Petition — Hess v. Upper Mississippi Towing Corp.

7~ Supreme Court. U. §,

{ FILED

| JAN 18 1978

IN THE SUPREME COURT OF THE UNT STATES JR. CLERK

v¢ QCTOBER TERM, 1977

NO. @7-1025

PHILLIP HESS,

Plaintiff-Petitioner

VERSUS

UPPER MISSISSIPPI TOWING CORPORATION,

ET AL

Defendants-Appellees

THE PETITION OF PHILLIP HESS FOR

WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

Charles R. Moore

MOORE & WALTERS

Suite 102 - Attorneys Bldg.

300 Louisiana Avenue

Baton Rouge, Louisiana 70802

(504) 343-8346

OPINIONS BELOW

JURISDICTION

QUESTIONS PRESENTED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

ARGUMENT AND REASONS FOR

ALLOWANCE OF THE WRIT

CONCLUSION

CERTIFICATE

APPENDIX

Appendix A - Court Opinion of

the Fifth Circuit

Appendix B - Denial of Appli-

cation for Rehear-

ing

Appendix C - Judgment of

District Court

Appendix D - Restatement of

Torts 2d (1965)

22

43

44

45

CITATIONS

A. Cases

l.

2.

Brown v. Ivarans Rederi, A/S,

545 F.2d 854 (1977) 9,10,14

Fitzgerald v. Compania

Naviera la Molinera, 394

F.Supp. 413, 417 (E.D.

La. 1975) 17

Gay v. Ocean Transport &

Trading, Ltd., 546 F.2d

1233 (5th Cir. 1977) 9,10

Hess v. Upper Mississippi

Towing Corporation, 559

F.2d 1030 (Sth Cir. 1977) 10

Kermarec v. Compagnie

General Transatlantigque,

358 U.S. 625 (1959) 14

Lindler v. District of

Columbia, 502 F.2d 495

16,17

Munoz v. Flota Merchante

Grancolombiana, S.A., 553

F.2q 837 (2a Cir. 1977) 10

Streach v. Associated

Container Transport, Ltd.,

388 F.Supp. 935, (C.D.

Ca. 1975) 12

ii

Statutes

1. 28 U.S.C. 1254 (1)

2. 33 U.S.C. §905

Restatement of Torts 2d - 1965

1. Section 411 - Negligence in

Selection of Contractor

2. Section 413 - Duty to Pro-

vide for Taking of Pre-

cautions Against Dangers

Involved in Work Entrusted

to Contractor

3. Section 416 - Work Dangerous

in Absence of Special Pre-

cautions

4. Section 423 - Making or

Repair of Instrumentalities

Used in Hithly Dangerous

Activities

5. Section 427 - Negligence as

to Danger Inherent in the

Work

iii

15

15

15

15

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OPINIONS BELOW

The opinion of the United States

Fifth Circuit Court of Appeals, rendered

September 23, 1977, and appearing at 559

F.2d 1030 (5th Cir. 1077), is reprinted

as Appendix A herein. The denial of the

petition for rehearing, rendered October

25, 1977, is reprinted as Appendix B.

The judgment of the United States Dis-

trict Court, Middle District of Louisiana,

granting defendants-appellees' motion

for a directed verdict on the 2lst day

of October, 1975, is reprinted as

Appendix C herein.

JURISDICTION

The opinion and judgment of the

United States Fifth Circuit Court of

Appeals for which this Writ of Certiorari

is sought were rendered on September 23,

1977.

The order denying a rehearing by that

court was rendered on October 25, 1977.

-l-

The jurisdiction of this court over

this petition for certiorari is conferred

by 28 U.S.C. 1254 (1), which permits review

by the United States Supreme Court to any

party by writ of certiorari.

QUESTIONS PRESENTED

1. Is an injured harbor worker's cause

of action in tort against the owner

and operator of a gasoline barge

which exploded limited to a 905(b)

cause of action or may the injured

plaintiff sue the owner and operator

in a capacity other than owner and

operator of a vessel, such as a

corporation engaged in an ultra-

hazardous and inherently dangerous

business undertaking?

2. Is the General Maritime Law appli-

cable in a 905(b) action?

3. If land-based principles of law are

applicable in a tort action under

=u

905(b), do these land-based principles

encompass the rules of law set out

in Restatement of Torts 2d, §§

411, 413, 416, 423 and 427?

If the Restatement of Torts 2d pro-

visions are applicable in a 905(b)

action, do the duties imposed on one

who hires an independent contractor

to "gas free" a dangerously explosive

barge apply to an employee of the

independent contractor injured when

the barge explodes during gas freeing

operations?

Does 905(b) permit an action by an

injured harbor worker against a barge

Owner or operator in strict liability

where the barge owner and operator

are engaged in an ultrahazardous and

inherently dangerous business enter-

prise?

STATUTORY PROVISIONS INVOLVED

33 U.S.C. §905

(a) The liability of an employer

prescribed in section 4 shall be

exclusive and in place of all other

liability of such employer to the

employee, his legal representative,

husband or wife, parents, dependents,

next of kin, and anyone otherwise

entitled to recover damages from

such employer at law or in admiralty

on account of such injury or death,

except that if an employer fails to

secure payment of compensation as

required by this Act, an injured en-

ployee, or his legal representative

in case death results from the injury,

may elect to claim compensation under

the Act, or to maintain an action at

law or in admiralty for damages on

account of such injury or death. In

such action the defendant may not

plead as a defense that the injury

was caused by the negligence of a

fellow servant, or that the employee

assumed the risk of-his employment,

or that the injury was due to the

contributory negligence of the employee.

