as created by

dissimilar interpretations of the law between circuits is

inconsistent with the intent of Congress as articulated

in the committee reports** (App. 19). The committee

stated as follows:

“Finally, the committee does not intend that the

negligence remedy authorized in the Bill shall be

applied differently in different ports depending on

the law of the state in which the port may be

located. The committee intends that legal questions

which may arise in actions brought under these

provisions of the law shall be determined as a

matter of Federal Law.”

It is therefore respectfully urged that the committee

intended that there be Federal Law rather than

diversified state law and certainly the committee

intended that the Federal Law be uniform in its

application from circuit to circuit.

2. The Appeals Court below misstated the facts upon

which its decision was based.

** Applicable section of the Report of the Senate Commit-

tee and the House Committee (Apparently Identical) which

accompanied the 1972 Amendments to the LHWCA was

referred to in the District Court Opinion (App. 6) and

* 1— as an Appendix to said Opinion beginning at (App.

13) hereto.

10

While the District Court (App. 3) found that in

terms of the knowledge of the crew members stationed

to prevent pilferage, as well as the finding that one or

more members of the ship’s crew was in a position to

see that the beam was unfastened, constituted continu-

ing knowledge on the part of the ship concurrent with

the continuing knowledge of the stevedoring company

of the dangerous condition, the statement of facts upon

which the Fourth Circuit based its decision completely

eliminated any mention about continuing knowledge or

continuing notice of the dangerous condition on the

part of the vessel owner, its agents, servants and

employees. The Fourth Circuit then applying the

Restatement (Second) of Torts §343 (1965) to the

incomplete statement of facts arrived at an obviously

erroneous conclusion. Clearly, the facts of this case if

properly stated and applied within the framework even

of the law recited by the Fourth Circuit, should have

resulted in a determination of negligence against the

vessel owner.

3. The decision below undermines the stated objec-

tives of the committee that drafted the legislation

(LHWCA as amended) with regard to the concern of the

committee that the legislation not reduce compliance

with appropriate safety regulations.

The committee which drafted the legislation articu-

lated its concern for the safety of longshoremen

working within the industry, and particularly articu-

lated its intentions that the amendments to the act not

relieve the vessel of its obligations and duties under the

appropriate safety and health regulations. The Honora-

ble Court’s attention is invited to the words of the

committee:

“Finally, the Committee wishes to emphasize that

nothing in this bill is intended to relieve any

vessels or any other person from their obligations

and duties under the Occupational Safety and

11

Health Act of 1970. The Committee recognizes that

rogress has been made in reducing injuries in the

— — but longshoring remains one of

the most hazardous types of occupations. The

Committee expects to see further progress in

reducing injuries and stands ready to immediate]

reexamine the whole third party suit question if it

appears that the changes made in present law by

this bill have affected progress in improving

occupational health and safety.” (App. 19)

The concern for safety of workmen has been articu-

lated in other cases throughout the country demonstrat-

ing a growing concern for the safety of workmen in

hazardous industries. The Court’s attention is invited to

the case of Dunn b. Brimer, 537 S.W.2d 164 (A. R. K. No.

76-33, June 7, 1976).

The Court’s attention is also invited to the case of

Arthur v. Flota Mercante Gran Centro Americana S.A.

487 F.2d 561 (5 Cir. 1973) which specifically articulated

the Court’s concern that appropriate safety regulations

be enforced when the Court stated the following at page

564:

“Significantly, the purpose of these regulations is

to promote safety in the industry and establish an

unambiguous standard for measuring industrial

safety as it relates to longshoremen, harbor

workers or other business invitees that come into

contact with the vessel. That purpose is advanced

when the court instructs the jury as it did in this

case. We hold that if the Marshall criteria are met,

the court may instruct the jury that a violation of

the Safety and Health Regulations is negligence

per se.”

It would appear that the determination of the Fourth

Circuit in the instant case if allowed to stand would

allow the vessel owner to totally ignore any efforts

towards the enforcement of safety and health regula-

tions. It would impose, therefore, no responsibility on

the vessel owner to make any effort toward correcting a

12

violation of the safety regulations and would allow the

vessel owner to remain passive in the face of a known

and continuing violation of the safety regulations.

4. The decision of the United States Court of

Appeals for the Fourth Circuit in the instant case when

read in concert with the fact of continuing notice on the

part of the defendant shipowner resulted in a determi-

nation of law by said Court which was contrary to that

Courts own guidelines established in Bess b. Agromar

Line, 518 F.2d 738 (4th Cir. 1975).

The District Court below found under the test of

Provenza v. American Export Lines, Inc., 324 F.2d 660

(4th Cir., 1963) that the vessel owner, defendent below,

was negligent. However, the Court below indicated that

this negligence was not actionable under the 1972

amendments to the LHW’CA. The implication would be

that the negligence in the Provenza case was a different

brand of negligence than anticipated by the amend-

ments to the LHWCA.

However, the United States Court of Appeals for the

Fourth Circuit in the Bess case said:

“The distinction between the proof necessary to

sustain a recovery under the doctrine of seaworthi-

ness and the proof necessary to sustain a recovery

under the concept of negligence was discussed in

Boleski v. American Export Lines, Inc. 385 F. 2d 69,

73-74 (4th Cir. 1967).” Supra at n. 5. at 740.

The Court in Bess continued to say in the same

—_

To the extent that Boleski discussed the

liability of the shipowner under negligence princi-

ples it remains pertinent despite the 1972 Amend-

ments to the Act.”

Interestingly, it should be emphasized that the

Boleski case was a pre-1972 case, thus indicating that

the negligence in the pre-1972 era is the same as in the

post-1972 era.

13

5. The opinion of the Court of Appeals for the

Fourth Circuit in the instant case fails to conform to the

principles announced by the drafters of the Amend-

ments to the LHWCA.

The drafters of the Amendments to the legislation, in

order to clearly indicate their intentions, offered the

following example of what would constitute negligence

against the vessel (App. 17) and is quoted as follows:

“So, for example, where a longshoreman sli

an oil spill on a vessel’s deck and is inju "the

pro amendments to §5 would still it an

action against the vessel for negligence. To recover,

he must establish that:

“1. The vessel put the foreign substance on the

deck, or knew that it was there, and willfully or

negligently failed to remove it; or

“2. the fore substance had been on the deck for

such a period of time that it should have been

discovered and removed by the vessel in the

exercise of e — the vessel under the

circumstances.” “| 92-1125 at 10-11.

