Petition — Brown v. Rederi
Supreme Court brief1977
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IN THE
Supreme Court of the United States
October Term, 1976.
Ne: 86-118e
THOMAS BROWN,
Petitioner,
v.
IVARANS REDERI A/S,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
: AvraM G. ADLER,
STANLEY P. Kops,
ARNOLD J. WOLF,
ApLeR, BarisH, DANIELS, LEVIN
AND CRESKOFF,
j
) Second Floor,
Rohm and Haas Building,
Independence Mall West,
6th and Market Streets,
Philadelphia, Pe nsylvania. 19106
Attorneys for Petitioner.
international Printing Co., 711 So. 50th St., Phila., Pa. 19143 — Tel. (215) 727-8711
INDEX TO BRIEF.
REASONS FOR GRANTING THE WRIT ...............-eeceeees
I.
Il.
III.
The Split of Authority Among the Various Circuits
of the Court of Appeals of the United States and the
Internal Conflict That Exists Within Various Circuits
Themselves as to the Interpretation of the 1972
Amendments to the Longshoremen and Harbor
Workers’ Compensation Act, 30 U. S. C. Sections
905(b) et seq. Has Resulted in a Conflicting and In-
consistent Non-Uniform Confusing Body of Law
That Can Result Only in Serial Trials and Material
Injury to the Principle of Judicial Economy .......
A Bifurcated Trial, Where There Is No Finding by
the Trial Court That the Damage Verdict Was Ex-
cessive or Otherwise Not Supported by the Evidence
and Where There Was No Finding of Trial Error
Relating to the Damage Portion of the Case by the
Court of Appeals, Judicial Economy Requires That
in the Event of a New Trial Relating to Liability,
That the Damage Verdict, Clearly Untainted, Should
Stand and Not Be the Subject of a Second Trial ....
The Various Circuits of the Courts of Appeals, in
Creating Rights and Duties Under the 1972 Amend-
ments to the Longshoremen and Harbor Workers’
Act, Have Unconstitutionally Assumed Power Avail-
able Only to the Legislature .....................
ed
INDEX TO BRIEF (Continued).
APPENDIX: Page
District Court Civil Judgment ..................0000. Al
Se ED dc dcpecddncbccondnccccnsacsedece A2
CE OE ED oo vcdsccanccascvesevcsesecss A3
Court of Appeals Judgment ...................eeeeees A24
Court of Appeals Order Denying Rehearing ........... A25
Court of Appeals (Fifth Circuit) Opinion in Gay v. Ocean
PED 6.688 bb bs cvcccvccasaceecseereenacesetes A26
Court of Appeals (Third Circuit) Opinion in Marant v.
PE L, NL, Situ cds céaneseacsiancedbuceess AA2
Court of Appeals (Third Circuit) Judgment in Marant v.
PE. «vce ce cline dameaiiaedeineane A61
| ns ee ee aw
PR
TABLE OF CITATIONS.
Cases: Page
Anuszewski_v. Dynamic Mariner Corp., Panama, 540 F. 2d
Se EE ED Cad dcavedsscvancodesacsseobasese 17
Bess v. Agromar Line, 518 F. 9d 738 (4th Cir. 1975) ....... 18
Croshaw v. Koninklije Nedlloyd, B. V. Rijswljk, 398 F. Supp.
MD dled fo vededadeceespeseéuceences 11
Earle v. Union Barge Lines Corporation, 486 F. 2d 1097 (3rd
a eRe ies cid aks ceeeenethevegettdsbess 16
Gay v. Ocean Transport and Trading, Ltd., — F. 2d — (5th
PT EE CU ccl sl headhna ietaciesadedebdevicodedece 14,15
Goett v. Union Carbide Corp., 361 U. S. 340, 4 L. Ed. 2d 341,
i ch dbaceess Meesseenteeees-e 21
Griffith v. Wheeling Pittsburgh Steel Corporation, 521 F. 2d
ED é6cenickeprndctndes butecesvncnesse 20
Guerra v. Bulk Transport Corp., et al., — F. 2d — (5th Cir.
ST dibie iaiiechideahcadsanieuds sadhosedtoaneses 16
Hadco Products, Inc. v. Frank Dini Company, 401 F. 2d 462
SE SEE od cues Cho akS Gos dedduhned6e0eenes cede 22
Hite v. Maritime Overseas Corporation, 380 F. Supp. 222
it Se, SE ED ade dckddddaccovvestestsiiciecsed 13, 14
Hourston v. Harvlan, Inc., 457 F. 2d 1105 (3rd Cir. 1972) .. 22
Kermarec v. Compagnia Generale Transatlantique, 358 U. S.
EE ea dd co dedelegdéuep Gbbskbooseueenees «sexs 20
Lind v. Schenley Industries, Inc., 278 F. 2d 79 (3rd Cir.
1969), Cert. denied 364 U. S. 835, 5 L. Ed. 2d 60 (1960) 22
Lucas v. “Brinknes” Schiffahrts Ges., 379 F. Supp. 759 (E. D.
Sk MEE “Widakddid dduns ie Mase eabeedeeddeseewdsouse c 8
Marant v. Farrell Lines, — F. 2d — (3rd Cir. 1977) ........ 19
McDonough v. U. S. Steel Corp., 324 A. 2d 542 Pa. Super.
SED uch eddbuhahenbecsweldgns sete cecacessencacees 9, 11, 12
Michalic v. Cleveland Tankers, 364 U. S. 325, 5 L. Ed. 2d 20,
Ee fone ce ccet eukwedbdeees sonnveadeis 16
Moragne v. States Marine Lines, 398 U. S. 375, 26 L. Ed. 2d
Sh Es Cy Pe CEE caeweresbcccdesscceccvsees 21
TABLE OF CITATIONS (Continued).
Cases (Continued): Page
Napoli v. Hellenic Lines, 536 F. 2d 505 (2nd Cir. 1976) .... 14
People ex rel. Thomson v. Barnett (1931) 344 Ill. 62, 176
ee § FSS FO ree eer ae 24
Philadelphia Electric Co. v. Julian, 228 A. 2d 669, 425 Pa. 217,
BT cctéversconseshedauceis eee ll
Re Lasswell (1934) 1 Cal. App. 2d 183, 36 P. 2d 678 ....... 24
Schecter v. United States, 295 U. S. 495, 79 L. Ed. 1570
CREEED bcenedecsévevaaddecewe sunumiuemnnen nue 24
Sieracki v. Seas Shipping Company, 328 U. S. 85, 9 L. Ed. 2d
BUR, GS &. GR, Sie CUE viciicddctuvecedcdecsaiees 20
Silverii v. Kramer, 314 F. 2d 407 (3rd Cir. 1963) .......... 22
West v. United States, 361 U. S. 118, 123, 4 L. Ed. 2d 161
CED 000 000000060600000606400840 enue 16
Statutes:
Federal Employees Liability Act, 45 U. S. C. §§ 51 et seq... 24
Longshoremen and Harbor Workers’ Compensation Act, 33
Oo GG, GRE vcccevcdeucscsdéccncnseeeaeueee 7, 8, 24
Occupational Safety and Health Act of 1970 (29 U. S. C. 651
OB GRE) ccccccscceciccendessésenesneseneeueeel 4,8
Restatement of Torts, Second:
GEE 600 vcccccccosvncsuceevecawetheuenanel 21
Pe 14
UUTREE TD 0.0 c ccvtoucecsccceunsucedabelennee 14
DOD TD ov cscccsnseeseccdesdesssbaseeeel 14
BOG GIR. cc ccccvecceccntécesséceceenene ne 14
Pe ee 14
NES GH ov oe ccessecécteans 3, 9, 12, 13, 14, 15, 17, 18, 20, 25
DOG DE. cccvcccccedvctctcseseenenn 14, 15, 18, 25
DOE GED och ccccceccesedadecieenneee 3, 9, 10, 12, 14, 22
Rein GD 0 vossssvcccsenesentn so9bceeneeeheenee 14
The Standards for Longshoring (29 C. F. R. 1918) ......... 4
SS U. &. GC, Gestion BAGG GD ccuccccccesscdeucuassanae 2
IN THE
Supreme Court of the United States
OcrosEer TERM, 1976.
No.
THOMAS BROWN,
Petitioner,
v.
IVARANS REDERI A/S,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
To THe Honoras_e, THe Curer JusTICE AND ASSOCIATE
JusTICcEs OF THE SUPREME COURT OF THE UNITED
STATEs:
Petitioner, Thomas Brown, prays that a Writ of Certio-
rari issue to review the judgment of the United States
Court of Appeals for the Third Circuit, entered in the
above case on November 4, 1976 and denial for Petition
of Rehearing on November 29, 1976.
OPINIONS OF THE COURTS BELOW.
Defendant’s motions for a judgment notwithstanding
the verdict or in the alternative for a new trial were denied
without opinion (A2). The Opinion of the United States
Court of Appeals for the Third Circuit is printed herein as
Appendix A4 et seq., and is reported at 545 F. 2d 854 (3rd
Cir. 1976). The Order of said Court of Appeals and the
denial of Petition for Rehearing is printed as Appendix
hereto.
2 Petition for Writ of Certiorari
JURISDICTION.
The denial of the Petition for Rehearing of the Decree
of the United States Court of Appeals for the Third Circuit
was entered on November 29, 1976. The jurisdiction of
this Court is invoked under 28 U. S. C. Section 1254(1).
QUESTIONS PRESENTED.
1. When Congress passes amendments to the Longshore-
men and Harbor Workers’ Compensation Act abolish-
ing for longshoremen the warranty of seaworthiness
and absolving the vessel owner of liability if the cause
of the injury is the sole negligence of the stevedore and
the courts of these United States attempt to fashion
novel duties and rights resulting in conflict between
circuits and conflict within circuits, should not certio-
rari be granted so that litigants may have the certainty
in the law to which they are entitled?
2. When a trial is bifurcated and the jury is charged sep-
arately on liability and damages and renders separate
verdicts, and the cause is reversed because of a pur-
ported error in the charge, is it not a violation of due
process to inferentially grant a new trial on damages
when no error is stated by the appellate court?
3. When the courts of these United States have inter-
preted the amendments to the Longshoremen and
Harbor Workers’ Compensation Act to empower them
to fashion and promulgate a new federal common law,
does not such interpretation result in an unconstitu-
tional assumption of the legislative power?
~~ T— nereee
i i
Petition for Writ of Certiorari 3
STATEMENT OF THE CASE.
This is a civil action commenced by the plaintiff long-
shoreman for personal injuries sustained in an accident
aboard the vessel M/V Santos on August 2, 1974. All page
references are to the Trial Testimony (T. T.) or the Ap-
pendix to this Petition (A). The trial resulted in a jury
verdict in favor of the plaintiff in the amount of
$300,000.00. Defendant shipowner filed motions for
judgment n.o.v. and for a new trial which were denied
by the trial court without opinion (A2). Appeal was
then taken by defendant shipowner to the Court of
Appeals for the Third Circuit. An argument was duly
held before a panel of that court. The Court of Appeals
reversed and remanded the cause for a new trial on the
basis that the trial judge’s charge to the jury was based in
part upon the Restatement (Second) of Torts 416. The
trial judge had charged Section 416 after charging, at the
defendant's request, Restatement (Second) of Torts Sec-
tion 343. These sections are discussed at length in the
argument portion of this petition. As a result of the re-
mand, plaintiff longshoreman was taxed costs of $3,000.00.
While the opinion of the Court of Appeals does set
forth a statement of the facts of the case, it does not recog-
nize that the verdict of the jury resolves all conflicts as
between the testimony of the plaintiff's witnesses and de-
fendant’s witnesses in favor of the plaintiff.
On August 1, 1974, the M/V Santos docked at Phila-
delphia, Pennsylvania. Plaintiff was an employee of
Atlantic and Gulf Stevedores, Inc. (hereinafter referred to
as A & G), an independent stevedoring company who had
been engaged by the defendant to discharge cargo from
the vessel. Plaintiff, as a holdman, was part of a gang of
longshoremen assigned to discharge the cargo from the
No. 1 lower hold, the No. 1 lower hold being in the bow
of the vessel and the resulting shear of the vessel made
4 Petition for Writ of Certiorari
tight quarters for the work of the longshoremen. Expert
testimony by a master mariner with some 36 years of ex-
perience indicated that the stow of the No. 1 lower hold
was negligently done at the prior port of Baltimore.
The cargo stowed in the No. 1 lower hold was barrels
and 24-foot lengths of steel. The barrels had been loaded
in the immediate prior port in Baltimore in such a way as
to abut against the 24-foot lengths of steel and to encumber
three-quarters of the hatch opening, thus creating a dan-
gerous discharging situation. It was necessary to discharge
the 24-foot angle irons in a hatch opening that was ap-
proximately 9 to 15 feet long and 22 feet wide.
The expert master mariner pointed out that it was
foreseeable that with the stowage of barrels, steel of this
nature would have to be discharged under close quarters
and that there was a risk of injury to personnel working in
the No. 1 hatch (T. T. 162). It was the opinion of the
master mariner that it was advisable to remove some of
the barrels and put them elsewhere in order to give the
longshoremen working room to remove the steel (T. T.
165). It was also pointed out by the master mariner that
it was the duty of the master and the officers of the vessel
to be responsible for the proper loading and discharging
of the cargo and bear the ultimate responsibility.’
It had been testified that because of the close quarters,
the steel would hang up on the face of the barrels in the
attempt to get the steel out in the limited hatch opening.
The master mariner pointed out that this required the long-
shoremen to pull the draft away from the obstruction and
1. The Standards for Longshoring (29 C. F. R. 1918) as part
of the Occupational Safety H alth Act of 1970 (29 U. S. C.
651 et seq.) did not diminish the heretofore responsibilities of the
vessel owner. It was clear in the regulations that while they were
_—— to the stevedore employer, they were not intended to
r enlarge or diminish the responsibilities of the vessel owner as
they existed at the time of the adoption of the regulation.
Petition for Writ of Certiorari 5
hold it away at which time they would then give the signal
to the winchman to go ahead and take the load up. To do
otherwise would merely pull the draft away and would
result in the draft going back to the face of the barrels
where it had been previously lodged.
The master mariner pointed out that this was not the
type of cargo where tag lines would be of any assistance.
It did not require continuous guidance because it was only
necessary to handle the draft for that brief time that it was
lodged against the face of the barrels (T. T. 177).
In summary, the testimony of the master mariner
called for the removal of sufficient barrels to provide a
proper hatch opening. The stevedore superintendent,
William Egan, had requested that barrels be removed to
provide the necessary hatch opening space. He had com-
municated this to the deck officer for permission to so do
‘and the permission had been refused (T. T. 110). It was
his opinion that the removal of the barrels would enable
the steel to be removed in a safer manner. It was his
opinion that there was room in other hatches to put some
of the barrels and that the stowage in the No. 1 hold where
the acident occurred was unsafe (T. T. 117, 118).
The master mariner, on cross-examination, pointed out
that cargo planning must take into consideration the order
of discharge so that loading operations do not result in an
overstow as happened in the instant case; that the re-
sponsibility of planning of cargo is that of the ship. One
or two alternatives could have been utilized. The vessel
owner should have put the barrels in another space or
anticipated the necessity of shifting some of the cargo in
order to get out the steel (T. T. 197). He also pointed
out that from a dollars and cents standpoint, it would have
been to the vessel's advantage to have moved the barrels
because the discharge of steel would have proceeded more
speedily and efficiently (T. T. ’ 48).
eR a:
6 Petition for Writ of Certiorari
While discharging the angle iron on August 1, 1974,
the longshoremen experienced ends of the angle iron catch-
ing in the wooden barrels and in the plywood separating
the tiers of barrels. When the angle iron was so caught,
the longshoremen in the hold pulled the angle iron away
from the barrels so that it could then be removed from the
hold.
Shortly after starting work at 8:00 a.m. on August 2,
1974, plaintiff was injured while discharging a draft of
angle iron. He was pulling the angle iron away from the
wooden barrels after it caught under the plywood flooring
of the barrels. As he pulled on the lower end of the draft,
it started swinging toward him. To avoid being struck by
the swinging draft, plaintiff ran to the offshore (port) side
of the vessel and began climbing up the side of the hold.
As he was climbing, he grabbed a sweat batten clip located
in a rib on the port side of the hold. The sweat batten
clip came out of the rib, causing plaintiff to fall about 15
feet onto the angle iron. As a result of the fall, plaintiff
sustained a concussion, multiple contusions, a laceration
over the right eye and a dislocation of his right middle
finger. Additionally, plaintiff suffered a severe traumatic
neurosis.
There was also expert testimony on behalf of plaintiff
that it was not necessary to remove the sweat battens but
that if they were removed, the clips should have also been
removed. The reason for that is that the clips take on the
appearance of padeyes and it was foreseeable that in an
emergency, a man frantically trying to get out of the way
of a swinging draft might grab what appears to look like
a padeye in order to pull himself to safety. In the instant
case, the clip was of such a nature that it could and would
pull out and as plaintiff snatched at it, it did pull out and
plaintiff fell as described above.
a
—
Petition for Writ of Certiorari i
REASONS FOR GRANTING THE WRIT.
I. The Split of Authority Among the Various Circuits of
the Court of Appeals of the United States and the In-
ternal Conflict That Exists Within Various Circuits
Themselves as to the Interpretation of the 1972
Amendments to the Longshoremen and Harbor
Workers’ Compensation Act, 33 U. S. C. Sections
905(b) et seq. Has Resulted in a Conflicting and In-
consistent Non Uniform Confusing Body of Law That
Can Result Only in Serial Trials and Material Injury
to the Principle of Judicial Economy.