(b) Tn the event of injury to a per-

son covered under this Act caused by

the negligence of a vessel, then such

person, or anyone otherwise entitled

to recover damages by reason thereof,

may bring an action against such

vessel as a third party in accordance

with the provisions of section 33 of

this Act, and the employer shall not

be liable to the vessel for such

damages directly or indirectly and

any agreements or warranties to the

~_

contrary shall be void. If such

person was employed by the vessel to

provide stevedoring services, no such

action shall be permitted if the

injury was caused by the negligence

of persons engaged in providing steve-

doring services to the vessel. If

such person was employed by the

vessel to provide ship building or

repair services, no such action shall

be permitted if the injury was caused

by the negligence of persons engaged

in providing ship building or repair

services to the vessel. The liability

of the vessel under this subsection

shall not be based upon the warranty

of seaworthiness or a breach thereof

at the time the injury occurred. The

remedy provided in this subsection

shall be exclusive of all other

remedies against the vessel except

remedies available under this Act.

Restatement of Torts 2d §§ 41l, 413,

416, 423 and 427 are presented as Appendix

D.

STATEMENT OF THE CASE

This is a maritime personal injury

action arising out of the explosion of

a gasoline tank barge on September 22,

1973, in which the plaintiff, Phillip

Hess, was seriously injured. The barge

was owned by Upper Mississippi Towing

Corporation (hereinafter owner) and

operated by Penlatex Barge Lines (here-

inafter operator), both named as

defendants herein,

Prior to the occurrence of the

accident, the barge had delivered a cargo

of high grade gasoline to Greenville,

Mississippi. Pursuant to instructions

from the owner of the barge, the operator,

after discharge of cargo in Greenville,

returned the barge to Port Allen Marine

Service, Inc.'s facility located on the

Mississippi River below Baton Rouge for

"gas freeing"; a process whereby the

residual cargo is removed from the

vessel's tanks. Because of the gasoline

vapors in the enclosed tanks of the barge,

the barge was classified as "hot",

meaning highly explosive, and was de-

scribed by one witness as a floating bomb.

Defendants stipulated that from the time

the barge was delivered into the custody

of Port Allen Marine they exercised no

safety precautions whatsoever to insure

Or guard against an explosion. Plaintiff

was an employee of Port Allen Marine.

During the gas freeing process he was

instructed by his employer to "flush"

the tanks of the barge by running water

through the piping system of the barge.

This resulted in the gasoline in the

piping system spilling directly onto the

hot deck of the barge and it was shortly

after this that the explosion occurred.

An expert testifying for plaintiff stated

that the gas pouring onto the deck of the

barge was the probable cause of the ex-

plosion. The method employed by Port

Allen Marine on the date of the accident,

that of flushing the gasoline on the hot

deck of the barge, was their usual method

of operation. After the accident, however,

the method was changed to require the gas

~

to be flushed into a holding tank. A

representative of defendant had previous-

ly been present at the Port Allen

facility during gas freeing operations.

Defendants had a continuing reiation-

ship with Port Allen Marine and at no

time did they inquire into the gas freeing

procedures utilized by Port Allen Marine

nor did they set standards to be followed

by Port Allen Marine in gas freeing their

barge.

Suit was filed in the Middle District

of Louisiana. Although conceding that

defendants were engaged in an ultra-

hazardous undertaking, at the close of

plaintiff's case the Court directed a

verdict for defendants. The ruling of

the District Court was affirmed by the

Fifth Circuit. This application for a

Writ of Certiorari followed.

Jurisdiction of the District Court

was invoked under 33 U.S.C. 905(b) and

-g-

the General Maritime Law.

ARGUMENT AND REASONS FOR

ALLOWANCE OF THE WRIT

Since the 1972 amendments to the

Longshoremen and Harbor Workers' Act the

lower courts have been attempting to

formulate the law to be applied in an

action by an injured harbor worker

against the owner and operator of a

vessel. The decisions are not uniform

in their approach. For example:

a. The Third Circuit in Brown v.

Ivarans Rederi, A/S, 545 F.2d 854

(1977), has held that "principles

of the law of negligence as adopted

in the admiralty field during the

history of our court" may be appli-

cable in a 905(b) action. The Fifth

Circuit in Gay v. Ocean Transport &

Trading, Ltd., 546 F.2d 1233 (5th

Cir. 1977) limits reference only to

land-based law.

The Fifth Circuit in Gay, supra, in-

corporated §§ 342, 343 and 343A of

the Restatement of Torts 2d as the

law applicable under 905(b). The

Third Circuit in Brown, supra, re-

jected the application of these sec-

tions for the reason that they are

based on assumption of risk, the

application of which is forbidden

under 905(b).

The Fifth Circuit in Hess v. Upper

Mississippi Towing Corporation, 559

F.2d 1030 (5th Cir. 1977) held that

the employer of an independent con-

tractor owes no duty to the employees

of the independent contractor to

insure that the independent con-

tractor will take special precautions

against unreasonable risks. The

Second Circuit, however, in Munoz v.

Flota Merchante Grancolombiana, S.A.,

553 F.2d 837 (2d Cir. 1977) at page

-10-

841, although not directly holding,

implies that the duty would extend to

the employee of the independent con-

tractor.

