Petition — Cox v. Flota Mercante Grancolombiana, S. A.

Supreme Court, U. &

FILED

JUL 11 1978

IN THE

Supreme Court of the United

Ocroser T 97 ‘

7 8 7 2

No. ——— —— —Z

— —

HAEL RODAK, JR., CLERK

WALTER Cox,

Petitioner,

against

FLorA MERCAN TR GRAN cOLOMRBIANA, S.A.,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

AnceLo C. GuccrarDo

Attorney for Petitioner

160 Broadway

New York, New York

Morris CIZNER

on Petition

TABLE OF CONTENTS

PAGE

Opinions Below 1

J * di ti 2

Questions Presented for Review 2

Statutes Involved 4

Statement of the Case 5

The Decision in Coz 8

Reasons for Granting the Writ 9

I. The Conflict Between Circuit Court Judges and

Circuit Court Decisions in the Second Cirenit .. 10

II. Coz Is in Conflict With the Decisions in Other

Circuits 14

III. The Conflict With the Intent of Congress and

the Resulting Miscarriage of Justice 17

Coxc.Lusiox 22

Tam or AUTHORITIES

Cases:

Bess v. Agromar Line, 518 F. 2d 738 (4 Cir. 1975) —. 16

Brown v. Mitsubishi Shintaku Ginko, 550 F. 2d 331 (5

Cir. 1977) 15

12 1

PAGE®

Cox v. Flota Mercante Grancolombiana, S.A. ....passim, Ia“

Canizzo v. Farrell Lines Inc., et al. ...10, 12, 13, 16a“

Gay & Guerra v. Bulk Transportation Co., 546 F.2d

1233 (5 Cir. 1977) 14-15

Landon v. Leif Hoegh & Co., 521 F.2d 756 (2 Cir. 1975)

cert. den. 423 U.S. 1053 14, 19

Lubrano v. Royal Netherlands S8 Co., 572 F. 2d 364

(2 Cir. 1978) 10, 12, 13, 14

Munoz v. Flota Mercante Grancolombiana, 185 553

F.2d 837 (2 Cir. 1977) 14

Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (2 Cir.

1976) 4, 7, 8, 14, 21

Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861

(2 Cir. 1977) 14

Samuels v. Empresa Lineas Maritimas Argentinas, 573

F. 2d 884 (5 Cir. May 26, 1978) 16

Wiles, Jr. v. Delta Steamship Lines, Inc., 574 F. 2d 1338

(5 Cir. June 15, 1978) 16

Statutes Cited:

28 U.S.C. Section 1254(1) . 2

Longshoremen’s and Harbor Workers’ Act:

33 U.S.C. 901 17,

33 U.S. C. 903 10

33 U.S.C. 905(b) 4,9,18

All page references followed by “a” are to the Appendices to

this Petition. 85 1

PAGE

Authorities:

Restatement of Torts (Second):

Sections 343-343A 4, 8, 14

Chief Justice Burger— Interview reported in U. S.

News & World Report of December 19, 1977-12, 13

Senate Committee Report on Labor and Public Welfare

(S. Rep. No. 92-1125, 92d Cong. 2d Sess. 1972) ........18-19

Safety and Health Regulations for Longshoring, 29

C. F. R. 1918, et seq. 19

Iy THE

Supreme Court of the United States

Ocroser TERM, 1978

No.

—

War Cox,

Petitioner,

—against—

Frota Mercante GrancotomBiana, S.A.,

Respondent.

>

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

To the Honorable, The Chief Justice and the Associate

Justices of the Supreme Court of the United States.

Petitioner, Walter Cox, prays that a Writ of Certiorari

be issued to review the decision and judgment of the

United States Court of Appeals for the Second Circuit

decided May 10, 1978 reversing a judgment in favor of

plaintiff and dismissing the complaint.

Opinions Below

The Opinion of the Court of Appeals in Coz v. Flota

Mercante Grancolombiana, S.A. is not yet officially reported

and is made a part of the Appendix to this Petition. The

Opinion of the United States Court of Appeals for the

Second Circuit in the case of Anthony Canizzo v. Farrell

Lines Inc. and Universal Terminal & Stevedoring Corp.

v. Frank J. Holleran, Inc., decided June 2, 1978, is not yet

officially reported and is printed in the Appendix to this

Petition.