The amendment of October 27, 1972 to the Long-
shoremen and Harbor Workers’ Compensation Act is set
forth at 33 U. S. C. 905(b). It provides:
“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 em-
oloyer shali not be liable to the vessel for such dam-
ages directly or indirectly and any agreements or
warranties to the contrary shall be void. If such per-
son was employed by the vessel to provide stevedoring
services, no such action shall be permitted if the in-
jury was caused by the negligence of persons engaged
in providing stevedoring 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 rem-
edies available under this chapter.”
8 Petition for Writ of Certiorari
The statute itself speaks in clear language. It pre-
serves the longshoreman’s cause of action for negligence
by the vessel owner. It abolishes a cause of action on
behalf of a longshoreman for unseaworthiness and it ab-
solves the vessel owner of absolute liability or responsi-
bility if the injury was solely caused by the negligence of
longshoreman’s fellow servant.
The legislative history which consists of committee re-
ports of both the House and the Senate indicates that it
was the view of the drafters of this Amendment that by
taking these far-reaching steps, the longshoreman would
no longer be accorded the benefits of absolute liability on
the part of the vessel owner for their injuries, and be put
to the requirement of showing negligence on the part of
the vessel owner.
An examination of the legislative history of the Amend-
ments points out certain salient features. First, the Con-
gressional Committee refused the plea that all third-party
actions be eliminated either by outright prohibition or by
the device of making the vessel owner a statutory em-
ployer. This rejection came about because the committees
felt that neither the provisions of the Occupational Safety
and Health Act, with its penal provisions or the no-fault
liability of the Stevedore-employer under the Longshore-
men and Harbor Workers’ Compensation Act would pro-
tect the longshoremen from injury. The committees had
noted the extraordinarily hazardous nature of longshore
employment.
It was felt that the preservation of the cause of action
for negligence against the vessel owner is essential as a
parallel motivation for promoting safety and preventing
accidents. Lucas v. “Brinknes” Schiffahrts Ges., 379 F.
Supp. 759 (E. D. Pa., 1974):
“At the same time, however, Congress was concerned
that the vessel owner not become lax in doing what
OE ee ND
Petition for Writ of Certiorari 9
it should reasonably be required to do to prevent in-
juries to the longshoremen. The common law neg-
ligence remedy was thought sufficient to provide the
vessel with the necessary incentive. The argument
by the amicus curiae that the shipowner can be liable
only when it is solely negligent would negate Con-
gress intention to prevent shipowner negligence and
is contrary to the terms of the Act. The Act clearly
provides for such a suit regardless of the concurrent
negligence by the stevedore. If Congress intended
that the vessel could be liable only when its negligence
was the sole cause of the injuries, the mere insertion of
the word ‘solely’ in the first sentence of subsection
5(b), 33-U. S. C. § 905(b) would have accomplished
the result.” At page 769.
We do believe that Congress, by its language, has
issued a mandate to the Courts that they will not permit
nor can there be justified a position that an employee
injured aboard a vessel shall in any way or in any manner
receive less rights than an employee who is injured on
land. Thus a longshoreman injured aboard a vessel should
receive the benefits of all Sections of the Restatement
(Second) of Torts received by those who work in non-
maritime land-based positions. One such Section is 416,
recognized and applied by Courts in Pennsylvania.
In McDonough v. U. S. Steel Corp., 324 A. 2d 542
Pa. Super. 1973, an Appellate Court of the Commonwealth
of Pennsylvania applied Sections 413 and 416 of the
Restatement of Torts, 2d for injuries resulting to an em-
ployee of an independent contractor in which the possessor
of land was the defendant. The Court in establishing the
liability of the possessor of land stated:
Normally, an employer of an independent con-
tractor is not responsible for the negligent acts or
10
Petition for Writ of Certiorari
omissions of the contractor or its employees. Hader
v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A. 2d
271 (1963). When an emloyer has exercised care
in choosing a careful and competent contractor to
do work on the employer’s premises, and has en-
trusted the control and possession of the premises,
and the performance of the task to that contractor,
the employer is generally shielded from liability to
third parties due to the negligence of the contractor.
‘ An employer, however, must use reasonable care to
make the premises safe, or warn the contractor of
any dangerous condition thereon. Grace v. Henry
Disston & Sons, Inc., 369 Pa. 265, 85 A. 2d 118 (1952).
There are, however, exceptions to this general
rule of non-liability, and the instant case, falls within
one of these exceptions. The exception does not rest
upon any personal negligence of the employer, but
is a rule of vicarious liability. The rule is stated in
Section 416 of the Restatement of Torts, 2d:
“One who employes an independent con-
tractor to do work which the employer should
recognize as likely to create during its progress
a peculiar risk of physical harm to others unless
special precautions are taken, is subject to lia-
bility for physical harm caused to them by the
failure of the contractor to exercise reasonable
care to take such precautions, even though the
employer has provided for such precautions in
the contract or otherwise.”
In the instant case, the appellee contended that
the decedent was exposed to a peculiar risk (“running
the edge” at night) which necessitated special pre-
cautions (the provision of adequate lighting to illumi-
nate the pile) that the contractor negligently failed
Petition for Writ of Certiorari 11
to take. Thus, the appellee argues that appellant was
properly found liable for the contractor's failure to
take said precautions.
Section 416 is thus applicable only to situations
in which the negligence of the independent contractor
consists of the failure to take the precautions neces-
sary for the safe performance of a task.
At 545-546. [Footnotes omitted. |
In McDonough, supra, the Court recognized that an
application of Section 416 is not true vicarious liability
but is liability arising from scienter of a dangerous con-
dition and a failure to act to prevent injuries to another
when it held:
“Because of the ‘particular surrounding’ of the
operation, the previous night shift accidents, and the
presence of its safety personnel at the job site, appel-
lant knew or should have known of the visibility
problems attending the nighttime stockpiling. The
jury was thus fully justified in finding a recognizable
peculiar risk, and holding appellant liable for the
contractor's failure to take the special precaution of
providing artificial lighting. (Footnotes omitted)”
At page 547.
See also Philadelphia Electric Co. v. Julian, 228 A. 2d
669, 671, 425 Pa. 217, 1967, in which the Pennsylvania
Supreme Court applied Sections 427 and 416 of the Re-
statement of Torts, 2d. The case is important in that it
applied Section 416 where the defendant was clearly at
fault so that the Court found no need to apply or discuss
vicarious liability.
In Croshaw v. Koninklije Nedlloyd, B. V. Rijswljk,
398 F. Supp. 1224 (D. Ore. 1975), the Court recognized
12 Petition for Writ of Certiorari
that an application of Section 343 must also take into ac-
count, inter alia, Section 416 of the Restatement of Torts,
2d when applicable and when the vessel owner has scienter
(at p. 1230).
In the instant case, the Court charged Section 343 of
the Restatement of Torts, 2d. At plaintiff's request, it also
charged Section 416 of the Restatement of Torts, 2d be-
cause there was evidence that a peculiar risk had been
created by the vessel owner. An agent of the vessel owner
had refused permission to permit a method of discharge
that could have accomplished the task in safety and re-
quired the stevedore to take out the steel under conditions
which created a foreseeable risk of injury to the plaintiff.
The factual situation closely paralleled McDonough, supra.
Were the plaintiff not a longshoreman and were the
shipowner an owner of a warehouse with hatch openings
instead of doors the charge of Section 416 would not only
have been permissible but mandated under Pennsylvania
law. Yet the plaintiff's verdict by the jury is set aside on
the basis that to adopt Section 416 of the Restatement is
in some way abhorrent to the uniformity required by Con-
gress.
The question then arises whether the comments by the
Congressional committee that the rights of the longshore-
men shall be analogized to that of a shore-based employee
or that the duties of the shipowner shall parallel that of a
shoreside employer in any way minimizes the pre-existing
parameters of the maritime cause of action for negligence
and the duties that were placed upon the vessel owner.
This was made clear by the Committee when it said:
“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 ac-
0 Cert
Petition for Writ of Certiorari 13
cepted principles of tort law and the ordinary process
of litigation just as they are in cases involving negli-
gence 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 pur-
suits liable under similar circumstances. 3 1972 U. S.
Code Cong. & Admin. News 4698, 4702-04 (Emphasis
added ).”
Ordinarily, it would hardly be appropriate to apply
for a Petition for a Writ of Certiorari to this Court follow-
ing the grant of a new trial by the Court of Appeals, but
the plaintiff, longshoreman, in light of the intrusion into
the legislative process by various Circuits of the Courts of
Appeals, resulting in conflicts between these Circuits and
within Circuits, and a complete absence of uniform legal
direction, has placed him in an entirely untenable situa-
tion. The seriousness of the situation is seen easily through
a brief review of what various circuits have done with this
statute.
Hite v. Maritime Overseas Corporation, 380 F. Supp.
222 (E. D. Texas 1974) was the first example of the court’s
assuming the role of legisiatures and fashioning the duties
of the ship owner within the framework of Restatement
(Second ) of Torts Section 343:
“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
14 Petition for Writ of Certiorari
(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 in-
vitees, 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.”
To the extent that the Federal Courts have applied
the Hite case, they have thwarted the intention of Con-
gress that there be preserved to the longshoremen their
traditional cause of action for negligence. They have mis-
read the allusions to shoreside law, but even if the legisla-
tive history would countenance a substitution of shoreside
law for the traditional cause of action for negligence, the
singular naked application of Section 343 is not justified.
If only Section 343 of the Restatement (Second) of Torts
applied, then it would mean that the longshoremen would
have rights far below that of the ordinary shoreside worker
in a similar position.
The Court of Appeals when speaking in Brown would
accept Sections 281-83, 302A, 305 and 452 of the Restate-
ment (Second) of Torts albeit they rejected Section 416.
They have also specifically rejected Section 343A which
carries with it an inferential rejection of Section 343 (Sec-
tion 343A being a dilution of Section 343). On the other
hand, the Second Circuit of the Court of Appeals in Napoli
v. Hellenic Lines, 536 F. 2d 505 (2nd Cir. 1976) rejected
Section 343 and delineated Section 343A as the orbit of the
shipowner’s duties. :
In Gay v. Ocean Transport and Trading, Ltd., — F. 2d
— (5th Cir. 1977), (see Appendix for a copy of this Opin-
ion ), certain principles were set forth:
Petition for Writ of Certiorari 15
“From these passages and section 905(b) itself
we distill the following conclusions:
(1) Congress intends for the federal courts to
develop a uniform federal common law to control
LHWCA suits against vessels.°
(2). That LHWCA federal Common Law is to be
based on negligence concepts; the unseaworthiness
of a vessel is not an acceptable ground for relief.
(3) LHWCA negligence law is to be guided
primarily by analogy to land-based law concepts.’
The stevedore is to be viewed generally as an inde-
pendent contractor and its employees as invitees of
the vessel owner.
(4) However certain common land-based prin-
ciples of state law are not to be carried over into the
federal law governing LHWCA suits. Assumption of
risk may not be utilized as a defense, and comparative
negligence, rather than contributory negligence, is to
be applied.” (Footnotes omitted) (A31-32).
Then the court in Gay paradoxically distilled from
these principles Sections 343 and 343A which are the em-
bodiment of the concept of assumption of the risk which
Congress specifically precluded in the legislative history.
In addition, the court went on to say that the plaintiff
had argued that the vessel had a non-delegable duty to
provide the longshoremen with a safe place to work. The
court in commenting on this said:
“But this is exactly the type of liability without
fault concept from which Congress sought to free
vessels by the passage of the 1972 Amendments.’
(Footnotes omitted) (A35-36).
16 Petition for Writ of Certiorari
In fact, the non-delegable duty to furnish a safe place
to work was never a concept without fault, but a principle
of negligence as was pointed out in Michalic v. Cleveland
Tankers, 364 U. S. 325, 5 L. Ed. 2d 20, 81 S. Ct. 6 (1960).
The Court in West v. United States, 361 U. S. 118, 123, 4
L. Ed. 2d 161 (1959) stated that one aspect of the ship-
owners duty to refrain from negligent conduct is em-
bodied in his duty to exercise reasonable care to furnish a
safe place to work. See also Earle v. Union Barge Lines
Corporation, 486 F. 2d 1097, 1104 (3rd Cir. 1973).
In Guerra v. Bulk Transport Corp., et al., — F. 2d
— , (5th Cir. 1977) (see Appendix pp. A36 to A41),
the Court of Appeals for the Fifth Circuit was faced
with findings by the Court sitting as the finders of
fact that in which the Court had applied Section 343 of
the Restatement of Torts. The traditional rule of Section
343 was rejected by the Court but still the judgment was
affirmed:
“Despite our rejection of the traditional rule, we still
affirm the judgment of the district court in this case.
Even though the crew of the vessel was aware of the
dangerous condition presented by the stack of pallets,
it was the stevedore who created the hazard in the
first place and it was the stevedore that failed to tie
the pallets down and then carelessly knocked one into
the hold. This was not the type of danger that must
be faced notwithstanding knowledge. The finding of
the district court that the stevedore’s negligence was
the sole proximate cause of Guerra’s injury is not
clearly erroneous.” (A41)
Yet, inferentially, the Court recognized the plight of
the individual longshoreman as an economic pawn in its
footnote:
ee er
Petition for Writ of Certiorari 17
“In Brock v. Coral Drilling, Inc., 477 F. 2d 211 (5th
Cir. 1973), we recognized similar principles in a
LHWCA case in which the 1972 Amendments were
not applicable. In that case, the plaintiff Brock was
aware of hazardous conditions existing on the vessel
on which he was working, but continued to work
after protests to his supervisor proved unavailable.
We affirmed a finding that Brock had met the stand-
ard of ordinary prudence, noting that he was econom-
ically dependent upon the stevedore for future em-
ployment. Id. at 215.” (A40)
In a further footnote, the Court recognized the
incongruity of these Sections relating to owners of land
being applied to vessels:
“20. By adopting as guidelines the land-based prin-
ciples found in the Restatement (Second of Torts, we
do not indicate, of course, that vessel owners have the
identical duties of owners of land. A ship presents
its own special hazards. As always, a determination
of the reasonableness of a defendant's actions (or lack
thereof) requires an examination of all the circum-
stances surrounding the injury.” (A41)
The Fourth Circuit in Anuszewski v. Dynamic Mariner
Corp., Panama, 540 F. 2d 757 (4th Cir. 1976) in a per
curiam Opinion placed its stamp of approval on Section
343. The factual situation illustrates the unjustified harsh-
ness of Section 343 and its inappropriateness to longshore-
men working aboard ship:
“Anuszewski and Gutowski were longshoremen em-
ployed by the Stevedoring company, Nacirema
Operating Co., Inc., which had been hired to offload
Dynamic’s vessel, the MS Tarpona. The offloading
began on February 17, 1973, and continued through
18 Petition for Writ of Certiorari
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 long-
shoremen discovered the condition on February 17,
1973, 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 situ-
ation 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 dis-
charged 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.”
At page 758.
This should be compared with the very illustration
given in the legislative history that if there is oil on the
deck and a longshoreman later slips on that oil the ship-
owner is liable. That very example should lay to rest any
attempt to engraft Section 343 or even 343A into the duty
of care. There is a conflict in the Fourth Circuit itself.
In Bess v. Agromar Line, 518 F. 2d 738 (4th Cir. 1975),
the Court of Appeals was confronted with another “open
and obvious” condition. The same circuit court not only
did not apply Section 343 as a rigid criteria but went on
to say:
“There is no allegation or evidence that the ves-
sel was unseaworthy or that the hold was not a safe
place to work when the vessel was turned over to the
independent stevedoring contractor.*”
Petition for Writ of Certiorari 19
“8. We do not intend to suggest that the ship-
owner's duties to the longshoremen ended when it
turned the vessel over to the stevedore in a safe con-
dition. Subsequent duties may arise depending upon
the facts of the case. See White v. United States, 400
F. 2d 74 (4 Cir. 1968) (Although White was a pre-
amendment case it is pertinent here because it pro-
ceeded upon negligence principles; the doctrine of
seaworthiness was not applicable because the vessel
in question was not in navigation at the time of the
accident ).” At pages 741-742.
To further complicate the legislative process under-
taken by the courts, the Court of Appeals for the Third
Circuit added a new dimension in Marant v. Farrell Lines,
— F. 2d — (3rd Cir., 1977) (see Appendix for a copy of
this Opinion). In that case the vessel arrived with an im-
proper stow. The longshoremen attempted to deal with
the problems created by the improper stow. Plaintiff
longshoreman was injured when a wall of bags fell upon
him. The jury found that there was concurrent negligence
on the part of the vessel owner and the stevedore and in-
asmuch as that issue was submitted to the jury they found
each 50% negligent and such negligence an approximate
cause of plaintiff's injuries. The court charged that there
could be more than one proximate cause of plaintiff's in-
juries but if the stevedore’s negligence was the sole cause
of the accident then no verdict could lie against the vessel
owner. The Court of Appeals for the Third Circuit re-
versed on the grounds that the Court did not charge the
jury that the primary duty for the safety of a longshore-
man is yoked upon the independent stevedore. The Court
of Appeals in Marant reversed and in so doing said:
“To say that responsibility is concurrent or joint is
plainly inconsistent with the intention of the Act to
20 Petition for Writ of Certiorari
place primary responsibility on the stevedore.”