The facts of this case i indicate that for a

period of two days the crew of the vessel were aware of

the danger to longshoremen created by the continuing

violation of the safety regulation and that for a two-day

period, they (ship’s crew) failed to correct or alleviate

the dangerous condition. Certainly the failure to act

over a two-day period in the face of the danger of an

unsecured beam is no less negligent than allowing a

foreign substance to remain on a deck for a period of

time, and certainly if the shipowner, according to the

drafters of the legislation, was obliged to exercise

reasonable care to discover the danger (of a slippery

condition) and to remove it, it most certainly would

have been under the same duty to exercise reasonable

care when it already knew of the danger, to at least act

14

in some remedial manner to correct the dangerous

condition in the instant case.

Obviously, an unsecured beam weighing approxi-

mately one ton, suspended ten (10) feet above the

Longshoremen, presents a far greater hazard than a

slippery deck and should therefore impose a greater

duty on the vessel owner.

6. The opinion rendered by the United States Court

of Appeals for the Fourth Circuit in the instant case

provides the defense of voluntary assumption of risk to

the vessel that traditionally has not been available to

him in the American Maritime Court. The creation of

this new defense is inconsistent with the intention of

the 1972 Amendments to the LHWCA.

The Appeals Court (4th Circuit) at App. 24 stated as

follows:

“Properly viewing the longshoremen as invitees of

the vessei, the court [meaning the Court below]

concluded that ‘this case presents a fact situation

in which the danger was open, obvious, apparent

and known to plaintiffs,’ [footnote omitted] and it

was on this basis that ju ent was rendered in

favor of the defendant vessel.“

It would appear by this language that the Fourth

Circuit has created a new legal principle in maritime

personal injury whereby the longshoreman would be pre-

vented from asserting a negligence claim if he has been

obliged by his duty to work in the vicinity of an open

and obvious danger. Such a finding would be tanta-

mount to recreating the defense of assumption of risk in

a maritime negligence claim. Vessel owners have long

been prevented from utilizing the doctrine of assump-

tion of risk in maritime personal injury suits brought by

both longshoremen and seamen. To recreate the defense

by the language of this case would create a legal

precedent not only inconsistent with but directly in

opposition to the precise intention of the drafters of the

15

1972 Amendments to the legislation which provided as

follows (App. 19):

“ . . Also, the Committee intends that the admi-

ralty rule which precludes the defense of ‘assump-

tion of risk’ in an action by an injured employee

shall also be applicable.” S. Rep. No. 92-1125 at 12.

7. The decisions below are inconsistent with the

principles announced in this Honorable Court’s deci-

sion in Kermarec v. Compagnie Generale, 358 U.S. 625

(1959).

Here, the question of negligence in a pre-1972 setting

became pertinent in that the Plaintiff, though injured

aboard the Defendant’s vessel, was not one within the

class entitled to the warranty of seaworthiness. Conse-

quently, the Plaintiff therein could only recover against

the vessel owner under a negligence theory.

The implications of the above decision were cogently

summarized by Professor of Law David W. Robertson of

the University of Texas in an April, 1976 article in the

Journal of Maritime Law and Commerce.

“Finally, it is pertinent that in 1959 the Supreme

Court in Kermarec v. Compagnie Generale ns-

atlantique, upholding recovery by a plaintiff who

would have been a “bare licensee” at common law,

rejected the common law’s traditional ranking of

— 1 visitors as inappropriate for the maritime

W. It is possible to view that decision as a

Supreme Court mandate for a unitary maritime

standard of care, amounting to q full-blown duty to

exercise reasonable care to maintain safe condi-

— aboard ship for all those lawfully present

ere.

16

CONCLUSION

WHEREFORE, for the reasons above stated, the

Petitioners respectfully submit that a Writ of Certiorari

should be granted.

Respectfully submitted,

BERNARD SEVEL,

Attorney for Petitioners,

Joseph Anuszewski and

Ronald Gutowski,

900 One Charles Center,

Baltimore, Md. 21201,

(301) 752-1960.

la

APPENDIX

In The United States District Court

For The District of Maryland

Civil No. 73-1220-K

Joseph Aneszewski, et al.

v.

Dynamic Mariners Corp. Panama

OPINION OF THE COURT

(Filed: March 13, 1975)

— J. Sevel, of Baltimore, Maryland, for Plain-

tiffs.

Randall C. Coleman and Ober, Grimes & Shriver, of

Baltimore, Maryland, for Defendant.

Kaufman, District Judge.

In this case which has been tried non-jury before this

Court two plaintiffs seek damages resulting from

injuries sustained by each of them while working as

longshoremen aboard a vessel docked in the Baltimore,

Maryland area. Their claims raise questions of the

meaning and application of one of the 1972 amend-

ments to the Longshoremen’s and Harbor Workers’

Compensation Act. That amendment is set forth in 33

U.S.C. § 905(b).'

Findings of Fact and Holdings

The accident in question occurred in the lower hold of

the No. 1 hatch. The vessel arrived in Baltimore from

New York after there discharging all cargo from the

upper tween deck of No. i hatch. In the lower tween

deck and the lower hold of No. 1 hatch was Baltimore

That subsection, added to the Act by the 1972 amend-

ments, is set forth in full infra in the body of this opinion

2a

cargo. A gang carrier and 23 men employed by the

Nacirema Operating Co., Inc., a stevedoring company

which had no connection with the prior discharge of

cargo in the New York area from the upper tween deck

of No. 1 hatch or from any other part of the vessel,

came aboard the ship on February 17, 1975 at 8:00 a.m.

and commenced work, including the removal of the

hatch covers between the upper tween and the lower

tween deck of No. 1 hatch. Later in the day of February

17, 1973, after the lower tween deck had been unloaded,

the hatch cover between the lower tween deck and the

lower hold of No. 1 hatch was removed by the

longshoremen. The hatch cover over the lower tween

deck, and the hatch cover between the lower tween deck

and the lower hold and covering the latter, were each

supported by four beams. The three aftermost beams

below each such cover were removed by the gang after

each such hatch cover was lifted during their work on

February 17th, but the forward of the four beams below

each such cover was left in place.

