# Petition — Anuszewski v. Dynamic Mariners Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1098

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1106%3A1. Public record. Not legal advice.