(A45).
Thus, almost twenty (20) years after the Court laid
to rest apparently once and for all obsolescent, outworn
and meaningless conceptional distinctions of invitee, licen-
see, et al. in Kermarec v. Compagnia Generale Trans-
atlantique, 358 U. S. 625 (1959), new such distinctions,
this time of primary and secondary liability, distinctions
virtually impossible to communicate to a jury, arise like a
phoenix emerging from the ashes of reason. At this point
the plaintiff, longshoreman, in this case absent the granting
of Certiorari by this Court, faces a new trial with the law
in shambles and the prospect of serial verdicts and serial
appeals with serial potential judgments for legal costs
hanging over him like the Sword of Damocles. It was
with a touch of irony that the Third Circuit in Griffith v.
Wheeling Pittsburgh Steel Corporation, 521 F. 2d 31 (3rd
Cir. 1975) in dealing with the amendments explored the
possible ramifications of the amendments ranging from the
application of Jones Act negligence to Section 343 and
then said:
“We cannot in this case do more than suggest that
there is a problem.* The district court did not decide
any standard of care issue, and none is before us in a
context sufficiently concrete and adversary for our
decision at this time.” (Footnote omitted )
At page 45.
It is important that this Court act to restore sanity and
balance to the state of the law. If Certiorari were to be
granted we would urge upon this Court that the age-old
maritime concepts of negligence be applied as they were
before and after Sieracki v. Seas Shipping Company, 328
U. S. 85, 9 L. Ed. 2d 1099, 66 S. Ct. 872 (1946). Were
Petition for Writ of Certiorari 21
this to be followed; the requirements of scienter would
then provide a broad equation of maritime rights and
duties with shoreside rights and duties. An alternative
would be the use of the Restatement of Torts not limited
to a single section, but considering its full scope and ap-
plicability as it must do if the mandate of Congress is to
be followed, that an employee on board a vessel shall be
in no less favorable a position as an employee injured on
land:
The Restatement of Torts, Second, is a codification of
shoreside common law relating to the duties of a possessor
of land and the duties of an employer of an independent
contractor as to invitees who were employees of that inde-
pendent contractor. It has the significant virtue of being
national in scope and thus, apart from reflecting the high-
est level of legal scholarship, it provides the desirable uni-
formity that the Congressional reports looked to.
If there are geographical differences, then it behooves
the Court to seek the highest denominator when drawing
a parallel between a longshoreman and a shoreside worker.
This was the very process that ensued in Moragne v. States
Marine Lines, 398 U. S. 375, 26 L. Ed. 2d 339, 90 S. Ct.
1772 (1970), where the Court adopted the highest com-
mon denominator which was the Death on the High Seas
Act. This act was superior to the Jones Act in that it did
not have the inequities of favoring one class of dependents
over another and it was far superior to many of the indi-
vidual state acts including the inequity of the West
Virginia death statute which places a limit of $20,000 on a
wrongful death action. Cf. Goett v. Union Carbide Corp.,
361 U. S. 340, 41 L. Ed. 2d 341, 80 S. Ct. 357 (1966).
It is prayed that a Petition for Certiorari should be
granted so that the longshoreman plaintiff in this case must
not again and possibly again run the shoals of uncharted
law.
22 Petition for Writ of Certiorari
Il. A Bifurcated Trial, Where There Is No Finding by the
Trial Court That the Damage Verdict Was Excessive
or Otherwise Not Supported by the Evidence and
Where There Was No Finding of Trial Error Relating
to the Damage Portion of the Case by the Court of
Appeals, Judicial Economy Requires That in the
Event of a New Trial Relating to Liability, That the
Damage Verdict, Clearly Untainted, Should Stand and
Not Be the Subject of a Second Trial.
The appropriate test to be applied by a Court hearing
a motion for a new trial based upon an allegation that the
verdict was against the weight of the evidence (e.g. that
the damage finding was excessive ) is whether there is suffi-
cient evidence existing on the record which, if accepted by
the jury, could sustain a verdict in favor of the prevailing
party. A trial judge abuses his discretion by substituting
his evaluation of the evidence for that of the jury, Hourston
v. Harvlan, Inc., 457 F. 2d 1105 (3rd Cir. 1972).
In Lind v. Schenley Industries, Inc., 278 F. 2d 79
(3rd Cir. 1969), Cert. denied 364 U. S. 835, 5 L. Ed. 2d 60
(1960), the Court stated that a trial judge should not
interfere with a jury verdict unless it is clear that the jury
has reached a seriously erroneous result and that it should
not set aside the verdict merely because the Court would
have come to a different conclusion had it been the trier
of facts.
The scope of an Appellate Court’s review of a District
Court's denial of such motion is even narrower. The trial
judge’s determination will not be reversed unless it is
clearly erroneous. Hadco Products, Inc. v. Frank Dini
Company, 401 F. 2d 462 (3rd Cir. 1968). Appellate
Courts rarely find that the trial judge abused his discretion
and the trial judge’s determination is not reviewable or
appealable except in the most exceptional circumstances,
Silverii v. Kramer, 314 F. 2d 407 (3rd Cir. 1963).
or we ~
Petition for Writ of Certiorari 23
The inferential ordering of a new trial for damages by
the Court of Appeals not only violated all principles of
judicial appellate review, but it violated more fundamental
concepts of judicial economy.
The fact that the trial had been bifurcated and that
the jury, in separate verdicts dealt with the matter of liabil-
ity and damages was ignored by the Court of Appeals.
The opinion of the Court never reaches the damage portion
of the case except to suggest in an oblique way that per-
haps on a retrial the Court might consider an impartial
medical examination. Yet the record shows that it was
the treating doctor that testified for the plaintiff, that an
expert physician employed by the defendant concurred in
the diagnosis of a severe traumatic neurosis. Both physi-
cians concurred in the need for intense psychiatric care
and the only deviation was on the prognosis after such in-
tensive psychiatric care. The jury by its verdict adopted
the opinion of the treating physician rather than the de-
fendant’s physician. Yet, to borrow a phrase, plaintiff
must be placed in double jeopardy as to his burden of
proving his damages despite the fact that the trial was
reversed as a result of a very narrow issue, namely the
charge in Section 416 of a Restatement (2nd) of Torts in
the liability phase of the case.
It is respectively submitted that this inferential grant-
ing of a new trial for damages by the Court of Appeals not
only violates all principles of judicial appellate review but
in addition does violence to those fundamental concepts of
judicial economy which were sought by trial bifurcation.
24 Petition for Writ of Certiorari
Ill. The Various Circuits of the Courts of Appeals, in
Creating Rights and Duties Under the 1972 Amend-
ments to the Longshoremen and Harbor Workers’ Act,
Have Unconstitutionally Assumed Power Available
Only to the Legislature.
If Congress intended a new cause of action with new
duties and rights, then it was the responsibility of Congress
to write out these duties and rights in clear and precise
language, or provide an adequate and unequivocal refer-
ence by which those rights and duties could be determined.
As an example, the Jones Act, 46 U. S. C. § 680, created a
new cause of action of Seamen by incorporating by refer-
ence the Federal Employees Liability Act, 45 U. S. C.
§§ 51 et seq., and the case law which had been decided
thereunder.
It is not the purpose of this section of the brief to
involve this Court in the maelstrom of constitutional prin-
ciples effected by a delegation of a legislative power of
Congress to a coequal department of the government
namely in this case the judiciary. Cf. Schecter v. United
States, 295 U. S. 495, 79 L. Ed. 1570 (1935).
The United States Constitution contains no specific
prohibition against the delegation of the legislative powers
of Congress, but it is logically deduced that since the Con-
stitution divides the government into three distinct divi-
sions, it does not lie in the power of Congress to delegate
its power to another governmental division.” Re Lasswell
(1934) 1 Cal. App. 2d 183, 36 P. 2d 678.
Independent of any written constitution, John Locke
write in 1689: ‘The legislature cannot transfer the power
of making laws to any other hands, for, it being but a dele-
gated power from the people, they who have it cannot
pass it over to others.’ People ex rel. Thomson v. Barnett
(1931) 344 Ill. 62, 176 N. E. 108, 76 A. L. R. 1044.
Petition for Writ of Certiorari 25
This is not a circumstance where administrative rules
and regulations are being authorized but instead involves
a determination of rights and duties. There may not be the
equivalent responsiveness of the judiciary to the matters of
policy that are inherent in a statute that would change
such rights and duties. A legislator must stand for re-elec-
tion. He has no life tenure.
The Committee Reports never even hinted at Section
343 or even the more enlightened Section 343A. The Com-
mittee Reports never said that if the condition confronting
a longshoreman is openly and obviously hazardous he must
bear the risk should he be hurt. These are judicial inven-
tions. Nothing was said in the Committee Reports of pri-
mary and secondary liability. These are judicial inven-
tions.
It would be an unconstitutional delegation of power to
accept the premise that the Court of Appeals or any Court
can create a new standard of care to govern actions by
longshoremen or other harbor workers who are injured
aboard vessels.
26 Petition for Writ of Certiorari
CONCLUSION.
Plaintiff longshoreman faces another long and expen-
sive trial subjecting himself to further liability for costs,
thus imperiling his meager assets in a context in which
there are indications of judicial ambiguities until this
Court can lead this type of litigation out of the welter of
uncertainty and the risks to the parties of serial trials and
serial appeals.
Respectfully submitted,
AvRAM G. ADLER,
STANLEY P. Kops,
ARNOLD J. WoLrF,
ADLER, BarisH, DANIELS, LEVIN
AND CRESKOFF,
Second Floor,
Rohm and Haas Building,
Independence Mall West,
6th and Market Streets,
Philadelphia, Pennsylvania. 19106
Attorneys for Petitioner.
DISTRICT COURT CIVIL JUDGMENT.
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN DiIsTRICT OF PENNSYLVANIA
Crvu. Action No. 74-2952.
THOMAS BROWN
v.
IVARANS REDERI A/S
Civil Judgment
BEFORE HONORABLE JAMES H. GORBEY
Anp Now, this 16th day of September 1975, in accord-
ance with answers to interrogatories and the jury’s verdict,
Ir Is Orverep that Judgment be and the same is
hereby entered in favor of plaintiff Thomas Brown and
against defendant Ivarans Rederi A/S in the amount of
THREE HunpRED THousaNp Do tars ($300,000.00) to-
gether with costs.
By THE COURT:
ATTEST:
MARGUERITE L. MCCAFFREY,
Marguerite L. McCaffrey,
Deputy Clerk.
(Al)
A2 District Court Order
DISTRICT COURT ORDER.
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN District OF PENNSYLVANIA
Crvm Action No. 74-2952.
THOMAS BROWN
v.
IVARANS REDERI, A/S
Order
AnD Now, this 7th day of November, 1975, upon
consideration of defendant’s motion for judgment notwith-
standing the verdict, or in the alternative for a new trial,
it is ORDERED that said motions are DENIED.
By THE COURT:
James H. Gorsey,
James H. Gorbey,
U. S. District Judge.
Court of Appeals Opinion A3
COURT OF APPEALS OPINION.
UNITED STATES COURT OF APPEALS
For THe Tuirp Circuit
No. 76-1037
THOMAS BROWN
v.
IVARANS REDERI A/S,
Appellant
(D. C. Civil No. 74-2952 )
APPEAL FROM THE UNITED States Districr CourT FOR THE
EASTERN District OF PENNSYLVANIA
Argued September 8, 1976
Before VAN Dusen, Huntry and Wes, Circuit Judges
Robert B. White, Jr., Esq.,
Rawle & Henderson,
Philadelphia, Pa.,
Attorneys for Appellant
Avram G. Adler, Esq. &
Stanley Paul Kops, Esq.,
Philadelphia, Pa.,
Attorneys for Appellee
A4- Court of Appeals Opinion
Opinion of the Court
(Filed November 4, 1976)
Van Dusen, Circuit Judge.
This is an appeal by a vessel owner in an action
brought by the plaintiff-longshoreman for personal injuries
sustained in an accident aboard the defendant's vessel, the
M/V Santos, on August 2, 1974. The trial resulted in a
jury verdict in favor of the plaintiff in the amount of
$300,000. This appeal presents us with issues, discussed
but not decided in Griffith v. Wheeling Pittsburgh Steel
Corporation, 521 F. 2d 31, 44-45 (3d Cir. 1975), concern-
ing the proper construction and application of the negli-
gence remedy created by § 18(a) of the Longshoremen’s
and Harbor Workers’ Compensation Act Amendment of
1972, Pub. L. No. 92-576, 86 Stat. 1263, 33 U. S.C. § 905(b),
amending § 5 of the Longshoremen’s and Harbor Workers’
Compensation Act, ch. 509, § 5, 44 Stat. 1426, 33 U. S. C.
§ 905 (LHWCA). Because we believe the district court
misconstrued § 905(b) of the 1972 Amendments in the
action below, we reverse and remand for further proceed-
ings.
I. THe ACCIDENT
Most of the facts of this case are undisputed; we shall
identify contested portions in our statement of them below.
On August 1, 1974, the M/V Santos docked at Phila-
delphia, Pa. Atlantic & Gulf Stevedores, Inc. (hereinafter
A & G), an independent stevedoring company, was en-
gaged bv defendant to discharge cargo from the vessel.
Plaintiff, an employee of A & G, was a holdman in a gang
of longshoremen assigned to discharge cargo from the No.
1 lower hold. The cargo to be discharged from the forward
No. 1 hold consisted of drums of ore and packages of angle
iron, 20 feet long, that were stowed lying fore and aft in
Court of Appeals Opinion A5
this part of the hold. The drums of ore were stowed on
top of the angle iron. Aft of the angle iron and drums of
ore were empty wooden barrels. The distance between
the empty wooden barrels and the angle iron was not over
three feet. The empty wooden barrels occupied two-
thirds or three-quarters of the hatch opening; as a conse-
quence about one-half of the length of the angle iron was
under the forward hatch coaming. The remaining one-
third or one-quarter of the hatch opening through which
the drums of ore and angle iron had to be discharged was
described as being between 9 and 15 feet. The 9 to 15
foot dimension was in the fore and aft direction of the
hatch. The width of the hatch opening was approximately
22 feet. There was controverted testimony by experts for
both parties as to whether or not the proximity of the
wooden barrels to the angle iron created a dangerous dis-
charging situation. The gang boss for the A & G gang
assigned to the No. 1 hold was a substitute for the regular
gang boss. The three holdmen working with plaintiff in
the No. 1 hold were not regular members of the gang;
however, the plaintiff was.
Discharging the drums of ore began at 8 o'clock A. M.
on August.1, 1974, and concluded at about 3:30 P. M. of
‘that same day. Thereafter, discharging of the angle iron
commenced. On August 1, 1974, angle iron was discharged
until 7 o’clock P. M. Eighteen drafts of angle iron were
discharged in this period. Because of the barrels, dis-
charging of the angle iron through the 9 to 15 foot opening
was accomplished by wrapping a cable three times around
1. The record does not clearly indicate the distance from the
ends of the angle iron to the barrels. For instance, Egan, the long-
shoremen’s ship boss, testified that the steel angle irons “were right
up to the barrels.” N. T. at 104. McGrath, the stevedoring super-
intendent, testified to a distance of “a foot and a half or two feet.”
N. T. at 251. Johans, a cargo supervisor who inspected the vessel
shortly after the accident, testified that the distance “seemed to
[him] to be about two to three feet.” N. T. at 328.
A6 Court of Appeals Opinion
the ends closest to the wooden barrels and a second cable
of the same length one time around the other ends. The
two cables were then inserted into a hook on the end of a
hoisting cable and the angle iron was lifted out of the hold
by winches. In this manner the angle iron was discharged
at an angle with the ends closest to the wooden barrels
higher than the other ends. While discharging the angle
iron on August 1, the longshoremen experienced the ends
of the angle iron closest to the wooden barrels catching in
the wooden barrels and in the plywood separating the tiers
of wooden barrels. When the angle iron caught in the
wooden barrels or the plywood, the longshoremen in the
hold pulled the angle iron away from the wooden barrels
so that it could be removed from the hold. There was con-
troverted testimony as to whether or not the A & G ship
boss had made a request to the vessel’s deck officer for
permission to remove the barrels.2 The evidence is clear
that the stevedore did not utilize tag lines to unload the
angle iron; however, the stevedore’s ship boss testified that
under the circumstances their utilization would have been
useless or unsafe. Also, the record indicated non-compli-
ance by A & G, as the employer of Brown, with applicable
regulations of OSHA, including 29 C. F. R. § 1918.81(f)
concerning tag lines.*
2. Egan testi ”
officer = tg pty oy Gs. se
McGrath testified that making such a request would be within the
realm of his authority. not Egan’s, and that he had made no re-
quest. N. T. at 256. Zolinas, the gang boss, testifi
of no request to remove the Lanai R T 2 — that he knew
3. The applicable House Committee Report No. 92-1441 ac-
companying H. R. 12006, which became P. L. 92.576 containing the
1972 amendments to the LHWCA, contained this paragraph (Vol.
3, 1972 U. S. Code Cong. & Admin. News, p. 4705);
“Finally, the Committee wishes to emphasize that nothin
in this bill is intended to relieve any vem or any poe —
sons from their obligations and duties under the Occupational
Court of Appeals Opinion A7
Shortly after starting work at 8 oclock A. M. on
August 2, 1974, plaintiff was injured while discharging a
draft of angle iron. He was pulling the angle iron away
from the wooden barrels after it caught under plywood.