On February 17, 1973, the gang members discharged

all of the cargo from the lower tween deck and some of

the cargo from the lower hold. On February 18, 1973,

they completed discharge from the lower hold. The

plaintiffs were injured on February 18, 1973 during the

unloading of the lower hold when the forward of the

four beams, above the lower hold and which, when it

was in place, supported the hatch cover over the lower

hold, was dislodged by a cargo hook. That hook, during

the discharge operation on February 18th, became

caught under the beam, lifted the beam out of its socket

and dropped it into the lower hold where it fell upon

plaintiffs who were at work there.

When the gang removed the hatch covers over the

lower tween deck and later over the lower hold, they

found that all of the pins which held those eight beams

in place were missing and that none of the eight beams

was locked in place or otherwise secured by rope or

other means. The lack of such locking or fastening of

the beams over the lower tween deck was noted by and

discussed among members of the gang when they

removed the hatch cover over the lower tween deck

about the time they commenced their work on February

3a

17th. The foreman of the gang told its members to work

and that the situation would be corrected. The men

continued to work on February 17th and 18th but the

situation was not corrected.

The weather on the two days was cold and there was

not the maneuverability that would have existed on

other than a cold day. However, the boom to which the

hoist was attached could have been respotted at one or

more times on February 17th and 18th to make it more

— robable that first one, and then two, of the eight

ams would not be dislodged. While the evidence does

not establish that respotting of the boom would have

necessarily avoided the accident, respotting might have

decreased the chances of the accident occurring.

Further, in any event the evidence does establish that

there was room to place on the weather deck the two

forward beams, which were under the hatches covering

the lower tween deck and the lower hold, if those two

beams had been removed as were the other two

respective groups of three beams each. Further, the

evidence additionally establishes that there was also

available at a Nacirema supply office, within a half

block of the spot at which the vessel was docked, rope

and probably also nuts and bolts, which could have

been used to fasten the two forward beams in place in

lieu of their removal or in lieu of their being left in place

without fastening. In sum, there was negligence on the

part of Nacirema in not achieving rather easily a

condition of safety. That failure would seemingly have

been obviated (a) if Nacirema had provided, as it did

not, a safety man aboard ship on February 17th and

18th and if that safety man had performed his job, and

(b) even without the safety man, if the gang leader had

obtained rope or some other items from the Nacirema

supply office and secured the beams, or had required

the fastening or the removal of even just the forward

beam covering the lower hold of No. 1 hatch.

A crewman of the vessel who was present during the

discharge described above for the purpose of preventing

pilferage, as well as one or more other mem of the

ship’s crew, was in a position to see that the beams

were unfastened. However, there is no evidence that

4a

any crewman was at any time asked by anyone

employed by Nacirema to correct the situation. There

were on hand in a nearby chain locker of the ship items

which could have been used to fasten the beams left in

place, but no one requested that such items be utilized.

The appropriate practice while any cargo was being

handled in a portion of a hatch below any beam of the

type of the eight beams in question was to have such

beam secured through the use of the pins for which

each such beam was fitted, or to have such beam

otherwise secured. The failure to secure the two beams

during the unloading operation on February 17, 1973

and February 18, 1973 was in violation of section

1504.43(e) of the Safety and Health Regulations for

Longshoring, 29 C.F.R. § 1918.43(e).- While the primary

duty under that regulation to make certain that the

beams left in place during the unloading operation was

upon the stevedore, the failure of the vessel to lock or

fasten the beams constituted negligence on the part of

the shipowner since the shipowner, at least in terms of

knowledge of the crew member stationed to prevent

pilferage, and in terms of those responsible for

handling the ship from the time of its departure from

New York, knew or should have known of the violation

of the safety regulation. Provenza v. American Export

Lines, Inc. 324 F.2d 660, 665 (4th Cir. 1963). But that

negligence on the part of the ship is not actionable

negligence in a post-1972 setting, for reasons which are

discussed infra.

The longshoremen removed all of the unlocked beams

except two. The presence of the forward beam left in

place above the lower tween deck has not been proven

That regulation provides as follows:

(e) Any beam or pontoon left in place adjacent to a

section through which cargo, dunnage, equipment, or

other material is being worked, shall be lashed, locked,

or otherwise secured so that it cannot be displaced by

accident. All portable, manually handled hatch covers,

including those bound together to make a larger cover,

shall be removed from any working section.

3 See 32 U.S.C. §v902(3) and (4), 941(a); and 29 C.F.R.§§

1918.2 and 3.

—

va

by plaintiffs to have contributed to the accident, that is,

there is no evidence that if the forward beam above the

lower tween deck had not been in place, the boom would

have been operated so as to have avoided the cargo

hook having become attached to the forward beam

above the lower hold. By way of contrast, of course, it is

clear that the accident would not have occurred except

for the presence of the forward beam above the lower

hold. But that presence could have been eliminated by

removal or fastening of that beam by the stevedore on

February 17th or before the accident on February 18th.

Instead, the stevedore company negligently left that

beam in place and unsecured.

The issue in this case is whether the ship’s continuing

failure up to and including the moment of the accident

to take steps to correct the condition which existed after

one or both of the forward beams was left in place and

unsecured renders the ship liable to plaintiffs. Before

the 1972 amendments to the Longshoremen’s and

Harbor Workers’ Compensation Act, that condition

itself would seemingly have constituted unseaworthi-

ness. But unseaworthiness has been eliminated as a

remedy for longshoremen by the addition in 1972 of

what is presently codified as 33 U.S.C. §905(b) of that

Act. That subsection provides as follows:

(b) 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 pee 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 negli-

gence of persons engaged in providing ship

6a

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.

