# Petition — Brown v. Rederi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1340%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 969 ## Text = Court, U. & : ‘ ; ’ By ° ‘ . ’ 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: “§ 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. “§ 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 “§ 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. “§ 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 “§ 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. “§ 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: “§ 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: “§ 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, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1340%3A1. Public record. Not legal advice.