Petition — Weyerhaeuser Co. v. Shepler
Supreme Court brief1978
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Supreme Court, U. S.
FILED
DEC 9 1977
IN THE SUPREME COURT OF THE UNL TMIBHAGE RODANG JR., CLERK
no. @7-823° - wonntomad
OCTOBER TERM, 1977
PATRICIA ANNE SHEPLER, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF
OREN D. SHEPLER, DECEASED,
PLAINTIFF-RESPONDENT,
Vv.
WEYERHAEUSER COMPANY, A WASHINGTON
CORPORATION,
DEFENDANT-APPELLANT-PETITIONER,
and
PACIFIC COAST SHIPPING COMPANY, LIBERIA,
DEFENDANT~RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF OREGON
KENNETH E. ROBERTS
PAUL N. DAIGLE
RIDGWAY K. FOLEY, JR.
SOUTHER, SPAULDING, KINSEY,
, WILLIAMSON & SCHWABE
1200 Standard Plaza
Portland, Oregon 97204
Telephone: (503) 222-9981
Counsel for Petitioner
TABLE OF CONTENTS
PETITION
Page
Opinions BelOW..ccccccccescsescee 2
JUTISEGICCIONc ccccccscedsccecccese &
Questions Presented for Review... 6
Statutory Provisions Involved... 7
Statement of the Case
A. Statement of Facts.......... 8
1. Weyerhaeuser employs an
expert stevedore to
1GG8 GRO VORGELcccccccsss 8
2. The Longshoremen chose
to "dead-end" the logs... 12
So TO ASSIGeRtccccccccsccee IG
4. No one told Weyerhaeuser
that “bull winches"
would improve safety.... 17
B. Basis for Federal
SOE ees ch cekdestiéoesies§ «692
Reasons for Allowing Writ....... 22
Summary of Argument...........+. 22
ii
Argument
I. Shipowner's Standard of Care..
A. The 1972 Amendments: Legis-
lative History and Meaning....
B. The Charterer is not Liable
for injuries caused by open
and obvious conditions........
C. The Charterer does not owe any
duty to provide a safe place
to ans ces ee 6 *-e3neee#ee#e¢ e*enre#ee#e#ee#ee
D. The Oregon Supreme Court im-
properly rejected Restatement
§§ 343, 343A because these
sections allegedlv embody
"Assumption of the Risk"
factors and unfairly favor the
BOREL GRG se 6 cc cccasdvecesoeeeees
(1) Assumption of Risk - the
forbidden phrase.........
(2) Are landowners a favored
CR, 6k owe bbe 6 obese
(3) Restatement §§ 409-429,
which envision. indemnity
from the causative ayent,
do not apply under the
1972 Amendments which pre-
vent the shipowner or char-
terer from securing indem-
nity from the negligent
BEOVOGOES . cc cacccccesccce
26
26
29
32
35
36
39
39
iii
E. The Oregon Supreme Court
standard not only does not
govern maritime negligence
cases arising under the
1972 Amendments but also
ignores the undisputed
facts of this CaSe€.......+--.
II. Equitable Credit.........--.
Conclusion...... eccvececoce oeeeee
APPENDIX
A. Special Interrogatories.....
Judgment Order....-eeeeeeeees
B. Opinion of the Supreme
Court of the State of Oregon
Letter from Supreme Court
of the State of Oregon
Amending its Opinion........
C. Article III, § 2, cl. 1 of
the United States Consti-
Cmte can cceecseseseseoeoeoe
28 U.S.C. § + yi e) ee
28 Tv ~ oe § ZiGL (eS) ccccceccs
D. 33 0.8.C. § SOS () ccececsccces
E. Restatement § ) eer
Restatement § 343A....++ee-
F. Equitable Credit Comments...
A-82
A-84
A-85
A-85
A-87
A-88
A-89
A-90
iv
INDEX OF AUTHORITIES
Cases
Alaska SS Co. v. Peterson, 347 U.S.
Dee. CROOO Cho 4.5655 6 bib cb Sh Seb es
Albanese v. Matts, 382 U.S. 283
SE 6 6h60%0 6604488654 Terry yt
A.N.G. Stevedores v. Ellerman .
Lines, 369 U.S. 355 (1962)......
Anuszewski v. Dynamic Mariners
Corp. Panama, 391 F. Supp. 1143
(D. Md. 1975), aff'd, 540 F.2a
757 (4th Cir. 1976), cert.
denied, 429 U.S. 1098, 97 S. Ct.
1116, 51 L. Ed.2d 545 (1977)....
Arthur v. Parish, 15 Or. 582, 47
i 8 RS ere eee
Askew v. Howard-Cooper Corp.,
263 Or. 184, 502 P.2d 210 (1972)
Beemer v. Lenske, 241 Or. 47, 402
Pom Ge Gel caueetceeteeadtees<
Bess v. Agromar Line, 518 F.2d
See COG Gabe BOON sc hcé cin cicecas
Birrer v. Flota Mercante Gran-
colombiana, 386 F. Supp. 1105
es Ts PP we tceddas duewe cbs
Blassingill v. Waterman ss Corp.,
336 F.2d 367 (9th Cir. 1964)....
Bossard v. Exxon Corp., 559 F.2d
san ee. o- 2 ., eee
Bovia v. S/S Agia Erini, 433 F.
Supp. 1020 (E.D. La. 1977)......
Brown v. Mitsubishi Shintaku
Ginko, 550 F.2d 331 (5th Cir.
1977), rehearing denied June 8,
DPV ls-wktinseche ccndbaneebilesees.s
Butler v. O/Y Finnlines, Ltd.,
537 F.2d 1205 (4th Cir. 1976)
Cappems pemiiaed ..ccccciccccccen
Page
A-40
30
A-78
37
A-78,A-79
33
26
A-39,A-40
31
34
32,34
33
INDEX OF AUTHORITIES (Cont.)
Citizen v. M/V TRITON, 384 F.
Supp. 198 (E.D. Tex. 1974)......
Croshaw v. Koninklijke, Nedlloyd,
B. V. Rijswijk, 398 F. Supp.
1224 (D. Or. BOTEP ccocceceoeceees
Crumedy v. The J. H.. Fisser, 358
oF 423 CROROP cocccoecesoeoceose
Cummings v. "SIDARMA" Soc., 409 F.
Supp. 869 (E.D. La. 1976).......
Cir. LOGS) ccccccvecseceocseseceese
Dodge v. Mitsui Shintaku Ginko K.K.
Toyko, 528 F.2d 669 (9th Cir.
Page
33
A-29,A-70,
A-75,A-91
A-39
31
Denneny v. Siegel, 407 F.2d 433 (3d
A-18
1975), cert. denied, 425 U.S. 944,
96 S. Ct. 1685, 48 L. Ed.2d 188
CAOTO! cc cusevbse bsedderebecetsecos
atlantique, 558 F.2d 186 (4th
Cir. 1977) (rehearing en banc
granted June 3, 1977, argued
October 6, 1977) .ccccccccccccces
Erie R. Co. v. Tompkins, 304 U.S.
64 (1937) -cccccccccccccccccccesce
Fedison v. Vessel WISLICA, 382 F.
Supp. 4 (E.D. La. 1974).........
Fitzgerald v. Compania Naviera La
Molinera, 394 F. Supp. 413 (E.D.
LA. 1975) -cccccccccccccccccccess
Frasca v. Prudential-Grace Lines,
Inc., 394 F. Supp. 109 (D. Md.
1978) cccccccdecsodccesesoccoceee
Gallardo v. Westfal-Larsen, 1977
A.M.C. 1325 (N.C. Cal. 1977)....
Gautret v. Edgerton (1867) L.R. ‘2
CoP. Blecccccccccccccccccececes
Gay v. Ocean Transport & Trading
Ltd., 546 F.2d 1233 (5th Cir.
1977), rehearing denied 549 F.2d
203 (Sth Cir. 1977) .cccccccccccs
24,46
Edmonds v. Compagne Generale Trans-
24,46,
A-76,A-77
A-83
30,32
33
33
42
A-48
29,32
vi
INDEX OF AUTHORITIES (Cont.)
Heaven v. Pender, 11 Q.B.D
1 mein: pee epamasaie gi
Hess v. Upper Mississippi Towing
| g
Corp., 559 F.2d 1030
Bp gtlndtnicloom susan ah
Hite v. Maritime Overseas Corp.,
pap Me (E.D. Tex. 1974)
also F. Supp. 233 (E.D.
Tex. a eee oer wee
Hurst v. Triad, a)
554 F.2d 1237 (3rd Cir. 1977),
‘ a a
ndermaur v. Dames (1866) L.R.
Gels - phalivennesnlencneadamegece ted
Italia Societa v. Oregon Stevedor-
ing Co., 376 U.S. 315 (1963)....
Jacobs v. Tidewater Barge Lines,
277 Or. 809, 562 P.2d 545 (1977)
Jacobson v. Tahoe Regional Plann-
ing Agency, 558 F.2d 928 (1977).
Johnson v. Clark Equipment Co.,
274 Or. 403, 547 P.2d 132 (1976)
Johnson v. Zenith Navigation,
F. Supp. (No. 74-1502)
(E.D. La. ie a
sagan *: Empresa Hondurenea de
apores S.A., 57 Cal. App.3d 52
129 Cal. Rptr. 32 (1976)........
Lloyd Westcott v. Empresas
me % * S.A. Panama, et al,
. (9th Cir. No.
po ag decided November 14,
Lucas v. "BRINKNES" Shiffahrts
Ges., 379 F. Supp. 759 (E.D. Pa.
1974), appeal dismissed 387 F.
Supp. 440 (3d Cir. 1975)........
Marant v. Farrell Lines, Inc.,
550 F.2d 142 (3d Cir. 1977).....
Page
42,A-61
31,43
30,31,32
36,A-52,A-5
A-48
A-40
A-19,A-34
A-83
38
33
40
30,34,35
26,27,32
A-18,A-92
vii
INDEX OF AUTHORITIES (Cont.)
Page
Miles v. Shell Oil Company, 498
F.2d 105 (5th Cir. 1974).....---- 30
Mitchell v. Trawler Racer, Inc.,
362 U.S. 539 (1960)... -eeeeeeeees A-29
Munoz v. Flota Merchante Gran-
colombiana S.A., 553 F.2d 837
(2d Cir. 1977) ..ceeneeerreceeces 34,43
A-56,A-57
Myers v. Cessna Aircraft,
550 F.2d 142 (3rd Cir. 1977).-.- A-19
Napoli v. [Transpacific Carriers,
Etc.] Hellenic Lines, 536 F.2d
505 (2d Cir. 1976)..--eeeeeeeee- 31,A-57
Newman v. Utility Trailer, 278 Or.
395, 564 P.2d 674 (1977)...-+--- 44
Parker v. Costa Amatori S.P.A.,
F. Supp. (No. 74-454-N,
E.D. Va. 1975) ccccccccccccccccee 32
Pope & Talbot, Inc. v. Hawn, 346
U.S. 406, 74 S. Ct. 202, 98 L.
BA. 143 (1953) .ccccccccccccccsess 29
Ramirez v. Toko Kaiun K.K., 385
F. Supp. 644 (N.D. Cal. 1974)... 33
Reinan v. Pacific Motor Trucking
Co., 270 Or. 208, 257 P.2d 256
(1974) .cccccccccccccecessccscees A-80,A-81
Robinson v. Dixie Machine W & M
Works, et al., 1975 A.M.C. 2114
(E.D. La. 1975) cccccccccccceeees 33
Ruffino v. Scindia Steam Navigation
Co., 559 F.2d 861 (2d Cir. 1977) 34,43
Ryan Co. v. Pan-Atlantic Corp.,
350 U.S. 124 (1956)....eeereeee- A-30
Seas Shipping Co. v. Sieracki, 328
8.8. GS €1S46) ccccceccdaceseceese An-2d
Shellman v. United States Lines,
528 F.2d 675 (9th Cir. 1975),
cert. denied, 425 U.S. 936, 96
S. Ct. 1668, 48 L. Ed.2d 177
(1976) .c cece eee err eeereeeeeeeeee 24,25,46,
56,A-76
viii
INDEX OF AUTHORITIES (Cont. )
Page
Skibinski v. Waterman SS Corp.,
360 F.2d 539 (2d Cir. 1966)..... A-39
Slaughter v. RONDE, 390 F. Supp.
637 (S.D. Ga. 1974); aff'd, 509
PeSe DIS COG ChB. BOTS) occ cccca 32,33
Sloan v. Deniz Nakliyatin, 1975
A.M.C. 236 (Fla. Cir. Ct. 1974). 30
Southern Pacific v. Jensen, 244 U.
os Dee COUP s ebbe¥eudibacisscccs ee
Strandholm v. General Const. Co.,
235 Or. 145, 382 P.24 843 (1963) A-79
Stranahan v. A/S Atlantica &
Tinfos Papirfabrik, 471 F.2d
369 (9th Cir. 1973), cert.
denied 412 U.S. 906, 93 S. Ct.
2293, 36 L. Ed.2d 971 (1973).... 27
Stillwell v. S.I.A.C., 243 or.
158, 411 P.2d 1015 (1966)....... A-79
Streatch v. Associated Container
Transp. Ltd., 388 F. Supp. 935
. COR. CoB. AWPBdaccccccccccee B32
Teofilovich v. D'Amico Medit./
Pacific Line, 1976 A.M.C. 1621,
F. Supp. (C.D. Cal.
i EE n-ne RT a 40
Thad Higgins v. Flota Mercante
Grancolombia, F. Supp.
(74 Cir. 5510 (C.C.M.)] (S.D.
wat... * > £47»
"The Lottawanna," 21 Wall, 558
SPPEP US en bubesusiécccdececdscks ea
The Osceola, 189 U.S. 85 (1946)... A-29
Valle v. Jugoslavenska Linejska
Plovidba, 434 F. Supp. 608 (S.D.
W4Ue SUC shbesacWedeckdudwcdceca Of
Vega v. Pan Am. Fruit Co., 1975
A.M.C. 187 (S.D. N.Y. 1974)..... 33
West v. United States, 361 U.S.
118, 80 S. Ct. 188, 4 L. Ed.2a
See GR Giivieuted wedks tas seseoee af
ix
INDEX OF AUTHORITIES (Cont.)
Statutes and Constitution Page
1972 Amendments to the Longshore-
men's and Harbor Workers’ Com-
pensation nti Stat. ees
ober ; 060s eeee8 pae4s
19992, 23, 24, 25, 26,27, 28, 36 37,38, 39,40, 41,43,
45,48,49,A-7,A-8,A-9,A-29,A-30,A-31,A-32,
A-34,A-39,A-43,A-51,A-52,A-56,A-70,A-73,
A-80,A-83,A-90,A-91,A-92
Occupiers' Liability Act, 1957.... A-48
United States Constitution, Art.
COP, OB Bec cdesiccsededecseeteess OR
United States Constitution, Art.
COS. BE, Ge Ecicccscecacsevessss 6988 ies
28 U.S.C. § 1257(3) .cccccccccccces 6,22,A-
Keeesevaceunéee : ener ses
28 U.S.C. § 2101(c). oeae
33 U.S.C. § 901 et Seqe.ccccccccee And
33 H.8.C. S BOL(ZL).cccccsscecsccce ABD -
33 0.8.4. 8 BOScccccceccccccsccess AP40,A- :
33 U.S.C. § 9O5S(D) .ccccccccccccccs 3¢7e8,23,25,
26,41,43,47,48,A-18,A-29,A-33,A-54,A-60,
Oregon Constitution, Amended a
Art. VII, GS Si ccccccccccscccceecs
Texts, Treatises and Other Authorities
j j ed.
gg Ratopseeyy liei wee
J. Cohen and D. Dougherty, "'The
1972 Amendments to the Longshore-
men's and Harbor Workers' Com-
pensation Act: An Opportunity
for Equitable Uniformity in Tri-
partite Industrial Accident Liti-
gation.'" 19 N.Y.L.F. 587 (1974) A-91
INDEX OF AUTHORITIES (Cont.)
P
Coleman, Randall C. and Daly, Jr., ,
- Warren B., “Equitable Credit:
Apportionment of Damges Accor-
ding to Fault in Tripartite
Litigation Under the 1972 Amend-
ments to the Longshoremen's and
Harbor Workers' Compensation
Act," 35 Maryland L. Rev.