Jurisdiction

The judgment of the United States Court of Appeals

for the Second Circuit was entered on May 10, 1978. The

jurisdiction of this Court is invoked under 28 U.S.C. Sec-

tion 1254(1). Diversity of citizenship and damages exceed-

ing the jurisdictional amount were the bases for Federal

jurisdiction in the court of first instance.

Questions Presented for Review

1, When the negligence of a shipowner combines with

the negligence of an independent stevedore to cause injury

to a longshoreman, is shipowner relieved of its liability

for its negligence?

2. Where shipowner. has the responsibility to furnish

and insert securing devices (pins) for beams and its mate

states he will take care of it but fails to do so, is it re-

lieved of liability for its negligence because the stevedore

knew of the dangerous condition of unsecured beams even

though stevedore did not have the means of securing the

beams and shipowner did? ,

3. Where shipowner, having the duty to furnish a long-

shoreman with a reasonably safe place to work, fails to

do so, and knowingly creates a dangerous condition which

he alone has the means of abating, resulting in injury to

a longshoreman, is shipowner relieved of liability for its

negligence as a matter of law because the stevedore knew

of the condition so created and also had the duty to furnish

a reasonably safe place to work, but not the means of

abating the danger?

4. Is knowledge by stevedore of a dangerous condition

with no such knowledge on the part of the injured long-

shoreman sufficient to relieve shipowner of liability for

its negligence when shipowner created the condition by

failing to secure the beam and was the only one in control

of the means of abating the danger?

5. Is the longshoreman required to assume the risk of

shipowner negligently failing to secure a beam which it

has the responsibility and means of doing so, when steve-

dore and its longshoremen proceed with their work relying

on shipowner performing in accordance with its respon-

sibility and expressed statement it would secure the beam?

6. Is supervision of the longshoremen now the deter-

mining factor under the law of negligence for holding

shipowner liable, substituting such provision for the control

of defective ship’s equipment or failure to furnish necessary

ship’s equipment?

7. Where shipowner is in control of the beam securing

devices which they had the duty to furnish and apply, and

the ship’s mate informs stevedore he would take care of

securing the beam but fails to do so, is shipowner relieved

of its liability for its negligence which results in injury

to a longshoreman because the stevedore supervises its

employees and knows of the unsecured beams?

4

8. Where stevedores supervise their longshoremen and

tell them where and when to work, does such supervision

relieve shipowner of its liability for its negligence where

it had the duty to furnish the securing devices (beam

locks and pins which are ship’s equipment) and insert

the pins, and ship’s mate said he would take care of it

but failed to so do, when stevedore had no means of se-

curing the beam?

9. Is the land-based law of negligence as set forth in

Sections 343-343A of the Restatement of Torts (Second),

as applied in Napoli v. Hellenic Lines, Ltd., 536 F. 2d 505

(2 Cir. 1976) to be limited only to situations where ship-

owner is the stevedore?

10. Is an injured longshoreman denied the right to sue

shipowner for its negligence under the Longshoremen’s

and Harbor Workers’ Act, 33 U.S.C. 905(b) because his

compensation benefits have been increased under the

statute?

Statutes Involved

The statutory provision involved in The Longshoremen’s

and Harbor Workers’ Compensation Act 33 U.S.C. 905(b) :

In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then such

person, or anyone otherwise entitled to recover damages

by reason thereof, may bring an action against such vessel

as a third party in accordance with the provisions of Sec-

tion 933 of this title and the employer shall not be liable to

the vessel for such damages directly or indirectly and any

agreements or warranties to the contrary shall be void.

If such person was employed by the vessel to provide steve-

doring services, no such action shall be permitted if the in-

jury was caused by the negligence of persons engaged in.

providing stevedoring services to the vessel, If such person

was employed by the vessel to provide ship building or re-

pair services, no such action shall be permitted if the injury

was caused by the negligence of persons engaged in provid-

ing 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 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.

Statement of the Case

Plaintiff, a longshoreman employed by Universal Mari-

time Service, was injured in the lower hold of Hatch No, 2

of shipowner’s vessel on May 31, 1975 when a hatch beam

at the tween deck level came out of its slot and fell into

the hold, together with the hatch covers it had been sup-

porting.

There was coffee on the tween deck with only a small

amount at the forward end and the bulk aft. It was decided

to work the hatch as a split hatch, ie., two gangs in the

hatch, one forward and one aft. Since the forward gang

would be through quickly discharging coffee at their end,

when finished they were to open the square at their end

and work on the cargo in the lower hold. This was done

and at 10:30 A.M. they opened the forward portion of the

tween deck and went below.