It is respectfully submitted that

the five years which have passed since the

1972 amendments have provided sufficient

grist for the judicial mill in order that

this Court may now definitively set out

what law is to be applied in a suit by an

injured longshoreman against the owner

and operator of a vessel.

It is important to the resolution of

this particular case to point out that at

the time of the accident defendants were

engaged in an ultrahazardous undertaking;

that is, the transportation of a fume

filled gasoline barge which could explode

at any time for any number of reasons not-

withstanding the exercise of due care.

Thus, it is submitted that this case is

“lie

different from the typical loading-

unloading situation which would not be

ultranazardous in the normal usage of

the word.

I. THIS COURT SHOULD DETERMINE WHETHER

905(b) IS AN INJURED HARBOR

WORKER'S EXCLUSIVE REMEDY.

Plaintiff contends that 905(b) is

not his exclusive remedy for the reason

that he has sued the owners and operators

of the gasoline barge not as owners and

operators but rather as corporations en-

gaged in an ultrahazardous business ven-

ture. It is entirely immaterial to

plaintiff's cause of action that defen-

dants are connected with a vessel.

In Streach v. Associated Container

Transport, Ltd., 388 F.Supp. 935, (C.D.

Ca. 1975), the Court permitted an injured

longshoreman to pursue an action in strict

liability against a vessel under a pro-

ducts liability theory. The Court stated

that "to be suable on a strict liability

claim, a defendant must be in the business

o12<

of distributing the allegedly defective

product to the public. If a vessel owner

is in that business, the cause of action

arises against him not qua vessel owner

but qua provider of a defective product."

The Fifth Circuit rejected the reasoning

and it is submitted that it was in error

to do so.

II. THE STANDARD OF CARE TO BE APPLIED:

UNDER SECTION 905(b) SHOULD BE THAT

IMPOSED UNDER THE GENERAL MARITIME

LAW.

The Court of Appeals held that the

General Maritime Law is no longer appli-

cable to Maritime personal injury cases

involving harbor workers where suit is

brought against the owner or operator of

the vessel. The basis for this ruling

was that Section 905(b) precludes appli-

cation of the General Maritime Law.

Plaintiff respectfully suqqests that the

proper standard of care to be applied in

a Maritime personal injury action such

as this would be the rule stated by

-13-

this Court in Kermarec v. Compagnie

Generai Transatlantigue, 358 U.S. 625

(1959) where it held that the standard

of care to be applied in a personal

injury action is reasonable care under

the circumstances. As pointed out, the

Third Circuit in Brown v. Ivarans Rederi,

Supra, has permitted application of

Maritime law. Thus, there is a conflict

among the Circuits on this issue.

III. IN THE ALTERNATIVE, IF LAND BASED

LAW IS APPLICABLE TO PLAINTIFF'S

ACTION, THE RESTATEMENT OF TORTS

2d, §§ 411, 413, 516, 423 AND 427,

SET OUT A SOLID BASIS FOR IMPOSING

LIABILITY.

Since the 1972 amendments many of the

lower courts have turned to the Restate-

ment of Torts 2d as a guide in formulating

the law under a 905(b) action.

in this case, plaintiff shows that

the following sections of the Restatement

of Torts are particularly applicable to

plaintiff's cause of action;

~]4-+

Section 411 imposes a duty upcn the

employer of an independent contractor to

select a competent contractor.

Section 413 imposes a duty upon the

employer of an independent contractor to

take steps to insure that the independent

contractor will take special precautions

when performing work creating an unreason-

able risk of harm.

Section 416 imposes liability on the

employer of an independent contractor where

the employer fails to take precautions to

protect people from dangers inherent in

the independent contractor's work.

Section 423 holds the employer of

an independent contractor liable for

damage caused by the independent con-

tractor when the independent contractor

is engaged in work which is highly

dangerous.

Section 427 imposes liability upon

the employer of an independent contractor

-15-

for injury caused as a result of the

independent contractor's failure to take

precautions with respect to work which

is inherently dangerous.

The Fifth Circuit Court of Appeals

has held that the foregoing sections

cannot support plaintiff's action because

plaintiff is not within the scope of the

duty imposed upon the employer of an

independent contractor. The Court states

that these sections “cannot support

plaintiff's action because he is an

employee of the independent contractor,

and the sections only impose liability

with respect to the third party.”

This ruling of the Court is contrary

to the ruling of the Circuit Court for

the District of Columbia in the case of

Lindler v. District of Columbia, 502 F.2d

495 (1974). That case is particularly

important because it interpreted the

Longshoremen and Harbor Workers'

-16-

Compensation Act which is applicable to

the District of Columbia. That case held

that where one employs an independent

contractor to do work of an inherently

dangerous nature requiring special pre-

cautions (such as in this case), an em-

ployee of the independent contractor may

recover from the hiring party for the

latter's failure to take special pre-

cautions or require special precautions

in the contract with the independent

contractor.

This reasoning was also recognized

by Judge Alvin Rubin, now of the Fifth

Circuit, in Fitzgerald v. Compania Naviera

la Molinera, 394 F. Supp. 413, 417 (E.D.

La. 1975).

With this conflict in the law, and

in particular because of the opposite

result between the present case and

Lindler, both of which interpret the

Longshoremen and Harbor Workers'

@l7J-

Compensation Act, it is respectfully sub-

mitted that this Court should exercise its

discretion to determine which rule of law

should apply under a situation such as

this involving ultrahazardous activities.