SUOW"GRR GE Vel 6 chvidet Cascctcceee BOS
Deacon, The Injured Longshoreman
vs. The Shipowner After 1972:
Business Invitees Land-Based
Standards, and Assumption of
Risks, 28 Hastings L.J. 771
SROTUN 6 cc cevere GaSe hedddesecses BO
arse Fai Without
au Pet cedeecevetenkeeedcse - -
a The Law of Torts, 3d ed, i ceuies
Pp. Co cep eee Ceecesaaecceesedos -
Fleming, The Law of Torts, 3d ed ibe
(2965) wcccccvccccccecccccccccces A-47,A-48
Gilmore & Black, The Law of
Admiralty, (2d ed The Foundation
Press, Inc., Mineola, N.Y. 1975)
CBS | Om hac cescéccesccxcctocsecs Ot
2 Harper and James, The Law of
Torts 1430 et seq. (1956)....... A-49
House Report No. 92-1441.......... 28,36,37,43,
A-36,A-37,A-39,A-45,A-49,A-52,
A-54,A-70,A-71,A-72,A-76
Odgers, [1957] Com. L.J. 39....... A=-48
Payne, 21 Mod. L. Rev. 359........ A-48
Prosser, Law of Torts 35l, 4th ed.,
Hornbook Series (1971).......... A-48
Prosser, Law of Torts (4th ed, West
Publishing Co., 1971) 468 § 71.. 41
Chapter 15, Restatement (Second)
GE FOCEGe do cei ccctéssscsccbrcess. B62
xi
INDEX OF AUTHORITIES (Cont.)
Page
2 Restatement 215-216, Torts
Second § 343... ceeeeeeeeeeeees 29,31,35,37,
39,41,A-34,A-42,A-43,A-45,A-88,A-89
2 Restatement 218, Torts Second
GS BABA. cccccccccccccccsccseccces 29,31,35,37,
39,42,A-34,A-42,A-43,A-45,A-46 ,A-89
2 Restatement 219-220, Torts
Second § 343A, comment e.......- 35
2 Restatement 370-426, Torts Second
S§ 409-429... cc cece cence cece reeee 36,39,40,
A-53,A-54,A-55
2 Restatement (Second) of Torts
SM oni neeceseeetestacvecescose APR
Section 410 of Restatement
(Second) of TOrtS....seeeeeeeces A-62,A-63,
A-64
Section 413, Restatement (Second)
ne Cee. oc ceceseccscedeséioos «BER, a
2 Restatement (Second) of Torts
D BhBccccccccsccdostcevccovcsses BBB eATS
A-59
2 Restatement 396, Torts Second
§ 416, comment C.....eeeeeeeeeee 41
Robertson, "Negligence Actions by
Longshoremen against Shipowners
Under the 1972 Amendments to the
Longshoremen's and Harbor
Workers' Compensation Act,"
pp. 449-50 Journal of Maritime
Law and Commerce (April 1976)... A-51,A-56,
: A-83
Salmond, Chap. 12......seecccccceee A-48
Senate Report of the. Labor and
Public Welfare Committee, No.
92-1125, September 14, 1972..... A-36,A-37
A-38,A-39,A-40,A-41,A-42,A-45,A-49,A-52
A-54,A-70,A-71,A-72,A-76
Street, Chap. 10, Sect. 2.......-- A-48
xii
INDEX OF AUTHORITIES (Cont.)
Page
Theis, Amended Section Five of
the Longshoremen's and Harbor-
workers' Compensation Act, 41
SOMRe LR. FIZ (1974). ccccccccee Ada
3 U.S.C. Cong. & Ad. News 4698.... 23,28,36,
3
Vickery, E. D., "Some Impacts of eg
the 1972 Amendments to the Long-
shoremen's and Harbor Workers'
Compensation Act," 41 Ins. C.J.
CS WOR. 197E) oc ccccccsesccevcces £63,866
A-90,A-91
IN THE SUPREME COURT OF THE UNITED STATES
NO.
OCTOBER TERM, 1977
PATRICIA ANNE SHEPLER, INDIVIDUALLY AND AS
PERSONAL REPRESENTATIVE OF THE ESTATE OF
OREN D. SHEPLER, DECEASED,
PLAINTIFF-RESPONDENT,
Vv.
WEYERHAEUSER COMPANY, A WASHINGTON
CORPORATION,
DEFENDANT-APPELLANT-PETITIONER,
and
PACIFIC COAST SHIPPING COMPANY, LIBERIA,
DEFENDANT-RESPONDENT.
PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF OREGON
Weyerhaeuser Company, a Washington
corporation, prays that a Writ of
Certiorari issue out of this court to
review the judgment of the Supreme
Court of the State of Oregon entered
in the above-entitled case.
OPINIONS BELOW
Plaintiff, Patricia Anne Shepler, in
her individual capacity as surviving
Spouse and as personal representative of
Oren D. Shepler, deceased (hereinafter
referred to as "Mr. Shepler" or "plain-
tiff") commenced an action at law seeking
damages for bodily injury and wrongful
death of Mr. Shepler on December 21, 1972,
from defendant, Weyerhaeuser Company
(hereinafter referred to as "defendant
Weyerhaeuser” or "charterer") and defen-
dant, Pacific Coast Shipping Company,
Liberia, (hereinafter referred to as
"defendant Pacific Coast" or "shipowner").
Plaintiff's cause of action sounded in
negligence and rests upon the 1972
Amendments to the Longshoremen's and Harbor
workers' Compensation Act. 33 U.S.C. § 905
(b); see STATUTORY PROVISIONS INVOLVED, (Pet.
pp. 7-8, and Appendix D, p. A-87, infra). Mr.
Shepler's death arose out of his occupation
as a longshoreman employed by Portland
Stevedoring Company (hereinafter referred
to as the “stevedore") during the loading
of logs aboard the M/S PACKING on navigable
waters of the Columbia River in Longview,
Washington. At the time of the accident,
Pacific Coast had chartered the M/S
PACKING to Weyerhaeuser under a Beizai
Charter Party (Ex. 12), a voyage charter
for twenty-four consecutive voyages, and
Weyerhaeuser had contracted with the
stevedore to perform the loading operation
(Ex. 44). Mr. Shepler fell approximately
twenty-six feet to his death into a gap
between the cargo and the bulkhead while
climbing on the end of some loaded logs
(Tr. pp. 257-258, 318).
The trial came on for hearing on
December 15-18, 1975, before the Honorable
Robert E. Jones, Circuit Judge, Multnomah
County, State of Oregon, sitting with a
jury. At the end of plaintiff's case-in-
chief, the Circuit Court granted the ship-
owner's motion for a directed verdict (Tr.
p. 419). The trial court denied Weyer-
haeuser's motions for a judgment of in-
voluntary nonsuit (Tr. pp. 420-429) and for
a directed verdict (Tr. pp. 546-547) which
raised the questions concerning the duty
and standard of care of the charterer
under the 1972 Amendments. Judge Jones
submitted the cause to the jury on
two allegations of negligence directed to
Weyerhaeuser:
(1) "In failing to author-
ize the use of a bull winch
under the circumstances then
and there existing", and
(2) “In requiring the dead-
ending of the log drafts" (Trial
court file; Tr.p. 422).
In response to special interrogatories,
which necessarily raised the equitable
credit doctrine, the jury found the
charterer Weyerhaeuser twenty-eight
percent negligent, the stevedore seventy-
two percent negligent, and assessed
plaintiff's damages at $500,000.00 (App.
A; trial court file). Weyerhaeuser
appealed from the judgment entered upon
this verdict. The decision of the state
Circuit Court, consisting of a verdict on
special interrogatories and judgment, not
officially or unofficially reported, ap-
pears verbatim in Appendix A (A-1 - A-5).
The Supreme Court of the State of
Oregon affirmed the judgment of the
Multnomah County Circuit Court on September
13, 1977, in an Opinion officially and
unofficially reported at 279 Or. 477, 569
P.2d 1040 (1973). This Opinion is ap-
pended verbatim as Appendix B (A-6 ~
A-83).
JURISDICTION
The judgment sought to be reviewed is
dated September 13, 1977, and mandate was
stayed on November 15, 1977.
The constitutional and statutory
provisions believed by petitioner to confer
jurisdiction on this court to review the
judgment in question are the Constitution of
the United States, Art. III § 2, cl. 1l; 28
U.S.C. § 1257(3); and 28 U.S.C. § 2101(c),
which are reproduced in relevant part in
Appendix C (A-84 - A-86).
QUESTIONS PRESENTED FOR REVIEW
l. What duty do shipowners or
charterers owe to longshoremen employed by
expert independent stevedores under the
1972 Amendments to the Longshoremen's and
Harbor Workers' Compensation Act, 33
U.S.C. § 905(b)?
2. If a charterer may be held
liable to a longshoreman injured during a
loading operation, where the jury finds
the charterer only twenty-eight percent
at fault and assesses the stevedore-employ-
er's responsibility at seventy-two percent,
must the charterer respond for 100% of the
plaintiff's damages under the exclusive
remedy provision of the 1972 Amendments to
the Longshoremen's and Harbor Worker's
Act, or is it entitled to equitable credit
for the stevedore's fault?
STATUTORY PROVISIONS INVOLVED
This petition concerns, as a matter of
first impression, the interpretation of the
shipowner's or charterer's duty to an in-
jured longshoreman under Pub. L. 92-576, 86
Stat. 1265 (October 27, 1972), 33 U.S.C. §
905(b) (see Appendix D, A-87 - A-88,
infra, for full text).
STATEMENT OF THE CASE
A. Statement of Facts.
l. Weyerhaeuser employs an expert
stevedore to load the vessel.
Weyerhaeuser ships logs to its
purchasers throughout the world, both on
owned and on chartered vessels (See, e.g.
Tr. pp. 292, 434, 485 et seq).
Weyerhaeuser does not load any owned
or chartered vessels (Tr. p. 92). In-
stead it contracts this responsibility to
independent expert stevedores, in this
case, Portland Stevedoring Company (Ex. 44;
Tr. pp. 488-489) under a "Cost plus a
commodity fixed fee" contract (Tr. p. 500,
confirm p. 526). The stevedoring contract
all men and material necessary to the safe
provides that the stevedore will furnish
and efficient execution of the loading or
discharge of cargo (Ex. 44). Weyerhaeuser
expects the stevedore to comply fully with
the minimum safety regulations contained in
the Pacific Coast Marine Safety Code
during its work on chartered vessels (Tr.
pp. 192-193, 496).
The stevedore furnishes all gear nec-
essary to work the ship (Tr. pp. 531, 533).
The Stevedore determines how to load the
vessel and the charterer merely specifies
what cargo should be loaded and where it
is to be loaded (Tr. pp. 504-505, 535); the
stevedore walking boss and hatch boss de-
cide how to load the cargo in the hatch (Tr.
p. 344). Weyerhaeuser did not tell the
stevedore gang boss how to load the logs in
the hatch - that constitutes the longshore-
man's choice (Tr. pp. 288, 480, 486).
10
Weyerhaeuser pays a union supercargo,
Mr. Pitzer in this case, to oversee its
interests during loading (Tr. pp. 187, 485-
486). He acts primarily as a clerk (Tr.
pp. 136, 467, 475) and sednee the logs
from the log yard to the ship (Tr. p. 291);
the “lineup" of logs consists of the
particular lengths, widths and diameters
ordered by the Japanese buyer (Tr. pp. 292,
485-486). Mr. Wilson, the Weyerhaeuser
loading superintendent, takes the purchase
orders and assigns the cargo to a specific
ship (Tr. p. 434) with the assistance of the
Supercargo (Tr. pp. 485-486). In simple
terms, Weyerhaeuser ships what the pur-
chaser orders (Tr. pp. 292, 485-486). The
supercargo is not a safety engineer (Tr.
p. 447).
Code and custom place the primary bur-
den for waterfront safety upon the stevedore
and its employees (Tr. pp. 153, 344, 469) and
ll
require the supervisory stevedore personnel
to ascertain that all working conditions
are safe and that the men carry out the
operation in a safe manner (Ex. 18; Tr. p.
153). Mr. Tucker Mayeda, the stevedore
superintendent (Tr. p. 109) and superior on
the M/S PACKING job (Tr. p. 154), admitted
that he owed a duty to halt work if any of
his men were placed in danger (Tr. pp. 154-
155); he did not stop work in this instance
(Tr. p. 155). No one complained about any
unsafe working conditions in the number one
hatch of the M/S PACKING (Tr. p. 175).
As the stow increased in height, a
crevice developed between the end of the
logs and aft bulkhead (Tr. pp. 154, 173)
because, as the load built up, the bridle
which held the descending logs tended to
strike the coaming and inhibited the drift
of the logs toward the after bulkhead (Tr.
p. 188). Nothing prevented the stevedore
12
from rolling logs back into the open area
and filling the void (Tr. p. 494).
Stevedore superintendent Mr. Mayeda
described the condition as obvious and
apparent to all concerned (Tr. p. 171);
Supercargo Mr. Pitzer concurred (Tr.
p.- 201). Mr. Walter Lawrence Rappana,
Jr., testified that he did not consider
the condition unsafe or unusual (Tr. pp.
324-325). Mr. Mayeda knew of the condi-
tion and did not halt the practice (Tr.
pp. 154-155). Gang boss, Mr. Scott, did
not know beforehand that Mr. Shepler and
Mr. Rappana were going to crawl down the
stow (Tr. p. 274). Stevedore hatch tender,
Mr. Witham, viewed the stow just prior to
the accident and noticed nothing unusual
about it (Tr. pp. 302-303).
Ze The Longshoremen chose to
"dead-end" the logs.
13
The workmen in the hold, including
Mr. Shepler, decided to employ a loading
method known as “dead-ending" in order to
achieve a tighter stow by rolling the logs
into the wings (Tr. pp. 237-238, 252, 267,
327). "Dead-ending" involves attaching a
wire rope to a log in place with a “bear
claw" (Ex. 31; Tr. p. 237) (The "dead-end"),
extending the wire rope under another log
to be moved, and rolling the second log
into place against the first by manipu-
lating the wire rope with a crane (See,
e.g., Tr. pp. 161, 189, 237-238, 296-297,
313-314, 443-444). No one instructed the
longshoremen to use this method; Mr.
Rappana, the longshoreman teaming with Mr.
Shepler at the time of his death (Tr. p.
308), testified that he and Mr. Shepler
decided to employ this method (Tr. p. 327).
Mr. Scott, gang boss on the number one
hatch (Tr. p. 226), testified to the same
effect (Tr. p. 267).
14
Mr. Mayeda and other stevedore
Supervisors specifically testified that
neither the Weyerhaeuser representative,
Mr. Wilson, nor the Weyerhaeuser super-
cargo, Mr. Pitzer, requested, required or
advised any stevedore employee to "dead
end" the log drafts (Tr. pp. 158-159) or to
perform any unsafe loading practice (Tr.
pp. 200, 348). Longshoremen take orders
from their employer and superior, not from
the shipper (charterer) representatives (Tr.
pp. 195, 197, 228, 263, 288). Stevedore
eabhion boss, Mr. Monroe, conceded that no
Weyerhaeuser employees told him to proceed
with unsafe loading practices or to place
his men in jeopardy (Tr. p. 348). Mr.
15
boss, Mr. Monroe, (Tr. p. 331) did
not know that his employees were “dead-
ending" the logs in the hatch (Tr. p.
352). Mr. Wilson did not direct the
longshoremen to practice "“dead-ending"
(Tr. p. 444).
Alternative methods to "dead-ending"
exist by which the longshoremen can move
log drafts into the wings (Tr. pp. 445,
473).
3. The Accident.
i.’ ebisiinin and Mr. Shepler "“dead-
ended" the first load of logs after lunch
(Tr. pp. 311-313, 327); in the process,
the "bear claw” became entwined in the
stow which the men rolled (Tr. p. 313).
Wilson of Weyerhaeuser declared that he No one directed Mr. Shepler or his partner
requested Mr. Mayeda to secure a tight to release the "bear claw"; often, this
stow, but that he did not tell him the gear ig left aboard for removal and return
means and methods to employ in achieving upon discharge (Tr. pp. 241-242, 263-264).
16
shoreman (Tr. p. 225), descended over the
end of the logs and tried to remove the
device (Tr. pp. 299, 316). His endeavor
failing, Mr. Shepler started to climb back
to the top of the stow (Tr. pp. 316, 318).
Mr. Shepler wore special safety "sandals",
spiked shoes for better footing (Tr. p.
284). Mr. Rappana turned away and concen-
trated his attention elsewhere, so he did
not observe the accident; he heard Mr.
Shepler plummet to the surface below (Tr.
pp. 317-318). Consequently, plaintiff
could adduce no evidence of the actual
cause of Mr. Shepler's fall (see Tr. p.
318). No one knows if he slipped, jumped,
fainted or fell for some other reason. No
prior accidents occurred at this hatch
(Tr. p. 505). No Weyerhaeuser employees
were present at the scene of the accident
(Tr. pp. 196, 438).
17
Mr. Witham, the hatch tender and
safety man from the stevedore gang
(Tr. pp. 295, 305), observed Mr. Shepler's
movements and had no concern for his
safety (Tr. pp. 305, 307). Gang boss, Mr.