The beams and the hatch covers of the aft portion of the

tween deck square were left in place, as they had to be,

and the aft gang was performing its work on such covers.

Thus, there were two gangs working on different levels in

the same hatch. Working two gangs in this hatch as a split

hatch was usual and frequent on this ship and its sister

ships.

The beams and the brackets holding same were so con-

structed that the beams were to be secured by means of

locks and pins. The beams had locks on them. In addi-

tion, there were holes in the brackets which held the

ends of the beam and there were holes in the end of the

beam. The holes were aligned for the insertion of safety

pins through them. The beam had to be both locked and

pinned for safety reasons while working the hatch as a

split hatch.

The pins were ship’s equipment and were to be supplied

and inserted by the ship’s crew. The stevedores do not have

pins for that purpose.

The ship’s mate was asked and told a number of times

between 10:30 A.M. and 3:00 P.M. to make sure it was

safe to work, to put the pins in and to make sure the pins

were in. Although the mate repeatedly responded that he

would take care of it, he never produced any pins and the

beam was not secured. Securing the beam was a responsi

bility assumed by shipowner and was seaman’s work. It

was not delegated by shipowner to stevedores.

7

Failure to secure a beam adequately when working a

split hatch exposes the longshorman below to the danger

of the accidental lifting of the beam out of its slot and

its falling when cargo is dragged or lifted and the cargo

hook or fall comes in contact with the beam; and occasion-

ally cargo being raised would strike a beam. This contact

and striking is not unusual.

At the time of the accident at about 3:00 P.M. pallets

were being dragged from the wings into the square and

lifted by means of ship’s winch. The cargo hook caught

on the beam and because it was not pinned down it had to

fall together with the hatch covers it was supporting.

Plaintiff was struck by one of the hatch covers that fell.

While working in the hatch plaintiff did not know whether

the beam was secured or not since he had nothing to do

with the securing of the beam—as he was a longshoreman

and not a seaman.

The Trial Court charged the jury in accordance with

Napoli v. Transpacific Carriers Corp., 536 F.2d 505 (2d Cir.

1976) and the jury brought in a verdict of $75,000 in favor

of plaintiff. Motions for a directed verdict and the post

trial motion to set the verdict aside were denied.

Defendant appealed to the United States Court of Ap-

peals for the Second Circuit who reversed the judgment

and dismissed the complaint.

The Decision in Cox

The Circuit Court held that shipowner was relieved of

responsibility in negligence to the longshoremen for the

following reasons:

1. The question is not whether shipowner was negli-

gent but whether stevedores knew of the dangerous condi-

tion. If they did have knowledge they violated their duty

under the Safety & Health Regulations. Since they super-

vise their longshoremen as to when and where they work it

was their responsibility to see that the place of work was

safe. Shipowner cannot, therefore, be held liable for their

negligence to a longshoreman as long as stevedore knows

of the danger. The Restatement of Torts (Second), Sections

343-343A as set forth in Napoli v. Helenic Lines Lid., 536

F. 2d 505 (2 Cir. 1976) is inapplicable as that case only

refers to situations where the shipowner is the stevedore.

The facts recited in the opinion show that the Court

made its decision taking into account the testimony that

the ship supplied the beam locks and were to supply the

pins to secure the beams; that both were ship’s equipment;

that stevedores did not have the necessary pins; that the

ship’s crew were to put in the pins to secure the beam; that

the ship’s mate was requested to secure the beam a number

of times and he stated that he would take care of it but he

failed to do so. Thus, the Court held that even where ship-

owner was in control of the pins necessary to secure the

beams, and failed to furnish and insert them despite their

obligation to do so and after saying they would, is not ma-

terial to a suit by longshoremen against a shipowner for

its negligence.

2. Since the dismissal of the complaint was obviously

unjust and the result harsh, the Court rationalized that the

Workmens Compensation benefits have been increased

under the amended statute and, hence, the longshoreman

receiving such benefits is being adequately compensated

for any injury he sustained; that depriving him of a cause

of action against shipowner, however negligent the latter

might be, is not harsh but just.

The logical conclusion from the Cox decision is that a

longshoreman cannot sue shipowner for its negligence once

his employer knows of a dangerous condition.

Reasons For Granting the Writ

It is submitted that this Court should exercise its discre-

tion and grant a review on Writ of Certiorari because of the

following special and important reasons:

1. There is conflict and confusion in the Second Circuit

amongst the Circuit Court judges with respect to the inter-

pretation and effect of 33 USC § 905(b) of the Longshore-

men’s and Harbor Workers’ Compensation Act as amended.