The applicable section of the Report of the House

Committee on Education and Labor, No. 92-1441, 92d

Cong., 2d Sess., prepared in connection with the 1972

amendments is set forth in 3 U. S. Cope Cona, &

ApMIN. News 4701-05 (1972), and is appended to this

opinion.“ It speaks clearly for itself, and establishes

that land-based principles of law apply to longshore

men's claims for damages against third parties and

that a ship has no different liability to longshoremen

employed to work aboard it by a stevedoring company

than the owner of land-based property owes to the

employees of an independent contractor who perform

work on that property. And the post-1972 amendment

cases in the federal courts decided to date and involving

longshoremen’s claims against ships have adopted that

approach.’ Accordingly, a look at the established

principles of negligence tort law is required. In that

regard the House Committee Report, 3 U. S. Cope

Cona. & ADMIN. News, supra at 4705, provides that in

cases such as this one the federal courts are to

formulate uniform federal law and not to apply

differing state law principles on the basis of location of

the port in which an accident occurred.

The Report of the Senate Committee on Labor and Public

Welfare apparently is identical to the House Report. S. Rep.

No. 92-1125, 92d Cong., 2d Seas. (1972).

Ramirez, et al. v. Toko Kaiun K.K., 385 F. Supp. 644 (N. D.

Cal. 1974); Shellman v. United States Lines Operators, Inc.,

Civil No. CV 73-1902-R (C.D. Cal. filed Nov. 21, 1974); Citizen

v. M/V TRITON, 384 F. Supp. 198 (E.D. Tex. 1974); Slaughter

v. 8.S. RONDE, Civil No. 3151 (S.D. Ga. filed Sept. 11, 1974);

Hite v. Maritime Overseas Corp., 380 F. Supp. 222 (E. D. Tex.

1974); Lucas v. “Brinknes” fflahrts Ges., 379 F. Supp. 759

(E.D. Pa. 1974); Fedison v. The Vessel WISLICA, 382 F. upp.

4 (E.D. La. 1974); Hite v. Maritime Overseas Corp., 375 F.

Supp. 233 (E.D. Tex. 1974).

_—— — ͤ ʒGäͤ—

7a *

— (SECOND) oF Torts 5343 (1965) pro-

vides:

§ 343. Dangerous Conditions Known to or Dis-

coverable by Possessor

A possessor of land is subject to liability for

physical harm caused to his invitees by a condition

on the land if, but only if, he

(a) knows or by the exercise of reasonable

care would discover the condition, and should

realize that it involves an unreasonable risk of

harm to such invitees, and

(b) should expect that they will not discover

or realize the danger, or will fail to protect

themselves against it, and

(c) fails to exercise reasonable care to protect

them against the danger.

Comment a thereto provides that section 343 “should be

read together with” section 343A which “limits the

liability” stated in section 343. Section 343A(1)° states:

§ 343A. Known or Obvious Dangers

(1) A possessor of land is not liable to his invitees

for physical harm caused to them by any activity

or condition on the land whose danger is known or

obvious to them, unless the possessor should

anticipate the harm despite such knowledge or

obviousness. —

Employees of independent contractors doing work on

roperty of the owner are invitees of the latter. W.

— HANDBOOK OF THE LAW OF Torts 561, at 385

86 (4th Ed. 1970). But the owner is not liable

„ for harm resulting from conditions from

which no unreasonable risk was to be anticipated,

or those which the occupier did not know and could

not have discovered with reasonable care. * * *

Likewise, in the usual case, there is no obligation

to protect the invitee against dangers which are

® Subsection (2) of section 343A deals with public land or

public utilities and has no applicability in this case.

8a

known to him, or which are so obvious and

apparent to him that he may reasonably be

expected to discover them. Against such conditions

it may normally be expected that the visitor will

protect himself. It is for this reason that it is so

frequently held that reasonable care requires

nothing more than a warning of the danger. But

this is certainly not a fixed rule, and all of the

circumstances must be taken into account. In any

case where the occupier, as a reasonable man,

should anticipate an unreasonable risk of harm to

the invitee notwithstanding his knowledge, warn-

ing, or the obvious nature of the condition,

something more in the way of precautions may be

required. This is true, for example, where there is

reason to expect that the invitee’s attention will be

distracted, as by goods on display, or that after

lapse of time he may forget the existence of the

condition, even though he has discovered it or been

warned; or where the condition is one which would

not reasonably be expected, and for some reason,

such as an arm full of bundles, it may be

anticipated that the visitor will not be looking for

it. It is true also where the condition is one such as

icy steps, which cannot be negotiated with reason-

able safety even though the invitee is fully aware

of it, and, because the premises are held open to

him for his use, it is to be expected that he will

nevertheless proceed tq encounter it. In all such

cases the jury may be permitted to find that

obviousness, warning or even knowledge is not

enough. It is generally agreed that the obligation

as to the condition of the premises is of such

importance that it cannot be delegated, and that

the occupier will be liable for the negligence of an

independent contractor to whom he entrusts

maintenance and repair.

In particular, the possessor must exercise the

power of control or expulsion which his occupation

of the premises gives him over the conduct of a

third person who may be present, to prevent injury

to the visitor at his hands. He must act as a

reasonable man to avoid harm from the negligence

of contractors and concessionaires as to activities

— 2

9a

on the land, as well as that of other persons who

have entered it, or even from intentional attacks on

the part of such third persons. But he is required to

take action only when he has reason to believe,

from what he has observed or from past experience,

that the conduct of the other will be dangerous to

the invitee. Again, in the usual case, a warning will

be a sufficient precaution, unless it is apparent

that, either because of lack of time or by reason of

the character of the conduct to be expected on the

part of the third person, it will not be effective to

give protection. IId. at 393-95; footnotes omitted. |

— — — —

It is ible to argue that the plaintiffs and their

fellow longshoremen forgot on February 18th the

existence of the unfastened beam above the lower hold.

But the presence of the unfastened beam was a most

evident and continuing condition which | have been

largely ignored by the longshoremen but hardly

entirely forgotten 4 since the boom operator

and those aiding him by comments had to lower the

cargo hook down and up past the offen beam.