Scott, (Tr. p. 227) described Mr. Shepler
as a good, safe longshoreman, not a man
prone to take risks (Tr. pp. 254, 268).
4. No one told Weyerhaeuser that
"bull winches" would improve
safety.
Plaintiff contended that a stowing
machine termed a "bull winch" should have
been utilized to eliminate any hole (Tr.
p. 239). The shipowner has not supplied
bull winches on any of its chartered
vessels for at least ten years and the
ship's general agent could not recall
seeing them used (Tr. pp. 95-96). The
other witnesses unanimously agreed that no
one has employed these devices for a
18
number of years and the method is consid-
ered obsolete (Tr. pp. 95-96, 138-139,
211, 264-265, 289, 342, 437, 492). The
stevedore had two bull winches available
in its gear (Tr. pp. 116, 162, 342). Mr.
Mayeda, the stevedore superintendent (Tr.
pp. 109, 154), could have ordered a bull
winch if he believed the mode of stowage
constituted a safety hazard (Tr. pp.
140-141). The stevedore has loaded the
M/S PACKING on two subsequent occasions in
Longview and no longshoremen ever requested
the use of a bull winch (Tr. p. 475), nor
did any party introduce evidence of use of
bull winches on any other voyage.
Captain McKimmey of Weyerhaeuser
would not have authorized the use of a
bull winch, a dangerous device, if asked,
but the stevedore could have countermanded
his decision if it determined such use
would be appropriate (Tr. p. 504).
19
Plaintiff adduced evidence that Mr.
Mayeda and ofher stevedore employees
advised Weyerhaeuser personnel that the
use of bull winches would produce a very
tight stow and Weyerhaeuser declined to
authorize their employment (Tr. pp. 112,
116-117, 336-337, 525-526). At no time in
the discussions did anyone from the
stevedore intimate that failure to use
bull winches would or could create a
safety hazard for the longshoremen in the
hold. ‘The discussions always centered on
the tightness of the stow, not any safety
factor (Tr. pp. 140, 160, 198, 341, 440,
527, 529). No one indicated that the
stevedore planned to employ unsafe loading
practices (Tr. p. 141). Mr Lyle Devenney,
stevedore vice-president (Tr. p. 523),
made this point clear:
"Q - »« « You didn't tell Captain
McKimmey or whoever you talked
to at Weyerhaeuser that your
20
company could not stow the ship
safely without bull winches, did
you?
"A It's just that at no time
was safety brought up. It was
just what was my ideas for a
tighter stow.
"Q You were satisfied in your own
mind that your company could
load the ship in a safe manner
without the use of bull winches;
isn't that correct?
"A As I say again, that I'm
bound by contract. The contract
with Weyerhaeuser, part and
parcel of that contract is that
we carry on the work in a safe,
workmanship manner. Again
I repeat that at no time
was Safety ever brought up.
"Q The only way the bull winches
came up was tightness of the stow?
"A Yes." (Tr. p. 527) [Empha-
sis supplied.]
In addition to the various stevedore
supervisory personnel and other longshore-
men, Mr. Shepler's gang included four
holdmen (Tr. pp. 199, 243). Two of these
four men work in the morning and the other
two (Mr. Shepler and Mf. Rappana) work in
21
the afternoon, although all four receive a
full day's pay (Tr. pp. 243, 260 et seq,
308-309, 326-327). If a longshoreman
deems it necessary to climb over the end
of some logs, his employer possesses the
necessary gear and manpower to construct a
safety line, safety belt, harness or other
precautionary device (Tr. pp. 156, 281,
327-328, 351-355). Safety lines and re-
lated items constitute standard equipment
in the stevedore's gearbox (Tr. pp. 156,
198-199, 350). The longshoremen do not
expect Weyerhaeuser enpievese to enter
their territory and rig a safety ne-
(Tr. pp. 286-287). Gang boss, Mr. Scott,
testified that had he encountered any
concern for the safety of his men, he
would have instructed the extra two
holdmen to devise a sling, safety line, or
protective harness; had he taken this
22
simple step, Mr. Shepler would not have
fallen (Tr. p. 281).
B. Basis For Federal Jurisdiction.
Jurisdiction of this court rests upon
the Constitution of the United States,
Art. III, § 2, cl. 13; 28 U.S.C. § 1257(3);3
and 28 U.S.C. § 210l(c). These provisions
are reproduced in Appendix C (A-84 - A-86).
Reasons for Allowing Writ
SUMMARY OF ARGUMENT
The Supreme Court of the State of
Oregon has decided a recurring federal
question of seminal importance--the
shipowner's duty or standard of care owed
to an injured longshoreman under the 1972
Amendments to the Longshoremen's and
Harbor Worker's Compensation Act-~-and has
decided it in a manner in conflict both
with the decisions of most federal courts
and with the legislative history of the
Statute. In essence, the Oregon Court has
23
created a duty akin to seaworthiness in
contradiction to the 1972 Amendments.
This court has not previously considered
questions concerning interpretation of the
1972 Amendments or the extent of the
shipowner's liability. The draftsmen of
33 U.S.C. § 905(b) intended uniform
application of the maritime negligence
remedy, 1972 U.S.C. Cong. & Ad. News 4698,
4703-4704; inconsistent decisions, such as
that rendered in the present case, as well
as those inconsistent decisions emanating
from the several federal courts, destroy
- uniformity while imposing an incorrect
burden upon the charterer or shipowner.
The Supreme Court of the State of
Oregon refused to grant equitable credit
to a charterer found only twenty-eight
percent at fault where the jury held the
longshoreman's stevedore-employer seventy-
two percent at fault. This decision
24
conflicts with the rule in Edmonds v.
Compagnie Generale Transatlantique, 558
F.2d 186 (4th Cir. 1977) (rehearing en
banc granted June 3, 1977, argued October
6, 1977), which limits the longshoreman's
recovery under the 1972 Amendments to the
Longshoremen's and Harbor Workers' Compen-
Sation Act to the portion of the award
measured by the shipowner's fault together
with any valid lien the stevedore may
possess on the recovery, not to exceed the
whole of the possible award against the
shipowner. In addition, a conflict in
circuits exists between the Fourth (Edmonds
v. Compagnie Generale Transatlantique,
supra) and the Ninth Circuits. See Dodge
v. Mitsui Shintaku Ginko K.K. Toyko, 528
F.2d 669 (9th Cir. 1975), cert. denied,
425 U.S. 944, 96 S. Ct. 1685, 48 L. Ed.2d
188 (1976); Shellman v. United States
Lines, 528 F.2d 675 (9th Cir. 1975), cert.
25
denied, 425 U.S. 936, 96 S. Ct. 1668, 48
L. Ed.2d 177 (1976).
Moreover, the refusal to grant equit-
able credit strains the statutory language
of 33 U.S.C. § 905(b) which imposes lia-
bility upon a shipowner for injuries "...
caused by the negligence of a vessel, ... ."
This court has not reviewed any deci-
sion concerning the 1972 Amendments to the
Longshoremen's and Harbor Workers‘ Compen-
sation Act, yet the volume of federal
litigation indicates that important
questions regarding the duty and liability
of shipowners will grow rapidly unless and
until the court speaks and interprets 33
U.S.C. § 905(b). The present case offers
an appropriate vehicle for decision
because a state court judge--whose incor-
rect opinion may influence other jurists--
wrongly decided a vital question of federal
law central to the meaning of the statute.
26
ARGUMENT
I. SHIPOWNER'S STANDARD OF CARE
A. The 1972 Amendments: Legislative
History and Meaning.
The 1972 Amendments to the Longshore-
men's and Harbor Workers’ Compensation
Act [hereinafter referred to as the "1972
Amendments" or "33 U.S.C. § 905(b)"]
removed the strict liability remedy
(the shipowner's absolute warranty of
seaworthiness) and substituted a uniform
federal negligence liability as the
longshoreman's exclusive c<emedy against
the shipowner. 33 U.S.C. § 905(b); Birrer
v. Flota Mercante Gran Colombiania, 386
F. Supp. 1105 (D. Or. 1974). In return,
the act provided a dramatic increase in
available compensation benefits. Lucas v.
"BRINKNES" Schiffahrts Ges., 379 F. Supp.
759 (E.D. Pa. 1974), appeal dismissed, 387
F. Supp. 440 (3rd Cir. 1975), cert.
27
denied, 423 U.S. 866, 96 S. Ct. 127, 46
L. Ed.2d 95 (1975). Yet, even under the
pre-1972 Amendments law, the shipowner
bore no liability for injury to a long-
shoreman sustained during the loading
process where the stevedore-employer
retained operational control of the load-
ing and the vessel or shipper (charterer)
merely designated and checked the cargo.
Stranahan v. A/S Atlantica & Tinfos
Papirfabrik, 471 F.2d 369 (9th Cir. 1973),
cert. denied, 412 U.S. 906, 93 S. Ct.
2293, 36 L. Ed.2d 971 (1973); see also,
West v. United States, 361 U.S. 118, 80 S.
Ct. 189, 4 L. Ed.2d 161 (1959). Never-
theless, in the present case, the Oregon
courts absolved the shipowner (who retains
ultimate control) as a matter of law, but
imposed liability upon a voyage (Beizai)
charterer or shipper of goods.
28
Congress did not enact a special,
attenuated maritime theory of negligence,
comparable’to the Jones Act standard of
care, by passage of the 1972 Amendments.
It intended to grant the maritime employee
the same rights and obligations as a
landed workman. House Report No. 92-1441,
3 U.S.C. Cong. & Ad. News 4698, 4703-4704,
State this objective:
"The purpose of the amendments
is to place an employee injured
aboard a vessel in the same position
he would be in if he were injured in
non-maritime employment ashore, in-
sofar as bringing a third party
damage action is concerned, and not
to endow him with any special mari-
time theory of liability or cause of
action under whatever judicial
nomenclature it may be called, such
as ‘unseaworthiness', 'non-delegable
duty’, or the like.” (p. 4703)
"... the vessel shall not be
liable as a third party unless
it is proven to have acted or
failed to act in a negligent
manner such as would render a
land-based third party in non-
maritime pursuits liable under
Similar circumstances." (p.
4704)
29
Most federal courts! have referred
to the Restatement, particularly 2 Re-
Statement 215-216, Torts Second § 343
(hereinafter referred to as "Restatement §
343") and 2 Restatement 218, Torts Second
§ 343A (hereinafter referred to as “Restate-
ment § 343A") for a definitive statement of
the law of the land. See, e.g., Gay v.
Ocean Transport & Trading Co., 546 F.2d
1233, 1238 (5th Cir. 1977), rehearing
denied, 549 F.2d 203 (5th Cir. 1977).
The Oregon Supreme Court rejected (A-42,
A-45, A-46) those sections which appear
in Appendix E, infra (A-88 - A-89).
B. The Charterer Is Not Liable For In-
juries Caused By Open and Obvious
Conditions.
lrederal law governs actions be-
between longshoremen and shipowner. Pope
& Talbot, Inc. v. Hawn, 346 U.S. 406, 409-
410, 74 S. Ct. 202, 98 L. Ed. 143 (1953).
30
The Oregon Supreme Court ignored the
rule which rejects liability for injuries
caused by open and obvious conditions,
despite the fact that most federal courts
in similar situations have granted sum-
mary judgment for the shipowner. See,
e.g., Lloyd Wescott v. Empresas Armadoras,
S.A. Panama, et al, F.2d (9th
Cir. No. 76-1611, decided November 14,
1977). Miles v. Shell Oil Company, 498
F.2d 105 (5th Cir. 1974); Fedison v.
Vessel WISLICA, 382 F. Supp. 4 (E.D. La.
1974); Sloan v. Deniz Nakliyatin, 1975
A.M.C. 236 (Fla. Cir. Ct. 1974); Anuszewski
v. Dynamic Mariners Corp. Panama, 391 F.
Supp. 1143 (D. Md. 1975, aff'd, 540 F.2d 757
(4th Cir. 1976), cert. denied, 429 U.S.
1098, 97 S. Ct. 1116, 51 L. Ed.2d 545
(1977); Hite v. Maritime Overseas Corp.,
380 F. Supp. 222, 226 (E.D. Tex. 1974)
[see also, 375 F. Supp. 233 (E.D. Tex.
31
1974)]; Cummings v. "SIDARMA" Soc., 409 F.
Supp. 869 (E.D. La. 1976); Hess v. Upper
Mississippi Towing Corp., 559 F.2d 1030
(Sth Cir. 1977); Bossard v. Exxon Corp.,
559 F.2d 1040 (5th Cir. 1977). The
undisputed evidence in this case character-
ized the crevasse between the loaded logs
and the bulkhead as “open and obvious" (Tr.
pp. 171, 201).
Napoli v. [Transpacific Carriers,
Etc.] Hellenic Lines, 536 F.2d 505 (2d Cir. -
1976) seems to take a different approach
and to reject Restatement §§ 343, 343A and
the “open and obvious condition” rule.
However, the language of the Second
Circuit is dicta, 536 F.2d at 508,
and the shipowner there acted as its
own stevedore, thus distinguishing the
case from that at bar. See, also, Valle
v. Jugoslavenska Linejska Plovidba, 434 F.
32
Cc. The Charterer Does Not Owe Any Duty
To Provide a Safe Place to Work.
The Oregon court also ignored the
rule, developed by the federal courts in
several decisions involving similar opera-
tive facts, that the stevedore, not the
shipowner (or charterer), owes the long-
shoreman the duty of providing a safe place
to work. Brown v. Mitsubishi Shintaku
Ginko, 550 F.2d 331 (5th Cir. 1977); Gay
v. Ocean Transport & Trading Co., supra;
Hite v. Maritime Overseas Corporation,
Supra; Parker v. Costa Amatori S.P.A.,
33
509 F.2d 973 (Sth Cir. 1975); Johnson v.
Zenith Navigation, F. Supp.
(No. 74-1502) (E.D. La. 1975); Fitzgerald
v. Compania Naviera La Molinera, 394
F. Supp. 413 (E.D. La. 1975);
Robinson v. Dixie Machine W & M Works, et
al, 1975 A.M.C. 2114 (E.D. La. 1975.)?
Butler v. O/Y Finnlines, Ltd., 537 F.2d
1205 (4th Cir. 1976) (appeal pending),
seemingly conflicts with the foregoing
authority. However, in Butler v. O/Y
Finnlines, Ltd., supra, the third mate
F. Supp. (No. 74-454-N, E.D. Va.
1975). Thad Higgins v. Flota Mercante
Grancolombia, S.A., F Supp.
(74 Cir. 5510 (C.M.M.)] (S.D. N.Y.,
April 15, 1976); Lucas v. "“BRINKNES",
Schiffahrts Ges., supra; Fedison v.
Vessel WISLICA, supra; Slaughter v. RONDE,
390 F. Supp. 637 (S.D. Ga. (1974); aff'd
actually supervised and directed the
loading, unlike Weyerhaeuser's nonparti-
cipation here.
2In addition, the following decisions
rule for the shipowner as a matter of law:
Vega v. Pan Am. Fruit Co., 1975 A.M.C. 187
(S.D. N.Y. 1974); Frasca v. Prudential-Grace
Lines, Inc., 394 F. Supp. 109 (D. Md.
1975); Bess v. Agromar Line, 518 F.2d 738
(4th Cir. 1975); Citizen v. M/V TRITON,
384 F. Supp. 198 (E.D. Tex. 1974) (tried
on stipulations and briefs); Ramirez v.
Toko Kaiun K.K., 385 F. Supp. 644 (N. D.
Cal. 1974).
34
The shipowner chooses an expert to
load and unload its vessel; it ought not
be held for damages because that expert
decides to proceed in an unsafe manner.
Munoz v. Flota Merchante Grancolombiana,
S.A., 553 F.2d 837 (2d Cir. 1977). Ruffino
v. Scindia Steam Navigation Co., 559 F.2d
861 (2d Cir. 1977). Here, Weyerhaeuser is
merely a charterer, a shipper of goods,
and does not even own any stevedoring
equipment (Tr. pp. 92, 442).
The shipowner need not alleviate an
allegedly dangerous condition, even if it
possesses adequate notice, if the condi-
tion results from the stevedore's work and
the stevedore occupies the better position
to abate the danger. Brown v. Mitsubishi,
La
Supra; Bovia v. S/S Agia Erini, 433 F.
Supp. 1020 (E.D. La. 1977). On November
14, 1977, the Ninth Circuit decided Lloyd
Wescott v. Empresas Armadoras, S.A. Panama,
35
et al, supra, a case similar to the pre-
sent one. In the federal decision, the
court reached a result contrary to the
Oregon Supreme court where the stevedore
chose the method of loading and the
shipowner merely requested the result.
Until this court rules on the issues, such
disparate decisions will continue to mark
the admiralty jurisprudence.