The conflict has resulted in differing decisions on similar

facts with uneven justice being dispensed depending upon

which panel of judges sits in judgment. The District Court

Judges are justifiably confused and it has already inter-

fered with the administration of justice.

2. The Coz decision is in conflict with decisions of other

Circuit Court cases.

3. The results of the Cox decision are harsh and unjust,

not consistent with the objectives of the amended Section

905(b). The positions taken by the Court are contrary to

10

the intent of Congress and the Court is engaged in legislat-

ing law rather than applying a Congressional act.

For these reasons this Court should review the decision

of the Hurt below and settle the questions of law raised

thereby as to the meaning and application of the Statute.

L

The Conflict Between Circuit Court Judges and Circuit

Court Decisions in the Second Circuit.

The decision of the Court of Appeals in Coz is in conflict

with a number of cases decided in the Second Circuit. The

Circuit Court judges are in complete disagreement with one

another as to their interpretation of the Longshoremen’s

and Harbor Workers’ Compensation Act 33 U.S.C. Sec-

tion 903 et seq. as amended. Within approximately three

weeks after Cox was decided, the Circuit Court decided the

case of Canizzo v. Farrell Lines Inc. et al. (16a). The

Court in Canizezo stated that they disagreed with the

result of the Cox holding and Coz is in conflict with

Lubrano v. Royal Netherlands SS Co., 572 F.2d 364 (2

Cir. 1978). In footnote 3 of Canieeo the Court stated:

Cox v. Flota Mercante Grancolombiana, S. A., was

decided May 10, 1978, slip op. 2989/f, while this case

was sub judice. Coz seems to us in conflict with at least

Lubrano v. Royal Netherlands S. &. Co., —— F.2d ——,

slip op. 1533 (2d Cir. Feb. 15, 1978), among the deci-

sions in this circuit. y

While each case must be determined on its own facts,

the result in Cox cannot reasonably be reconciled with

1

our result here by the differences in the factual situa-

tions, for the proof of ship’s negligence in Cox was

at least comparable to that here. With all respect, how-

ever, we must disagree with the result in Cor. It ap-

pears to us to do what the Congress was unwilling to

do, abolish the shoreowners’ liability to the injured

longshoreman in negligence as well as in unseaworthi-

ness. As Judge Friendly points out, liability of the ship

for such negligence as a greasy deck attributable to the

ship’s company was specifically contemplated and

thought to be preserved by the legislation.

Litigation in this troubled field would be tidier if the

Congress had eliminated altogether the ship’s possible

liability to longshoremen. There are, however, other

considerations.

Benefits under the Longshoremen’s and Harbor

Workers’ Act have been considerably increased. We

cannot overlook the fact, however, that as is usual

under workmen’s compensation schemes, they do not

fully compensate for the loss suffered.

If the ship, not a party to the employment contract,

is absolved from liability for its own negligence, this

uncompensated loss, which may be very great, is shifted

from the negligent ship to the often innocent employee.

The terms of the statute and the legislative history in-

dicate to us that while Congress was willing to shift

the burden of injury without fault to an improved com-

pensation system for shore workers (who arguably

never should have been classified with seamen anyway)

it was not willing so to shift the burden of injury

through the fault of the ship. This policy judgment we

would leave to the Congress.” (Footnote 24a-25a)

12

The dissent in Canizzo sets forth the confusion that the

Circuit Court foresees amongst District Court Judges stat-

ing:

4% che last of this line of cases is Cox v. Flota

Mercante Grancolombiana, Docket No. 77-7338, decided

May 10, 1978, slip opinions 2989. There a unanimous

panel directed dismissal of a complaint on facts which

the majority properly concedes, see fn. 3, are indistin-

guishable from those in the instant case. While the ma-

jority disregards Coz because the opinion was handed

down in the face of known disagreement by a majority

of this panel, our district judges can scarcely be ex-

pected to function with so discordant a chorus on this

court.” (32a)

The District Court judges have not been able to function

with unanimity. Following Lubrano, Cox and Canizzo and

because of the resulting conflict, some District Court judges

have put cases on the Suspense Calendar, some have stated

they would charge Coz, some “Pre Cox Law” and at least

one has denied a motion for summary judgment unless and

until there is further elucidation of the apparent conflict.