Thus, this case presents a fact situation in which the

danger was open, obvious, apparent and known to

plaintiffs. Accordingly, RESTATEMENT § ), supra,

would appear to provide liability only if the person

contra with the ind dent contractor (i.e., in the

context of this case, the shipowner contracting with the

stevedore) “should vy that [his invitees]. °. will not

discover or realize e danger, or will fail to protect

themselves against it * * In this case the plaintiffs

and the mem of their gang did discover and realize

the danger. Further, the shipowner could reasonably

have expected that the longshoremen would have

discovered the unsecured beams and would have

rotected themselves by removing all of those beams or

~ fastening them. is not a case like that set forth

in illustration 5, REsTATEMENT § 343A, supra, in which

a person empl ed in an office located in an office

building dened “over a slippery waxed stairway,

whose condition is visible and quite obvious” and upon

which she walked because “{h]er only alternative to

10a

taking the risk was to forgo her employment.” In that

situation the RESTATEMENT would permit that injured

person to recover in a negligence action against the

office building owner. By way of contrast, the two

laintiffs in this case were in no such similar position.

or would they seem within the approach suggested in

2 F. HARPER AND F. JAMES, THE LAW oF Torts § 27.13

(1956) — an approach seemingly somewhat more

advantageous to a plaintiff than the approaches of

either the RESTATEMENT or of Professor Prosser — to

have been subjected to a “condition unreasonably

dangerous” (§ 27.13 at 1490; emphasis in original).

Thus, regardless of whether the duty upon a person who

“employs an independent contractor to do work which

the employer should recognize as likely to create, during

its progress, a peculiar unreasonable risk of physica

harm to others unless special precautions are taken,”

RESTATEMENT, supra at § 413, is or is not a type of duty

owed to employees of independent contractors who

work on the premises, the defendant shipowner is not

liable in this case. In passing, however, it is noted that

there is à conflict among the jurisdictions as to whether

the “peculiar risk” doctrine does or does not apply to

such employees.’ Even if that doctrine does so apply,

there is authority that it only applies if it is the work,

not the negligent condition, which poses the “peculiar

risk”.® Herein if there was a iar risk”, it was

posed not by the nature of the unloading duties, i.e., not

by the work but by the beam, ie., the offending

condition. But herein it is not necessary to reach the

Compare, e.g., Parsons v. Amerada Hess Corp., 422 F.2d

610 (10th Cir. 1970), and Welker v. Kennecott Copper Co., 1

Ariz. App. 395, 403 P.2d 330 (1965), stating that employees of

independent contractors are not “others” as that term is used

in the RESTATEMENT, supra, §§ 416-29, with Person v.

Cauldwell-Wingate Co., 176 F.2d 237, 240 (2d Cir.) (L. Hand,

C.J.), cert. denied, 338 U.S. 886 (1949), and Woolen v. Aerojet

General Corp., 57 Cal.2d 407, 369 P.2d 708 (1962), stating that

employees of independent contractors are “others” as that

term is used in RESTATEMENT, supra, §§ 416-29. :

® See, e. g., Cutlip v. Luckey Stores, Inc., et al., 22 Md. App.

673, 684-86 (1974).

lla

issues involved in the applicability vel non of the

“peculiar risk” doctrine because in the context of the

facts in this case settled principles of land-based tort

law do not impose liability in favor of the employees of

an independent contractor for the open and obvious

negligence of the n in control of the premises upon

which those employees are at work.

Nevertheless, plaintiffs herein contend, inter alia,

that the following paragraphs in the House Committee

report (3 U.S. Cope Conc. & ApMIN. NES, supra at

4704) entitle them to recover herein:

Permitting actions against the vessel based on

negligence will meet the objective of encouraging

safety because the vessel will still be required to

exercise the same care as a land-based person in

providing a safe place to work. Thus, nothing in

this bill is intended to der gate from the vessel’s

responsibility to take appropriate corrective action

where it knows or should have known about a

dangerous condition.

So, for example, where a longshoreman slips on

an oil spill on a vessel’s deck and is injured, the

proposed amendments to Section 5 would still

permit an action against the vessel for negligence.

To recover he must establish that: 1) the vessel put

the foreign substance on the deck, or knew that it

was there, and willfully or negligently failed to

remove it; or 2) the foreign substance had been on

the deck for such a period of time that it should

have been discovered and removed by the vessel in

the exercise of reasonable care by the vessel under

the circumstances. The vessel will not be charge-

able with the negligence of the stevedore or

employees of the stevedore.

It is true that the words following “2” in the next to the

last sentence of that quotation, standing by themselves

and preceded by the word “or”, not “and”, may well at

first blush a to entitle plaintiff to recovery herein.

The ship had the opportunity after the lower hold hatch

12a

cover was removed on February 17, 1975 to discover

and to rectify the condition of the beam which was a

proximate cause of the accident on February 18th. But

it would not seem that the ship or its officers or crew

acting in the exercise of reasonable care should have

believed it was incumbent upon the ship under the

circumstances to remove or fasten a beam (a) which the

longshoremen could have removed at any time as they

did its three companion (and six out of a total of eight)

beams, or (b) which the longshoremen could have

secured or fastened. Moreover, the House Report calls

specifically for longshoremen to be placed vis a vis

shipowners in the same position as their land-based

counterparts are placed toward land-based property

owners (id. at 4702, 4703, 4704, 4705). And the

paragraph (at 4704) directly after the above quoted two

paragraphs includes this observation:

Under this standard, as adopted by the Commit-

tee, there will, of course, be disputes as to whether

_ the vessel was negligent in a particular case. Such

issues can only be resolved through the application

of accepted principles of tort law and the ordinary

process of litigation — just as they are in cases

involving alleged negligence by land-based third

arties. The Committee intends that on the one

and an employee injured on board a vessel shall

be in no less favorable position vis a vis his rights

against the vessel as a third party than is an

employee who is injured on land, and on the other

hand, that the vessel shall not be liable as a third

party unless it is proven to have acted or have

failed to act in a negligent manner such as would

render a land-based third party in non-maritime

pursuits liable under similar circumstances.

If the plaintiffs herein can recover, then the door will

be wide open for longshoremen to recover for shipown-

ers’ negligence on a basis that is not available against

land or building owners to employees of independent

contractors who do work on such land and/or in such

buildings. While that result would not offend the

l3a

elimination by the Congress in 1972 of the principle of

unseaworthiness as a remedy against the ship by a

longshoreman, it would negate the repeated insistence

in the House Report concerning the applicability of

principles of land-based tort law. In that context, the

possible or literal word-for-word application of one

illustration in the House Report may not prevail.

Accordingly, judgment is today being entered herein for

defendant.

FRANK A. KAUFMAN,

United States District Judge.