D. The Oregon Supreme Court Improperly
Rejected Restatement §§ 343, 343A
Because These Sections Allegedly Em-
body “Assumption of the Risk" Factors
and Unfairly Favor the Landowner.
The Oregon Supreme Court rejected
Restatement §§ 343, 343A as the definitive
statement of the land law of liability in
a maritime setting because Restatement §
343A, Comment e includes the doctrine of
assumption of risk (2 Restatement 219-220,
Torts Second § 343A, comment e) which the
36
Congressional Report regarding the 1972
Amendments specifically rejected (House
Report No. 92-1441, 3 U.S.C. Cong. & Ad.
News 4698, 4705) (A-42). In this regard,
the Oregon court relied upon Brown v.
Ivarans Rederi A/S, 545 F.2d 854, 863,
n. 10 (3rd Cir. 1976), rehearing denied
(November 29, 1976), and seemed to favor
the analysis of Hurst v. Triad, 554 F.2d
1237 (3rd Cir. 1977), appeal pending, which
utilized 2 Restatement 370-426, Torts Se-
cond §§ 409-429 (hereinafter referred to
by "Restatement" and section number).
(1) Assumption of Risk - The
Forbidden Phrase.
If a single comment to a pair of
Restatement sections justifies throwing
the baby out with the bathwater, and
overturning several well-considered
federal cases to boot, this action should
take place by direction of the highest
37
court of the United States, rather than a
state Supreme Court. The issue is one
of recurring federal importance and the
decision impedes the uniformity sought
by the legislative draftsmen. While these
draftsmen intended to eliminate assumption
of risk, they also intended to incorporate
the law of landowner liability which is
stated in the text of Restatement §§ 343,
343A. The state court reason for its
decision provides too much. If the 1972
Amendments are designed to place longshore-
men in parity with landed workmen, House
Report No. 92-1441, 3 U.S.C. Cong. & Ad.
News 4698, 4703-4704, and if landed workmen
cannot recover for injuries received from
an encounter with open and obvious condi-
tions even under a theory of strict
liability, Askew v. Howard-Cooper Corp.,
263 Or. 184, 502 P.2d 210 (1972), then
the doctrine of Restatement §§ 343, 343A
38
applies to cases arising under the 1972
Amendments even if the “open and obvious”
rule imparts some of the same philosophy
as the tenet of assumption of risk.
Some courts, including Oregon's
Supreme Court, have analyzed assumption of
risk in strict liability cases as consist-
ing of three elements (1) subjective
knowledge and appreciation of the risk,
and (2) a voluntary and (3) unreasonable
encounter with that risk. Johnson v.
Clark Equipment Co., 274 Or. 403, 409, 547
P.2d 132 (1976). In the present case, the
longshoreman did not have to climb down
the logs, nor did he have to dead-end the
cargo. He made these choices voluntarily,
without suggestion or direction from the
charterer (Statement of Facts, Petition
pp. 12-15, supra). The three elements set
forth apply to negligent conduct as well
as to some proposition of assumption of
39
risk, and negligence is what the 1972
Amendments considers. Therefore, the
reason stated for avoiding Restatement
§§ 343, 343A does not apply in the present
case because the rule deals with negligent
conduct similar to that governing land-
based workmen.
(2) Are Landowners a Favored Class?
The Oregon Supreme Court argued that
landowners receive favored treatment by
the law and that the draftsmen of the 1972
Amendments could not have intended to
import such rules into maritime law.
Neither proposition is true and the second
does not follow the first. State courts
should not decide cases based on non
segquiturs when those decisions affect
important federal questions.
(3) Restatement §§ 409-429, Which
Envision Indemnity From the
Causative Agent, Do Not Apply
40
Under the 1972 Amendments Which
Prevent the Shipowner or Char-
terer From Securing Indemnity
From The Negligent Stevedore.
At least two recent decisions have
determine¢ that Restatement §§ 413,
416 do nc render the shipowner liable to
the injured longshoreman under the 1972
Amendments: Kelleher v. Empresa Hondurena
de Vapores, S.A., 57 Cal. App.3d 52, 129
Cal. Rptr. 32 (1976); Teofilovich v.
D'Amico Medit./Pacific Line, 1976 A.M.C.
1621, _—sSpiF. Supp. —“‘éd(CC«WW]Dw «@Csd«jw 1976).
In each instance, the Court recognized that
legislative history militated against an
expansion of liability by the employment
of "non delegable" vicarious liability.
Moreover, the policy behind Restatement
§§ 413, 416 rests upon the theory that the
landowner [shipowner or charterer] can
secure indemnity from the responsible in-
41
dependent contractor [stevedore]. 2 Re-
Statement 396, Torts Second § 416, comment
c. See also, Prosser, Law of Torts (4th
ed, West Publishing Co., 1971) 468 § 71.
33 U.S.C. § 905(b) prohibits the shipowner
Or charterer from recovering indemnity
from the stevedore, thereby eliminating
the fairness and equality necessary for
application of these Restatement sections.
E. The Oregon Supreme Court Standard Not
Only Does Not Govern Maritime Negli-
gence Cases Arising Under the 1972
Amendments But Also Ignores the Un-
disputed Facts of This Case.
The Oregon Supreme Court sets up
Straw man after straw man, constantly
criticizing Congressional language (A-35,
A-36, A-37, A-38) but never really coming
to grips with the problem it poses, the
shipowner's standard of care under the 1972
Amendments. It rejects Restatement §§ 343,
42 43
343A (A-45 - A-46), Restatement §§ 409-429 ment of the 1972 Amendments, 33 U.S.C. §
(A-58), and the meaningless verbiage of 905(b); House Report No. 92-1441, 3 U.S.C.
Heaven v. Pender, 11 Q.B.D. 503, 509 (1883) Cong. & Ad. News 4698, 4703-4704. This
(A-61). It then reverts to Restatement decision conflicts with Munoz v. Flota
§ 410 [which should not apply because of Merchante Grancolombiana S.A., supra, and
lack of indemnity, see Argument I, D(3) Ruffino v. Scindia Steam Navigation Co.,
supra] and apparently holds that: Supra, among others. As the Fifth Circuit
"Under any duty thus far held this year in Hess v. Upper Mississippi
suggested by federal decisions,
if the employer of an independent Towing Corp., supra, 559 F.2d 1030 (5th
contractor dictates a ‘particular 4
method for performing the con- Cir. 977), the shipowner is not liable to
tracted work which is unreason-
ably dangerous to the workmen of the employee of an independent contractor
the independent contractor, tak-
ing into consideration the pos- when the work under contract involves the
sible alternative methods, he is
responsible in damages for in- danger which leads to the loss. Under
juries caused to such wgrtmen a he
these. <ee e” (A-62)3 these principles, the Oregon Supreme Court
The Oregon court has created a "duty" adopted an errant test!
which is akin to the absolute warranty of Moreover, the test adopted, if
seaworthiness, despite the fact that the proper, absolves Weyerhaeuser. It did not
Congress removed this strict duty by enact- dictate, direct, or supervise the loading
(Tr. pp. 158-159, 200, 288, 348, 480,
3a sounder analysis appears to be that of 486). It hired an expert stevedore and
‘Judge Orrick in Gallardo v. Westfal-Larsen, : :
1977 A.M.C. 1325 (N.D. Cal. 1977). turned the job over to it (Ex. 44; Tr. pp.
44
488-489). It relied upon the expertise
and safety-consciousness of the longshore-
men and their employer to handle the job
(Tr. pp. 192-193, 496). It rejected bull
winches but no one advised the shipper
that these obsolete machines would
allegedly increase safety (Tr. pp. 140,
160, 198, 341, 440, 527, 529). The men in
the hold decided to "dead-end" the logs
(Tr. pp. 237-238, 252, 267, 327). No
Weyerhaeuser employee even graced the
scene (Tr. pp. 196, 438). Foreseeabil-
ity forms an essential element of negli-
gence. Newman v. Utility Trailer, 278 Or.
395, 397-400, 564 P.2d 674 (1977). As
Mr. Rappana, Mr. Shepler's partner,
testified without contradiction:
"I don't think anybody could
foresee what happened." (Tr.
p. 330).
On this basis, if no other, the Supreme
Court of Oregon erred in imposing liability
45
upon Weyerhaeuser under any test. The
unfortunate effect of the matter, however,
and the reason this court should review
the case and speak authoritatively upon
the issue, is the garbling of the standard
of care of the shipowner under the 1972
Amendments.
II. EQUITABLE CREDIT
“The jury found that plaintiff had
suffered $500,000.00 damages as the result
of the concurrent negligence of the
stevedore (seventy-two percent) and the
charterer (twenty-eight percent). (A-l -
A-2). Assuming arguendo the propriety of
the Circuit Court submission of the cause
against Weyerhaeuser to the jury (Argument
I, supra), in no event should judgment be
entered against the charterer for more than
its proportionate share of the loss:
$140,000.00 or twenty-eight percent of
$500,000.00.
46 47
The Fourth Circuit applied this justify this court in granting this
"equitable credit" doctrine in favor of petition for certiorari.
the shipowner in Edmonds v. Compagnie Textwriters, courts, and advocates
Generale Transatlantique, supra, 558 F.2d have condemned the ridiculous result which
186 (4th Cir.1977) (Rehearing en banc would require a one percent negligent
granted June 3, 1977, argued October 6, shipowner to pay 100% of the longshoreman's
1977). The Ninth Circuit rejected the damages without hope of indemnity or con-
doctrine in Shellman v. United States tribution from the plaintiff's ninety-nine
Lines, supra, 528 F.2d 675 (9th Cir. percent negligent employer.4 33 U.S.C. §
1975), cert. denied, 425 U.S. 936, 96 905(b). Admiralty employs equitable prin-
S. Ct. 1668, 48 L. Ed.2d 177 (1976); ciples. This court should not foster an
see also Dodge v. Mitsui Shintaku Ginko inequity of such proportion, for to do so
K.K. Toyko, supra, 528 F.2d 669 (9th Cir.
1975), cert. denied, 425 U.S. 944, 96 S.
Ct. 1685, 48 L. Ed.2d 188 (1976). The
Supreme Court of Oregon refused to grant
equitable credit here, although it conceded
"Application of the doctrine does have
some appeal, ... .” (A-76). This conflict
in the circuits and conflict between a
state court and a federal appellate court
may cripple the shipping industry, en-
courage negligence by stevedoring com-
panies and induce biased and false testi-
mony from stevedoring employees.
4citations to texts, treatises, and
cases supporting the concept of an
equitable credit appear in Appendix F,
infra (A-90 - A-92).
48
In any event, it appears incredible to
believe that Congress would have passed
the 1972 Amendments in an attempt to
alleviate some inequities which had
developed in the system and intentionally
create a greater one.
The equitable credit doctrine does not
reduce the workmen's net recovery by one
penny in most instances. Absent equitable
credit, the injured longshoreman is the
only one of three parties always required
to bear the financial burden of his own
proportional contributory fault.
Furthermore, linguistic analysis of
33 U.S.C. § 905(b) demonstrates the seman-
tic stresses and strains placed upon the
Statutory language by interpreting "caused
by the negligence of the vessel" to mean
something other than (to the extent)
"caused by the negligence of the vessel."
If a loss is caused by the negligence of
49
the stevedore, it is not caused by the
negligence of the vessel.
CONCLUSION
Because this petition raises two unde-
cided federal questions of importance--the
shipowner's duty under the 1972 Amendments,
and the appropriateness of the equitable
credit doctrine--this court should grant
this petition and hear the case on the
merits.
Respectfully submitted,
SOUTHER, SPAULDING,
KINSEY, WILLIAMSON
& SCHWABE
KENNETH E. ROBERTS
PAUL N. DAIGLE
RIDGWAY K. FOLEY, JR.
By
RIDGWAY K. FOLEY, JR.
Attorneys for Peti-
tioner Weyerhaeuser
crt.
APPENDIX A
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
PATRICIA ANNE SHEPLER,
individually and as personal
representatve of the Estate
of Oren Lee Shepler, de-
ceased,
No. 410 645
Plaintiff, SPECIAL
)
)
)
)
)
) INTERROGATORIES
vs. )
)
)
)
)
)
WEYERHAEUSER COMPANY, a
Washington corporation,
Defendant.
INTERROGATORY NO. 1: Was
the charterer negligent? Yes
(Yes or No)
INTERROGATORY NO. 2: If so,
by what percent was charterer's
negligence responsible for plain-
tiff's decedent, Oren Lee Shepler's
death? 28%
(percent)
INTERROGATORY NO. 3: Was
plaintiff's decedent, Oren Lee
Shepler, negligent? No ,
(Yes or No)
INTERROGATORY NO. 4: If So,
by what percent was Oren Lee
Shepler's negligence responsible
for his death? 0%
(percent)
INTERROGATORY NO. 5: Was
the stevedore company negligent? Yes
(Yes or No)
INTERROGATORY NO. 6: If so,
by what percent was the stevedore
company's negligence responsible
for Oren Shepler's death? 72%
(percent)
INTERROGATORY NO. 7: What
is the total amount of plaintiff's
damages expressed in terms of
dollars? $500,000.00
/s/ Thomas F. Coulter
JURY FOREMAN
-
‘
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
PATRICIA ANNE SHEPLER,
individually, and as personal
representatve of the Estate No. 410 645
of Oren Lee Shepler, De-
ceased,
Plaintiff, JUDGMENT
ORDER
WEYERHAEUSER COMPANY, a
Washington corporation, and
PACIFIC COAST SHIPPING
)
)
)
)
)
)
)
)
vs. )
)
)
)
COMPANY, LIBERIA, )
)
)
Defendants.
The above-entitled cause having come
on regularly for trial by jury before the
Honorable Robert E. Jones, Judge of the
above-entitled Court, plaintiff appearing
in person and by Frank Pozzi, of her at-
torneys, and the defendant Weyerhaeuser
Company appearing by Paul N. Daigle, of
its attorneys, and the defendant Pacific
Coast Shipping Company, Liberia, appearing
by John R. Brooke, of its attorneys, and
the jury having been duly selected, em-
paneled and sworn, opening statements hav-
ing been made by counsel, evidence having
been received on behalf of the respective
parties, arguments having been submitted
to the jury by counsel, and the Court hav-
ing entered a directed verdict in favor of
the defendant Pacific Coast Shipping Com-
pany, Liberia, and the Court then having
instructed the jury upon the law, and the
jury thereupon having retired for deliber-
ations, did return its verdict in favor
of the plaintiff and against the defendant
Weyerhaeuser Company and said verdict hav-
ing been received and entered and accepted
by the Court and the Court being fully
advised in the premises now, therefore,
based upon said verdict,
IT IS HEREBY ORDERED AND ADJUDGED
that plaintiff, Patricia Anne Shepler,
A-5
have of and recover from the said defendant
Weyerhaeuser Company, the sum of Five Hun-
dred Thousand Dollars ($500,000) in lawful
money of the United States of America, toge-
ther with her costs- and disbursements in-
curred herein taxes [sic] and allowed in
the sum of $154.00, the aggregate of which
is to bear interest at the rate of six per
cent [sic] (6%) per annum from the date of
entry hereof until paid, and that execu-
tion issue therefor.
DATED this 19th day of December, 1975.
/s/ Robert E. Jones
Judge
A-6
APPENDIX B
IN THE SUPREME COURT OF THE STATE OF OREGON
In Banc
PATRICIA ANNE SHEPLER,
individually and as personal
representative of the Estate
of Oren Lee Shepler, Deceased,
Plaintiff-Respondent,
vs.
WEYERHAEUSER COMPANY, a
Washington corporation,
Defendant-Appellant,
and
PACIFIC COAST SHIPPING
COMPANY, LIBERIA,
Defendant-Respondent.
No. 410-645
SC 24345
LENT, J.
This is an action for damages for
death by wrongful act of another brought
by the personal representative of Oren
Shepler. Shepler, a longshoreman in the
us -
A-7
employ of Portland Stevedore Company
(Portland), was injured in a fall on
December 21, 1972, during the loading of
logs in the vessel M/S PACKING. He died
from his injuries two days later. The
action asserts a right to recover for
damages resulting from negligence and
involves the 1972 Amendments to the
Longshoremen's and Harbor Workers' Compen-
Sation Act (LHWCA), 33 USC § 901 et seq.
The action is against Pacific Coast
Shipping Co., the owner of the PACKING,
and Weyerhaeuser Co., as charterer of the
vessel. The case was tried in December
1975. At the conclusion of plaintiff's
case in chief, the trial court granted a
directed verdict in favor of Pacific
Coast. The jury found Weyerhaeuser at
fault. (In using the word "Getecdent~tatie— TTS
refer to Weyerhaeuser. )
A-8
Defendant appeals from the judgment
entered upon this verdict. We affirm.