Where an inexperienced employee,

such as plaintiff, is placed in an

environment where he is exposed to the

dangers inherent in the cleaning of

gasoline barges; where he is required to

follow tne orders of his superiors with-

out question; where his superiors have

provided him with an inherently dangerous

method of cleaning the barges which method

is their standard procedure; where the

barge owners have been present at the

facility during cleaning operations; and

where the barge owners have taken no

steps to insure that proper procedures

are followed, that a competent contractor

was hired, or that the contract entered

-~l|8-

into between it and the independent con-

tractor require the taking of certain

precautions, it is submitted that in such

situations the employer of the independent

contractor should be liable to an employee

of the independent contractor who is

injured because of dangers inherent in

the ultrahazardous operations. Of all

people the employee of the independent

contractor should fall under the scope

of the duty owed by the eap lover of the

independent contractor as he will con-

tinuously be exposed to the dangers in-

herent in the ultrahazardous operations

and he will have neither the knowledge

nor any say in how the operation is to

be conducted.

The result of the Fifth Circuit's

decision in this matter is that the

employer of the independent contractor

owes no duty toward plaintiff. It is

-19-

submitted that such a position is in

error and will not encourage those en-

gaged in ultrahazardous marine activities

to see that proper and safe procedures

are followed in order that explosions

such as this may be prevented.

CONCLUSION

It is respectfully suggested that a

Writ of Certiorari issue directed to the

Fifth Circuit Court of Appeals in order

that this Court may put to rest the con-

flict among the circuits as to the appli-

cable law to be applied in a 905(b)

action.

BY ATTORNEY:

Suite 10Z - Attorneys Bldg.

300 Louisiana Avenue

Baton Rouge, LA 70802

(504) 343-8346

-20-

CBRTIPICATE

I hereby certify that three copies

of the foregoing has been mailed this

date, postage prepaid, to all counsel of

record: David W. Robinson, P. 0. Box 2995,

Baton Rouge, Louisiana, 70821; and

James A. George, P. O. Box Aa

Rouge, Louisfana, 70896, on this

day of 978.

- = ————

=2l@

APPENDIX A

COURT OPINION

Before GEWIN, RONEY and HILL, Circuit

Judges

RONEY, Circuit Judge:

The plaintiff worked for an indepen-

dent contractor employed by defendants

to "free" a barge of gasoline. An ex-

plosion burned him severely, and he sued

the defendants, alleging failure to pro-

vide a safe place to work, negligent em-

ployment of an independent contractor,

Strict liability, and negligent mainte-

nance of dangerous premises. At the

close of plaintiff's evidence, the dis-

trict court directed a verdict against

him. On appeal, he alleges the district

court misapplied the Longshoremen's and

Harbor Workers' Compensation Act, 33

U.S.C.A. § 905(b) (Supp.1977), to fore-

close his case. Because the Longshore-

men's Act's compensation provisions

afford the exclusive remedy for his

injuries, we affirm.

The accident took place in 1973.

Plaintiff's employer, Port Allen Marine,

=22<

operated a facility on the Mississippi

River for cleaning barges used to trans-

port petroleum products. Pentalex

Barge Lines, Inc. delivered to Port Allen

Marine a barge owned by Upper Mississippi

Towing Corp. The barge had recently

carried a cargo of high-grade gasoline,

but was empty except for residual gaso-

line and vapors which Port Allen was

hired to remove. While the plaintiff

was using water to flush gasoline out

of the barge's piping system, an ex-

plosion occurred which burned him

severely. Plaintiff collected compen-

sation benefits from Port Allen Marine

under the Longshoremen's Act, and brought

this tort action against the owner and

the operator of the barge.

In directing a verdict, the district

court found that, at the time of the

accident, the barge was in the sole con-—

trol of Port Allen Marine, a specialist

in gas-freeing barges. The court held

the defendants did not supervise the gas-

freeing process, and were not apprised

of any facts which would lead them to

believe Port Allen Marine was not fully

qualified for the job. On appeal, the

-23-

plaintiff alleges the court erred in

limiting his cause of action to one

stated by § 905(b) of the Longshoremen's

Act; in not applying general maritime

law under § 905(b); and in misapplying

land-based law, including several sec-

tions of the Restatement (Second) of

Torts (1965).

§ 905(b) EXCLUSIVE REMEDY

(1) The history of § 905(b) is

important to the resolution of this case.

The Longshoremen's Act provides compen-

sation benefits to injured maritime work-

ers. The Act forecloses negligence suits

against the worker's immediate employer,

but allows litigation against third par-

ties. In the past, the Supreme Court

adopted a liberal view of the third-

party suit and held shipowners liable

under a warranty of seaworthiness to

injured employees of independent

@24-

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4

contractors working on board the ship.

Seas Shipping Co. v. Sieracki, 328 U.S.

85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).

The seaworthiness remedy went beyond

negligence in two important respects.

G. Gilmore & C. Black, The Law of Ad-

miralty 542 (2d ed. 1975). First, the

shipowner was liable for “transitory"

defects which arose after his oppor-

tunity to correct them had passed.

Mitchell v. Trawler Racer, Inc., 362 U.S.