With respect to the Suspense Calendar, the adage that jus-

tice delayed is justice denied applies. As for the disagree-

ment between Cireuit Court judges and Circuit Court cases,

the results of any trials in the District Court will inevitably

be appealed by the losing party. This will increase the case

load of the Circuit Court causing major court problems

and will also delay completion of litigation. We are mind-

ful of the verbatim interview with Chief Justice Burger re-

ported in the U. S. News & World Report of December 19,

1977, where it is reported that appeals to Circuit Courts

have increased five-fold in the past twenty years and “if this

13

dramatic rate of increase continues, we can only guess at

the consequences. Within the life of the younger inter-

viewers here it could require an enormous increase in

judges.” It was the Chief Justice’s opinion that in both.

large and small cases “The cost of litigation bears most

heavily, of course, on middle income people with small or

medium size cases. Even if such an individual wins a judg-

ment in his favor, the judgment can be drained of a good

deal of its value by the expense and delay of winning it.”

He found it imperative that means be devised to decrease

or contain the workload.

By means of this petition such means of decreasing or

avoiding an avalanche of appeals because of the conflict

between judges and decisions is in the hands of the Supreme

Court. By granting the Writ of Certiorari requested herein

and by interpreting the statute in question, setting forth

guidelines as to the meaning and application thereof, would

go a long way to avoid potentially burdensome problems.

What makes the Coz case particularly important in that

connection and particularly unjust in its holding is that

the facts in that case are better for the plaintiff than in

Canizzo. Even the dissent in Canizzo states in Footnote 7:

(32a)

“Indeed the facts in Cox were stronger for the employee.

There was evidence that placing pins in the beams was

the ship’s responsibility and that a mate had agreed

with the hatch boss to supply them.”

The disagreement between the circuit judges must be

sharp indeed. On at least two occasions since the Lubrano

decision was rendered, (February 15, 1978) petitions were

submitted to the Circuit Court with a suggestion for an

En Banc hearing involving the same issues as raised in

„

0

14

Cox. The petitions were denied both times for the ap-

parent reason that the circuit court judges could not com-

pose their differences.

Uneven justice is a result that should not be prolonged

nor supported.

The Coz decision is contrary to other cases in the Second

Circuit, e.g. Ruffino v. Scindia Steam Navigation Co., 559

F.2d 861 (2 Cir. 1977); Napoli v. Transpacific Carriers

Corp., 536 F.2d 505 (2 Cir. 1976); Munoz v. Flota Mer-

cante Grancolombiana, 8.A., 553 F.2d 837 (2 Cir. 1977);

Lubrano v. Royal Netherlands Steamship Co., 572 F.2d

364 (2 Cir. 1978); Landon v. Leif Hoegh d Co., 521 F. 2d 756

(2 Cir. 1975) cert. den. 423 U.S. 1053.

In Lubrano v. Royal Netherlands Steamship Co. (2 Cir.),

supra, the Court rejected the attempt to delimit Napoli

to situations where the ship was the stevedore and held that

Section 343A of the Restatement of Torts (Second) and

Napoli apply to situations where there is an independent

stevedore. The Court also rejected any attempt to over-

rule Napoli (Footnotes 3 and 4 at 366, 367).

II.

Cox Is in Conflict With the Decisions in Other

Circuits.

In Gay d Guerra v. Bulk Transportation Co., 546 F. 2d

1233 (5 Cir. 1977), the Court stated at pages 1240-1242:

Comment need be made, however, about the possible

intimation of the holding of the district court that a

vessel has no duty concerning any danger which is

open and obvious to the stevedore or its employees.

This indeed has been the traditional rule concerning

15

owners of land and their invitees, and it has been ap-

plied in several suits brought under section 905(b).

The traditional rule’s appropriateness in LHWCA

suits has been rejected by several courts, however,

for two cogent reasons.

First, the traditional rule has increasingly given

way in recent years to the view that the obviousness

or knowledge of a dangerous condition on certain

property does not necessarily relieve the owner of his

obligation to take further precautions to remedy the

danger. This modern trend has been reflected in section

343 A of the Restatement (Second) of Torts, which we

adopted supra. We agree with the Second Circuit that

‘[a]lthough the invitee (or in this case the employee)

may be under a duty to avoid harm likely to result to

him from open and obvious dangers, he may not be

in a position fully to appreciate the risk or to avoid

the danger even though aware of it.’ Napoli, 536 F. 2d

at 508.