Defendant contends that the trial
court erred in interpreting the standard
of care owed by a vessel to a longshoreman
under LHWCA and that a nonsuit or directed
verdict should have been entered in its
favor. It further complains of the
failure of the trial court to instruct the
jury on particular matters and attacks
various instructions which were given.
Additionally, defendant submits that under
the LHWCA, where a jury finds the vessel
to be only partially at fault it is in-
equitable to require the vessel to pay the
entire damages assessed by the jury.
Finally, defendant charges that it was
error to exclude evidence that employes of
Portland who were witnesses in the trial
were biased because Portland had a finan-
cial stake in the outcome of the
A-9
litigation. (Under LHWCA, the stevedore-
employer has a lien against third-party
recoveries for compensation benefits paid
under the Act.) To place these claims of
error in perspective, we turn first to the
undisputed facts.
The primary issue is to determine
whether the evidence is sufficient
under the 1972 amendments to support a
finding of negligence on the part of
defendant. This requires us preliminarily
to ascertain the nature of the duty owed
under the amendments by the vessel! to a
longshoreman employed by a master stevedore.
lfhe term "vessel" means any vessel upon
which or in connection with which any per-
son entitled to benefits under this chap-
ter suffers injury or death arising out of
or in the course of his employment, and
said vessel's owner, owner pro hac vice,
agent, operator, charter or bare boat
charterer, master, officer, or crew mem-
ber. 33 USC § 901(21).
A-10
UNDISPUTED FACTS
Defendant ships logs and lumber to
its purchasers throughout the world. In
1972, after a trial voyage, defendant
chartered the PACKING. Pacific Coast
Shipping, the owner, and Weyerhaeuser
executed a "Beizai Charter Party," a
modified form of voyage charter, for 24
consecutive voyages, which contained the
following provisions:
"* * * Charterers to load,
stow and discharge the cargo
free of risks and expenses to
owners. Charterers to have the
liberty of working all avail-
able hatches. The vessel to
provide motive power, winches,
gins and falls at all times
and, if required, to supply
light for night work on board
free of expenses to charterers."
The owners retained control over cargo
stowed on the weather deck, because the
height of the deck load would affect the
stability of the vessel.
A-11
To load the ship for its sixth voyage
defendant employed Portland. Defendant
had concluded that the amount of cargo
carried on pepreses trips was insufficient.
On December 6, 1972, Captain A. B.
McKimmey, manager of off-shore cargo
operations for defendant, wrote a letter
to the master of the PACKING, with a copy
to Portland, which staced:
"* * * When Weyerhaeuser
Line first chartered the vessel,
it was represented as having a
carrying capacity of 4.5 million
board feet of logs (Scribner
scale).
"To date, the largest load
we have been able to put on
board has been 4.1 million
board feet which has not al-
lowed full use of the vessel to
SS charterers.
"On this voyage we intend
to full load the vessel to
capacity to determine just how
much of a load she will actually
carry. Our object is to make
use of all her cubic space
under deck * * *,
"Your cooperation with
the Surveyors, Stevedores, and
our Supercargo will be appre-
ciated * * *,"
A-12
The owner responded that carrying
capacity is a function of the type of logs
stowed as well as the method of storage
and observed that the charter agreement
was "* * * that you are to have full use
of the cubic space under deck." Another
representative of defendant rejoined that
Captain McKimmey was "new to Weyerhaeuser”
and “not entirely familiar with all the
chartering arrangements,” and that the
Original letter was "not intended to force
a greater tonnage than we are allowed
under our charter."2
The sixth voyage of the PACKING under
the charter commenced with the loading of
logs in Astoria, Oregon. The loading of
the No. 1 hatch was deferred until the
2As a consecutive voyage charterer under
the terms of this particular charter-party,
defendant vis-a-vis the longshoremen was
in the same position as owner of the
vessel. See note l, ante.
A-13
vessel moved up the Columbia River to the
Sd
Weyerhaeuser dock at Longview, Washington,
in order to obtain a better selection of
logs and use of a shoreside crane.
There were peculiar difficulties in
the loading of the PACKING because of
its outmoded design. On modern vessels
designed for the stowage of logs, the
hatch openings extend nearly the full
length of the hatch. On the PACKING,
converted as a log carrier, the hatch
opening or "square" was considerably
smaller than the hatch itself, creating a
forward trunk (that part of the hatch
forward of the square) of nearly 29 feet
and an aft trunk of 24 feet. As in most
log ships, there are no intermediate
decks, and the hatch is open from the main
deck to the ship's bottom, a depth of
approximately 40 feet.
A-14
Because of the hatch configuration,
stowed logs could not be butted tightly
against the aft bulkhead because, as the
longshoremen attempted to swing and land
the load aft of the square, the slings
used to carry the load would strike the
hatch coaming.
The physical work of loading logs
aboard the vessel, both at Astoria and
Longview, was performed by Portland pur-
Suant to its contract with defendant. The
contract called for a “cost-plus, fixed-
fee commodity rate.” In other words,
defendant was to pay the actual cost of
labor in addition to a fixed fee deter-
mined by the quantity of stowage.
Loading operations commenced at
Longview on December 20, 1972. Two
Weyerhaeuser employes, a loading superin-
tendent and a "supercargo," were in the
vicinity during the loading. Supervisory
A-15
persons of Portland, also, worked on or
about the ship. These were the stevedore
superintendent, the "walking boss," and,
below the “walking boss" in hierarchy, the
gang (or “"hatch") boss, who was the
immediate supervisor of Shepler.
In an attempt to obtain a tight stow,
the longshoremen were “dead-ending."
Dead-ending involves securing a "wire"
(cable) with a device called a "bear claw"
to a stable object and running the wire
under the material to be moved. By
lifting the load with the crane, the load
moves in the direction of the anchored end
of the wire. By this method the longshore-
men hoped to move logs from the center of
the hold to the bulkheads and into the
wings.
On December 21, 1972, the hold in
Hatch No. 1 was partially loaded. A gap
between the stow and the aft bulkhead had
A-16
developed due to the impossibility of
butting the logs tightly against the
bulkhead. This gap, or “hole,” was
approximately 26 feet deep, and the
longshoremen climbed over and about the
logs next to the hole in order to place
the wire and bear claw and down over the
ends to unfasten the wire and retrieve the
bear claw from the anchoring logs.
Shepler was injured that afternoon
while engaged in trying to retrieve a
buried bear claw after a load of logs
had been moved by dead-ending. Shepler
fell and sustained head injuries, from
which he died.
TRIAL RESULT
Two of plaintiff's several allega-
tions of negligence were submitted
to the jury; namely, that defendant was
negligent: (a) in failing to "authorize"
A-17
the use of a bull winch? under the
circumstances, and (b) in requiring the
dead-ending of the log drafts. The case
was submitted to the jury on special
interrogatories, and the jury found that
Shepler was not negligent and that defen-
dant's negligence was 28% responsible for
Shepler's death and Portland's negligence
was 72% responsible.
SUFFICIENCY OF EVIDENCE
Defendant assigns as error the fail-
ure to grant its motions for involuntary
nonsuit, for a directed verdict and to
strike plaintiff's two specifications of
negligence which were submitted to the
jury. This requires us to determine
3A bull winch (sometimes called a stow-
ing machine or stowing winch) is a small
gas double drum donkey set up on deck
which supplies the power to utilize a sys-
tem of pad eyes, blocks and lines in the
hold to pull or “yard” the log ends up
tight against the bulkhead.
A«18
whether there was sufficient evidence to
‘submit the case to the jury upon those two
specifications.
Neither party directs our attention
to the scope of review which we exercise
in a case arising under 33 USC, § 905(b).
It could be argued that our scope of
review is the same as that of a United
States Court of Appeals reviewing a
federal district court decision. If that
were so, our task would be to determine
whether as a matter of law the record is
"critically deficient of that minimum
quantum of evidence from which a jury
might reasonably afford relief." Marant
v. Farrell Lines, Inc., 550 F2d 142 (3d
Cir 1977), quoting from Denneny v. Siegel,
407 F2d 433, 439 (3d Cir 1969). On the
other hand, if our scope of review is that
we ordinarily exercise on appeal in ac-
tions on the law side of the court, we are
A-19
probably more limited. Since the verdict
was for plaintiff, we could not find error
in these respects unless we could affirma-
tively say there is no evidence to support
the verdict.4 Purthermore, we should be
precluded from weighing the evidence and
should be required to consider it in the
light most favorable to plaintiff,° to-
gether with all inferences favorable to
plaintiff which could be reasonably drawn
from such evidence. §
We have concluded that under either
test the evidence was sufficient to pre-
sent a jury case, and, therefore, there
was no error in this respect.
4oregon Constitution, Amended
Art. VII, § 3.
SMyers v. Cessna Aircraft, 275 Or 501,
553 P2d 355 (1976).
63Jacobs v. Tidewater Barge Lines, 277
Or 809, 562 P2d 545 (1977).
A-20
The task of the jury, of course, is
to weigh the evidence, judge the credi-
bility of the witnesses and the reliabil-
ity of their testimony, and to resolve all
conflicts in the evidence. In performing
that task in this case, the jury had |
before it evidence from which it could
have found further facts in addition to
the undisputed facts already discussed.
FURTHER FACTS
While the vessel was still at Astoria,
defendant's loading superintendent told
Portland's walking boss that the long-
shoremen were to work to get all available
space full of logs. Defendant made the
decision to use a shore crane rather than
the ship's gear to load this hatch at
Longview in an effort to get a tighter
stow. Portland's superintendent was aware
of Captain McKimmey's letter concerning a
tight stow and that defendant wanted such
A-21
a stow in this hatch. Defendanc's loading
superintendent approached Portland's
superintendent at Longview and asked if
they could get "a real tight stow" on this
hatch and what could be done to do so.
Portland's man said, "If you want [a] real
tight stow, the only way I know how is to
put bull winches on there and pull them
back to the bulkhead tight." Defendant's
supercargo, also, told defendant's loading
superintendent that the only way they
could utilize the space in the hold "and
abide by the instructions" was to use
stowing winches. Portland's walking boss
and the hatch boss, also, asked for bull
winches at least once when both defen-
dant's loading superintendent and super-
cargo were present. Portland's operations
manager (the stevedore superintendent's
superior) also spoke to both defendant's
loading superintendent and Captain McKimmey
A-22
about the necessity of using bull winches
to get a tight stow. McKimmey discussed
the fact that this would entail extra cost.
Bull winches are no longer commonly
used, because modern log vessels have
large hatch squares with small wings and
trunks, which permit logs to be landed in
the hold without additional handling
required to obtain an adequately tight
stow. Portland had bull winches zvailable,
however, and they can be used safely if
adequate precautions are taken. The use
of bull winches would have been more
costly to defendant because their use
requires two extra longshoremen, one to
serve as winch “driver" (operator) and the
other as hatch tender to relay signals
between the driver and the men in the hold
as to the operation of the winch. This
additional cost was discussed with defen-
dant's loading superintendent.
A-23
After consulting with his supervisor
in Tacoma, Washington, by telephone, de-
fendant's loading superintendent informed
Portland's personnel that defendant would
not authorize the use of bull winches.
The gang boss and the walking boss were
told by defendant's representative that
defendant “wanted a tight stow * * * no
matter how long it took." On the following
morning, December 21, Portland's hatch
boss again tried without success to obtain
authorization to use bull winches.
It is the supercargo's duty to super-
vise the loading or cargo in the sense of
what cargo goes into which hold and in
what order; however, he does not give or-
ders to the longshoremen. Prior to the
vessel's coming in, the supercargo was
aware of Captain uckinesy*e lett ur, and
through it and orders from defendant's
loading superintendent was aware that
A-24
defendant wanted to get more logs into the
hold. The supercargo had discussed with
defendant's loading superintendent the use
of bull winches, but as above stated the
latter's superiors would not authorize
that use.
The supercargo ordered the length of
logs to be brought shipside under the
crane for lifting into the hold. The logs
were brought by truck, and the logs in a
load were not only of uneven length but,
also, neither end of the load was even.
This complicated the task of attempting to
butt the log ends against the after
bulkhead. The supercargo was not getting
the logs he wanted from defendant's yard,
and seeing that waste space was developing,
he again discussed with his loading super-
intendent that they could carry out defen-
dant's instructions only by using bull
winches. The superintendent agreed to take
A-25
the matter up with his superiors and a
short time later told the supercargo such
use would not be authorized and that "we
were to do the best we could with what we
had.”
As the work progressed and the hold
began to fill “higher up," the more
difficult it became to get the log ends
close to the aft bulkhead because of
lessening of space in which to swing the
load. On the morning of the day Shepler
fell, the supercargo told defendant's
loading superintendent that it would be
very difficult for the men to work under
the conditions existing. A large, deep
hole was developing as the stow rose
higher in the hold. It was the biggest
hole in a log stow the walking boss had
ever seen, and the supervisor knew it to
be unusually deep.
A-26
Although the Portland employes did
not complain to defendant's employes
that it was unsafe to achieve what defen-
dant wanted without bulls, and although
neither the loading superintendent nor the
supercargo specifically ordered the
longshoremen to dead-end; nevertheless,
dead-ending was the only procedure feasi-
ble to attempt to carry out loading
instructions in the absence of bull
winches. Both the loading superintendent
and supercargo were present at the hold
from time to time and saw that the long-
shoremen were dead-ending, using the bear
claw, and that the hole aft of the stow
was being created. At least the supercar-
go, if not his superior, knew that dead-
ending, which requires a man to work near
the ends of wet logs and to go down to af-
fix the wire with a bear claw, and later
to remove it when jammed, is a “dangerous
A-27
procedure," is the supercargo's words. On
the other hand, if bull winches were used,
the stow would have been tight against the
bulkhead, the hole would not have devel-
oped, and the men would have had no occa-
sion to work at any deep hole at the ends
of the logs. The absence of bull winches
and the use of the technique of dead-
ending combined to make both the loading
procedure itself dangerous and to create a
dangerous condition; namely, the hole. The
hold thereby became a dangerous place to
work.
This methou of working log cargo is
to be contrasted with a normal log loading
operation, in which the longshoremen
would merely land the logs and free the
slings. Any space left over in the wings
or trunks would be “blow” or waste space.
Although holes do develop in these stows,
there is little danger of falling into a
A-28
hole, as work is not done at the ends of
the loads.
Although the longshoremen don't take
orders from the supercargo, he has some
responsibility. As he testified, "I think
all supervisory personnel have a responsi-
bility [for safety of personnel] of some
type or another. You certainly don't want
somebody doing anything unsafe if you see
it.*
Just prior to his fall, Shepler had
climbed down over the ends of the logs be-
tween the stow and the bulkhead in an ef-
fort to free a jammed, or buried, bear
claw. Despite wearing special shoes, he
fell from the logs, which were wet from
rain, and, although wearing protective
headgear, he sustained head injuries which
caused his death.
A-29
THE LAW APPLICABLE TO A NEGLIGENCE ACTION
UNDER § 905(b)
Prior to the 1972 amendments to
LHWCA, there existed for some injured
longshoremen what has been described as
the “third-party circular liability law-
suit."7? This was the result of two de-
cisions (and their progeny) of the United
States Supreme Court. In Seas Shipping
Co. v. Sieracki, 328 US 85 (1946), the
shipowner's absolute, non-delegable war-
ranty of seaworthiness owed to seamen
since The Osceola,® 189 US 158 (1903)
7It has, also, been described as "tri-
angular." See Ramirez v. Toko Kaiun K.K.,
388 F Supp 644, 649 (DC ND Cal. 1974);
Croshaw v. Koninklijke Nedlloyd, B.V.
Rijswijk, 398 F Supp 1224, 1228 (Dist.
Ct.D.Ore 1975); 28 Hastings Law Journal
771 (1977).
8see, also, Mitchell v. Trawler Racer,
Inc., 362 US 539 (1960), for proposition
that due diligence by the shipowner will
not discharge the duty to furnish a sea-
worthy vessel.
A-30
was extended to a longshoreman engaged in
working the ship's cargo. In Ryan Co. v.
Pan-Atlantic Corp., 350 US 124 (1956), the
shipowner's right to indemnity from the
longshoreman's employer (stevedore) was
established where the unseaworthiness
causing the injury was created by the
stevedore's breach of its implied warranty
to perform its services in a workmanlike
manner; i.e., properly and safely.
The circularity of the lawsuit oc-
curred thusly:? The longshoreman would
sue the shipowner for damages for personal
injuries resulting from the unseaworthi-
ness of the vessel. If the unseaworthi-
ness resulted from a breach of the steve-
9we do not yet discuss for this back-
ground picture of the 1972 amendments that
situation in which the longshoreman's re-
covery against the shipowner was based ex-
clusively upon the latter's negligence.
In such cases, of course, the Ryan doc-
trine was inapplicable.