As he pulled on the lower end of the draft, it started swing-
3. (Cont'd. )
Safety and Health Act of 1970. The Committee recognizes
that fo has been made in reducing injuries in the long-
shore industry, but longshoring remains one of the most haz-
ardous types of occupations. The Committee expects to see
further progress in reducing injuries and stands ready to im-
nalietdie reexamine the whole third party suit question if it
os that the changes made in present law 7 is bill have
ected progress in improving occupational health and safety.”
See also 33 U. S. C. § 941(a) (1970) of the LHWCA, quoted below
at page 11.
The OSHA Safety and Health Regulations for Longshoring, 29
C. F. R. § 1918.1, et seq., in sections pertinent to this case, provide
inter alia:
Ҥ 1918.2 Scope and responsibility.
“(a) The responsibility for compliance with the regula-
tions of this part is placed upon ‘employers’ as defined in
§ 1918.3(c).
“(b) It is not the intent of the regulations of this part to
place additional responsibilities or duties on owners, operators,
agents or masters of vessels unless such persons are acting as
employers, nor is it the intent of these regulations to relieve
aa owners, operators, agents or masters of vessels from re-
sponsibilities or duties now placed upon them by law, regula-
tion or custom.
Ҥ 1918.3 Definitions.
“(a) The term ‘shall’ indicates provisions which are man-
datory.
“(c) The term ‘employer’ means an employer any of
whose employees are employed, in whole or in part, in hue
shoring operations or related employments, as defined herein
within the Federal maritime jurisdiction on the navigable
waters of the United States.
“(d) The term ‘employee’ means any longshoreman, or
other person engaged in longshoring operations or related em-
ployments, within the Federal maritime jurisdiction on the
navigable waters of the United States, other than the master,
A8 Court of Appeals Opinion
ing toward him. To avoid being struck by the swinging
draft, plaintiff ran to the offshore (port) side of the ves-
sel and began climbing up the side of the hold. As he was
climbing, he grabbed a sweat batten clip located in a rib
on the port side of the hold. The sweat batten clip came
out of the rib, causing plaintiff to fall about 15 feet onto
3. (Cont'd. )
ship’s officers, crew of the vessel, or any person engaged by the
master to load or unload any vessel under 18 net tons.
Subpart D—Working Surfaces
Ҥ 1918.31 Hatch coverings.
“(a) No cargo, dunnage, or other material shall be loaded
or unloaded by means requiring the services of employees at
any partially opened intermediate deck unless either the hatch
at that deck is sufficiently covered or an adequate landing area
suitable for the prevailing conditions exists: Provided, however,
That in no event shall such work be done unless the workin
area available for such employees extends for a distance of 10
feet or more fore and aft and athwartships.
Ҥ 1918.32 Stowed cargo and temporary platforms.
“(b) When an edge of a hatch section or of stowed cargo
more than 8 feet high is so exposed that it presents a danger of
an employee falling, the edge shall be guarded by a safety net
of adequate strength to prevent injury to a falling employee, or
by other means providing equal protection under the existing
circumstances.
“(c) When two gangs are working in the same hatch on
different levels, a safety net shall be rigged and securely
fastened so as to prevent men or cargo from falling.
Subpart H—Handling Cargo
Ҥ 1918.81 Slinging.
fa) Drafts shall be safely slung before being hoisted.
Loose dunnage or debris hanging or protruding from loads
shall be removed. , .
fe) Drafts of lumber, pipe, dunnage and other pieces,
the t yer of which is not bound by the sling, shall be slung
in such a manner as to prevent sliders. Double slings shall be
—
Court of Appeals Opinion AQ
the angle iron. As a result of the fall, plaintiff sustained
a concussion, multiple contusions, a laceration over the
right eye and a dislocation of his right middle finger. Ad-
ditionally, plaintiff suffered a traumatic neurosis. Plaintiff
was an inpatient at Albert Einstein Medical Center from
August 2 to August 5, 1974. The permanency of the plain-
tiff’s injuries was a controverted issue at trial.
Il. THe Triat Court's INSTRUCTIONS
The trial judge’s charge to the jury was based in part
upon the Restatement (Second) of Torts § 416.* Pertinent
3. (Cont'd. )
used on unstrapped dunnage, except when, due to the size of
hatch or deep tank openings, it is impractical to use them.
“(£) Loads requiring continuous manual guidance while
in motion shall be provided with tag lines.
Ҥ 1918.83 Stowed cargo, tiering and breaking down.
“(a) When emp « cargo shall be secured or blocked
to prevent its shifting or falling.
“(b) In breaking down, precautions shall be taken, when
necessary, to prevent the remaining cargo from falling.
4. Restatement (Second) of Torts § 416 provides:
Ҥ 416. Work Dangerous in Absence of Special Precautions
“One who employs an independent contractor to do work
which the employer should recognize as likely to create during
its progress a peculiar risk of physical harm to others unless
special precautions are taken, is subject to liability for physical
harm caused to them by the failure of the contractor to exer-
cise reasonable care to take such precautions, even though the
employer has provided for such precautions in the contract or
otherwise.
“Comment:
“a. There is a close relation between the rule stated in
this Section, and that stated in § 427, as to dangers inherent in
or normal to the work. The two rules represent different forms
of statement of the same general rule, that the employer re-
mains liable for injuries resulting from dangers which he should
ee ee eee
Al0 Court of Appeals Opinion Court of Appeals Opinion All
portions of that charge, particularly those italicized in
wording from § 416 and comments quoted in note 4. Since
note 5, are set out in the margin,’ and they contain the
we have concluded that the court’s jury instructions based
4. (Cont'd. )
contemplate at the time that he enters into the contract, and
cannot shift to the contractor the responsibility for such
dangers, or for taking precautions against them. The rules
stated in the two Sections have been applied more or less inter-
changeably in the same types of cases, and frequently have
been stated in the same opinion as the same rule, or as different
phases of the same rule. The rule stated in this Section is more
commonly stated and applied where the employer should
anticipate the need for some — precaution, such as a rail-
ing around an excavation in the sidewalk. The rule stated in
§ is more commonly applied where the danger involved in
the work calls for a number of precautions, or involves a num-
ber of possible hazards, as in the case of blasting, or painting
carried on upon a scaffold above the highway.
“d. In order for the rule stated in this Section to apply, it
is not essential that the work which the contractor is employed
to do be in itself an extra-hazardous or abnormally dangerous
activity, or that it involve a very high degree of risk to those
in the vicinity. It is sufficient that it is likely to involve a
peculiar risk of physical harm unless special precautions are
taken, even though the risk is not abnormally great. A ‘peculiar
risk’ is a risk differing from the common risks to which persons
in eee are commonly subjected by the ordinary forms of
negligence which are usual in the community. It must involve
some special hazard resulting from the nature of the work done,
which calls for special precautions.”
Restatement (Second) of Torts § 427 provides:
Ҥ 427. Negligence as to Danger Inherent in the Work
“One who employs an independent contractor to do work in-
volving a special danger to others which the employer knows
or has reason to know to be inherent in or retin to the work,
or which he contemplates or has reason to contemplate when
making the contract, is subject to liability for physical harm
caused to such others by the contractor’s failure to take reason-
able precautions against such danger.”
5. Pertinent portions of the district court’s charge follow:
“THE Court: .. .
“The plaintiff contends that the defendant shipowner’s con-
duct was negligent, in that the shipowner failed to exercise
ordinary care, under the circumstances, to furnish the plaintiff
5. (Cont'd. )
with reasonably safe equipment, and a reasonably safe place
in which to work.
“Specifically, the plaintiff claims that the defendant ship-
owner was igent in one or more of the following particu-
lars:
“In refusing to permit barrels to be removed prior to the
i e of steel;
“In having sweat batten keepers without sweat boards;
“In that the type of keeper involved constituted a trap to
the plaintiff;
“In the manner of stowing the cargo. [N. T. 566-67]
“It is the shipowner’s duty to warn the stevedoring company
of dangers known to the shipowner which are not obvious and
not known to the stevedoring company. The shipowner is not
obligated to supervise the work of the independent stevedoring
company in ushedion the cargo.
But, there is an exception to the general rule: a shipowner
who employs an independent contractor to do work which the
shipowner should recognize as likely to create, during its
progress, a peculiar risk of physical harm to others, unless
special precautions are taken, is subject to liability for physical
harm caused to them by the failure of the contractor to exercise
reasonable care and to take such precautions, even though the
shipowner has provided for such precautions in the contract or
otherwise, and even though the shipowner has warned the
contractor of the danger.
“A peculiar risk is a risk different from the common risks
to whic in general are commonly subjected by the
ordinary ovate of negligence which are usual in the com-
munity. It must involve some special hazard resulting from
the nature of the work to be done which calls for special pre-
cautions. It is not essential that the work which the contractor
is employed to do be in itself an extra hazardous or ey
—— activity, or that it involve a high oan of ris
to t in the vicinity. BAL nn it is likely to in-
volve a peculiar risk of p harm unless special precau-
tions are taken, even t the risk is not abnormally gna,
“It is not essential that the peculiar risk be one which will
necessarily and inevitably arise in the course of the work no
matter how it is done. It is sufficient that it is a risk not com-
mon in the community, which the shipowner should reco
as likely to arise in the course of the ordinary and usual method
Al2 Court of Appeals Opinion
on § 416 are inconsistent with § 905(b),° a new trial will be
5. (Cont’d.)
of doing work, or the particular method which the shipowner
knows the contractor will adopt. [N. T. 571-72]
“The issues to be determined by the jury in this case, as
between the plaintiff and the defendant shipowner, Ivarans
Rederi Steamship Company, on the negligence claim, are these:
“First: Was the shipowner negligent in one or more of the
particulars alleged?
“If your unanimous answer to that question is ‘no’, you
will return a verdict for the defendant shipowner; but if your
unanimous answer is ‘yes’, you then have a second issue to
determine, namely:
“Second: Was the negligence of the shipowner a proximate
cause of any injury and ye to the plaintiff?
“If your unanimous answer to that question is ‘no’, you
will return a verdict for the defendant shipowner; but if your
unanimous answer is ‘yes’, then you must find the answer to a
third question, namely:
“Third: Was the plaintiff guilty of some contributory negli-
gence?” [N. T. 577-78] (Emphasis supplied. )
6. In regard to point IV of defendant’s brief, it contends that a
so-called “equitable credit” defense should have been applied in the
case. See generally R. Coleman and W. Daley, Equitable Credit:
Apportionment of Damages According to Fault in Tripartite Litiga-
tion Under the 1972 Amendments to the Longshoremen’s and
Harbor Workers’ Compensation Act, 35 Md. L. Rev. 351 (1976).
The trial judge re'ected this. We note that the “equitable credit”
theory appears to be inconsistent with the conclusion reached in
Judge Huyett’s thorough opinion in Lucas v. “Brinknes” Schiffahrts
Ges., 379 F. Supp. 759 (E. D. Pa. 1974), appeal dismissed, No.
75-1223 (3d Cir., Apr. 30, 1975), cert. denied, 423 U. S. 866 sone
and that, to date, courts considering the doctrine have generally
rejected it.
The defendant also contends that there was no evidence of
future impairment of earning capacity, and that the verdict was ex-
cessive. Since there will be a new trial at which the evidence may
be different, there is no need to meet these issues at this time.
However, it would appear that, since these last issues are related to
conflicting expert medical testimony at trial as provided by the
parties’ privately retained medical experts, this case presents appro-
priate circumstances for the district court to exercise its broad
power under F. R. Evid. 706 to appoint its own medical expert in
order to insure the availability to the jury of the most qualified
Court of Appeals Opinion Al3
required, and it is not necessary to consider the other
issues briefed by the parties.
In pertinent part, § 905(b) provides:
“In the event of injury to a person covered under
the chapter caused by the negligence of a vessel, then
such person . . . may bring an action against such
vessel as a third party . . . 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 service, no such
action shall be permitted if the injury was caused by
the negligence of persons engaged in providing steve-
doring services to the vessel. . . . The liability of the
vessel under this section 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... .” (Emphasis supplied. )
As Judge Gibbons stated in Griffith, supra:
“The effect of the first clause of § 905(b) is to create
. a new negligence third party cause of action
against the vessel. The second sentence relieves the
vessel from liability for negligence caused by persons
6. (Cont’d.)
edical testimony, unaffected by the source of the payment of the
neste fee. ios che Local Rule 27 (E. D. Pa., effective January
1, 1970); F. Van Dusen, A United States District Judge’s View of
the Impartial Medical Expert System, 32 F. R. D. 498 (1963).
Under the terms of 33 U. S. C. § 933, it is clear that the injured
longshoreman or his estate, as the case may be, cannot retain both a
jury verdict against the — 2 < — a § a y Fn the
sation ble under -& Cc . See Johnson v.
Sword Line, Inc., 257 F. 2d 541, 546 (3d Cir. 1958); The Etna, 138
F. 2d 37, 41 (3d Cir. 1943); 1A Benedict on Admiralty § 29 (7th ed.
rev., 1973 release ); G. Gilmore and C. Black, Law of Admiralty (2d
ed. 1975), note 336 at page 437.
Al4 Court of Appeals Opinion
engaged in providing stevedoring services, thus pre-
venting the imposition of liability on the vessel on
some respondeat superior or absolute duty of care
basis.”
Id. at 40 (emphasis suppled) (footnote omitted). The
conclusion of the Griffith court contrasts sharply with the
Restatement’s view of the theoretical basis underlying
§ 416, as follows:
«<<
Harm Causep By NEGLIGENCE OF A CAREFULLY
SELECTED INDEPENDENT CONTRACTOR
“Introductory Note: The rules stated in the fol-
lowing §§ 416-429, unlike those stated in the preceding
§§ 410-415, do not rest upon any personal negligence
of the employer. They are rules of vicarious liability,
making the employer liable for the negligence of the
independent contractor, irrespective of whether the
employer has himself been at fault. They arise in
situations in which, for reasons of policy, the employer
is not permitted to shift the responsibility for the
proper conduct of the work to the contractor. The
liability imposed is closely analogous to that of a
master for the negligence of his servant.
“The statement commonly made in such cases is
that the employer is under a duty which he is not free
to delegate to the contractor. Such a ‘non-delegable
duty’ requires the person upon whom it is imposed to
answer for it that care is exercised by anyone, even
though he be an independent contractor, to whom the
performance of the duty is entrusted. Such duties
have been recognized in a series of exceptions to the
‘general rule’ of non-liability stated in § 409, which
are stated in the following Sections in this Topic.”
Restatement (Second) of Torts at 394 (emphasis sup-
plied). However, express language in the statute and the
Court of Appeals Opinion A15
legislative reports accompany the 1972 Amendments amply
demonstrate that for reasons of policy the major respon-
sibility for the proper and safe conduct of the work was to
be borne by the stevedore.* For instance, § 941(a), re-
tained from the older Act, provides:
“Every employer shall furnish and maintain em-
ployment and places of employment which shall be
reasonably safe for his employees in all employments
covered by this chapter and shall install, furnish, main-
tain, and use such devices and safeguards with par-
ticular reference to equipment used by and working
conditions established by such employers as the Sec-
retary may determine by regulation or order to be
reasonably necessary to protect the life, health, and
safety of such employees, and to render safe such em-
ployment and places of employment and to prevent
injury to his employees.” ’
33 U. S. C. § 941(a) (1970).
6a. Although the stevedore has this duty specifically mandated
by Congress, the legislative history of P. L. 92-576 indicates, by the
following wording, that the shipowner would have a duty to use
reasonable care to provide a safe place to work under appropriate
circumstances contemplated by § 905(b), as amended:
“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
on in providing a safe place to work. Thus, — in this
Bill is intended to derogate from the vessel's responsibility to
take appropriate corrective action where it knows or should
have known about a dangerous condition.”
House Committee Report No. 92-1441 (Vol. 3, 1972 U. S. Code
Cong. & Admin. News 4704).
See 1A Benedict on Admiralty, supra, § 114, at pp. 6-12 to 6-15.
7. The term “employer” is defined by the definition of “em-
ployees” covered under the Act. As Judge Gibbons recently noted
in Sea-Land v. Johns, No. 75-2039 (3d Cir., Aug. 5, 1976):
“Prior to 1972 the term yt was defined in § 2(3)
of the LHWCA, 33 U. S. C. § 902(3) only negatively:
Al6 Court of Appeals Opinion
The Senate Report demonstrates the Congress was
aware of the effective focus of § 941(a) when it enacted
the 1972 Amendments. As stated in that report:
“It is important to note that adequate workmen’s
compensation benefits are not only essential to meet-
ing the needs of the injured employee and his family,
7. (Cont'd. )
‘The term “employee” does not include a master or
member of a crew of any vessel, nor any person engaged
by the master to load or unload or repair any small vessel
under eighteen tons net.’
The scope of the Act’s affirmative coverage was derived from
the definition of ‘employer’ in § 2(4), and the ‘coverage’ pro-
vision in § 3(a). An ‘employer’ was described as an employer
of persons ‘employed in maritime employment, in whole or in
part, upon the navigable waters of the United States (including
any dry dock).’ 33 U. S. C. §902(4)....