539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

Second, the shipowner was responsible

for unsafe conditions caused entirely

by the act of a third party, including

the independent contractor. Alaska

Steamship Co. v. Patterson, 347 U.S. 396,

74 S.Ct. 601, 98 L.Ed.2d 798 (1954).

In 1972, however, Congress amended the

Longshoremen's Act. Congress substan-

tially raised the compensation benefits

payable, eliminated the employee's un-

seaworthiness action and restricted his

recovery from the shipowner to negli-

gence. In the event of a negligence re-

covery against the vessel, the worker's

employer would not be liable to the ship-

owner for such damages. On the other

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hand, if the injury was caused by the

negligence of the worker's employer en-

gaged in repair service, no action is

permitted againsc the vessel. The

remedy provided by the statute against

the vessel "shall be exclusive." The

language of § 905(b) now provides:

In the event of injury to a

(maritime worker) caused by the

negligence of a vessel, then such

person. . . may bring an action

against such vessel as a third

party. . . and the employer shall

not be liabie to the vessel for

such damages directly or indirectly

and any agreements or warranties

to the contrary shall be void.

-If such person was employed

by the vessel to provide ship

building or repair services, no

such action shall be permitted

if the injury was caused by the

negligence of persons engaged in

providing ship building or repair

services to the vessel. The lia-

bility of the vessel under this

subsection shall not be based upon

the warranty of seaworthiness or

~I26<

Of a breach thereof at the time

the injury occurred. The remedy

provided in this subsection shall

be exclusive of all other remedies

against the vessel except remedies

available under this chapter.

The language of the statute defeats

the plaintiff's claim that § 905(b) is

not his exclusive avenue of remedy. Fur-

thermore, the elimination of the warranty

of seaworthiness evinces congressional

intent to curtail shipowner liability for

conditions arising when the vessel is

not within the owner's control and for

injuries caused solely by independent

contractors. Remaining is the maritime

worker's right to sue for neaqligence

only.

GENERAL MARITIME LAW UNDER § 905(b)

(2) The legislative history, as

recently discussed by this Court in Gay

v. Ocean Transport & Trading, Ltd., 546

F.2d 1233 (5th Cir. 1977), discloses an

intent that the negligence action be a

matter of uniform federal law, and, with

certain exceptions, be designed to give

the maritime worker the same rights

against third parties as his land-based

o2J@

counterparts would have. One articula-

tion of those rights, Gay noted, is the

Restatement (Second) of Torts (1965).

Accordingly, the plaintiff's second alle-

gation of error must also be rejected.

General maritime law no longer governs

third party actions by maritime workers

except to the extent that the maritime

concepts have an analogy in land-based

law. For instance, the Committee ex-

pressly intended that the admiralty con-

cept of comparative negligence, rather

than the common law rule as to contrib-

utory negligence would apply, and that

the admiralty rule precluding "assump-

tion of risks" as a defense would be

applicable. But these concepts are not

exclusively maritime, and do not alter

the fact that general maritime law, as

such, does not control outcome of these

third party actions.

NEGLIGENCE UNDER LAND-BASED

LAW CONCEPTS

To evaluate the plaintiff's third

claim, that the court misapplied land-

based law to the facts of this case, it

is necessary to examine each of the

plaintiff's theories of liability.

I. Duty to Provide a Safe Place to Work

The plaintiff invokes the doctrine

that a shipowner has a duty to provide

invitees with a safe place to work. To

the extent that doctrine encompasses

liability without fault, a maritime con-

cept, it no longer applies under § 905(b).

Gay, 546 F.2d at 1239; Bess v. Agromar

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

doctrine does, however, have a land-

based counterpart based on negligence.

See Prosser on Torts § 80 (4th ed. 1971);

Annot., 31 A.L.R.2d 1375.

(3) In this case, however, the doc-

trine does not provide a basis for recov-

ery by the plaintiff. Under traditional

interpretation the duty to provide a safe

place to work does not extend to protect

employees of an independent contractor

from dangers the contractor was hired to

correct. Whitlow v. Seaboard Air Line

R. R., 222 F.2d 57 (5th Cir. 1955). The

plaintiff's reliance on Halecki v. United

New York & N. J. Sandy Hook Pilots

Ass'n, 302 F.2d 840 (2d Cir.), cert.

denied, 371 U.S. 825, 83 S.Ct. 46, 9

L.Ed.2d 64 (1962), is misplaced. In that

case the shipowner directed the con-

=29-

eC

tractor's method of repair. Halecki v.

United New York & N. J. Sandy Hook Pilots

Ass'n, 282 F.2d 137, 142 (2d Cir. 1960),

cert. denied, 364 U.S. 941, 81 S.Ct. 461,

5 L.Ed.2d 372 (1961). In contrast, the

defendants here made no attempt to con-

trol the details of the work done by

Port Allen Marine.

II. Duty on Employers of Independent

Contractors

(4) Plaintiff alleges the district

court misapplied several sections of the

Restatement which impose liability on

those who employ negligent independent

contractors. See Restatement (Second)

of Torts §§ 411, 413, 416, 423, 427

(1965). Freely admitting that Congress

foreclosed any maritime liability of a

shipowner to the employee of an indepen-

dent contractor for negligence of that

contractor, the plaintiff invokes land-

based law which holds an employer re-

sponsible for negligence of his indepen-

dent contractors when the work involves

danger. He cites §411, which imposes a

duty to select a contractor carefully,

and §413, which says an employer should

take steps to ensure that an independent

-30-

contractor will take special precautions

when performing work creating a pecu-

liar, unreasonable risk of harm. Plain-

tiff also cites several sections which

impose vicarious liability on the em-

ployer. Included are §416, which im-

poses liability if the contractor ignores

the employer's instructions and fails to

take precautions; §423, which makes the

employer equally liable with the con-

tractor when the work involves main-

taining an instrumentality used in high-

ly dangerous activities; and §427, which

imposes joint liability if the contractor

fails to take precautions with respect

to work involving inherent danger.