A-31
dore's implied warranty to perform steve-
doring services in a safe and workmanlike
manner, the shipowner would either implead
the stevedore or, after judgment for the
longshoreman, seek indemnity from the
stevedore. This "closed the circle” and
resulted usually in the longshoreman
receiving indirectly from the employer
substantially more than the employer would
have had to pay the longshoreman by way of
benefits under LHWCA. This circularity
did violence to the statutory scheme of
LHWCA that the exclusive remedy of the
injured longshoreman against his employer
was for benefits under the compensation
law.10
10The employing stevedore did have a
lien against the longshoréman's recovery
for the amount of compensation benefits
the employer had paid under LHWCA, and,
thus, the plaintiff did not obtain a
double recovery.
A-32
The thrust of the 1972 amendments was
to trade a rather substantial increase in
compensation benefits for the longshore-
man's right to recover damages from the
shipowner for personal injuries resulting
from the unseaworthiness of the vessel.
The injured longshoreman retained a right,
however, to bring an action against the
shipowner (the "“vessel")11 for injuries
resulting from the latter's negligence.
The operative section of LHWCA after the
1972 amendment is:
"In the event of injury to a
person covered under this chapter
caused by the negligence of a ves-
sel, then such person, or anyone
otherwise entitled to recover dam-
ages by reason thereof, may bring
an action against such vessel as a
third part:y in accordance with the
provisions of section 933 of this
title andi the employer shall not
be liable to the vessel for such
damages directly or indirectly and
any agreements or wirrants to the
llsee footnote l.
A-33
contrary shall be void. If such
person 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. * * * The liability
of the vessel under this subsec-
tion shall not be based upon the
warranty of seaworthiness or a
breach thereof at the time the
injury occurred. The remedy pro-
vided in this subsection shall be
exclusive of all other remedies
against the vessel except reme-
dies available under this chap-
ter.” 33 USC § 905(b).
The amendment eliminates the long-
shoreman's strict liability remedy against
the shipowner qua shipowner!2 and bars the
shipowner from shifting his liability for
his negligence to the stevedore. Thus, the
circular liability lawsuit is laid to rest.
l2see Streatch v. Associated Container
Transp. Ltd., 388 F Supp 935 (D.Cal.C.D.
1975) suggesting that the negligence rem-
edy is to be taken as referring to the
shipowner in his capacity as shipowner;
therefore, the shipowner may also be
vulnerable upon a strict liability theory
as a products distributor.
A-34
It appears that we are the first state
supreme court to be confronted with the
task of divining the intent of Congress in
the 1972 amendments!3 with respect to the
nature of the shipowner's duty as distin-
guished from the standard of care im-
posed.14 some case law has now emerged
through published decisions of the federal
district courts and of the courts of ap-
peal for the various maritime circuits;
l3we have already disposed of one appeal
in a post-amendment case in Jacobs v.
Tidewater Barge Lines, 277 Or 809, 562 P2d
545 (19/7), but there the parties tried
the case below on the basis of 2 Restate-
ment (Second) of Torts , §§ 343 and 343A
(1965); we were not, therefore, required
to choose between conflicting contentions
as to the nature of the duty and its
source.
14see Theis, Amended Section Five of the
Longshoremen's and Harborworkers' Compen-
sation Act, 41 Tenn.L.R. 773, 780 (1974);
but compare, Deacon, The Injured Long-
shoreman vs. The Shipowner After 1972:
Business Invitees, Land-Based Standards,
and Assumption of Risks, 28 Hastings L.J.
771 (1977).
A-35
however, there is no consensus as to the
point of departure for testing any given
set of evidence to determine if it may
yield findings of fact which would consti-
tute negligence on the part of the ship-
owner. The standard of care, on its face,
is that imposed by the statute; i.e., that
old favorite, reasonable care, or what the
reasonably prudent person would, or would
not, do in the same or similar circum-
stances to avoid harm to others.!5 The
nature of the duty is ignored, however, in
the statute. The draftsman tells us only
15"Negligence is conduct falling below
the standard established for the protec-
tion of others against unreasonable risk
of harm. This standard of conduct is or-
dinarily measured by what the reasonable
man of ordinary prudence would do in the
circumstances. Fleming, Th w of Torts,
3d ed, p. lll. But compare. renzweig,
Negligence wethout Fault (1951), ques-
tioning whether, despite lip service
thereto, the courts are abandoning the
constituent (to negligence) concepts of
the “reasonable man" and his "foresight."
A- 36
that the vessel owes to the longshoreman a
duty to be careful. What precisely is re-
quired to discharge the duty does not ap-
pear from the statute.
No court which has seriously strug-
gled with this pro! lem has felt free to
apply the statutory words as written.
Every such court has gone to the legisla-
tive history as embodied in the House Re-
port of the Education and Labor Committee,
No. 92-1441, September 25, 1972, and the
Senate Report of the Labor and Public
Welfare Committee, No. 92-1125, September
14, 1972 (hereinafter the Reports). Our
task is made more difficult by reason of
the fact that some of the federal courts,
in purporting to interpret or construe the
Statute in light of the language of the
Reports, have chosen to ignore language in
the Reports where such language is incon-
sistent with the result the court
A-37
apparently desires to reach in the given
case. As a consequence, the federal court
decisions are of help to us only in a very
general way.
It is tempting to deal with this case
under the words of the statute without
resort to the Reports, and if all courts
did so it would force Congress to "clean
up its act." In other words, Congress
should set forth in the statute itself
several rules which now find expression
only in the Reports. To be fair to the
litigants before us and to those who may
be coming before the trial courts, we
shall do what has been done in each
circuit and go to the Reports for guidance
in ascertaining the nature of the duty of
the shipowner to the longshoreman. We,
therefore, now set forth those portions
of the Reports which we deem pertinent to
this discussion and to the decision of ©
A-38
this case. In doing 80, we shall use the
words of the Senate Report, because
although the Reports are not identical we
believe they do not conflict with each
other in substance.!6 The Senate
Report, therefore, in pertinent part is
as follows:
se @ &@ eh
"* * * The Committee believes
that where a longshoreman or other
worker covered under this Act is in-
jured through the fault of the vessel,
the vessel should be liable for dam-
ages 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,
vr ne fe &@ &
"Accordingly, the Committee has
concluded that, given the improve-
ment 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
167he House Report may be found at 3
United States Code Congressional and Admin-
4720, with particular attention to pp.
4701-4705.
A-39
employees who work on board vessels
for the liability of vessels as
third parties to be predicated on
negligence, rather than the no-fault
concept of seaworthiness. This
would place vessels in the same posi-
tion, insofar as third party liabil-
ity 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 norn-maritime
employment ashore, insofar as bring-
ing a third party damage action is
concerned, and not to endow him with
any special maritime theory of lia-
bility or cause of action under what-
ever judicial nomenclature it may be
called, such as ‘unseaworthiness',
‘non-delegable duty', or the like.
"Persons to whom compensation is
payable under the Act retain the
right to recover damages for negli-
gence against the vessel, but under
these amendments they cannot bring
a damage action under the judicially-
enacted doctrine of unseaworthiness.
Thus a vessel shall nox be liable
in damages for acts or omissions of
stevedores or employees of steve-
dores subject to this Act, Crumedy
vs. The J. H. Pisser, 358 U.S. 423,
Albanese vs. Matts, 382 U.S. 283,
Skibinski vs. Waterman SS Corp.
330 [sic] F.2d 539; for the manner
or method in which stevedores or em-
ployees of stevedores subject to
this Act perform their work, A.N.G.
Stevedores vs. Ellerman Lines,
369 U.S. 355, Blassingill vs.
A-40
Waterman SS Corp., 336 F 2d 367;
for gear or equipment of stevedores
or employees of stevedores subject
to this Act whether used aboard
ship or ashore, Alaska SS Co. vs.
Peterson, 347 U.S. 396, Italia
Societa vs. Oregon Stevedoring Co.,
376 U.S. 315, or for other cate-
gories of unseaworthiness which
have been judicially established.
This listing of cases is not in-
tended to reflect a judgment as to
whether recovery on a particular
actual setting could be predicated
on the vessel's negligence.
"Permitting actions against
the vessel based on negligence will
meet the objective of encouraging
safety because the vessel will still
be required to exercise the same
care aS a land-based person in pro-
viding a safe place to work. Thus,
nothing in this bill is intended
to derogate from the vessel's re-
sponsibility to take appropriate
corrective action where it knows
or should have known about a dan-
gerous condition.
"So, for example, where a
longshoreman slips on an oil spill
on a vessel's deck and is injured,
the proposed amendments to Sec-
tion 5 [33 USC § 905] would still
permit an action against the ves-
sel for negligence. To recover
he must establish that: 1) the
vessel put the foreign substance
on the deck, or knew that it was
there, and willfully or negli-
gently failed to remove it; or
2) the foreign substance had been
A-41
on the deck for such a period of
time that it should have been dis-
covered and removed by the vessel
in the exercise of reasonable care
by the vessel under the circum-
stances. The vessel will not be
chargeable with the negligence of.
the stevedore or employees of the
stevedore.
"Under this standard, as
adopted by the Committee, there
will of course, be disputes as to
whether the vessel was negligent
in a particular case. Such issues
can only be resolved through the
application of accepted principles
of tort law and the ordinary pro-
cess of litigation--just as they
are in cases involving alleged
negligence by land-based third par-
ties. 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 ina
negligent manner such as would
render a land-based third party
in non-maritime pursuits liable
under similar circumstances.
se ae & 2
"Finally, the Committee does
not intend that the negligence
remedy authorized in the bill
shall be applied differently in
different ports depending on the
A-42
law of the State in which the port
may be located. The Committee in-
tends that legal questions which
may arise in actions brought under
these provisions of the law shall be
determined as a matter of Federal
law. In that connection, the Com-
mittee intends that the admiralty
concept of comparative negligence,
rather than the common law rule as
to contributory negligence, shall
apply in cases where the injured
employee's own negligence may have
contributed to causing the injury.
Also, the Committee intends that
the admiralty rule which precludes
the defense of ‘assumption of risk’
in an action by an injured employee
shall also be applicable.
ne ke & & OM
Despite the fact that neither the stat-
ute nor the committee report anywhere con-
tains any reference to the longshoreman as
being a business visitor or invitee on the
one hand or to the vessel or shipowner as
being in a position equivalent to that of
an occupier of land on the other hand, the
majority of the courts have proceeded to
analyze the nature of the duty as if it
were mandated that 2 Restatement (Second)
—a— A-43
of Torts, §§ 343 and 343A (hereinafter
743 and 343A), are applicable. We believe
these courts to have been influenced
largely by Vickery, Some Impacts of the
1972 Amendments to the Longshoremen's and
Harbor Workers’ Compensation Act, 41
Insurance Counsel Journal 63 (January
1974). Mr. Vickery is practicing in
Houston, Texas, and according to biograph-
ical material accompanying his article,
"He worked extensively with the Congress
on the 1972 Amendments to the Longshore-
man's Act as a representative of several
Gulf Maritime and Steamship Associations."
After first noting that:
"Practitioners believe that
the courts will apply ‘land' con-
cepts of negligence as against the
shipowner and the admiralty con-
cept of comparative negligence as
A-44
against the plantiff,1? as the
Congress intends [,] * * *"
he states, apparently without fear of con-
tradiction: "The situation of the ship-
owner is comparable to that of a land ow-
ner or occupier of premises who contracts
with an independent contractor to perform
services on the premises." He then sets
forth a description of the nature of the
duty accompanied by copious citations.
The seven “principles” which he advocates
171t is interesting that the author
speaks of applying the concept of compara-
tive negligence as against the plaintiff.
We had always assumed that comparative
negligence under the. general maritime law
was something in favor of the plaintiff to
ameliorate the harsh doctrine of contribu-
tory negligence existing at common law.
Also interesting is the fact that the au-
thor ignores the committee reports’ in-
junction that the defense of assumption
of risk would not be available to the
vessel. This is probably because the
"principles" which he advocates as being
applicable reintroduce the concept of
implied assumption of risk.
A-45
as being applicable appear to be a para-
phrase of 343 and 343A and comments there-
to.
That 343 and 343A embody the concept
(specifically forbidden by the Reports) of
assumption of risk as a duty-limiting fac-
tor is apparent from comment e to 343A.18
For judicial recognition of this point,
see, for example, Brown v. Ivarans Rederi
18"e, In the ordinary case, an invitee
who enters land is entitled to nothing
more than knowledge of the conditions and
dangers he will encounter if he comes. If
he knows the actual conditions, and the
activities carried on, and the dangers in-
volved in either, he is free to make an
intelligent choice as to whether the ad-
vantage to be gained is sufficient to jus-
tify him in incurring the risk by entering
Or remaining on the land. The possessor
of the land may reasonably assume that he
will protect himself by the exercise of
ordinary care, or that he will voluntarily
assume the risk of harm if he does not
succeed in doing so. Reasonable care on
the part of the possessor therefore does
not ordinarily require precautions, or
even warning, against dangers which are
known to the visitor, or so obvious to him
that he may be expected to discover them."
A-46
A/S, 545 F2d 854 (3d Cir 1976) at page
863, n. 10.
Apart from the fact tnat description
of the shipowner's duty by resorting to
343 and 343A introduces the forbidden ele-
ment of assumption of risk, there is an
additional fact even more important for re-
jecting application of those sections as
the proper analysis. No one seriously
disputes that the development of the law
of torts, and particularly negligence con-
cepts in the field of occupier of land
vis-a-vis entrant upon the land, has been
largely influenced by the favorable posi-
tion which land and the rights of owners
of land historically have held in English
and American law. The scholars usually
recognize and comment upon this situation
at the outset of their discussions of this
relationship:
A-47
"Responsibility for injury on
dangerous premises has attracted
its own, rather complex pattern of
legal rules and withstood to a sig-
nificant, if diminishing degree,
the pervasive tendency to measure
the existence and scope of duties
of care by the broad standards of
foreseeability of harm and reason-
able conduct. Until well into the
midst of the nineteenth century,
the prominent social value attached
to landholding defied all serious
challenge to the claim by occupiers
to untramelled use and enjoyment of
their domain with least subordina-
tion to the interests of others.
Qualified only by such concern for
neighbours as exacted by the law
of nuisance and trespass, the land-
owner was virtually immune to de-
mands for the safety of persons who
came upon his land, except not to
injure them wilfully, set traps or
use excessive force in expelling
trespassers. With respect to the
conditions of the premises, even a
lawful visitor entered for all
practical purposes at his own risk.
Only belatedly and after protracted
judicial groping did this singular
tenderness for a sectional interest
group begin to yield to the com-
bined thrust of industrialization,
with its attendant proliferation
‘of physical dangers, and a growing
sense of social responsibility.
The eventual adjustment, however,
continued to make substantial al-
lowance to the lingering sentiment
of the past by falling markedly
A-48
short of exposing occupiers to the
full rigour of the developing negli-
gence doctrine. Apprehensive of
subjecting defendants to the uncon-
trolled arbitrament of yneympathetic
juries, the new formula’ ensured
retention of a large measure of
judicial control by the expedient of
dividing persons entering land into
distinct categories, fixed by refer-
ence to the purpose of their visit,
with co. responding and precisely de-
fined standards of care owed to each.
"This emphasis on categories and
labels involves a high degree of for-
malism which experience has proved to
be a fertile source of unrealistic
distinctions, capricious results and
all too many appeals on what should
be questions of fact but are distorted
into questions of law. In response
to increasing dissatisfaction, drastic
reform in England finally introduced
a ‘common duty' of reasonable care in
favour of all lawful visitors alike.
"lenunciated by Willes J. in
Indermaur v. Dames (1866) L.R. 1 C.P.
274 and Gautret v. Edgerton (1867)
L.R. 2 C.P. 371. .
"2occupiers' Liability Act,
1957. See Street, chap. 10, sect. 2;
Salmond, cheap. 12; Odgers, [1957]
Cam. L.J. 39; Payne, 21 Mod. L. Rev.
359."
{author's emphasis] Fleming, The
Law of Torts 404, 3d ed. (1965).
A-49
2 Harper and James, The Law of Torts 1430
et seq. (1956).