“Of concern for purposes of this case are the revised definitions
of ‘employer,’ § 2(3), and ‘employee, § 2(4), and the revised
‘coverage’ provision of §3(a). In place of the merely negative
definition of ‘employee’ given by the 1927 Act (which excluded
crew members), Congress substituted the following language:
‘The term “employee” means any person engaged in
maritime employment, including any longshoreman or
other person engaged in longshoring operations, and any
harborworker including a ship repairman, shipbuilder, and
shipbreaker, but such term does not include a master or
member of a crew of any vessel, or any person engaged
by the master to load or unload or repair any small vessel
under eighteen tons net.’
33 U. S. C. § 902(3).
“Thus the exclusion of crew members was retained, but an
affirmative listing of occupations functionally related to the
maritime transportation industry was added. For this case the
key words are ‘longshoreman or other person engaged in long-
shoring operations.
“The 1972 amendments also changed the ‘employer’ defi-
nition by omitting the limitation ‘upon the aavigdil waters of
the United States’ and substituting
‘The term “employer” means an employer any of
whose employees are employed in maritime employment,
Court of Appeals Opinion Al7
but, by assuring that the employer bears the cost of
unsafe conditions, serve to strengthen the employer's
incentive to provide the fullest measure of on-the-job
safety.
“This consideration is particularly crucial with
respect to high-risk occupations such as those covered
by this Act. Longshoring, for example, has an injury
frequency rate which is well over four times the aver-
age for manufacturing operations. It is the Commit-
tee’s view that every appropriate means be applied
toward improving the tragic and intolerable conditions
which take such a heavy toll upon workers’ lives and
bodies in this industry, and such means clearly include
vigorous enforcement of the Maritime Safety Amend-
ments of 1958 and the Occupational Safety and Health
Act of 1970, as well as a workmen’s compensation
system which maximizes industry's motivation to bring
about such an improvement.”
Senate Report No. 92-1125, 92d Cong., 2d Sess., 2 (1972).
These authorities highlight the principal shortcoming
of § 416 as a basis of imposing liability on the shipowner:
it contravenes the express statutory purpose of § 905(b) by
imposing vicarious liability on the shipowner for the negli-
gent conduct of the stevedore or the stevedore’s employees.
The plaintiff admits as much in his brief, but asserts that
the error in basing the charge on the wording of § 416 was
harmless because the plaintiffs proofs showed that the
7. (Cont'd. )
in whole or in part upon the navigable waters of the
United States (including any adjoining pier, wharf, vr
dock, terminal, building way, marine railway or other ad-
joining area customarily used by an employer in loading,
unloading, repairing, or building a vessel).
33 U. S. C. § 902(4).”
Id. at 4-7.
Al8 Court of Appeals Opinion
vessel owner was at fault and “had scienter” (plaintiffs
brief at 20). These assertions do not advance the plain-
tiffs position since, even if the jury disbelieved the plain-
tiffs witnesses under the instruction as given,* they could
still have held the defendant liable on the basis of the in-
accurate statement of law in the charge. As this court has
recently stated:
“[2, 3] It is the responsibility of the trial judge to
provide the jury with a clear and accurate statement
of the law it is expected to apply in reaching its ver-
dict. . . . As long as the instructions ‘show no
tendency to confuse or mislead the jury,’ an appellate
court will presume that the jury’s verdict was reached
in accordance with the law.
“McPhee v. Reichel, 461 F. 2d 947, 950-51 (3d Cir.
1972). The jury must be able to ‘intelligently deter-
mine the questions presented.’ Delancey v. Motichek
Towing Service Inc., 427 F. 2d 897, 902 (5th Cir.
1970).”
Hunziker v. Scheidemantle, Nos. 74-2236, 75-2152/53 (3d
Cir., September 8, 1976) at 15.
Under the facts of this case, we hold that this standard
has not been met.
Finally, the plaintiff contends that because Pennsyl-
vania was the state of the plaintiff's employment and in-
juries, Pennsylvania third party tort concepts ought to form
the appropriate reference for § 905(b) liability in this case.
This last argument is based upon two assumptions: first,
that failure to incorporate the state standards into the case
is unjustified because longshoremen would then have fewer
rights than workers injured on land, and, second, that the
standard of uniformity expressed in the congressional re-
8. See footnote 5, supra.
Court of Appeals Opinion A19
ports accompanying the 1972 Amendments “deals with the
essential features of the Maritime Law such as assumption
of the risk and contributory negligence, and does not re-
quire an absolute uniformity.” See page 2, plaintiff's letter
of 9/17/76.
As noted by Judge Gibbons in Griffith, supra at note
21:
“The House Report states:
‘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 ac-
cepted principles of tort law and the ordinary process
of litigation—just as they are in cases involving al-
leged 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-mari-
time pursuits liable under similar circumstances.
‘Finally, the Committee does not intend that the
negligence remedy authorized in the bill shall be ap-
plied 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.
A20 Court of Appeals Opinion
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 em-
ployee’s own negligence may have contributed to
causing the injury. Also, the Committee intends that
the admiralty rule which precludes the defense of “as-
sumption of risk” in an action by an injured employee
shall also be applicable.’
3 U. S. Code Cong. & Admin. News, pp. 4704, 4705
(1972)” (Emphasis supplied. )
The above italicized language from the House Re-
port indicates that Congress wished a uniform federal law,
as opposed to the varying negligence concepts in the areas
where accidents occur, to govern liability of the shipowner
under § 905(b). See Southern Pacific v. Jensen, 244 U. S.
205, 215-17 (1917), where the Supreme Court said:
“Congress has paramount power to fix and determine
the maritime law which shall prevail throughout the
country. Butler v. Boston & Savannah Steamship
Co., 130 U. S. 527; In re Garnett, 141 U. S.1, 14. And
further, that in the absence of some controlling statute
the general maritime law as accepted by the federal
courts constitutes part of our national law applicable
to matters within the admiralty and martime juris-
diction. The Lottawanna, 21 Wall. 588; Butler v. Bos-
ton & Savannah Steamship Co., 130 U. S. 527, 557;
Workman v. New York City, 179 U. S. 552.
“In The Lottawanna, Mr. Justice Bradley speak-
ing for the court said: “That we have a maritime law
of our own, operative throughout the United States,
cannot be doubted. The general system of maritime
— es ee oe
Court of Appeals Opinion A21
law which was familiar to the lawyers and statesmen
of the country when the Constitution was adopted,
was most certainly intended and referred to when it
was declared in that instrument that the judicial power
of the United States shall extend “to all cases of ad-
miralty and maritime jurisdiction.” . . . One thing,
however, is unquestionable; the Constitution must
have referred to a system of law coextensive with, and
operating uniformly in, the whole country. It cer-
tainly could not have been intended to place the rules
and limits of maritime law under the disposal and
regulation of the several States, as that would have
defeated the uniformity and consistency at which the
Constitution aimed on all subjects of a commercial
character affecting the intercourse of the States with
each other or with foreign states.’
“By § 9, Judiciary Act of 1789, 1 Stat. 76, 77, the
District Courts of the United States were given ‘ex-
clusive original cognizance of all civil causes of ad-
miralty and maritime jurisdiction; . . . saving to suit-
ors, in all cases, the right of common law remedy,
where the common law is competent to give it.’ And
this grant has been continued. Judicial Code, §§ 24
and 256.
“In view of these constitutional provisions and the
federal act it would be difficult, if not impossible, to
define with exactness just how far the general mari-
time law may be changed, modified, or affected by
state legislation. That this may be done to some ex-
tent cannot be denied. A lien upon a vessel for repairs
in her own port may be given by state statute, The
Lottawanna, 21 Wall. 558, 579, 580; The J. E. Rum-
bell, 148 U. S. 1; pilotage fees fixed, Cooley v. Board
Court of Appeals Opinion
of Wardens, 12 How. 299; Ex parte McNiel, 13 Wall.
236, 242; and the right given to recover in death cases,
The Hamilton, 207 U. S. 398; La Bourgogne, 210 U. S.
95, 138. See The City of Norwalk, 55 Fed. Rep. 98,
106. Equally well established is the rule that state
statutes may not contravene an applicable act of Con-
gress or affect the general maritime law beyond cer-
tain limits. They cannot authorize proceedings in
rem according to the course in admiralty, The Moses
Taylor, 4 Wall. 411; Steamboat Co. v. Chase, 16 Wall.
522, 534; The Glide, 167 U. S. 606; nor create liens
for materials used in repairing a foreign ship, The
Roanoke, 189 U. S. 185. See Workman v. New York
City, 179 U. S. 552. And plainly, we think, no such
legislation is valid if it contravenes the essential pur-
pose expressed by an act of Congress or works ma-
terial prejudice to the characteristic features of the
general/maritime law or interferes with the proper
harmony and uniformity of that law in its interna-
tional and interstate relations. This limitation, at the
least is essential to the effective operation of the
fundamental purposes for which such law was incor-
porated into our national laws by the Constitution
itself. These purposes are forcefully indicated in the
foregoing quotations from The Lottawanna.”
“The work of a stevedore in which the deceased
was engaging is maritime in its nature; his employ-
ment was a maritime contract; the injuries which he
received were likewise maritime; and the rights and
liabilities of the parties in connection therewith were
matters clearly within the admiralty jurisdiction.
Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, 59,
60.”
nN A lS is BL
atta h tex
Court of Appeals Opinion A23
III. THe STANDARD OF CARE
The parties in this case would have us suggest to the
district court the standard of care a vessel owes to a
longshoreman under the negligence remedy created by
§905(b). It would appear that the principles of the law
of negligence, as adopted in the admiralty field during the
history of our country, are to form the basis of any re-
covery against shipowners insofar as such principles are
not inconsistent with § 905(b).° See, e.g., Kermarec, supra
at 628; Socony-Vacuum Co. v. Smith, 305 U. §. 424, 431-32
(1939); Jensen, supra; see also, for example, Bess v.
Agromar Line, 518 F. 2d 738, 740-43 (4th Cir. 1975);
§§ 281-83, as well as 302A, 305 and 452, Restatement
(Second) of Torts, in light of the regulations set forth in
note 3 and the text at page 4 above.’”
The judgment in favor of Brown and against Ivarans
Rederi A/S will be reversed and the case will be remanded
for further proceedings consistent with this opinion.
9. As the Supreme Court stated in Kermarec v. Compagnie
General Transatlantique, 358 U. S. 625, 630-32 (1959):
“The issue must be decided in the performance of the Court’s
function in declaring the general maritime law, free from in-
appropriate common-law concepts. The Lottawanna, 21 Wall.
558; The Max Morris, 137 U.S$.15.. .
“We hold that the owner of a ship in navigable waters owes to
all who are on board for purposes not inimical to his legitimate
interests the duty of exercising reasonable care under the cir-
cumstances of each case.
“5. Where there is no impingement upon legislative policy
Cf. United States v. Atlantic Mut. Ins. Co., 343 U. S. 236
Halcyon Lines v. Haenn Ship Corp., 342 U. S. 282.”
10. Since Napoli v. [Transpacific Carriers, etc.] Hellenic Lines,
536 F. 2d 505 (2d Cir. 1976), cited a oral argument, (1) re-
lied on § 343A of the Restatement (Second) of Torts (page 508 of
536 F. 2d), which in comment (e) is based on the doctrine of as-
sumption of risk specifically rejected by Congress in the 1972 legis-
lation (see page 14 evel. and (2) the vessel owner acted as its
own stevedore in that case, we do not find it persuasive on the facts
presented by this appeal.
>
A24 Court of Appeals Judgment
COURT OF APPEALS JUDGMENT.
UNITED STATES COURT OF APPEALS
For THE Turrp Circuit
No. 76-1037.
THOMAS BROWN
v.
IVARANS REDERI A/S,
Appellant.
(D. C. Civil Action No. 74-2952 )
On APPEAL FROM THE UNiTEp STATES Districr Court
FOR THE EASTERN DistTRICT OF PENNSYLVANIA
- Present: VAN Dusen, Hunter and Weis, Circuit Judges.
Judgment
This cause came on to be heard on the record from
the United States District Court for the Eastern District of
Pennsylvania and was argued by counsel.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgments of the said
District Court, filed September 18, 1975, and November 7,
1975, be, and the same are hereby reversed and the cause
is remanded for further proceedings consistent with the
opinion of this Court. Costs taxed against the appellee.
ATTEST:
Tuomas F. Quinn,
Clerk.
November 4, 1976.
LOO te tM a Dm is re elem ise oS
Court of Appeals Order A25
COURT OF APPEALS ORDER.
UNITED STATES COURT OF APPEALS
For THE THIRD Circuit
No. 76-1037.
THOMAS BROWN
v.
IVARANS REDERI A/S,
Appellant.
(D. C. Civil No. 74-2952)
Sur Petition For Rehearing
Present: Seitz, Chief Judge, and VAN Dusen, ALDISERT,
ApaMs, Grppons, RosENN, Hunter, Weis and
Garth, Circuit Judges.
The petition for rehearing filed by appellee in the
above entitled case having been submitted to the judges
who participated in the decision of this court and to all the
other available circuit judges of the circuit in regular active
service, and no judge who concurred in the decision having
asked for rehearing, and a majority of the circuit judges of
the circuit in regular active service not having voted for
rehearing by the court in banc, the petition for rehearing
is denied.
By THE COURT,
VAN Dusen,
Judge.
Dated: November 29, 1976.
A26 Opinion (Gay v. Ocean Transport)
USCA(5) OPINION IN GAY v. OCEAN TRANSPORT.
UNITED STATES COURT OF APPEALS
FirtH Cricut.
Nos. 75-2729 and 75-2441.
Roosevelt GAY and Florence Gay, his
wife, Plaintiffs-Appellants,
v.
OCEAN TRANSPORT & TRADING,
LTD., Defendant-Appellee,
Argonaut Insurance Company, a
Foreign Corp., Intervenor.
Elias G. GUERRA, Plaintiff-Appellant,
v.
BULK TRANSPORT CORP. et al.,
Defendants-Appellees,
v.
Texas Employers’ Insurance Association,
Intervenor-Appellant.
OPINION OF THE COURT.
Feb. 11, 1977.
Appeal from the United States District Court for the
Southern District of Florida.
Appeals from the United States District Court for the
Southern District of Texas.
ee
ds eagle A Rie ett A Nile iE eB ond)
Opinion (Gay v. Ocean Transport) A27
Before CoLeMAN, CLark and Tyor.at, Circuit Judges.
Tyurxat, Circuit Judge:
In each of these two cases a longshoreman in the em-
ploy of an independent stevedore sued the vessel on which
he was working when injured. The cases present a com-
mon question: What standard of negligence is to be ap-
plied in suits brought against vessels under the amended
Longshoremen’s and Harbor Workers’ Compensation Act
(LHWCA), 33 U. S. C. §901 et seq. (Supp. II 1972)?
The parties and several amicus curiae have briefed this
issue in a commendably comprehensive and articulate
fashion. We will, therefore, first elaborate the standards
we find appropriate in cases where a vessel is sued by an
injured employee, and then we will apply those standards
to the cases before us.
I.
When Congress undertook revision of the LHWCA in
1972, it was faced with the problem of what to do about
the judicial undermining of the exclusive liability pro-
vision for employers.’ Under Seas Shipping Co. v. Sieracki,
328 U. S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), and
Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp.,
350 U. S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956), the
employee could sue the vessel for unseaworthiness and the
vessel could then demand indemnity from the stevedore/
employer on the theory that it had breached an express or
implied warranty of workmanlike performance to the
1. Act of March 4, 1927, ch. 509, § 5, 44 Stat. 1425, now codi-
fied at 33 U. S. C. § 905(a) (Supp. II 1972):
The liability of an employer . . . shall be exclusive and in
lace of all other liability of such employer to the employee,
fis legal representative, husband or wife, parents, dependents,
next of kin, and anyone otherwise entitled to recover damages
2 SS LW OFS GERRY Oh GENES OO
injury or
A28 Opinion (Gay v. Ocean Transport)
vessel.? The solution selected was to improve compensa-
tion benefits while at the same time making a vessel liable
only for its own negligence rather than for unseaworthi-
ness. To effect this result, section 905(b) was added to
the Act:
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 em-
ployer shall not be liable to the vessel for such dam-
ages directly or indirectly and any agreements or
warranties to the contrary shall be void. If such per-
son was employed by the vessel to provide 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 negligence
of persons engaged in providing ship building or re-
pair services to the vessel. The liability of the vessel
under this subsection shall not be based upon the
2. See generally Smith v. M/S Captain Fred, — F. 2d —, No.
75-1910 (Sth Cir. Jan. 28, 1977); H. R. Rep. No. 1441, 92d Cong.,
2d Sess., reprinted in [1972] U. S. Code Cong. & Ad. News pp.
4698, 4702.
3. The House Report put it in these words:
Accordingly, the Committee has concluded that, given the
improvement in compensation benefits which this bill would
provide, it would be fairer to all concerned and fully consistent
with the objective of protecting the health and safety of em-
ployees who work on Soon vessels for the liability of vessels
as third parties to be predicated on negligence, rather than the
no-fault concept of seaworthiness. H. R. Rep. No. 14!1, 92d
Cong., 2d Sess., reprinted in [1972] U. S. Code Cong. & Ad.
News pp. 4698, 4703.
‘@rcalet’ tees ees SO Aer
Opinion (Gay v. Ocean Transport) A29
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.‘
Our task here is to flesh out what Congress intended
by its use of the phrase “negligence of the vessel”. For
assistance we turn to the House Report and quote at some
length.