These sections of the Restatement, how-

ever, cannot support the plaintiff's

action because he is an employee of the

independent contractor, and the sections

only impose liability with respect to

third parties.

The language of the cited sections

is silent on this issue. While §41l

envisions liability to “third persons,"

§§ 413, 416 and 427 speak in terms of

responsibility to "others," a term which

arguably could include the employees of

-3l-

the independent contractor. Cf. Halecki

v. United New York & N. J. Sandy Hook

Pilots Ass'n, 282 F.2d 137, 139 (2d Cir.

1960), cert. denied, 364 U.S. 941, 81

S.Ct. 461, 5 L.Ed.2d 372 (i961) (em-

ployee of independent contractor covered

under original Restatement of Torts §

344). But cf. Restatement (Second) of

Torts § 344, comment c (duty is "for the

protection of the public who enter").

In a series of opinions, the Tenth

Circuit has interpreted this ambiguity

to exclude employees of independent

contractors from protection. Parsons v.

Amerada Hess Corp., 422 F.2d 610 (10th

Cir. 1970); Eutsler v. United States,

376 F.2d 634 (10th Cir. 1967); see

United States v. Page, 350 F.2d 28

(10th Cir. 1965), cert. denied, 382 U.S.

979, 86 S.Ct. 552, 15 L.Ed.2d 470 (1966).

The purpose for imposing a duty of care

on the employer of an independent con-

tractor is to ensure that his enterprise

will bear the costs it creates, and will

not escape liability for mishandling of

inherently dangerous work by delegating

it to an independent contractor. Eutsler

reasoned that the employer's liability

should not encompass injuries to the

=32<

employees of the independent contractor

because, under workmen's compensation

laws, the contractor is already strictly

liable for their cost. As argued in

Tentative Draft No. 7, Restatenent (Second)

of Torts 17-18 (1962):

it is to be expected that the cost

of the workmen's compensation in-

surance will be included by the con-

tractor in his contract price for

the work, and so will in any case

ultimately be borne by the defen-

dant who hires him.

See Eutsler, supra, 376 F.2d at 636.

The plaintiff counters this argu-

ment by citing Lindler v. District of

Columbia, 164 U.S.App.D.C. 35, 502 F.2d

495 (1974), a case in which the D.C.

Circuit allowed an independent con-

tractor's employee to recover from the

contractor's employer under a common law

theory similar to Restatement (Second)

of Torts § 413. See also Fitzgerald v.

Compania Naviera La Molinera, 394 F.Supp.

413, 417 (E.D. La. 1975) (dictum). The

D.C. Circuit rejected the reasoning of

the note in the Tentative Draft. The

court observed the note was not included

-33-

in the final version of Restatement

(Second), and said the courts should

not assume costs would be passed to the

employer when the employer had no legal

duty to pay them. 502 F.2d at 499.

Because the Longshoremen's Act is the

workmen's compensation statute for the

District of Columbia, the court also

gave weight to several cases stating a

policy favoring liberal construction

of the Act to favor third party suits

by injured employees. See, e.g.,

Potomac Electric Power Co. v. Wynn,

120 U.S.App.D.C. 13, 343 F.2d 295 (1965).

Lindler, however, represents a

minority view of land-based law which

has been undermined by the 1972 amend-

ments to the Longshoremen's Act. The

Lindler accident took place in 1970.

The subsequent amendments to the Act

expressly vejected the line of cases

favoring third party suits upon which

Lindler relied. Congress eliminated

the shipowner's no-fault liability for

unseaworthiness, and stated that land-

based legal principles were to control

the liability of third parties. To the

extent the present Longshoremen's Act

-34-

creates any special rules which affect

the liability of those who hire indepen-

dent contractors, it argues against em-

ployee suits. The Longshoremen's Act

employer, unlike his land-based counter-

part, cannot seek a contractual indem-

nity from the independent contractor

whose negligence caused the injury.

See 33 U.S.C.A. § 905(b) (Supp. 1977).

Furthermore, Congress intended for the

rights of an employee to be the same

whether he was hired by an independent

contractor or was employed directly by

the shipowner. Smith v. M/V Captain

Fred, 546 F.2d 119, 123 (5th Cir. 1977);

cf. Restatement (Second) of Torts § 423

(1965) (employer's liability to be same

as contractor's liability). It makes

little sense to allow a suit for negli-

gent supervision of an independent

contractor when liability for negligent

supervision of the employer's own em-

ployees would be foreclosed by the com-

pensation statute. The statute itself

indicates that an employee hired by the

ship directly cannot sue the ship for

injury "caused by the negligence of per-

sons engaged in providing. .. repair

-35-

services to the vessel." 33 U.S.C.A. § gloss on the text. 376 F.2d at 636.