APPENDIX

ELIMINATION OF UNSEAWORTHINESS REMEDY

One of the most controversial and difficult issues

which the Committee has been required to resolve in

connection with this bill concerns the liability of

vessels, as third parties, to pay damages to longshore-

men who are injured while engaged in stevedoring

operations. The Committee rejected the proposal,

originally advanced by the industry, that vessels

should be treated as joint employers of longshoremen or

other persons covered under this Act working on board

such vessels. This would result in restricting the

vessel’s liability in all cases to the compensation and

other benefits payable under the Act. The Committee

believes that where a longshoreman or other worker

covered under this Act is injured through the fault of

the vessel, the vessel should be liable for damages as a

third party, just as land-based third parties in non-

maritime pursuits are liable for damages when, through

their fault, a worker is injured.

The Committee also rejected the thesis that a vessel

should be liable without regard to its fault for injuries

sustained by employees covered under this Act while

working on r the vessel. Vessels have been held to

what amounts to such absolute liability by decisions of

the Supreme Court, commencing with Seas Shipping

l4a

Co. v. Sieracki, 328 U.S. 25 (1946) which held that the

traditional seamen’s remedy based on the breach of the

vessel’s absolute, nondelegable duty to provide a

seaworthy vessel was also available to longshoremen

and others who performed work on the vessel which by

tradition has been performed by seamen. Under the

Sieracki case, vessels are liable, as third parties, for

injuries suffered by longshoremen as a result of

“unseaworthy” conditions even though the unseawor-

thiness was caused, created, or brought into play by the

stevedore (or an employee of the stevedore) rather than

the vessel or any member of its crew. For example,

under present law, if a member of a longshore gang

spills grease on the deck of a vessel and a longshore-

man slips and falls on the grease a few moments later,

the vessel is liable to pay damages for the resulting

injuries, even though no member of the crew was

responsible for creating the unseaworthy condition or

was even aware of it. Furthermore, in the example

given above, under the Supreme Court's decision in

Ryan Stevedoring Co. v. Pan Atlantic S.S. Corp., 350

U.S. 124? (1956), the vessel may recover the damages for

which it is liable to the injured longshoreman from the

stevedore which employed the longshoreman on the

theory that the stevedore has breached an express or

implied warranty of workmanlike performance to the

vessel. The end result is that, despite the provision in

the Act which limits an employer's liability to the

compensation and medical benefits provided in the Act,

a stevedore-employer is indirectly liable for damages to

an injured longshoreman who utilizes the technique of

suing the vessel under the unseaworthiness doctrine.

The Committee heard testimony that the number of

third-party actions brought under the Sieracki and

Ryan line of decisions has increased substantially in

recent years and that much of the financial resources

which could better be utilized to pay ee .

sation benefits were now being spent to y

litigation costs. Industry witnesses testified that despite

the fact that since 1961 injury frequency rates have

decreased in the industry, and maximum benefits

15a

payable under the Act have remained constant, the cost

of compensation insurance for longshoremen has

increased substantially because of the increased num-

ber of third party cases and legal expenses and higher

recoveries in such cases. The Committee also heard

testimony that in some cases workers were being

encouraged not to file claims for compensation or to

delay their return to work in the hope of increasing

their possible recovery in a third party action. The

Committee’s attention was also called to the decision in

1966 of the United States district court in Philadel, hia

concerning the impact of third party clauns involving

injured longshoremen on the backlog of personal injury

cases in that court.

The Committee also has taken note of the inescapable

fact that the controversy over third party claims by

longshoremen has had political ramifications which

have resulted in forestalling any improvements in the

present Act for over twelve years.

The Committee believes that especially with the vast

improvement in compensation benefits which the bill

would provide, there is no compelling reason to

continue to require vessels to assume what amounts to

absolute liability for injuries which occur to longshore-

men or other workers covered under the Act who are

injured while working on those vessels. In reaching this

conclusion, the Committee has noted that the seawor-

thiness concept was developed by the courts to protect

seamen from the extreme hazards incident to their

employment which frequently requires long sea voy-

ages and duties of obedience to orders not generally

required of other workers. The rationale which justifies

holding the vessel absolutely liable to seamen if the

vessel is unseaworthy does not apply with equal force to

the longshoremen and other non-seamen working on

board a vessel while it is in port.

Accordingly, the Committee has concluded that,

given the improvement in compensation benefits which

this bill would ide, it would be fairer to all

concerned and fully consistent with the objective of

16a

protecting the health and safety of employees who work

on board vessels for the liability of vessels as third

parties to be predicated on negligence, rather than the

no-fault concept of seaworthiness. This would place

vessels in the same position, insofar as third party

liability is concerned, as land-based third parties in

non-maritime pursuits.

The purpose of the amendments is to place an

employee injured aboard a vessel in the same position

he would be if he were injured in non-maritime

employment ashore, insofar as bringing a third party

damage action is concerned, and not to endow him with

any special maritime theory of liability or cause of

action under whatever judicial nomenclature it may be

called, such as unseaworthiness, nondelegable

duty”, or the like.

Persons to whom compensation is payable under the

Act retain the right to recover damages for negligence

against the vessel, but under these amendments they

cannot bring a damage action under the judicialiy

enacted doctrine of unseaworthiness. Thus a vessel

shall not be liable in damages for acts or omissions of

stevedores or employees of stevedores subject to this

Act, Crumedy vu. The J. H. Fisser, 358 U.S. 423,

Albanese v. Matts, 382 U.S. 283, Skibinski v. Waterman

SS Corp., 330 F.2d 539; for the manner or method in

which stevedores or employees of stevedores subject to

this Act perform their work, A. N. G. Stevedores v.

Ellerman Lines, 369 U.S. 355, Blassingill ub. Waterman

SS Corp., 336 F.2d 367; for gear or equipment of

stevedores or employees of stevedores subject to this Act

whether used aboard ship, or ashore, Alaska SS Co. v.

Peterson, 347 U.S. 396, Italia Societa v. Oregon

Stevedoring Co., U.S. 315, or for other categories of

unseaworthiness which have been judicially estab-

lished. This listing of cases is not intended to reflect a

judgment as to whether recovery on a particular factual

setting could have béen — on the vessel's

negligence.