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 in-
jured.
oa Y 7
. . . 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 em-
ployment 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
4. 33 U. S.C. rags iy | (Supp. II 1972). For discussions of
the 1972 Amendments to the LHWCA and their effect, see gen-
erally Landon v. Lief Hoegh & Co., 521 F. 2d 756 (2d Cir. 1975),
cert. denied, A/S Arcadia v. Gulf Ins. Co., 423 U. S. 1053, 96 S. Ct.
783, 46 L. Ed. 2d 642 (1976); ih at vo. Wheeling Pittsburgh Steel
Corp., 521 F. 2d 31 (3d Cir. 1975), cert. denied, 423 U. S. 1054, 96
S. Ct. 785, 46 L. Ed. 2d 643 (1976); Croshaw v. Koninklijke Ned-
Hoya, B. V. Rijswijk, 398 F. Supp. 1224 (D. Or. 1975); Ramirez v.
To
Kaiun, 385 F. Sup . 644 (N. D. Cal. 1974); Lucas v. “Brink-
nes” Schiffahrts Ges., F. Supp. 759 (E. D. Pa. 1974).
A30
Opinion (Gay v. Ocean Transport)
of action under whatever judicial nomenclature it may
be called, such as “unseaworthiness”, “non-delegable
duty”, or the like.
Permitting actions against the vessel based on
negligence will meet the objective of encouraging
safety because the vessel will still be required to ex-
ercise the same care as a land-based person in provid-
ing 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 known about a dangerous condition.
Under this standard, as adopted by the Com-
mittee, 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 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 pur-
suits liable under similar circumstances.
Finally, the Committee does not intend that the
negligence remedy authorized in the bill shall be ap-
plied differently in different ports depending on the
law of the State in which the port may be located.
Opinion (Gay v. Ocean Transport) A31
The Committee intends that legal questions which
may arise in actions brought under these provisions
of the law 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 em-
ployee’s negligence may have contributed to causing
the injury. Also, the Committee intends that the ad-
miralty rule which precludes the defense of “assump-
tion of risk” in an action by an injured employee shall
also be applicable.*
From these passages and section 905(b) itself we
distill the following conclusions:
(1) Congress intends for the federal courts to de-
velop a uniform federal common law to control LHWCA
suits against vessels.*
(2) That LHWCA federal common law is to be based
on negligence concepts; the unseaworthiness of a vessel is
not an acceptable ground for relief.
(3) LHWCA negligence law is to be guided pri-
marily by analogy to land-based law concepts.’ The
5. H.R. Rep. No. 1441, 92d Cong., 2d Sess., reprinted in [1972
U. S. Code Cong. & Ad. News pp. 4698, 4702-05. —
6. Cf. M ne v. States Marine Lines, 398 U. S. 375, 90 S. Ct.
1772, 26 L. Ed. 3d 339 (1970) (uniform federal law to be applied
in LHWCA actions); ‘ & Talbot, Inc. v. Hawn, 346 U. ¢ 406,
74 S. Ct. 202, 98 L. Ed. 143 (1953); Robins Drydock & Repair Co.
v. Dahl, 266 U. S. 449, 457, 45 S. Ct. 157, 69 L. Ed. 372 (1925); So.
Pac. Co. v. Jensen, 244 U. S. 205, 215, 37 S. Ct. 524, 61 L. Ed. 1086
(1917); Branch v. Schumann, 445 F. 2d 175, 178 (5th Cir. 1971).
7. In Brock v. Coral Drilling, Inc., 477 F. 2d 211 (5th Cir.
1973), we stated in dicta that section 905(b) places the shipowner,
in so far as third liability is concerned, in the same position
as land-based third parties in non-maritime pursuits.” Id. at 213
n. 1. Even a cursory examination of the legislative history demon-
strates that the Brock court was correct. Moreover, the following
A32 Opinion (Gay v. Ocean Transport)
stevedore is to be viewed generally as an independent
contractor and its employees as invitees of the vessel owner.
(4) However certain common land-based principles
of state law are not to be carried over into the federal
law governing LHWCA suits. Assumption of risk may not
be utilized as a defense, and comparative negligence,
rather than contributory negligence, is to be applied.
Our brethern in the Second and Fourth Circuits have
already faced the problem before us and have agreed that
land-based principles are to guide in the establishment of
a federal aw. Anuszewski v. Dynamic Mariners Corp.,
540 F. 2d 757 (4th Cir. 1976); Napoli v. Hellenic Lines,
Ltd., 536 F. 2d 505 (2d Cir. 1976). Moreover, those cir-
cuits have both relied upon the Restatement (Second) of
Torts for guidelines. 540 F. 2d at 759; 536 F. 2d at 508-
7. (Cont'd. ) , en iat
courts have applied land-based concepts of negligence in section
905(b ) soften Anncunedld v. Dynamic Mariners Corp., 540 F. 2d
757 (4th Cir. 1976) (per curiam), aff g, 391 F. Supp. 1143 (D. Md.
1975); Butler v. O/Y Finnlines, Ltd., 537 F. 2d 1205, 1206 n. 2 (4th
Cir. 1976); Napoli v. Hellenic Lines, Ltd., 536 F. 2d 505 (2d Cir.
1976); Cummings v. “Sidarma” Soc., 409 F. Supp. 869 (E. D. La.
i976) Solsvik v. Maremar Compania Naviera, S. A., 399 F. Supp.
712 (W. D. Wash. 1975); Croshaw v. Koninklijke Nedlloyd, B. V.
Rijswijk, 398 F. Supp. 1224 (D. Or. 1975); Frasca v. Prudential-
Grace Lines, Inc., 394 F. Supp. 1092 (D. Md. 1975); Fitzgerald v.
Compania Naviera La Molinera, 394 F. Supp. 413 (E. D. La. 1975);
Jackson v. Lykes Bros. Steamship Co., No. B-74-38 (E. D. Tex. July
16, 1975); Robinson v. Dixie Machine Welding & Metal Works,
Inc., No. 74-533 (E. D. La. May 1, 1975); Parker v. Costa Amatori
S. P. A., No. 74-454-N (E. D. Va. April 23, 1975); Johnson v. Zenith
Navigation, No. 74-1502 (E. D. La. Feb. 12, 1975); Slaughter v.
S. S. Ronde, 390 F. Supp. 637 (S. D. Ga. 1974), affd per curiam,
509 F. 2d 973 (5th Cir. 1975); Birrer v. Flota Mercante Grancolom-
F. Supp. 1105 (D. Or. 1974); Ramirez v. Toko Kaiun
‘ . Supp. 644 (N. D. Cal. 1974); Citizen v. M/V Triton,
384 F. Supp. 198 (E. D. Tex. 1974); Fedison v. Vessel Wislica, 382
F. Supp. rt (E. D. La. 1974); Hite v. Maritime Overseas Corp., 380
F. Supp. 222 (E. D. Tex. 1974); Lucas v. “Brinknes” Schiffahrts
a9 F. Supp. 759 (E. D. Pa. 1974).
ste
Opinion (Gay v. Ocean Transport) A33
09. In the interest of fulfilling the Congressional desire of
uniformity, we, too, adopt the Restatement formulation.
Restatement (Second) of Torts § 342 (1965) provides,
A possessor of land is subject to liability for physical
harm caused to licensees by a condition on the land
if, but only if,
(a) the possessor knows or has reason to know
of the condition and should realize that it involves an
unreasonable risk of harm to such licensees, and should
expect that they will not discover or realize the danger,
and
(b) he fails to exercise reasonable care to make
the condition safe, or to warn the licensees of the con-
dition and the risk involved, and
(c) the licensees do not know or have reason to
know of the condition and the risk involved.
Section 343 states,
A possessor 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 in-
vitees, 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 danger.
A34 Opinion (Gay v. Ocean Transport)
Section 343 A continues,*
(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 obvi-
ous to them, unless the possessor should anticipate
the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should
anticipate harm from a known or obvious danger, the
fact that the invitee is entitled to make use of public
land, or of the facilities of a public utility, is a factor
of importance indicating that the harm should be
anticipated.
These’ general standards should be utilized in the future
to assure uniformity in cases brought under section 905(b )
of the LHWCA to recover for injuries caused by the negli-
gence of the vessel. We proceed now to apply these stand-
ards to the cases before us.
II.
A. No. 75-2729.
Roosevelt Gay was employed as a longshoreman by
Atlantic Stevedoring Co. On the date of his injury he was
assigned to operate a propane forklift in an unventilated
reefer compartment aboard the M/V Prometheus. To re-
move the noxious fumes emitted by the forklift, a blower
was placed on board the vessel by the stevedore. Unfor-
tunately, the air hose connected to the blower was not long
enough to reach into the reefer compartment. Approxi-
mately one hour after operations began, the plaintiff and
other longshoremen working with him began to feel ill.
Gay was removed from the vessel and taken to a local
hospital, where it was determined that he had suffered
8. Restatement (Second) of Torts § 343, comment a (1965),
instructs that section 343 “should be read together with § 343 A
Opinion (Gay v. Ocean Transport) A35
carbon monoxide poisoning from the inhalation of the
fumes.
Gay admits that the duty to provide a blower to re-
move the fumes from the compartment rested on his em-
ployer, the stevedore, and not on the vessel. He further
acknowledges that the operators of the vessel had no
knowledge that the dangerous condition existed. Still, they
attempt to predicate a theory of possible vessel liability
upon the fact that a federal regulation was violated. That
regulation was violated. That regulation requires the em-
ployer to ascertain the quantity of carbon monoxide in a
compartment like that in question here within thirty min-
utes after placement of a forklift into the compartment. 29
C. F. R. § 1918.93(a)(1)(i) (1976). This was not done
by Gay’s employer. Gay argues, however, that this regula-
tion can provide the standard of care for a negligence ac-
tion against the vessel.
We disagree. The vessel had no similar duty to check
the carbon monoxide content of the compartment.’ Gay’s
argument is, in effect, that the vessel has a non-delegable
duty to provide a longshoreman with a safe place to work.
But this is exactly the type of liability without fault concept
from which Congress sought to free vessels to the passage
9. 29 C. F. R. § 1918.2(b) (1976) makes clear that the regula-
tion only applies to employers and not vessels:
It is not the intent of the regulations of this part to place
additional responsibilities or duties on owners, operators, agents
or masters of vessels unless such persons are acting as em-
ployers, nor is it the intent of those regulations to relieve such
owners, operators, agents or masters of vessels from responsi-
bilities or duties now placed upon them by law, regulation or
custom.
Even under the pre-1972 LHWCA, the general aman was that
“liability for failure to comply with safety regulations should be im-
posed on the | exposing the injured employee to the dangerous
condition.” Broc v. Coral Drilling, Inc., 477 F. 2d 211, 215 (5th
Cir. 1973). See also Burrage v. a Mercante Grancolombiana,
431 F. 2d 1229 (5th Cir. 1970).
A36 Opinion (Gay v. Ocean Transport)
of the 1972 Amendments."® Napoli, 536 F. 2d at 507; Bess
v. Agromar Line, 518 F. 2d 738 (4th Cir. 1975); Solsvik v.
Maremar Compania Naviera, S. A., 399 F. Supp. 712
(W. D. Wash. 1975); H. R. Rep. No. 1441, 92d Cong., 2d
Sess., reprinted in [1972] U. S. Code Cong. & Ad. News pp.
4698, 4703. Section 905(b) instructs that a longshoreman
does not have a cause of action against a vessel if his in-
jury “was caused by the negligence of persons engaged in
providing stevedoring services to the vessel.” Such is the
case here. Since the district court granted summary judg-
ment for the vessel, that judgment must be affirmed.
B. No. 75-2441.
_ Elias Guerra worked as a longshoreman for the Ship-
pers Stevedoring Co. (Shippers). Shippers was hired to
unload steel, varying in length from forty to sixty-five feet,
from the vessel M/V Lyra. In order to remove the steel
10. In rary: v. D'Amico Mediterranean/ Pacific Line, 415
F. Supp. 732 (C. D. Cal. 1976), the court refused to apply Restate-
ment (Second) of Torts §§ 413 & 416 (1965) to hold a shipowner
vicariously liable for the negligence of the stevedore, holding that
this “would do violence to the letter and policy of 33 U. S. C.
905(b). . . . Congress specifically excluded a rule of vicarious
iability, specifically excluded a rule of oye without fault and
specifically excluded the concept of a non-delegable duty, all of
which are the express and explicit result of section 416.” 415 F.
Supp. at 734-36. See also Frasca v. Prudential-Grace Lines, Inc.,
F. Supp. 1092 (D. Md. 1975); Anuszewski v. Dynamic Mariners
Corp., 391 F. Supp. 1143, 1145 (D. Md. 1975), affd, 540 F. 2d 757
(4th Cir. 1976) a curiam ); Lucas v. “Brinknes” Schiffahrts Ges.,
379 F. Supp. 759 (E. D. Pa. 1974).
We repeat at this point the admonition of the House Report
that “nothing in this bill is intended to derogate from the vessel's
responsibility to take appropriate corrective action where it knows
or should have known about a dangerous condition.” H. R. Rep.
No. 1441, 92d Cong. 2d Sess., reprinted in [1972] U. S. Code Cong.
& Ad. News bP 4698, 4704. See also West v. United States, 361
U. S. 118, 123, 80 S. Ct. 189, 4 L. Ed. 2d 161 (1959); Marant v.
Farrell Lines, Inc., No. 73-2615 (E. D. Pa. Jan. 15, 1976); Solsvik
v. Maremar Compania Naviera, S. A., 399 F. Supp. 712 (W. D.
Wash. 1975); Frasca, 394 F. Supp: at 1098. It is uncontroverted
here, however, that the vessel did not have either actual or con-
structive knowledge of the dangerous carbon monoxide level.
Opinion (Gay v. Ocean Transport) A37
from its compartment, the ship’s boom, operated by an em-
ployee of the stevedore, was first used to raise the steel
enough to get wooden blocks underneath it. Then the
boom was swung out of the way so that an on-shore crane
and chains could be brought into the hold to remove the
steel. The accident occurred when the ship’s boom was
swinging into position over the hold. The boom’s breakout
wire snagged on a 125-pound pallet which was stacked by
the hatch coaming, causing it to fall about thirty feet into
the hold and strike Guerra on the back of the head and
right shoulder.
The pallets had been transported on top of the steel
in the holds, and so prior to unloading they had had to be
removed. This task was performed by the stevedore, and
Shippers stacked them next to the hatch coaming after
being informed by crew members that they could not be
placed on the dock. Although the hazardous condition was
readily apparent and brought to the attention of the super-
visory personnel of Shippers by its longshoremen, the pal-
lets were not removed or tied down to prevent what fore-
seeably occurred. After a bench trial, the district court
found that Shippers had been negligent in creating the
dangerous condition, in failing to correct it and in its opera-
tion of the ship’s cargo boom. The court found no negli-
gence on the part of the vessel but did determine that the
danger was open and obvious and as well known to the
shipowner as it was to the stevedore. Applying land-based
negligence concepts, the court concluded that the “sl.ip-
owner was under no duty to warn the independent steve-
doring contractor or his employees, including the plaintiff,
of the open and obvious danger which the independent
contractor created aboard the vessel and which was ad-
mittedly known and appreciated by the independent con-
tractor’s employees, including the plaintiff.” Appendix at
125.
A38 Opinion (Gay v. Ocean Transport)
We hold that the district court had ample evidence to
support his findings of fact and, hence, that they are not
clearly erroneous. The court was also correct in adopting
land-based negligence principles to decide this case, as we
have already explained. It is clear that the vessel has no
liability under section 905(b ) since the sole cause of injury
was the negligence of the stevedore.”’
Comment need be made, however, about the possible
intimation of the holding of the district court that a vessel
has no duty concerning any danger which is open and
obvious to the stevedore or its employees.” This indeed
has been the traditional rule concerning owners of land
and their invitees,* and it has been applied in several suits
brought under section 905(b)."* The traditional rule's
appropriateness in LHWCA suits has been rejected by
several courts, however,” for two cogent reasons,
11. We have recently explained that in al! tort cases, be they
strict liability or ordinary negligence cases, causation must be es-
tablished before recovery will be allowed. Higginbotham v. Mobil
Oil Corp., 545 F. 2d 422 (5th Cir. 1977).
12. We do not intend to fault the district court. It noted the
open and obvious nature of the danger, but did not hold that that
fact, operating alone, relieved the vessel of liability. Instead, Re-
statement (Second) of Torts § 343 A (1965), the appropriate guide-
line, was cited and, as we shall note in the text infra, appropriately
applied. See Appendix at 126.
13. The traditional rule is found in Restatement of Torts § 340
(1934): “A possessor of land is not subject to liability to his licen-
sees, whether business visitors or gratuitous licensees, for bodily
harm caused to them by any dangerous condition thereon, whether
natural or artificial, if they know of the condition and realize the
risk involved therein.” Cases applying the traditional rule are col-
lected in Annot., 35 A. L. R. 3d 230, 244-53 (1971).
14. See, e.g., Cummings v. “Sidarma” Soc., 409 F. Supp. 869
(E. D. La. 1976); Robinson v. Dixie Machine Welding & Metal
Works, Inc., No. 74-533 (E. D. La. May 1, 1975); Fedison v. Vessel
Wislica, 382 F. Supp. 4 (E. D. La. 1974); Hite v. Maritime Overseas
Corp., 380 F. Supp. 222 (E. D. Tex. 1974). See also Ramirez v.
Toko Kaiun K. K., 385 F. Supp. 644 (N. D. Cal. 1974).