905(b) (Supp. 1977). The Committee re- Both cases involved situations where the

ports indicate the word "persons" not a court was not bound by applicable state

only included fellow servants, but was law and so was free to determine the most

also intended to include the shipowner cle desirable rule. Confronted with a simi-

in his capacity as an employer of the lar opportunity, the Second Circuit

workers doing the repair work. reached the same conclusion. Lipka v.

G. Gilmore & C. Black, The Law of Ad- United States, 369 F.2d 288 (2d Cir.

miralty 450 (2d ed. 1975); see H.R. 92- 1966), cert. denied, 387 U.S. 935, 87

1441, 92d Cong., 2d Sess. (1972), re- S.Ct. 2061, 18 L.Ed.2d 997 (1967). The

printed in (1972) U.S. Code Cong. & Eighth Circuit has split. In its most

Admin. News, pp. 4698, 4705. recent case, the Circuit affirmed a dis-

Lindler also represents a minority trict court decision concluding that, as

view among the federal circuits. Con- a matter of general law, the employee

gress intended a uniform federal inter- should not recover. Olson v. Red Wing

pretation of § 905(b). For this Circuit Shoe Co., 456 F.2d 1299 (8th Cir. 1972),

to follow Lindler would militate against aff'g Olson v. Kilstofte & Vosejpka, Inc.

uniformity. As noted above, the Tenth 327 F.Supp. 583 (D.Minn. 1971). In an

Circuit has twice held the employee of earlier case, however, the Eighth Circuit

an independent contractor cannot recover assumed without discussion that the

from the employer of the contractor. opposite rule would apply. Associated

Eutsler, supra, 376 F.2d at 634, Parsons, Engineers v. Job, 370 F.2d 633, 647

Supra, 422 F.2d at 610. In Eutsler, the (8th Cir. 1966), cert. denied sub nom.,

court said that although the relevant Troy Cannon Const. Co. v. Job, 389 U.S.

language of the Tentative Draft was not ele 823, 88 S.Ct. 59, 19 L.Ed.2d 77 (1967),

included in the final Restatement followed in Hagberg v. City of Sioux

(Second), the language had nevertheless bie Falls, 281 F.Supp. 460 (D.S.D. 1968).

become an accepted part of the judicial The Fifth Circuit, interpreting language

-36- -37-

:

‘|

in 27 Am. Jur. Independent Contractors §

39 which parallels that of the Restate-

ment, has held the employee cannot re-

cover. Corban v. Skelly Oil Co., 256

F.2d 775 (5th Cir. 1958). Applying the

Restatement under the influence of a

binding state decision, two other Circuit

decisions have also denied recovery.

Sword v. Gulf Oil Co., 251 F.2d 829 (5th

Cir.), cert. denied, 358 U.S. 824, 79

S.Ct. 41, 3 L.Ed.2d 65 (1958) (Texas);

Craig v. Olin Mathieson Chemical Corp.,

427 F.2d 962 (7th Cir.), cert. denied,

400 U.S. 964, 91 S.Ct. 365, 27 L.Ed.2d

383 (1970) (Illinois). Two decisions

applying the law of other states have

reached the opposite conclusion.

United States v. DeCamp, 478 F.2d 1188

(9th Cir.), cert. denied, 414 U.S. 924,

94 S.Ct. 232, 38 L.Ed.2d 158 (1973)

(California); Grogan v. United States,

341 F.2d 39 (6th Cir. 1965) (Kentucky)

(dictum).

III. Strict Liability

(5) The plaintiff also asserts that

because gas-freeing a vessel is "“ultra-

hazardous," the barge owner should be

Strictly liable for his damages under

-38-

Restatement (Second) of Torts § 519

(1977). Again, however, plaintiff's

status as an employee of the independent

contractor defeats his claim. He cannot

sue Port Allen Marine for strict lia-

bility because it has paid compensation

benefits, 33 U.S.C.A. § 905(a) (Supp.

1977). He cannot sue the defendants

because the Longshoremen's Act only

allows him to sue them for their "neg-

ligence," a phrase which on its face

does not encompass strict liability.

See Dalehite v. United States, 346 U.S.

15, 44-45, 73 S.Ct. 956, 97 L.Ed. 1427

(1953) (Federal Tort Claims Act). The

congressional committee reports

accompanying the 1972 amendments empha-

size an intent to eliminate unseaworthi-

ness, a strict liability concept, and to

limit the liability of the shipowner to

injuries for which the shipowner was at

fault. It would be inappropriate to

judicially read strict liability into

the text of the statute in view of ob-

vious congressional intent. See Brown

v. Ivarans Rederi A/S, 545 F.2d 854,

861 (3d Cir. 1976), cert. denied,

U.S. _, 97 S.Ct. 1652, 52 L.Ed.2d.

361 (1977) (vicarious liability

-39-

eee, Ol

inappropriate under § 905(b)). Contra

Streach v. Associated Container Trans-

port, Ltd., 388 F.Supp. 935, 940 (C.D. °

Cal. 1975); 29 A.L.R.Fed. 771 (1976).

IV. Duty to Maintain Premises Safe °

for Invitees

(6) The plaintiff alleges that even

though the gasoline was an "open and ob-

vious" danger, the defendants are liable

as landlords who failed to take due care

with respect to a dangerous condition

aboard their barge. Restatement (Second)

of Torts §§ 343, 343A (1965). Gay, in

dictum, recognizes such a cause of action

if invitees aboard the vessel, though

aware of the danger, either could not

appreciate it or could not avoid it.