17a

Permitting actions against the vessel based on

negligence will meet the objective of encouraging safety

because the vessel will still be required to exercise the

same care as a land-based person in providing a safe

place to work. Thus, nothing in this bill is intended to

derogate from the vessel’s responsibility to take

appropriate corrective action where it knows or should

have — about a dangerous condition.

So, for example, where a longshoreman slips on an oil

spill on a vessel’s deck and is injured, the proposed

amendments to Section 5 would still permit an action

against the vessel for negligence. To recover he must

establish that: 1) the vessel put the foreign substance on

the deck, or knew that it was there, and willfully or

negligently failed to remove it; or 2) the foreign

substance had been on the deck for such a period of

time that it should have been discovered and removed

by the vessel in the exercise of reasonable care by the

vessel under the circumstances. The vessel will not be

chargeable with the negligence of the stevedore or

employees of the stevedore.

Under this standard, as adopted by the Committee,

there will, of course, be disputes as to whether the vessel

was negligent in a particular case. Such issues can only

be resolved through the application of accepted princi-

ples of tort law and the ordinary process of litigation —

just as they are in cases involving alleged negligence by

land-based third parties. The Committee intends that

on the one hand an employee injured on board a vessel

shall be in no less favorable position vis a vis his rights

against the vessel as a third party than is an employee

who is injured on land, and on the other hand, that the

vessel shall not be liable as a third party unless it is

proven to have acted or have failed to act in a negligent

manner such as would render a land-based third party

in non-maritime pursuits liable under similar circum-

stances.

The Committee also believes that the doctrine of the

Ryan case, which permits the vessel to recover the

damages for which it is liable to an injured worker

18a

where it can show that the stevedore breaches an

express or implied warranty of workmanlike perfor-

mance is no longer appropriate if the vessel’s liability is

no longer to be absolute, as it essentially is under the

seaworthiness doctrine. Since the vessel’s liability is to

be based on its own negligence, and the vessel will no

longer be liable under the seaworthiness doctrine for

injuries which are really the fault of the stevedore, there

is no longer any necessity for permitting the vessel to

recover the damages for which it is liable to the injured

worker from the stevedore or other employer of the

worker.

Furthermore, unless such hold-harmless, indemnity

or contribution agreements are prohibited as a matter

of public policy, vessels by their supenor economic

strength could circumvent and nullify the provisions of

Section 5 of the Act by requiring indemnification from a

covered employer for employee injuries.

Accordingly, the bill expressly prohibits such re-

covery, whether based on an implied or express war-

ranty. It is the Committee’s intention to prohibit such

recovery under any theory including, w thout limita-

tion, theories based on contract or tort.

Under the proposed amendments the vessel may not

by contractual agreement or otherwise require the

employer to indemnify it, in whole or in part, for such

damages.

The Committee has also recognized the need for

special provisions to deal with a case where a

longshoreman or ship builder or repairman is employed

directly by the vessel. In such case, notwithstanding

the fact that the vessel is the employer, the Supreme

Court, in Reed v. SS Yaka, 373 U.S. 410 (1963) and

Jackson v. Lykes Bros. Steamship Co., 386 U.S. 371

(1967), held that the unseaworthiness remedy is

available to the injured employee. The Committee

believes that the rights of an injured longshoreman or

ship builder or repairman should not depend on

whether he was employed directly by the vessel or by

an independent contractor. Accordingly, the bill pro-

vides in the case of a longshoreman who is employed

19a

directly by the vessel there will be no action for

damages if the injury was caused by the negligence of

persons engaged in performing longshoring services.

Similar provisions are applicable to ship building or

repair employees employed directly by the vessel. The

Committee’s intent is that the same principles should

apply in determining liability of the vessel which

employs its own longshoremen or ship builders or

repairmen as apply when an independent contractor

employs such persons.

Finally, the Committee does not intend that the

negligence remedy authorized in the bill shall be

applied differently in different ports depending on the

law of the State in which the port may be located. The

Committee intends that legal questions which may

arise in actions brought under these provisions of the

law shall be determined as a matter of Federal law. In

that connection, the Committee intends that the

admiralty concept of comparative negligence, rather

than the common law rule as to contributory negli-

gence, shall apply in cases where the injured employee's

own negligence may have contributed to causing the

injury. Also, the Committee intends that the admiralty

rule which precludes the defense of “assumption of

risk” in an action by an injured employee shall also be

applicable.

Finally, the Committee wishes to emphasize that

nothing in this bill is intended to relieve any vessels or

any other persons from their obligations and duties

under the Occupational Safety and Health Act of 1970.

The Committee recognizes that progress has been made

in reducing injuries in the longshore industry, but

longshoring remains one of the most hazardous types of

occupations. The Committee expects to see further

progress in reducing injuries and stands ready to

immediately reexamine the whole third party suit

question if it appears that the changes made in present

law by this bill have affected progress in improving

occupational health and safety.

20a

In The United States District Court

For The District of Maryland

Civil No. 73-1220-K

Joseph Aneszewski, et al.

v.

Dynamic Mariners Corp. Panama

ORDER

For the reasons previously set forth on the record in

open Court by this Court and also set forth in an

opinion of even date herewith filed herein, judgment is

hereby entered for defendant, plaintiffs to pay the costs

of this case. It is so ORDERED, this 13th day of March,

1975.

FRANK A. KAUFMAN,

United States District Judge.

2la

In The United States Court of Appeals

For The Fourth Circuit

No. 75-1575

Joseph Anuszewski and Ronald Gutowski,

Appellants,

v.

Dynamic Mariners Corp., Panama,

Appellee.

Appeal from the United States District Court for the

District of Maryland, at Baltimore. Frank A. Kaufman,

District Judge.

Argued December 2, 1975 Decided Sept. 8, 1976

Before HAYNSWORTH, Chief Judge; WINTER,

Circuit Judge, and FIELD, Senior Circuit Judge.

PER CURIAN:

Joseph Anuszewski and Ronald Gutowski brought

this action against Dynamic Mariners Corp., Panama,

(Dynamic) to recover damages for injuries sustained by

them while working as epee aboard a vessel

owned by the defendant. The claims of the plaintiffs

presented questions of the interpretation and applica-

tion of 33 U.S.C. §905(b), one of the 1972 Amendments

to the Longshoremen’s and Harbor Workers’ Compen-

sation Act, and the district court, after a non-jury trial,

entered judgment in favor of the defendant. The

plaintiffs have appealed.