15. See, e.g., Napoli v. Hellenic Lines, 536 F. 2d 505 (2d Cir.
1976); Croshaw v. Koninklijke Nedlloyd, B. V. Rijswijk, 398 F.
Opinion (Gay v. Ocean Transport) A39
First, the traditional rule has increasingly given way
in recent years to the view that the obviousness or knowl-
edge of a dangerous condition on certain property does not
necessarily relieve the owner of his obligation to take fur-
ther precautions to remedy the danger.’* This modern
trend has been reflected in section 343 A of the Restate-
ment (Second) of Torts, which we adopted supra. We
agree with the Second Circuit that “[a]lthough 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 fully to appreciate
the risk or to avoid the danger even though aware of it.”
Napoli, 536 F. 2d at 508.
15. (Cont'd. )
a 1224 (D. Or. 1975); Frasca v. Prudential-Grace Lines, Inc.,
F. Supp. 1092 (D. Md. 1975).
16. See generally Annot., supra note 13, at 254-62.
17. Dean Prosser in his treatise gives a more elaborate expla-
nation of the modern rule:
Likewise, in the usual case, there is no obligation to pro-
tect the invitee against dangers which are known to ,
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
fer himself. It is for this reason that it is so frequently
eld that reasonable care requires nothing more than a warn-
ing 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, warning, 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 dis-
play, 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 reasonable safety even though
the invitee is fully aware of it, and, because the premises are
i
A40 Opinion (Gay v. Ocean Transport)
The more telling criticism of the traditional rule, how-
ever, is that it is premised in large part on the concepts of
contributory negligence and assumption of risk."* As pre-
viously recounted, both of these concepts are inappropriate
in section 905(b) cases. It would be wholly improper,
then, indirectly to introduce these principles into LHWCA
suits by adopting the traditional rule that if a hazard is
17. (Cont'd. )
held to him for his use, it is to be expected that he will
nevertheless proceed to encounter it. In all such cases the jury
may be permitted to find that obviousness, warning or even
knowledge is not enough. W. Prosser, The Law of Torts § 61,
at 304.95 (4th ed. 1971) (footnotes omitted).
In Brock v. Coral Drilling, Inc., 477 F. 2d 211 (5th Cir. 1973),
we recognized similar principles in a LHWCA case in which the
1972 Amendments were not applicable. In that case, the plaintiff
Brock was aware of hazardous conditions — on the vessel on
which he was working, but continued to work after protests to his
supervisor proved unavailing. We affirmed a finding that Brock
had met the standard of ordinary prudence, noting that he was
economically dependent upon the stevedore for future employment.
Id. at 215.
18. Napoli, 536 F. 2d at 508; Annot., supra note 13, at 236, 263-
65, 269-72. Illustrative of those cases holding that the obviousness
of a dangerous condition is proof of contributory negligence as a
matter of law is Parvino v. Wellman’s Funeral Parlors, Inc., 176 So.
2d 749 (La. App. 1965). In Parvino the court held that, even if the
steps on which the plaintiff fell were wet and slippery, since he had
shortly before traversed them, he was aware of their condition and
was thus guilty of contributory negligence in his misadventure. Id.
at 751. See also Romano v. Juneau, 198 So. 2d 499 (La. App.
1967 ).
kn example of the traditional rule utilizing the assumption of
risk rationale is Wade v. Roberts, 118 Ga. App. 284, 163 S. E. 2d
343 (1968). In Wade the plaintiff slipped and fell on a driveway
over which was strewn loose gravel. The court held that “by walk-
ing thereon she assumed any risks incident thereto and was guilty of
such lack of ordinary care for her own safety as would prevent a
recovery.” Id. at 287, 163 S. E. 2d at 345. See also Rogers v.
Atlanta Enterprises, Inc., 89 Ga. App. 903, 81 S. E. 2d 721 (1954);
Bradley v. Delph Nor-Tex Hide Co., 428 S. W. 2d 481 (Tex. Civ.
App. 1968).
Opinion (Gay v. Ocean Transport) A4l
open and obvious that fact alone absolves the owner of his
negligence.”®
Despite our rejection of the traditional rule, we still
affirm the judgment of the district court in this case. Even
though the crew of the vessel was aware of the dangerous
condition presented by the stack of pallets, it was the
stevedore who created the hazard in the first place and it
was the stevedore that failed to tie the pallets down and
then carelessly knocked one into the hold. This was not
the type of danger that must be faced notwithstanding
knowledge. The finding of the district court that the
stevedore’s negligence was the sole proximate cause of
Guerra’s injury is not clearly erroneous.
Il.
These cases have presented for our review the issue of
what standard should be applied when a vessel is sued for
its negligence under section 905(b) of the LHWCA. In
the interests of uniformity among the courts of this circuit
and throughout the federal system, we have adopted the
formulation of the Restatement (Second) of Torts §§ 342,
343 & 343 A (1965).*° Applying those standards to the
cases before us, they are both hereby ArrmMep.
19. Of course, that the danger is open and obvious or that the
plaintiff had knowledge of the hazard will likely be highly relevant
to the appropriate inquiry into the comparative negligence of the
employee.
20. By adopting as guidelines the land-based principles found
in the Restatement (Second) of Torts, we do not indicate, of course,
that vessel owners have the identical duties of owners of land. A
ship presents its own special hazards. As always, a determination
of the reasonableness of a defendant's actions (or lack thereof) re-
quires an examination of all the circumstances surrounding the
injury.
wif
A42 Opinion (Marant v. Farrell Lines)
USCA(3) OPINION IN MARANT y. FARRELL LINES.
UNITED STATES COURT OF APPEALS
For tHe Turmp Circuit
No. 76-1383
MILTON MARANT
v.
FARRELL LINES, INC.,
Appellant.
AppEaL From THE Unitep States District Courr ror THE
Eastern District or PENNSYLVANIA
(D.C. Civil Action No. 73-2615)
Argued November 16, 1976
Before: Van Dusen, Biccs and Aupisert, Circuit Judges.
Jeanne Ward Ryan, Esquire
S. Gordon Elkins, Esquire
Stradley, Ronon, Stevens & Young
1300 Two Girard Plaza
Philadelphia, Pennsylvania 19102
Attorneys for Appellant
Arnold J. Wolf, Esquire
Adler, Barish, Daniels, Levin & Creskoff
Rohm & Haas Building, Second Floor
Sixth and Market Streets
Philadelphia, Pennsylvania 19106
Attorneys for Appellee
A
Opinion (Marant v. Farrell Lines) A43
OPINION OF THE COURT
(Filed January 31, 1977)
AupIsERT, Circuit Judge.
The central dispositive issue on this appeal is the
question of the relative responsibility of stevedore and
shipowner for longshoreman safety under the 1972 Amend-
ments to the Longshoremen’s and Harbor Workers’ Com-
pensation Act (LHWCA), 33 U.S.C. § 901 et seq. Marant,
a longshoreman injured in unloading a cargo, brought this
negligence action against Farrell Lines, the shipowner.
The trial court charged the jury that stevedore and ship-
owner had concurrent responsibility for longshoring safety
and the jury, by special verdict, found the stevedore and
shipowner equally at fault in causing the injury. Damages
were stipulated and judgment for the full amount was
entered against Farrell. Farrell appealed. We reverse.
I.
Marant was employed as a longshoreman by the
Lavino Shipping Company, an independent stevedoring
contractor hired by Farrell Lines to discharge a cocoa bean
cargo from its vessel, the S.S. African Moon, in Philadel-
phia. The beans had been loaded in Africa by African
longshoremen under the supervision of the vessel’s officers
and, although the testimony was disputed, witnesses for
the plaintiff testified that the cargo had been improperly
stowed ‘‘bag on bag’’ (each layer of bags running in the
same direction as the layer beneath it) instead of in the
safer ‘‘lock stow’’ (each layer of bags running perpendic-
ular to the layer beneath it). Marant was injured when a
tier of bags collapsed and hit him. A witness testified
that the collapsing tier was about 15 feet high, that it stood
behind another tier 12 feet high, and that Marant was
standing 6 or 7 feet from the tier that fell on him. The
central issue at trial was the method adopted in stowing
the bags.
A44 Opinion (Marant v. Farrell Lines)
The jury returned a liability verdict against Farrell.
By special interrogatories it determined that Marant was
not contributorily negligent, that Lavino and Farrell were
both negligent, and that each had contributed 50 percent
to the happening of the accident. Damages were stipulated
as $20,000 and the district court entered judgment in favor
of Marant and against Farrell in that amount. Farrell’s
motion for judgment notwithstanding the verdict or for a
new trial was denied.
Farrell raises the following points on appeal:
(1) Under the 1972 Amendments to the LHWCA,
the stevedore has the primary responsibility for long-
shoremen’s safety and the vessel’s duty is only to
disclose latent defects of which it has knowledge.
Under this law and the factual circumstances, the dis-
trict court erroneously failed to direct a verdict for
Farrell. In addition, it incorrectly charged the jury
as to Farrell’s duty under the law and compounded
that error by repeating the original confusing charge
verbatim when asked by the jury for clarification of
the relative duties of vessel and stevedore.
(2) Under the 1972 Amendments to the LHWCA,
a vessel cannot be held liable where the stevedore con-
tributed to a longshoreman’s injury.
(3) The jury verdict was clearly against the
weight of the evidence.
(4) Where the jury found that Farrell’s negli-
gence contributed 50 percent to the happening of the
accident, Farrell should be assessed only 50 percent,
or $10,000, of the stipulated damages of $20,000.
IT.
As a preliminary matter, we will deny Farrell’s request
for a directed verdict in its favor. We cannot say, as a
matter of law, that the record is “critically deficient of that
minimum quantum of evidence from which a jury might
Opinion (Marant v. Farrell Lines) A45
reasonably afford relief.’’ Denneny v. Siegel, 407 F.2d 433,
439 (3d Cir. 1969).
Farrell has challenged specifically that portion of the
trial court’s charge which informed the jury that “(t]he
responsibility for the safety of the longshoreman lies con-
currently or jointly with the longshoreman’s employer, and
with the shipowner.” (546a-547a) Farrell asserts that this
is an inaccurate statement of the relative responsibilities
imposed by the 1972 Amendments to the LHWCA and that
the trial court should have charged, as Farrell requested
(405a), that the primary responsibility for longshoremen’s
safety was on the stevedore. A recent decision of this court,
not available to the district court at the trial of this case,
substantiates Farrell’s position. Accordingly, on the basis
of Brown v. Rederi, — F.2d —, No. 76-1037 (3d Cir., Nov. 4,
1976), we will order a new trial.
As Judge Van Dusen has recently observed, speaking
for this court, “express language in the statute and the
legislative reports accompanying the 1972 Amendments
amply demonstrate that for reasons of policy the major
responsibility for the proper and safe conduct of the work
was to be borne by the stevedore.’’ Brown v. Rederi, slip
op. at 11. This was an important aspect of the legislative
plan, intended to focus responsibility for longshoremen’s
safety on those best able to improve it, the stevedores. To
say that responsibility is concurrent or joint is plainly in-
consistent with the intention of the Act to place primary
responsibility on the stevedore.
The principle of concurrent or joint responsibility was
stated as the first substantive legal precept in the charge.
It was reiterated later when the court told the jury that it
was their job to decide if the stevedore was “solely or con-
currently” responsible (548a), and it was, at least by im-
plication, reinforced when the court charged that “[t]he
duty to provide a reasonably safe place to work can rest
upon more than one party, and it includes the owner of the
vessel.” (549a) After being sent out to deliberate, the jury
returned to ask the court, inter alia; ‘‘Is it the ship’s re-
A46 Opinion (Marant v. Farrell Lines)
sponsibility to provide a safe and reasonable place for the
- men to work in the hold as per your charge?” (569a-570a)
The court answered by repeating verbatim the portion of
its charge beginning:
You have for your determination the claim that
the owner of the vessel or its agents were negligent
toward plaintiff, a longshoreman. The shipowner, for
its part, denied plaintiff’s allegation of negligence.
The responsibility for the safety of a longshore-
man lies concurrently or jointly with the longshore-
man’s employer and with the shipowner.
(570a) We have no way of knowing, of course, but it seems
not unlikely that the equal responsibility portion of the
jury instructions played a part, at least, in the jury’s de-
cision that the vessel and the stevedore were equally at
fault in causing the accident.
The question of relative legal responsibility went to
the very essence of the case; the jury’s question amply evi-
dences their awareness of its importance. Particularly
under these circumstances, we believe that Farrell is en-
titled to a new trial. Upon remand, the district court will
now have the advantage of our analysis of the 1972 Amend-
ments in Brown, supra, and also in Griffith v. Wheeling
Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), cert.
denied, 96 Sup. Ct. 785 (1976) ; and we will direct considera-
tion of these precedents insofar as they are relevant to
issues that may be raised.’
1. In Brown, we emphasized the relevance of § 941(a) of the
Act:
Every employer shall furnish and maintain employment
and places of employment which shall be reasonably safe for
his employees in all employments covered by this chapter and
shall install, furnish, maintain, and use such devices and safe-
guards with particular references to equipment used by and
working conditions established by such employers as the Secre-
tary may determine b —— or order to be reasonably
necessary to protect the life, health, and safety of such em-
Opinion (Marant v. Farrell Lines) A47
Ii.
As a new trial will be required in any event, it is not
necessary for us to meet appellant’s additional points. We
will take this opportunity, however, to express our concern
about the question of apportionment of damages in cases
where it is found that stevedore and vessel have been con-
currently at fault. We recognize that the apportionment
question is fraught with difficulty, that it involves largely
intractable conflicting interests, and that it implicates in
contradictory ways three ordinarily separate fields of law,
to-wit, the common law of torts, statutory workmen’s com-
pensation law, and the law maritime. But, as we view it,
there are really only three alternatives.
First, the vessel could be made to pay the whole of the
damages without reduction for the stevedore’s fault and
without contribution from the stevedore. Second, the ves-
sel, after paying the whole of the damages, might be held
entitled to a true “contribution” from the stevedore, either
in a fixed pereentage or according to relative fault. Third,
the vessel might be held entitled to a reduction of liability
or a “credit” because of the stevedore’s concurring fault,
again, either in a fixed percentage or according to relative
fault. This last concept of a credit to the vessel is a rela-
1. (Cont'd. )
ployees, and to render safe such employment and places of
employment and to prevent injury to his employees.
33 U.S.C. §941(a) (1970).
We also indicated the possible importance of non-compliance
with the applicable OSHA Safety and Health Regulations. The
responsibility for compliance with the regulations is on employers.
“Tt is not the intent of the regulations of this part to place additional
responsibilities or duties on owners, operators, agents or masters of
vessels unless such persons are acting as employers . . . .” 29
C.F.R. § 1918.2. The OSHA regulation relating to stowed cargo
would seem to be of special relevance to the case at bar:
29 C.F.R. § 1918.83 Stowed cargo, tiering and breaking down.
(a) When necessary, cargo shall be secured or blocked to
prevent its shifting or falling.
(b) In breaking down, precautions shall be taken, when
necessary, to prevent the remaining cargo from falling.
A48 Opinion (Marant v. Farrell Lines)
tive newcomer on the legal scene. It has been espoused by
some of the commentators,” and embraced by several federal
trial courts,® but, to date, has not found wide acceptance in
appellate jurisprudence.
A fixed 50 percent reduction of recovery was allowed
by the Court of Appeals for the District of Columbia Cir-
cuit in a case implicating the Federal Employees’ Compen-
sation Act, Murray v. United States, 405 F.2d 1361 (D.C.
Cir. 1968), and has come to be known as a ‘‘Murray
Credit’’. Judge Leventhal, writing for a panel of himself,
Judge McGowan, and now-Chief Justice Burger, explained
the result thus:
A tortfeasor jointly responsible with an employer
is not compelled to pay the total common law damages.
The common law recovery of the injured employee is
thus reduced in consequence of the employee’s compen-
sation act, but the act gave him assurance of compensa-
tion even in the absence of fault.
Ibid. at 1366. The Murray Credit was subsequently ex-
tended to a case arising under the pre-1972 LHWCA,
Dawson v. Contractors Transport Corp., 467 F.2d 727,
2. The idea of a proportionate or “equitable” credit is proposed
in Cohen and Dougherty, The 1972 Amendments to the Longshore-
men’s and Harbor Workers’ Compensation Act: An Opportunity for
Equitable Uniformity in Tripartite Industrial Accident Litigation,
19 N.Y.L.F. 587 ae It is further discussed and advocated in
Coleman and Daly, Equitable Credit: Apportionment of Damages
According to Fault in Tripartite Litigation Under the 1972 Amend-
ments to the Longshoremen’s and Harbor Workers’ Compensation
Act, 35 Mp. L. Rev. 351 (1976).
3. Croshaw v. Koninklijke Nedlloyd, B. V. Rijswijk, 398 F.
Supp. 1224 (D. Ore. 1975) (accepting credit in theory but declin-
ing to apply it because of contrary precedent in the district);
Frasca v. Prudential-Grace Lines, Inc., 394 F. Supp. 1092 (D. Md.
1975); Shellman v. United States Lines, Inc., 175 A.M.C. 362 (C.D.
Cal. 1974), rev'd, 528 F.2d 675 (9th Cir. 1975); contra, Santino v.
Liberian Distance Transports, Inc., 405 F. Supp. 34 (W.D. Wash.