Brown v. Mitsubishi Shintaku Ginko, 550

F.2d 331 (5th Cir. 1977), dealt with

these Restatement sections in a case

where the plaintiff employee of an in-

dependent contractor was cleaning the

cargo hold of defendant's vessel. A

dangerous condition developed and plain-

tiff was injured by a falling rack. The »

Court held that even if the ship's crew

were aware of the danger, there could °

be no duty owed by the ship where the

-40-

f>

hazardous condition was created by the

stevedore's employees, and the ship's

personnel were less capable of abating

the danger than the independent con-

tractor's employees.

Here the danger inherent in re-

moving gasoline and fumes from a barge

was well known to all concerned. At oral

argument the Court was informed that the

reason for placing Port Allen Marine on

a remote stretch of the Mississippi

River was to limit the possible damage

an explosion would cause. The facts of

this case present no basis for imposing

a duty of care on the defendants. Port

Allen Marine was found by the trial court

to be a specialist possessing expertise

in "gas-freeing" barges. As in Brown,

the plaintiff here was "the person best

able to appreciate the potential conse-

quences of the danger." 550 F.2d at

334. The precise reason for plaintiff's

employment was to make an unsafe con-

dition safe.

V. Limitation of Testimony

(7,8) Plaintiff's final contention

is that the trial court erred in refusing

to allow expert testimony concerning the

-4l-

design of the barge. While the plain-

tiff correctly asserts that exclusion

of the doctrine of unseaworthiness does

not prevent recovery for actual negli-

gence in vessel design, the plaintiff

misapprehends the ruling of the trial

court. The court questioned the expert,

who stated the barge had a customary

design and was reasonably fit for its

intended purpose. The trial court con-

cluded that the expert had established

the vessel was not negligently designed,

and that any critical testimony he might

give would go to unseaworthiness. The

court then correctly held such testimony

inadmissible.

AFFIRMED.

-42-

‘>

CAPTION DELETED APPENDIX B

DENIAL October 25, 1977

Dear Counsel:

This is to advise that an order has

this day been entered denying the peti-

tion( ) for rehearing,** and no member of

the panel nor Judge in regular active

service on the Court having requested

that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12)

the petition( ) for rehearing en banc

has also been denied.

See Rule 41, Federal Rules of

Appellate Procedure for issuance and

stay of the mandate.

EDWARD W. WADSWORTH

Clerk

**On behalf of appellant, Phillip Hess,

-43-

CAPTION DELETED

APPENDIX C

JUDGMENT * e

This cause came before the Court

and a jury for trial, Honorable E. Gordon

West, District Judge, presiding, and the

jury having found for defendants by

direction of the court at the close of

plaintiff's case,

IT IS ORDERED AND ADJUDGED that

judgment be entered herein in favor of

defendants, Upper Mississippi Towing

Corp., Penlatex Barge Lines, Inc., and

Marine Office-Appleton & Cox Corp., and

against plaintiff, Phillip Hess, dis-

missing plaintiff's case at his cost.

Baton Rouge, Louisiana, October 21,

1975.

Charles Benton

APPROVED: CLERK

E. Gordon West

UNITED STATES DISTRICT JUDGE

4°

f.

-44-

APPENDIX D

RESTATEMENT OF TORTS 2d - 1965

411. Negligence in Selection of Contractor

An employer is subject to liability

for physical harm to third persons caused

by his failure to exercise reasonable care

to employ a competent and careful contractor

a. to do work which will involve a

risk of physical harm unless it

is skillfully and carefully done,

or

b. to perform any duty which the em-

ployer owes to third persons.

413. Duty to Provide for Taking of Pre-

cautions Against Dangers Involved

in Work Entrusted to Contractor

One who employs an independent con-

tractor to do work which the employer should

recognize as likely to create, during its -

progress, a peculiar unreasonable risk of

physical harm to others unless special pre-

cautions are taken, is subject to liability

for physical harm caused to them by the

absence of such precautions if the employer

a. fails to provide in the contract that

the contractor shall take such pre-

cautions, or

b. fails to exercise reasonable care to

provide in some other manner for the

taking of such precautions.

-45-

416. Work Dangerous in Absence of

Special Precautions

One who employs an independent con- e

tractor to do work which the employer should

recognize as likely to create during its

progress a peculiar risk of physical harm %

to others unless special precautions are

taken, is subject to liability for physical

harm caused to them by the failure of the

contractor to exercise reasonable care to

take such precautions, even though the em-

ployer has provided for such precautions

in the contract or otherwise.

423. Making or Repair of Instrumentalities

Used in Highly Dangerous Activities

One who carries on an activity which

threatens a grave risk of serious bodily

harm or death unless the instrumentalities

used are carefully constructed and main-

tained, and who employs an independent con-

tractor to construct or maintain such in-

strumentalities, is subject to the same

liability for physical harm caused by the

negligence of the contractor in constructing

Or maintaining such instrumentalities as

though the employer had himself done the

work of construction or maintenance.

427. Negligence as to Danger Inherent

in the Work

One who employs an independent con-

tractor to do work involving a special

danger to others which the employer knows e

or has reason to know to be inherent in or 5

normal to the work, or which he contem- -

plates or has reason to contemplate when

making the contract, is subject to lia-

bility for physical harm caused to such

others by the contractor's failure to take

reasonable precautions against such danger.

-46-