The more telling criticism of the traditional rule,

however, is that it is premised in large part on the con-

cepts of contributory negligence and assumption of

risk. As previously recounted, both of these concepts

are inappropriate in section 905(b) cases. It would

be wholly improper, then, indirectly to introduce these

principles into LHWCA suits by adopting the tradi-

tional rule that if a hazard is open and obvious that

fact alone absolves the owner of his negligence.”

(Footnotes omitted)

In Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331

(5 Cir, 1977) in speaking of a dangerous condition of a

platform on a hilo in the control of plaintiff, the Court

16

stated that even the high degree of knowledge, appreciation

and control possessed by Brown would not automatically

preclude a plaintiff’s verdict.

See, also Samuels v. Empresa Lineas Maritimas Argen-

tinas, 573 F.2d 884 (5 Cir. May 26, 1978) and Wiles, Jr.

v. Delta Steamship Lines, Inc., 574 F.2d 1338 (5 Cir. June

15, 1978).

The Cox holding is likewise in conflict with Bess v.

Agromar Line, 518 F.2d 738 (4 Cir. 1975). There plaintiff

claimed that

“recovery may be based upon a traditional theory of

negligence. He claims that the shipowner had a duty to

provide suitable plywood dunnage to be used in cover-

ing each tier of bales. It is argued that the shipowner

breached that duty and, as a result, contributed to the

unsafe condition which proximately caused plaintiff's

injury. Since that theory of liability is based upon

traditional negligence principles, it is clearly permitted

by the 1972 Amendments to the Act. However, before

that theory of liability could be submitted to the jury,

the plaintiff must present evidence that the shipowner

had a duty to provide the plywood dunnage. The dis-

trict court dismissed that aspect of the case, noting

that ‘there is no evidence before this court that the

defendant was under any duty to provide dunnage, or

to have someone there to make it available, or that

there was the practice in the trade to provide dun.

nage.“ (742)

The Circuit Court agreed finding there was no evidence

of any duty on the shipowner to provide dunnage under

the facts of that case.

17

In Coz, the testimony was that shipowner did have the

duty to provide the pins and to insert them and shipowner

breached that duty.

III.

The Conflict With the Intent of Congress and the

Resulting Miscarriage of Justice.

The Cox decision deprives plaintiff of his rights to sue

shipowner for its negligence contrary to Congressional

intent and contrary to the Longshoremen’s and Harbor

Workers’ Compensation Act (33 U.S.C.) 901 et seq. Cox

distorts Congressional intent and a harsh result follows

together with « miscarriage of justice.

The question presented by the decision in Coz is whether

it was the intent of Congress that the longshoremen assume

the risk of their employment and bear the social and eco-

nomic cost of the dangerous conditions found in the mari-

time industry comprised of shipowners and stevedores.

Thus, in Cox, wrongfully and unjustifiably the Circuit

Court dismissed the complaint and stated:

“This result does not impose a hardship or injustice

on the injured longshoreman. He receives the substan-

tial benefits intended to be accorded to him by the 1972

Legislation. The entire philosophy of Workmens Com-

pensation would be thwarted by a contrary result.”

(14a)

It is most difficult to understand what could be the “phil-

osophy of Workmens Compensation” which would be

thwarted if a longshoreman were permitted to sue a ship-

owner for its negligence. It should be noted that the in-

crease in compensation payments was sorely needed and the

Senate Committee Report on Labor and Public Welfare

(S. Rep. No. 92-1125, 92d Cong. 2d Sess. 1972) described

the need for the bill as follows:

“The Longshoremen’s and Harbor Workers’ Compensa-

tion Act was last amended in 1961, at which time the

maximum benefit under the Act was set at $70 per week.

. . . Clearly, in order to provide adequate income re-

placement for disabled workers covered under this

law substantial increase in benefits is urgently re-

quired.” (Sen. Rep. 4)

The compromise which was effectuated by the amended

act eliminated suits against vessels “brought for injuries

to longshoremen under the doctrine of seaworthiness and

outlawing indemnification actions and “hold harmless” or

indemnity agreements. It continues to allow suits against

vessels or other third parties for negligence. At the same

time it raises benefits to a level commensurate with present

day salaries and with the needs of injured workers whose

sole support will be payments under the Act.” (Sen. Rep.,

at 5.) :

Thus, it was not the intention of Congress to eliminate a

longshoreman’s cause of action for negligence agairst a

shipowner and the increase in compensation payments was

part of a compromise based on an urgently needed increase

in benefits traded off against the elimination of a claim

of unseaworthiness. g

Section 905 0b) of the Act specifically grants the long -

shoremen the right to sue shipowner for negligence.