There is no indication whatsoever in
the Reports that Congress intended that the
land-based law to be applied was that of
occupier and invitee. We regard as a pre-
mise, at least of the common law, that not
only the existence but the nature of a
duty arises out of some relationship of
the parties; whatever the relationship be-
tween vessel and longshoreman may be, it is
To like effect, see Prosser, Law of Torts
351, 4th ed., Hornbook Series (1971), and
A-50
not that of occupier of land and invitee,!9
At the other end of the scale are
those, including this plaintiff, who urge
that we must apply maritime negligence law
without any leavening by “land=based" con-
cepts. At the extreme of this view is the
position of Gilmore and Black,29 who urge
19por the purposes of this case, we need
not reach the issue of general maritime
law applicable to matters within the admir-
alty and maritime jurisdiction versus the
common law. See U.S.Const. art III, § 2;
Southern Pacific v. Jensen, 244 U.S. 205
(1917); “The Lottawanna," 21 Wall. 558
(1874); Kermarec v. Compagnie General Trans-
atlantique, 358 U.S. 625 (1959), where the
court stated: "The issue must be decided
in the performance of the Court's function
in declaring the general maritime law, free
from inappropriate common-law concepts. * *
* We hold that the owner of a ship in navi-
gable waters owes to all who are on board
for purposes not inimical to his legitimate
interests the duty of exercising reason-
able care under the circumstances of each
case." pp. 630-32. It may well be in a
case where necessary to do so this court
or the United States Supreme Court will
hold the last-quoted sentence to be the
correct measure and nature of duty under
the 1972 amendments.
20Gilmore and Black, The Law of Admiralty,
A-51
that the concept of negligence which has
been developed in seamen's actions under
the Jones Act should be applied. The ba-
sis of their argument seems to be:
"* * * that it makes sense
for the shipowner to owe the same
Standard of care to commercial
invitees like repairmen and long-
shoremen that he owes to crew
members, and that a unitary stan-
dard of care would greatly sim-
plify the law of the new negli-
gence action." Robertson, "Neg-
ligence Actions by Longshoremen
Against Shipowners Under the 1972
Amendments to the Longshoremen's
and Harbor Workers' Compensation
Act," pp. 449-50 Journal of
Maritime Law and Commerce (April
1976).
Robertson notes that Benedict on Admiralty?!
disagrees with Gilmore and Black as to ap-
plication of the Jones Act "standard" but
that Benedict does predict the emergence of
a “thoroughgoing and healthy negligence
action" based upon general maritime princi-
ples. See, also, n. 19, ante, and accom-
panying text.
2lpenedict on Admiralty, 7th ed. Jhirad.
A-52
Decision of post-1972 amendment cases
solely under the general maritime negli-
gence law completely untrammeled by
land-based common law concepts would fly
directly in the face of the Reports and is
no more warranted than is the action of
those courts which have proclaimed that
the shipowner no longer has any duty to
furnish a safe place to work, thereby
conveniently overlooking that which is
plainly to be seen in the Reports. See
the discussion of this aspect infra at
page 34. We, therefore, reject that
position urged by plaintiff.
The Third Circuit, in Hurst v. Triad,
554 F2d 1237 (3d Cir 1977) suggests that
the nature of the duty is better described
in terms of 2 Restatement (Second) of
Torts, § 414. Chapter 15, Restatement
(Second) of Torts, is concerned with the
liability of an employer of an independent
A-53
contractor. Section 409 sets forth the
so-called "general rule" that the employer
of an independent contractor is not
liable for physical harm caused to another
by an act or omission of the contractor or
his servants. As indicated in comment b,
however, the general rule is now primarily
important only as a preamble to the
catalog of its exceptions. The exceptions
are contained in Sections 410-429, which
make up the balance of Chapter 15.
Sections 410 through 415 are exceptions
based upon the employer's own conduct,
while the exceptions in Sections 416
through 429 are based upon a theory of the
employer's vicarious liability for the
A-54
tortious conduct of the independent
contractor or his servarts, 22
In Hurd (sic) the injured longshore-
men urged that they were entitled to re-
cover under the duty described in Section
414 on the theory that the shipowner had
"ultimate control" over the stevedoring
operations. Section 414 provides as
follows:
"One who entrusts work to
an independent contractor, but
who retains the control of any
part of the work, is subject to
liability for physical harm to
others for whose safety the em-
ployer owes a duty to exercise
22The federal district court in Brown v.
Ivarans Rederi A/S, 545 F2d 854 (2d Cir
1976), had instructed the jury pursuant to
Section 416. The Court of Appeals rightly
observed that this was improper because of
the injunction in the committee reports
against holding the shipowner vicariously
liable for negligence of the stevedore.
We observe that even here the statutory
language as such would permit recovery
against the shipowner vicariously. This
is one more reason Congress should turn
its attention to Section 905(b).
A-55
reasonable care, which is caused
by his failure to exercise his
control with reasonable care."
The court rejected their contention on the
bases: (1) that using the shipowner's
ultimate control in order to create a duty
of supervision would amount once again to
the establishment of a non-delegable duty;
(2) ultimate control over stevedoring
operations is not the sort of control to
which Section 414 is directed. For
Section 414 to apply, the contractor must
be controlled as to his methods of work or
as to operative detail. The court then
expressly approved the district court's
analysis that Section 414 is part of the
"federal common law" applicable to long-
A-56
shoreman suits against vessel owners under
the 1972 amendments. 23
Another court has recently considered
the nature of the duty with some reference
to Section 413, Restatement (Second) of
Torts. In Munoz v- Flota Merchante Gran-
colombiana SA, 553 F2d 837 (2d Cir 1977),
the panel, speaking through Chief Judge
Kaufman, held that the evidence was insuf-
ficient as a matter of law to make a ques-
tion for the jury as to negligence of the
23wWe can only believe a choice of the
term "federal common law" was inadvertent.
It has always been considered that although
there may be a common federal law, there
is no federal common law. "There is at
least superficial incongruity in [the
committee reports] calling for both
land-based law and federal uniformity, as
the traditional source of a federally
uniform body of law in these matters has
been the general maritime law. There is,
as such, no federal common law." Robertson,
"Negligence Actions by Longshoremen Against
Shipowners Under the 1972 Amendments to
the Longshoremen's and Harbor Workers'
Compensation Act, 7 J of Maritime L & C
447, 466 (April 1976).
A-57
shipowner. (The facts there are not par~-
ticularly important for our discussion.)
The court first stated:
"The shipowner's responsi-
bility for maritime accidents
cannot follow from mere invoca-
tion, without more, of the talis-
manic claim of 'negligence.'
ea 8" p. 839.
The court recognized that it had applied
343A in an earlier Second Circuit case?4
where it was an open and obvious dangerous
condition. In Munoz the court found that
the shipowner had relinquished control of
the hold, then in a reasonably safe condi-
tion, to an experienced stevedore, that
the stevedore's negligence had created a
latent dangerous condition which was
24nNapoli v. Hellenic Lines, Ltd., 536
F2d 505 (2d Cir 1976).
A-58
unknown to the owner,248 and that in
such circumstances there was no jury case
without risking return to the concept of
liability without fault for shipowners,
which Congress had rejected. The court
stressed the fact that the work entrusted
to the stevedore was "within its normal
competence," indicating that by reason of
that fact Section 413, Restatement (Second)
of Torts was inapplicable. We might well
question that, but it is unnecessary for
Our purposes to travel that pathway.
Inherent in the defendant's choice
not to authorize the use of bull winches
is an exercise of control of the method of
work, if not indeed control as to opera-
24acompare this with the evidence from
which the jury could have found in the
case at bar that the defendant's repre-
sentat ve, the supercargo, both knew of
the condition created by the method of
stow and admitted he recognized its dan-
ger to the longshoremen.
A-59
tive detail. Since, as we have already
pointed out, the jury could have found
that dead-ending was the only feasible al-
ternative to the use of bull winches, it
may also be inferred that dead-ending was
"required" as a concomitant of defendant's
injunction against using bull winches.
Thus, the defendant also exercised in this
respect control as to the method of work,
if not the operative detail.25
In Brown v. Ivarans Rederi A/S,
Supra, the panel of the Third Circuit
25we recognize this is not the same con-
trol over operative detail as existed in
Butler v. O/Y Finnlines, Ltd., 537 F2d
1205 (4th Cir 1976), where the vessel's
third mate was actually in the hatch super-
vising stowage to the extent of counter-
manding the manner in which a counter-
weight was to be stowed. Nevertheless,
there was evidence as pointed out from
which the jury could find that defendant
controlled Portland as to Portland's
methods of work in the two respects sub-
mitted to the jury. See also 2 Restate-
ment (Second) of Torts § 414.
A-60
discussed some approaches to the analysis
of the nature of the duty owed under Sec-
tion 905(b) and concluded the opinion with
a suggestion to the district court for re-
trial as to "the standard of care."26 The
Brown court concluded:
" * * * Tt would appear that
the principles of the law of neg-
ligence, as adopted in the admir-
alty field during the history of
our court, are to form the basis
of any recovery against shipowners
insofar as such principles are not
inconsistent with § 905(b)."
The utility of the suggestion is question-
able, since what is consistent with § 905
(b) is the very object of the inquiry.
Since we predict that the United
State Supreme Court will not in the rela-
tively near future go so far as is
26we do not wish to belabor the point un-
necessarily, but we respectfully disagree
that it is the standard of care as distin-
guished from the nature of the duty with
which the courts must deal in applying §
905(b).
A-61
suggested by Professor Ehrenzweig in Negli-
gence Without Fault (1951), and as yet has
wd
not adopted the thoroughgoing and healthy
negligence action based upon general mari-
time principles predicted by Benedict (see
note 21, ante, and accompanying text), we
suggest the nature of the duty might well
be that proposed in Heaven v. Pender, 1l
Q.B.D. 503, 509 (1883):
"Whenever one person is placed
by circumstances in such a position
in regard to ancther that every one
of ordinary sense who did think
would at once recognize that if he
did not use ordinary care and skill
in his own conduct with regard to
those circumstances, he would cause
danger of injury to the person or
property of the other, a duty
arises to use ordinary ca and
skill to avoid such danger."
Surely under that rule it would be a ques-
tion for the jury as to whether negligence
of the defendant was the cause of Shep-
ler's death in this case. We need not
adopt that rule, however, for disposition
A-62
of this case,
Under any duty thus far suggested
by federal decisions, if the employer of
an independent contractor dictates a
particular method for performing the
contracted work which is unreasonably
dangerous to the workmen of the indepen-
dent contractor, taking into consideration
the possible alternative methods, he is
responsible in damages for injuries caused
to such workmen thereby. This is a duty
to the employes of an independent contrac-
tor which is universally imposed upon the
employer of such a contractor in any
context, whether on land or at sea, and
about which there can be no real argument.
See Section 410 of Restatement (Second) of
Torts, which provides:
"The employer of an independent
contractor is subject to the same
liability for physical harm caused
by an act or omission committed by
the contractor pursuant to orders
A-63
or directions negligently given
by the employer, as though the
act or omission were that of the
employer himself."
Comment b, which concerns the extent of the
rule, has the following to say:
"This Section deals onl
with the liability of an cmployer
who does not intend that the con-
tractor shall cause physical harm
to any other person, but who ei-
ther employs a contractor to do
work which, no matter how care-
fully done, involves an unreason-
able risk of physical harm to
others to whom he owes a duty to
exercise care, or who employs a
contractor to do work which
could be safely done but for the
fact that he directs the contrac-
tor to do it in a manner involv-
ing such risk. The liability is
based upon the fact that the
employer has been negligent in
ditecting his contractor to do
work which is dangerous in itself
or in the manner in which it is
done. Therefore, the employer is
subject to liability, under the
rule stated in this Section, for
only such physical harm as is
caused by the dangerous character
of the work or the dangerous man-
ner in which it is directed to
be done. He is not subject to
liability for any harm caused by
some improper method which the
A-64
contractor, without any direc-
tion of his employer, adopts in
doing the work."
We do not hold that the duty of the owner
or the charter of a vessel is limited to
that set forth in Section 410, but do hold
that his duty must go at least that far.
That is all that is necessary for a deci-
sion in this case,
Defendant also assigns as error the
court's instructing the jury that defen-
dant owed a duty to provide a safe place
to work. In this respect the complained-
of portion of the court's charge is as
follows:
“When a charterer exercises
control in whole or in part for
stowing cargo, such a charterer
has the duty to provide persons
. employed aboard a vessel with a
reasonably safe place to work,
in this case, within the allega-
tions of negligence, that I am
going to submit to you within
those two allegations.
"* *£ *& © *
"If such negligence as al-
leged is proven to you by the
A-65
plaintiff, this would render the
charterer Weyerhaeuser liable for
damages sustained by a workman
injured or killed as a result of
the charterer's failure to pro-
vide a safe place to work."
Apparently the "exception" to this charge
was taken in the nature of a colloquy be-
tween defense counsel and the court in a
pre-instruction conference:
"THE COURT: * * * Any other
instructions, exceptions other
than what we have previously
noted?
"MR. DAIGLE: Just briefly,
your Honor. No. 4, your Honor,
reads:
"'If such negligence as al-
leged is proven to you by plain-
tiff, this would render the char-
terer liable for damages sustained
by a workman injured or killed as
a result of the charterer's fail-
ure to provide a safe place to
work, '
"I don’t think a charterer
has the duty to provide a safe
place to work. With reference
to the previous Instruction No,
3, it says:
"'When a charterer exercises
control in whole or in part for
stowing cargo, such charterer has
a duty to provide persons employed
aboard a vessel with a reasonably
safe place to work.'
A-66
"THE COURT: And I have added
in within the allegations of negli-
gence.
"MR. DAIGLE: Yes, sir. My
point is that a charterer, in this
case Weyerhaeuser, may very well <-
I don't say they do, but assuming
they exercise control over the
loading operation for the first hour
of the first day -- the way that in-
Struction reads is that if Weyer-
haeuser exercised control on the
first part of the job, then they are
liable for something that happened
three days later after the first
hour that complete control was
turned over to the stevedore company.
"THE COURT: I tied that up. I
understand. You have the exception.
I did tie that up by saying it has
to be there. The control aspects
in those two aspects has to be the
cause of the injury. That cures
that. As I say, the reason I've
been doing this I might say about
95 percent of the lawyers prefer
they can say now the Judge will
tell you this, I want to be sure
and call your attention to the
facts of this."
Immediately following the conclusion
of the court's complete charge to the jury,
counsel for the respective parties made
oral argument. Insofar as the transcript
reflects, no exceptions were taken to the
A-67
charge given either before or after the
Oral argument which followed the charge to
the jury. Later the jury asked for rein-
Struction on certain points concerning the
defendant maintaining any control or parti-
cipating in the control of the loading of
the vessel, and requested a restatement of
instructions regarding the legal responsi-
bilities of the men in the hold. In part,
the court reinstructed the jury as follows:
"This is all true unless the
charterer u.dertakes and exercises
control in whole or in any material
part for a particular operation and
in this case it is a question of
fact if the charterer Weyerhaeuser
undertook to participate in the
control of a particular loading
style for this ship; that is, to
load it in a particular manner.
"And it is a question of fact
whether such loading would require
either a bull winch operation of
[sic] dead-ending of logs.
“When a charterer exercises
control in whole or in part for
stowing cargo, such a charterer
has the duty to provide persons
employed aboard a vessel with a
reasonably safe place to work, in
this case, within the allegations
A-68
of negligence. This means it is
the duty of such a charterer to
use reasonable care in order to
avoid injury to a workman aboard
the vessel in any situation in
which it can reasonably be anti-
cipated that a failure to use
such care might result in such
injury.
* 2 @ @ &@ @
"If such negligence as al-
leged is proven to you by plain-
tiff, this would render the
charterer liable for damages sus-
tained by a workman injured or
killed as a result of the char-
terer's failure to provide a safe
place to work.”
To the complained-of portion of the charge,
on reinstruction, defendant in its brief
sets forth its “exception” as follows:
"The Court erroneously re-
instructed the jury a second
time on the same subject as re-
vealed in the affidavit of Paul
N. Daigle, correcting and sup-
plementing the record on appeal:
"'T, PAUL N. DAIGLE, being
first duly sworn, depose and say:
"'Approximately one hour
after the jury requested to be
reinstructed (Tr. pag. 611) I
received a telephone call from
Judge Jones who stated that the
jury had requested to be rein-
structed on the same matters
set forth in their original re-
quest. At that point I stated
A-69
to Judge Jones I had no objec-
tions to his submitting the in-
structions in written form to the
jury and I assume that he did
so." (Trial court file)"
We have grave reservations concerning
the sufficiency of the "exceptions" here
claimed. We believe it the better practice
to take exceptions to instructions as
given at an appropriate time after the
charge rather than prior thereto. Next,
we doubt that the "exception" purportedly
taken by affidavit is any exception at
all. In the interest of fairness, however,
we shall consider these exceptions as if
properly taken, assuming that the same
exception as was taken *» the instruction’
before the charge was given has been taken
to the reinstructions.