Anuszewski and Gutowski were longshoremen em-

ployed by the stevedoring company, Nacirema Operat-

22a

ing Co., Inc., which had been hired to offloading

Dynamic’s vessel, the MS TARPONA. The offloading

began on February 17, 1973, and continued through the

following day. The hatch covers on the vessel were each

supported by four beams which were normally locked

into place by a series of pins but which were unsecured

on this occasion. The longshoremen discovered the

condition on February 17, 1976, and reported it to their

foreman who directed them to continue their work,

stating that it would be corrected. The men continued to

work but the situation was not corrected. In order to

offload the cargo area three of the four beams under

each hatch were removed by the longshoremen but the

fourth was left in place but unsecured. On February

18th, while the cargo from the lower hold was being

discharged the cargo boom dislodged the beam under

the lower hold hatch causing it to fall into the lower

hold striking and injuring Anuszewski and Gutowski.

While recognizing that the condition of the beams

constituted unseaworthiness, the district judge in his

opinion! pointed out that such a remedy was no longer

available to longshoremen under the 1972 Amendment.

He further concluded that Section 905(b), when read in

the light of the relevant legislative history, requires

that land-based principles of law apply to a longshore-

man’s claims for damages, and that the liability of a

ship to longshoremen employed to work aboard it by a

stevedoring company is no different from that of the

owner of landbased property to the employees of an

independent contractor employed to perform work on

such property.

The legislative history clearly supports the conclusion

of the district court that the 1972 Amendments

eliminated the absolute and non-delegable duty of a

vessel to provide longshoremen a safe place to work. On

this point the House Report states:

“The purpose of the amendments is to place an

employee injured aboard a vessel in the same

position he would be if he were injured in non-

maritime employment ashore, insofar as bringing

a third party damage action is concerned, and not

1. Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.

Supp. 1143 (D. Md. 1975).

23a

to endow him with any special maritime theory of

liability or cause of action under whatever judicial

nomenclature it may be called, such as ‘unsea-

worthiness’ ‘non-delegable duty’, or the like.“?

It is equally clear from the Report that while lo ore-

men retain the right to recover damages for negligence

against a vessel, in such an action they occupy the

same position as their land-based counterparts. Such

intendment is manifest in the following language:

“Under this standard, as adopted by the Commit-

tee, there will, of course, be disputes as to whether

the vessel was negligent in a particular case. Such

issues can only be resolved through the application

of accepted principles of tort law and the ordinary

process of litige.ion — just as they are in cases

involving alleged negligence by land-based third

parties. The Committee intends that on the one

hand an employee injured on board a vessel shall

be in no less favorable position vis a vis his rights

against the vessel as a third party than is an

employee who is injured on land, and on the other

hand, that the vessel shall not be liable as a third

party unless it is proven to have acted or have

failed to act in a negligent manner such as would

render a land based third party in non-maritime

pursuits liable under similar circumstances.“

These conclusions of the district court upon the

elimination of the unseaworthiness remedy, as well as

the land-based standard to be applied, are in accord

with the decisions of the several courts who have had

occasion to consider the 1973 Amendments. Crowshaw

v. Koninklijke Nedlloyd, B.V. Rijswijk, 398 F. Supp.

1224 (D. Ore. 1975); Slaughter v. Ronde, 390 F. Supp.

637 (S.D. Ga. 1974), aff d. 509 F.2d 973 (5 Cir. 1975);

Ramirez v. Toko Kaiun K.K., 385 F. Supp. 644 (N.D.

Cal. 1974); Lucas v. “Brinknes” Schiffahrts Ges., 379 F.

Supp. 759 (E.D. Pa. 1974). In the last cited case this

reading of the legislative purpose was succinctly stated:

“In providing for the third-party suit against the

vessel for its negligence, Congress perceived that it

2. H.R. Rep. No. 92-1441, 92nd Cong., 2d Sess. (1972), 2 U.S.

Code Cong. & Admin. News., p. 4703.

Id., at 4704.

24a

was eliminating the large number of cases in

which the vessel was held liable without fault

pursuant to the doctrine of seaworthiness. This

perception was based on the assumption that the

negligence remedy provided would be similar to the

common law concept based on fault and not any

maritime negligence concept in which the vessel

owed some special duty to provide the longshore-

man a safe place to work.” 379 F. Supp., supra, at

767.

In the present case, the district court further recog-

nized the Congressional intent “that legal questions

which may arise in actions brought under these

provisions of the law shall be determined as a matter of

Federal law,“ and elected to follow the standard of the

Restatement (Second) of Torts, §343 (1965), which

provides:

A possessor of land is subject to liability for

physical harm caused to his invitees by a condition

on the land if, but only if, he

(a) knows or by the exercise of reasonable care

would discover the condition, and should realize

that it involves an unreasonable risk of harm to

such invitees, and

(b) should expect that they. will not discover or

realize the danger, or will fail to protect themselves

against it, and

(c) fails to exercise reasonable care to protect

them against the danger.”

Properly viewing the longshoremen as invitees of the

vessel, the court concluded that “this case presents a

fact situation in which the danger was open, obvious,

apparent and known to plaintiffs, and it was on this

basis that judgment was rendered in favor of the

defendant vessel. In our opinion the court’s choice of

the Restatement standard was appropriate, and its

ultimate finding and conclusion upon the issue of

liability is amply supported by the record.

See H. R. Rep. No. 92-1441, note 2, supra, at 4705.

5 391 F. Supp. 1143, 1148, note 1, supra.

25a

— the judgment of the district court is

Affirmed.

ORDER OF COURT

United States Court of Appeals

For the Fourth Circuit

No. 75-1575

Joseph Anuszewski and Ronald Gutowski,

Appellants,

And

Liberty Mutual Insurance Company,

Plaintiff,

U.

Dynamic Mariners Corp., Panama,

Appellee.

Appeal from the United States District Court for the

District of Maryland, at Baltimore

Upon consideration of the appellant’s petition for

rehearing, by counsel,

IT IS ORDERED that the petition for rehearing is

denied.

For the Court —_By Direction

s, WILIA K. SLArR, II,

Clerk.