The Senate Committee Report states:

“Permitting actions against the vessel based on negli-

gence will meet the objective of encouraging safety be-

19

cause the vessel will still be required to exercise the

same care as a land-based person in providing a safe

place to work. Thus, nothing in this bill is intended to

derogate from the vessel’s responsibility to take ap-

propriate corrective active where it knows or should

have known about a dangerous condition. (Sen. Rep.

10.)

The Safety and Health Regulations for Longshoring,

29 C.F.R. 1918 et seq., do not relieve shipowner of its duties

and obligations owed to longshoremen.

Section 1918.2(b) of the Regulations states that its intent

is not to place additional responsibilities on owners “nor

is it the intent of these regulations to relieve such owners,

operators, agents or Masters of vessel from responsibili-

ties or duties now placed upon them by law, regulation or

custom.” is

To all intents and purposes, shipowner has an equal and

independent obligation to furnish longshoremen with a rea-

sonably safe place to work and to see that a longshoreman

is not exposed to harm. Actually, the Committees’ Reports

and thus the intent of Congress was not to lessen ship-

owner’s duties owed to longshormen and Congress felt it

would increase the safety on board vessels by holding ship-

owner liable for its negligence.

The very same question as set forth herein was argued

in Landon v. Leif Hoegh d Co., 521 F.2d 756 (2 Cir. 1975),

cert. den. 423 U.S. 1053 (1976). There, in effect, shipowner

argued that plaintiff may not recover against shipowner

unless he proves the ship’s negligence was solely respon-

sible for his injury. The Court rejected this theory for

the following reasons:

“First, the draftsmen of Section 5(b), 33 U.S.C.

§905(b) could easily have inserted the word ‘sole’ so

that the clause would have read ‘caused by the “sole”

negligence of the vessel.’ Nothing has been called to

our attention to indicate such intention. Second, Con-

gress would hardly have given the ship so little in-

centive to avoid being negligent toward its longshore-

men invitees, Third, the scheme of the Act is to pro-

vide workmen’s compensation for a longshoreman from

his own employer, but with a right to sue the ship for

negligence.” (Emphasis supplied)

In no case is any shipowner relieved of liability solely

because the stevedore knew of a dangerous condition. Yet

Coz so holds. Nowhere is shipowner permitted to escape

the consequences of its own negligence, yet Coz so permits.

Plaintiff here does not claim shipowner to be negligent

because the stevedore violated a Safety and Health Regu-

lation. Plaintiff does claim that since shipowner was sup-

posed to supply pins to secure a beam which was part of

ship’s equipment, but didn’t; since shipowner was supposed

to supply suitable beam locks, which it didn’t; since ship’s

crew was supposed to insert the pins and to secure the

beams which it failed to do, shipowner was negligent. The

condition complained of was not created by stevedore in

Cox and not something that stevedore could abate. They

were not furnished with ship’s equipment (pins) even

though they requested same.

Perhaps more important, the objective of this Act was

to encourage safety in a hazardous industry. The one to

be protected was the longshoreman who presumably would

benefit from improved working conditions. Yet the Court

— ee, ee

21

held in Coz that you cannot sue the shipowner for its negli-

gence in creating a dangerous condition and when it is in

control of the means of abating same,—because stevedore

knows of the dangerous condition.

Thus Cox absolves shipowner from liability for its negli-

gence; leaves stevedore with a limited obligation to pay

workmens compensation; and makes the longshoreman bear

the cost of dangerous conditions not created by him nor

within his control and compelling him to assume the risk

of his employment so as to relieve shipowner of its liability.

Contrary to our sense of social justice, Coz finds such result

just and not harsh.

In Napoli, the court stated:

“As we proceed with our task of adopting appropriate

land-based principles of negligence for application

under the LAHWCA, we would be lacking in wisdom

if we turned our backs on the changes which increased

social awareness has brought about in traditional con-

cepts of liability. Accordingly, we believe that where

a shipowner has notice of an obviously dangerous

condition, his duty of care to longshoremen exposed to

such danger should be as set forth in §343A of the

Restatement of Torts above quoted.” (509)

CONCLUSION

For the foregoing reasons it is respectfully submitted

that a Writ of Certiorari should issue to review and re-

verse the decision below.