The exception actually challenges the
instruction on two grounds, the first be-
ing that the defendant had no duty to pro-
A-70 A-71
vide a safe place to work and the second ably safe place to work at the time the
being that the defendant had no duty to master stevedore and his employes board
provide a safe place to work after relin- the vessel, but further to exercise ordi-
quishing control of the vessel to the nary care to maintain a reasonably safe
stevedore. place to work. Otherwise, the following
Whether the shipowner has a duty to language from the reports has no meaning
provide a safe place to work has been some- whatsoever:
what puzzling to the federal courts. For "Permitting actions against
the vessel based on negligence
instance, in Crowshaw v. Koninklijke will meet the objective of en-
couraging safety because the ves-
Nedlloyd, B. V. Rijswijk, 398 F Supp 1224 sel will still be required to
exercise the same care as a land-
(DC Or 1975), an early case arising after based person in providing a safe
place to work. Thus, nothing in
the 1972 amendments, the court at page 1229 this bill is intended to derogate
from the vessel's responsibility
asserts: "The shipowner does not owe the to take appropriate corrective
action where it knows or should
longshoreman a duty to provide him with a have known about a dangerous
condition.
safe place to work." Compare this state- "So, for example, where a
longshoreman slips on an oi]
ment with language on page 1230: "Shipow- spill on a vessel's deck and is
injured, the proposed amendments
ners retain the initial obligation to pro- to Section 5 [33 USC § 905]
would still permit an action
vide invitees with a reasonably safe place against the vessel for negligence.
To recover he must establish that:
to work." We believe that a fair construc- 1) the vessel put the foreign
substance on the deck, or knew
tion of the Reports as a whole not only that it was there, and willfully
Or negligently failed to remove
requires the shipowner to provide a reason- it; or 2) the foreign substance
|
A-72
had been on the deck for such a
period of time that it should
have been discovered and removed
by the vessel in the exercise of
reasonable care by the vessel
under the circumstances."
The duty thus embodied under the Reports
is no more than that of any land-based per-
son; namely, to provide a safe place to
work for an independent contractor and his
employes. On the other hand, it is clear
from the Reports as a whole that the
shipowner may delegate the duty to provide
a safe place to work in all instances in
which a land-based person might do so and,
therefore, escape liability imposed
vicariously although still being liable
for his own negligence. Applying that
construction to the exception here taken,
we find the first ground of the exception
to be erroneous and the second not to be
valid because there was evidence from which
the jury could find that the defendant was
exercising control over the method of the
A-73
work and the instruction given by the
court conditions the defendant's duty to
provide a safe place to work upon a finding
by the jury that the defendant was exer-
cising such control. Furthermore, the
obligation was limited by the court's
charge to the two particulars of negli-
gence submitted to the jury.
Defendant's assignment of error No.
1 follows:
"The Circuit Court erred in
refusing to rule as a matter of
law that Plaintiff failed to prove
liability against Defendant Weyer-
haeuser Company, and in improperly
instructing the jury in regard to
Defendant Weyerhaeuser's liability."
This assignment of error was then broken
down into 12 subdivisions. Apparently de-
fendant itself believed that all of these
12 subdivisions were subsumed in one gen-
eral question, for in stating the issues
presented on appeal defendant set forth
one general question to cover all 12 sub-
divisions:
A-74
"(A) Under the 1972 Amend-
ments to the Longshoremen's and
Harbor Workers' Compensation Act,
does a voyage charterer who
hires an independent expert
stevedore to conduct loading
operations owe any responsi-
bility to provide a_ safe place
to work or to warn2’ of open
and obvious conditions to a
longshoreman-stevedore's em-
ployee injured or killed dur-
ing the loading?"
Our prior discussion has disposed of the
first five subdivisions. The other seven
are concerned with failure to give certain
instructions requested by defendant. We
have examined each of these and find that
there was no error either because they were
incomplete statements of the law, were erro-
neous under the nature of the duty we have
concluded was owed, or were adequately cov-
ered in other portions of the court's charge.
27plaintiff did not charge defendant
with a failure to warn Shepler of the con-
dition in the hold, and our discussion of
the nature of the duty under the evidence
of this case shows that the giving of a
warning does not in and of itself satisfy
the duty owed.
A-75
OFFSET FOR STEVEDORE'S NEGLIGENCE
Defendant urges that should we uphold
the verdict we should not uphold the judg-
ment against defendant for more than 28% of
the total damages awarded, on the basis
that the jury found defendant to be only
28% negligent. Defendant would have us ap-
ply what has come to be known as the equit-
able credit doctrine. A fair exposition of
the doctrine is as follows:
"1. Plaintiff retains his no-
fault compensation benefits in full.
"2. His recovery against the
shipowner is reduced by the percen-
tage of his own negligence.
"3. The shipowner's liability
is reduced by the percentage of the
stevedore's negligence, as well as
that of the plaintiff.
"4. The stevedore is not liable
for damages because the Act limits
his exposure to compensation payments.
Furthermore, he may enforce his
equitable lien against plaintiff's
recovery from the shipowner. Because
his own negligence has reduced plain-
tiff's recovery by [a percentage], how-
ever, his lien is diminished by the
amount that percentage constitutes of
the total judgment." Crowshaw v.
Koninklijke Nedlloyd, B.V. Rijswijk,
Supra.
~~
A-76
Application of the doctrine does have
some appeal, but we decline to apply it in
this case for the following reasons: (1)
It appears to us to be exactly contrary to
the Reports and would permit the shipowner
in effect to obtain indemnity indirectly
and to reduce the stevedore's lien against
the compensation under the Act; (2) A ma-
jority of the federal courts of appeal
which have considered the question have
rejected application of the doctrine. In-
cluded in these are the Ninth Circuit.
See Shellman v. United States Lines, Inc.,
528 F2d 675 (9th Cir 1975), cert den 96
S Ct 1668 (1976). In the Fourth Circuit,
which did apply the doctrine, there was a
vigorous and able dissent by one of the
three judges of the panel which heard the
case. See dissenting opinion of Circuit
Judge Hall, Edmonds v. Compagnie General
Transatlantique, F2d (4th Cir
A-77
1977); (3) On the face of it it seems un-
fair to have the stevedore's percentage of
negligence determined in a case in which
the stevedore is not a party and has no
power to control any portion of the pre-
sentation of evidence upon which the trier
of fact assesses the stevedore's percen-
tage of negligence of fault; (4) There is
no assignment of error before us as to any
ruling made by the trial judge upon this
point. Insofar as we can tell from the
record, the trial judge was not asked to
do what defendant would now have this
court do.
EVIDENCE AND THE FINANCIAL INTEREST OF
PORTLAND
Defendant's second assignment of er-
ror is as follows:
"The Circuit Court erred in
preventing defendant Weyerhaeuser
from demonstrating the bias and
financial interest of Portland
Stevedoring Company in the out-
come of the present litigation."
A-78
Plaintiff called certain witnesses who at
the time of Shepler's fall were regular em-
ployes of Portland. The trial judge
prevented defendant, upon cross-examina-
tion of these witnesses, from showing that
Portland had a financial interest in the
cutcome of the case as it pertained to
Portland's lien against the recovery for
compensation benefits paid to plaintiff.
Plaintiff answers this assignment by
stating there was no offer of proof as to
what these witnesses would have said, and
this court is therefore unable to deter-
mine what evidence might have been elicited
and consequently cannot determine, even if
there were error, whether it was prejudi-
cial. It is doubtful whether an offer of
proof is required where an objection is
sustained upon cross-examination. See
Arthur v. Parish, 15 Or 582, 47 P2d 682
(1935); Beemer v. Lenske, 241 Or 47, 402
a —<
A-79
P2d 90 (1965); and Stillwell v. S.I.A.C.,
243 Or 158, 411 P2d 1015 (1966). Defen-
dant did make an offer of proof by an at-
torney for Portland as to Portland's finan-
cial interest in any recovery by plaintiff.
On the other hand, there is no offer of
proof that the witnesses who had been em-
ployed by Portland would themselves be fi-
nancially benefited by any recovery or
failure of recovery in the case. The of-
fer of proof by the attorney's evidence
did not go to this point.
Although it is not applicable to this
case, Our own Workmen's Compensation Act
expresses a legislative policy that in a
third-party action the jury is not to be
made aware that the plaintiff is entitled
to workmen's compensation benefits. Fur-
thermore, in Strandholm v. General Const.
Co., 235 Or 145, 382 P2d 843 (1963), we
affirmed the trial court in granting a
A-80
new trial after a defense verdict where
the fact that plaintiff was entitled to
benefits under LHWCA was deliberately dis-
closed to the jury by the defendant.
We are really dealing with a policy
question concerning the collateral source
doctrine, and this court has quite re-
cently carefully considered the question.
In Reinan v. Pacific Motor Trucking Co.,
270 Or 208, 527 P2d 256 (1974), we noted:
"* * * The salutary policy
underlying the collateral source
rule is simply that if an injured
party received some compensation
from a source wholly independent
of the tortfeasor, such compensa-
tion should not be deducted from
what he might otherwise recover
from the tortfeasor. The eviden-
tiary consequence of this rule is
that proof of such payments is
generally regarded as inadmissible
in view of its potentias misues
by the jury. 70 Or at 213.
{emphasis added]
We further noted: "“"[T]hat the likelihood
of misuse by the jury clearly outweighs
the value of this type of evidence and the
A-81
likelihood of an impermissible prejudicial
impact on the jury's deliberations cannot
be discounted." As a policy decision, we
therefore continued our traditional adher-
ence to the strict exclusionary rule. We
decline to reexamine that decision on the
record in this case.
Affirmed.
A-82
SUPREME COURT OF THE STATE OF OREGON
November 15, 1977
Mr. Ridgway K. Foley, Jr.
Souther, Spaulding, Kinsey,
Williamson & Schwabe
Attorneys at Law
1200 Standard Plaza
Portland, Oregon 97204
Mr. Raymond J. Conboy
Pozzi, Wilson & Atchison
Attorneys at Law
910 Standard Plaza
Portland, Oregon 97204
Re: Shepler v. Weyerhaeuser Company,
279 Or 477
Gentlemen:
The court in retrospect believes that
the opinion in Shepler v. Weyerhaeuser Com-
pany, 279 Or 477 at 500 (1977), was par-
tially incorrect in the wording of footnote
23. Below is a substitute footnote 23,
which will appear in the bound volume of
the Oregon Reports:
We believe the use of the term
"federal common law" may be un-
fortunate. "There is at least
superficial incongruity in [the
committee reports] calling for
both land-based law and federal
uniformity, as the traditional
source of a federally uniform
body of law in these matters has
been the general maritime law.
A-83
There is, as such, no federal
common law." Robertson, "Negli-
gence Actions by Longshoremen
Against Shipowners Under the
1972 Amendments to the Longshore-
men's and Harbor Workers' Compen-
Sation Act," 7 J of Maritime L
& C 447, 466 (April 1976). But
see Erie R. Co. v. Tompkins, 304
US 64, 78 (1937): "There is no
federal general common law."
See also Jacobson v. Tahoe Re-
gional Planning Agency, 558 F2d
928, 937 (1977).
Justice Tongue did not participate in
this decision.
Very truly yours,
/s/ Loren D. Hicks
Loren D. Hicks
State Court Administratcc
LDH:dj
A-84
APPENDIX C
Article III, § 2, cl. 1 of the United
States Constitution:
"Jurisdiction of Courts
"Section 2. The judicial Power shall
extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws
of the United States, and Treaties made,
or which shall be made, under their
Authority; --to all Cases affecting
Ambassadors, other public Ministers and
Consuls;--to all Cases of admiralty and
maritime Jurisdiction;--to Controversies
to which the United States shall be a
Party;--to Controversies between two or
more States;--between a State and Citizens
of another State;--between Citizens of
different States;--between Citizens of the
same State claiming Lands under Grants of
different States, and between a State, or
the Citizens thereof, and foreign States,
Citizens or Subjects.
A-85
28 U.S.C. § 1257(3):
"State courts; appeal; certiorari
"xz ke ke kk
(3) By writ of certiorari, where the vali-
dity of a treaty or statute of the United
States is drawn in question or where the
validity of a State statute is drawn in
question on the ground of its being repug-
nant to the Constitution, treaties or laws
of the United States, or where any title,
right, privilege or immunity is specially
set up Or claimed under the Constitution,
treaties or statutes of, or commission
held or authority exercised under, the
United States. June 25, 1948, c. 646, 62
Stat. 929."
28 U.S.C. § 2101(c):
"Supreme Court; time for appeal or
certiorari; docketing; stay
nek ke ke
A-86
“(c) Any other appeal or any writ of cer-
tiorari intended to bring any judgment or
decree in a civil action, suit or proceed-
ing before the Supreme Court for review
shall be taken or applied for within
ninety days after the entry of such judg-
ment or decree. A justice of the Supreme
Court, for good cause shown, may extend
the time for applying for a writ of
certiorari for a period not exceeding
sixty days."
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APPENDIX D
33 U.S.C. § 905(b):
"(b) In the event of injury to a
person covered under this chapter caused
by the negligence of a vessel, then such
person, Or anyone otherwise entitled to
recover damages by reason thereof, may
bring an action against such vessel as a
third party in accordance with the pro-
visions of section 933 of this title and
the employer shall not be liable to the
vessel for such damages directly or in-
directly and any agreements or warranties
to the contrary shall be void. If such
person was employed by the vessel to
provide stevedoring services, no such
action shall be permitted if the injury
was caused by the negligence of persons
engaged in providing stevedoring services
to the vessel. If such person was em-
ployed by the vessel to provide ship
A-88
building or repair services, no such ac~
tion shall be permitted if the injury was
caused by the negligence of persons en-
gaged in providing ship building or repair
services to the vessel. The liability of
the vessel under this subsection shall not
be based upon the warranty of seaworthi-
ness 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."
APPENDIX E
Restatement § 343:
"Dangerous Conditions Known
to or Discoverable by Possessor
"A possessor of land is sub-
ject to liability for physical harm
caused to his invitees by a con-
dition on the land if, but only
if, he
"(a) knows or by the exer-
cise of reasonable care would
discover the condition, and
A-89
should realize that it involves
an unreasonable risk of harm to
such invitees, and
"(b) should expect tiat
they will not discover or rea-
lize the danger, or will fail
to protect themselves against
it, and
"(c) fails to exercise rea-
sonable care to protect them
against the danger."
Restatement § 343A:
"Known or Obvious Dangers
"(1) A possessor of land is
not liable to his invitees for
physical harm caused to them by
any activity or condition on the
land whose danger is known or
obvious to them, unless the pos-
sessor should anticipate the
harm despite such knowledge or
obviousness.
"(2) In determining whether
the possessor should anticipate
harm from a known or obvious dan-
ger, the fact that the invitee
is entitled to make use of public
land, or of the facilities of a
public utility, is factor of
importance indicatin. that the
harm should be antici ated."
A-90
APPENDIX F
EQUITABLE CREDIT COMMENTS
The legislative history of the 1972
Amendments does not directly come to grips
with this particular problem, although one
experienced maritime lawyer, who partici-
pated in the Congressional hearings, ob-
serves that the language "... the vessel
will not be chargeable with the negligence
of the stevedore or employees of the
stevedore," appears in the Committee re-
ports and concludes:
—__—
"It is apparent from this
language that the Congress did
not intend for the shipowner to
be responsible for more than its
proportionate part of a long-
shoreman's damages in a situa-
tion where the accident resulted
from the concurrent negligence
of the shipowner and the steve-
dore."
Vickery, E. D., “Some Impacts of the 1972
Amendments to the Longshoremen's and
Harbor Workers’ Compensation Act 41 Ins.
A-91
C. J. 63 (Jan. 1974). Gilmore and Black
remark:
"eee «+ ee+ if the Congress really meant
that the 1% negligent shipowner should
pay full damages to the injured
worker and recover nothing from the
99% negligent empioyer, it might have
Said so more clearly." Gilmore &
Black, The Law of Admiralty, (2d ed
The Foundation Press, Inc., Mineola,
N.Y. 1975) 452 § 4-1.
District Judge Skopil recognized this
contention in Croshaw v. Koninklijke
Nedlloyd, B.V. Rijswijk, 398 F. Supp. 1224
(D. Or. 1975) and, although bound by a
prior District decision, expressed approval
of the equitable resolution proposed by J.
Cohen and D. Dougherty, "'The 1972 Amend-
ments to the Longshoremen's and Harbor
Workers’ Compensation Act: An Opportunity
for Equitable Uniformity in Tripartite
{ndustrial Accident Litigation.'" 19
N.Y.L.F. 587 (1974).
A-92
An excellent article discussing and
analyzing the concept of crediting the
shipowner with the amount of loss attrib-
utable to the stevedore's negligence ap-
pears in Coleman, Randall C. and Daly, Jr.
Warren B., "Equitable Credit: Apportion-
ment of Damages According to Fault in
Tripartite Litigation Under the 1972 Amend-
ments to the Longshoremen's and Harbor
Workers’ Compensation Act", 35 Maryland L.
Rev. 351-411 (1976). See also Marant v.
Farrell Lines, Inc., 550 F.2d 142 (3rd Cir.
1977).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.