1975); Hubbard v. Great Pacific Shipping Co., 404 F. Supp. 1242
(D. Ore. 1975); Lucas v. “Brinknes” ma, Ges. Franz Lange
G.m.B.H. & Co., 379 F. Supp. 759 (E.D. Pa. 1974) (specially con-
vened three-judge panel).
Opinion (Marant v. Farrell Lines) A49
729-30 (D.C. Cir. 1972), Judge McGowan further elaborat- |
ing the result as follows:
Since employers covered by workmen’s compensa-
tion statutes are not liable in tort to their injured em-
ployees, other tortfeasors are not entitled to contribu-
tion from negligent employers, and thus, before
Murray, bore the entire burden of the tort damages.
To mitigate the harshness of this result, we held
in Murray that a person against whom the employee
was awarded damages in a tort action could reduce the
judgment by 50 per cent if he could show that the em-
ployer’s negligence contributed to the injury.’
3. Murray was itself an extension of this court’s rule in
Martello v. Hawley, 112 U.S. App. D.C. 129, 300 F.2d 721
(1962), where we held that when a plaintiff settled his claim
against one tortfeasor, another alien against whom the
plaintiff actually brought suit was entitled to reduce a result-
ing judgment by 50%.
Although Murray involved the Federal Employees’ Com-
pensation Act, 5 U.S.C. § 8101 et seq. (1970), its rationale ap-
plies equally to the virtually identical provisions of the Long-
shoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.
§ 901 et seq. (1970) ....
While Dawson did apply the credit concept to the LHWCA,
the 1972 amendments were not implicated in the case and,
accordingly, the question may be considered open whether
the District of Columbia Circuit will continue to adhere to
Dawson in cases arising under the 1972 amendments.
The idea of a reduction of recovery proportioned ac-
cording to fault—an ‘‘Equitable Credit’’—has been re-
jected by the only Court of Appeals that has directly con-
sidered it, the Ninth Circuit. In Dodge v. Mitsui Shintaku
Ginko, 528 F.2d 669, 672 (9th Cir. 1975), cert. denied, 96
Sup. Ct. 1685 (1976), Senior Judge Brown rejected ‘‘both
the Murray and Shellman [Equitable Credit] Doctrines
because they are contrary to the greater weight of author-
ity, and also because they impose unjustified burdens upon
the injured longshoreman.’’ Judge Brown reaffirmed this
A50 Opinion (Marant v. Farrell Lines)
result, on identical grounds and for the same panel, in a
companion case, Shellman v. United States Lines, 528 F.2d
675 (9th Cir. 1975), cert. denied, 96 Sup. Ct. 1668 (1976).
The Second Circuit, in Landon v. Lief Hoegh & Co.,
521 F.2d 756 (2d Cir. 1975), cert. denied, 423 U.S. 1053
(1976), held that the stevedore was not a necessary or in-
dispensable party in an action by the longshoreman against
the vessel, but did not adjudicate the specific question of a
credit. Similarly, the Supreme Court precedent most often
cited on the question, Halcyon Lines v. Haenn Ship Ceiling
& Refitting Corp., 342 U.S. 282 (1951), denied contribution
from the stevedore-employer to the vessel but did not di-
rectly present for adjudication the possibility of a credit.
And it is well established that ‘‘[a] decision is not author-
ity as to any questions of law which were not raised or
presented to the court, and were not considered and decided
by it, even though they were logically present in the case
and might have been argued, and even though such ques-
tions, if considered by the court, would have caused a dif-
ferent judgment to be given.’’ H. Buack, Law or Jupiciau
Precepents 37 (1912). See Kramer v. Scientific Control
Corp., 534 F.2d 1085, 1090 (3d Cir.), cert. denied, 45
U. 8S. L. W. 3226 (Oct. 5, 1976).
Though our research has not been exhaustive, we do
not perceive a ‘‘greater weight’’ of authority on the issue
of a credit. On the contrary, our observation would be
that, of the two courts of appeals that have considered the
general credit concept under the LHWCA, one has ac-
cepted it, albeit prior to the 1972 amendments, and one has
rejected it. We have found no Supreme Court precedent
directly dispositive of the issue, and the district courts are
in disarray. Under these circumstances, and particularly
in view of the Supreme Court’s activist attitude in mari-
time matters, see United States v. Reliable Transfer Co.,
421 U.S. 397 (1975), we believe that the question of a
possible credit to the vessel in cases of concurrent steve-
dore-vessel negligence is, at least in this circuit, very much
an open question.
Opinion (Marant v. Farrell Lines) A51
The concurring opinion expresses concern that any
credit or apportionment rule would lead to increased liti-
gation and that, even ‘‘if’’ the present rule is unfair,
change should come from Congress. This court being al-
ready inundated with LHWCA litigation to interpret the
1972 amendments, it is difficult—though concededly fright-
ening—to imagine an increase. It would seem as likely,
however, that a rule which equitably apportioned liability
according to fault might decrease litigation and promote
settlement, especially by removing the incentive of a large
judgment against a shipowner who is only partly at fault.
As the Supreme Court has recently observed: ‘‘ Experience
with comparative negligence in the personal injury area
teaches that a rule of fairness in court will produce fair
out-of-court settlements.’’ United States v. Reliable Trans-
fer Co., supra, 421 U.S. at 408. Concerning the propriety
of judicial as against legislative action in this field, we will
resist today the temptation to continue the venerable de-
bate. Suffice it to say, in Judge Walter Schaefer’s eloquent
words, that ‘‘most depends upon the judge’s unspoken
notion as to the function of his court. If he views the role
of the court as a passive one, he will be willing to delegate
the responsibility for change, and he will not greatly care
whether the delegated authority is exercised or not. If he
views the court as an instrument of society designed to re-
flect in its decisions the morality of the community, he will
be more likely to look precedent in the teeth and to
measure it against the ideals and the aspirations of his
time.’?’ W. Schaefer, Precedent and Policy, 34 U. Cut. L.
Rev. 3 (1966) (quoted in R. Aupisert, THe JupictaL Process
at 802, 814 (1976)). Although we have indicated some of
our concerns on the difficult issue of apportionment, we
emphasize, again, that we expressly do not decide the issue
at this time.
The judgment of the district court will be reversed and
the cause remanded for further proceedings in accordance
with the foregoing.
A52 Concurring Opinion (Marant v. Farrell Lines)
USCA(3) CONCURRING OPINION IN
MARANT v. FARRELL LINES.
Van Dusen, Circuit Judge, concurring:
I join in parts I and II of the majority opinion. Also,
I agree with the conclusion of part III that the issues of
apportionment of damages between the stevedore and the
ship, where they are both at fault, should not be reached
on this appeal. I cannot agree with the extensive dicta in
part III, which I believe should be omitted until there is an
appropriate record requiring decision of the issues dis-
cussed there. However, in view of part III of the majority
opinion, I feel it is desirable to set forth a number of other
factors which are relevant to the issues in part III and
should be considered by any trial court which is required
to directly face these issues in the future.
A judicial apportionment of damages doctrine in cases
brought against the vessel under 33 U.S.C. § 905(b) may be
inconsistent with the intent of Congress’ in enacting P.L.
92-576 (Oct. 27, 1972) for these reasons:
1. A judicial doctrine of apportionment of damages in
905(b) cases would result in the increased litigation that
1. It is clear that Congress gave careful thought to the statutory
scheme of the Longshoremen’s and Harbor Workers’ Compensation
Act (LHWCA) and the changes in that scheme brought about by
the enactment of P.L. 92-576 in 1972. Both Houses of Congress
held extensive hearings on proposed bills incorporating different
changes, see Hearings on S. 2318, S. 525, S. 1547 Before the Sub-
comm. on Labor of the Senate Comm. on Labor and Public Wel-
fare, 92d we 5 2d Sess. (1972), Hearings on H.R. 247, H.R. 3505,
H.R. 12006, H.R. 15023 Before the Subcomm. on Labor of the
House Comm. on Education and Labor, 92d Cong., 2d Sess. (1972),
and both Houses wrote extensive committee reports to explain the
se underlying P.L. 92-576, see S. Rep. No. 1125, 92d Cong.,
2d Sess. (1972), H. Rep. No. 1441, 92d Cong., 2d Sess. (1972). See
also Comment, Negligence Standards Under The 1972 Amendments
to the Longshoremen’s and Harbor Workers’ Compensation Act:
Examining the Viewpoints, 21 Vill. L. Rev. 244 (1975-1976).
Concurring Opinion (Marant v. Farrell Lines) A53
Congress sought to avoid by the 1972 Amendments, which
inserted this wording in 33 U.S.C. § 905(b) :
‘*(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 re-
cover 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 em-
ployer shall not be liable to the vessel for such damages
directly or indirectly and any agreements or warranties
to the contrary shall be void. . . . The remedy pro-
vided in this subsection shall be exclusive of all other
remedies against the vessel except [the right of the
employer of the longshoreman to recover compensa-
tion paid from a vessel found negligent under § 905(b).
See 33 U.S.C. § 933(b).]”’
(Emphasis supplied.)
These Amendments inserted this language in 33 U.S.C.
§ 905(a) :
‘**§ 905. Exclusiveness of liability
‘*(a) The liability of an employer prescribed in
section 904 of this title shall be exclusive and in place
of all other liability of such employer to the employee,
his legal representative . . . and anyone otherwise en-
titled to recover damages from such employer at law
or in admiralty on account of such injury or
Oe «+ s.”
The Senate Report on P.L. 92-576 at 4-5, 9 and 11 uses
this language:
‘<The social costs of these law suits, the delays,
crowding of court calendars and the need to pay for
A54 Concurring Opinion (Marant v. Farrell Lines)
lawyers’ services have seldom resulted in a real in-
crease in actual benefits for injured workers.
‘‘For a number of years representatives of the em-
ployees have attempted to have the benefit levels under
the Act raised so that injured workers would be prop-
erly protected by the Act. At the same time, employer
groups indicated their willingness to increase such
payments but indicated they could do so only if the
Longshoremen’s and Harbor Workers’ Compensation
Act were to again become the exclusive remedy against
the stevedore as had been intended since its passage
in 1927 until modified by various Supreme Court
decisions.
‘*The Committee heard testimony that the num-
ber 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 improved com-
pensation benefits were now being spent to defray
litigation costs. Industry witnesses testified that
despite the fact that since 1961 injury frequency rates
have decreased in the industry, and maximum benefits
payable under the Act have remained constant, the cost
of compensation insurance for longshoremen has in-
creased substantially because of the increased number
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
Committees attention was also called to the decision in
1966 of the United States district court in Philadelphia
concerning the impact of third party claims involving
Concurring Opinion (Marant v. Farrell Lines) A55
injured longshoremen on the backlog of personal in-
jury cases in that court.)
‘‘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, in-
demnity or contribution agreements are prohibited as
a matter of public policy, vessels by their superior
economic strength could circumvent and nullify the
provisions of Section 5 of the Act by requiring in-
demnification from a covered employer for employee
injuries.
‘‘Accordingly, the bill expressly prohibits such
recovery, whether based on an implied or express
warranty. It is the Committee’s intention to pro-
hibit such recovery under any theory including, with-
out limitation, theories based on contract or tort.
‘‘Under the proposed amendments the vessel may
not by contractual agreement or otherwise require the
2. This apparently refers to the case of Turner v. Transporta-
cion Maritima, 44 F.R.D. 412 (E.D. Pa. 1968), which described the
court congestion in this Circuit caused by the decisions of Seas
Shipping Co. v. Sieracki, 328 U.S. 85 (1946), and Ryan Stevedoring
Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124 (1956). It may
well be that a judicial apportionment of damages doctrine will in-
crease litigation and may possibly have a similar impact in not only
the district courts but this court as well. If such litigation does
result, this will undermine the congressional purpose to free the
courts from the burden of these im weer cases by enacting
P.L. 92-576. The Chief Justice of the United States has pointed out
that the impact of legislation and court decisions should be care-
fully considered by courts prescribing such legal rules. See, og
The State of the Judiciary—1975, by Chief Justice Burger, 61 A.B.
AJ. 439 (1975).
a
A56 Concurring Opinion (Marant v. Farrell Lines)
employer to indemnify it, in whole or in part, for such
damages.’’
Part III does not meet the problems raised by the au-
thorities cited, since it appears that a likely result of the
‘‘equitable credit’’ doctrine or any similar apportionment
of liability would be to, once again, drag the stevedore
back intyv. the litigation process (thus undermining the
safety) * in order to defend the subrogation lien he has on
the longshoreman’s recovery against the vessel.t See Pope
& Talbot v. Hawn, 346 U.S. 406, 411-12 (1953) ; Third Cir-
cuit cases cited in footnote 6 of Brown v. Rederi, Opinion
of November 4, 1976 (3d Cir., No. 76-1037); 33 U.S.C.
§ 933, as amended.
3. It is clear that a major congressional concern in enacting
P.L. 92-576 was that maritime safety be enhanced. The Senate
Report contains this language:
“It is important to note that adequate workmen's compen-
sation benefits are not only essential to meeting the n of
the injured employee and his family, but, by assuring that
the employer bears the cost of unsafe conditions, serve to
strengthen the employer's incentive to provide the fullest
measure of on-the-job safety.
“This consideration is particularly crucial with respect to
high-risk occupations such as those covered by this Act. Long-
shoring, for ae. has an injury ee rate which is we
over four times the average for manufacturing operations. It
is the Committee's view that every appropriate means be ap-
plied toward improving the tragic aa intolerable conditions
which take such a heavy toll upon workers’ lives and bodies in
this industry, and such means clearly include vigorous enforce-
ment of the Maritime Safety Amendments of 1958 and the
Occupational Safety and Health Act of 1970, as well as a work-
men’s compensation system which maximizes industry's moti-
vation to bring about such an improvement.”
Senate Report No. 92-1125, 92d Cong., 2d Sess., 2 (1972).
4. It is clear that a judicial doctrine of apportionment of dam-
ages in these suits will make the stevedore an indispensable party
to the action. If the stevedore is not a party, then any finding as-
sessing his proportionate fault will not be res judicata against him
in a later suit cron | those rights afforded to him by 33 U.S.C.
§ 933, as amended by P.L. 92-576. See, e.g., Restatement of Judg-
ments §6 (1942). See paragraph 2 below.
Concurring Opinion (Marant v. Farrell Lines) A57
2. In any event, the cases of Murray v. United States,
405 F.2d 1361 (D.C. Cir. 1968),5 and Dawson v. Contrac-
tors Transport Corp., 467 F.2d 727 (D.C. Cir. 1972),* were
decided before 1972 when the Congress amended 33 U.S.C.
§§ 905 and 933, as the majority points out in part III of
its opinion. For this reason, these cases have a doubtful
value as precedent for creating a judicial doctrine of ap-
portionment of damages in § 905(b) cases. Also, there are
other substantial reservations concerning the applicability
of Dawson and Murray in the maritime section 905(b)
actions where an injured longshoreman sues the vessel,
since both Dawson and Murray involved exclusively land-
based employees engaged in exclusively land-based occu-
pations when injured.” Secondly, the Murray opinion does
not deal with the so-called ‘‘lien’’ right which the employer
and compensation insurer (by way of subrogation) have
under 33 U.S.C. § 933, as amended by P.L. 92-576. In
Dawson, Judge McGowan indicated his concern that the
problems raised: by § 933 had not been considered in the
5. It is apparent from the Murray opinion that two important
theoretical considerations in the court's mind in reaching the result
were (1) the doctrine of sovereign "9! since the United
States was the compensation employer, and (2) the “indemnifica-
tion doctrine” of Ryan Stevedoring Co. v. Pan-Atlantic Steamship
Corp., 350 U.S. 124 (1956). The sovereign immunity doctrine has
no place in this case and the Ryan doctrine was explicitly abrogated
by the Congress in enacting P.L. 92-576. See page A55 above.
6. In view of Judge McGowan’s first sentence in Dawson and
the fact that the district court did not allow a “Murray credit” set-
off in the case, I have considerable doubt about the precise mean-
ing of that case and consequently its applicability to longshoremen’s
aa suits brought under §905(b), as amended by P.L.
7. This factor formed the basis for Judge Huyett’s rejection of
the “Murray credit” in Lucas v. “Brinknes” Schiffahrts Ges., 379 F.
Supp. 759, 764 (E.D. Pa. 1975), appeal dismissed, No. 75-1223 (3d
Cir., Apr. 30, 1975), cert. denied, 423 U.S. 866 (1975), a case cited
by this court in Brown, supra at 9 note 6.
8. See Brown, supra at 9 note 6; 1A Benedict on Admiralty
§ 28 (7th ed. rev., 1973 release).
A58 Concurring Opinion (Marant v. Farrell Lines)
court’s earlier opinion in Murray, using this language in
note 3 at page 730:
‘‘The District Court was concerned primarily with the
apparent inability of an employer, if Murray is ap-
plied, to obtain reimbursement for payments made
under the compensation statute. [Citing cases.]
‘*The employer’s right to reimbursement from his
employee is not an issue in this case. Moreover, the
question of Murray’s validity was not argued to this
panel, which, in any event, is without authority to
overrule prior decisions of this court. Consequently,
we assume the continuing validity of the Murray rule
and its application to cases involving the Longshore-
men’s and Harbor Workers’ Compensation Act.’’
3. Two of the leading admiralty jurisdictions have
written decisions which indicate that those Circuits will
not follow an ‘‘equitable credit’’ doctrine or any similar
apportionnient of liability in § 905(b) cases under the 1972
Amendments. See Dodge v. Mitsui Shin
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