Respectfully submitted,

Anazto C. Grociurpo

Attorney for Petitioner

Morais Cum

on Petition

Appendices

la

UNITED STATES COURT OF APPEALS

—

No. 424— September Term, 1977.

(Argued December 15, 1977 Decided May 10, 1978.)

Docket No. 77-7338

— —

Water Cox,

Plaintiff-Appellee,

—against—

FLorA Mercante GRAN cOLOMRIANA, S. A.,

Defendant-Appellant.

Before:

LumsBarp, Moon, and Mutiicay,

Circutt Judges.

—

Appeal from a judgment of the United States Distriet

Court for the Southern District of New York, in the

amount of $75,000, entered after a jury trial before Hon-

orable Robert L. Carter, Judge, against defendant Flota

Mercante Grancolombiana, S.A., under 33 U.S.C. §905(b)

of the Longshoremen’s and Harbor Workers’ Compensa-

tion Act.

Judgment reversed; complaint dismissed.

—ů —

Morris Cizwer, Esq., New York, New York

(Zimmerman & Zimmerman, of counsel),

for Plaintif’-Appellee.

2a

Tuomas E. Sries, Esq., New York, New York

(Giallorenzi & Stiles, of counsel), for De-

fendant-Appellant.

—

Moonx, Circuit Judge:

Defendant, Flota Mercante Grancolombiana, S.A.

(“Flota”), appeals from a judgment against it and in favor

of Walter Cox (“Cox”), entered upon a jury verdict in the

amount of $75,000, awarded as a result of injuries sus-

tained by him aboard the Ciudad De Cuenca (“Cuenca”).

In 1972 the Congress, hopeful of resolving the problems

created by court-made law in the field of personal injuries

to longshoremen working aboard ships, loading and un-

loading cargo, enacted the 1972 Amendments to the Long-

shoremen’s and Harbor Workers’ Compensation Act

(“LHWCA”), 33 U.S.C. 5901 et seg. The purpose of the

amendments was to put at rest (as much as they can ever

be) the respective rights and liabilities of shipowners,

stevedores and the employees of stevedores, engaged by

shipowners to handle the cargo loading and unloading

operation. As so frequently happens when new statutes

appear, and resourceful and imaginative lawyers are avail-

able (and they always are), a multitude of cases have been

spawned, thus, in this respect, frustrating the intended pur-

pose of the statute.

First, the facts must be stated with some observations

helieved to be related to the law applicable to them.

Cox, a longshoreman, was employed by Universal Mari-

time Services (“UMS”), a stevedoring company, which had

undertaken by contract to unload cargo from the Cuenca.

He was not an employee of the Cuenca.

On March 31, 1975, Cox was working in the hold (“in

the very bottom of the ship”). The hatch above him was

— —

3a

open, namely, its cover had been removed. While working,

he heard a noise and shortly thereafter was struck by

a falling hatch cover which caused his injuries. He did not

see the falling hatch cover or know the cause of its fall. As

Cox put it “I don’t know what happened”. (50a).

Vincent Maresca was the foreman on the job for UMS.

He defined his duties as follows:

“The duty of a foreman is to discharge and load the

ships and see that everything is safe for the long-

shoremen to work. And if there isn’t I have to tell my

hatch bosses, make sure everything is safe, and then

I speak to the mate and I tell the mate the same

thing.” (58a).

When the stevedore went in at 8:00 A.M. to commence

unloading he (Maresca) said:

“T told them [the hatch bosses] to open up the hatches.

They get rigged up. I tell them, ‘Make sure everything

is safe and make sure everything is working right’

before they work. And later I tell the mate in charge

of the ship, ‘Make sure everything is safewise to

work’.” (62a).

The “[o]pening [of] the hatch is done by the crew. Fixing

of the booms is done by the men.” (63a). As Maresca

looked down into the lower hold, he observed that [j lust

one end was open”. (66a). In the morning he had told his

hatch bosses, “When they take off the hatch covers make

sure the beams are secured and tell the mate to lock them

and put the pins in them”. (67a). His hatch bosses told

him that “they had the locks in place”. (68a). However,

Maresca, himself, did not consider the lock in itself to be

sufficient to hold the beam in place as a safety measure.

(69a). He thought that pins were “[m]uch better than the

—

~~

—

4a

locks they got on the beams” (69a), which indicated to him

that the beams “should be locked and pinned” because from

his experience he knew that on occasion cargo being

brought up from the hatch would strike the beams and

boards, (70a). The pins and locks belonged to the vessel.

He said, “The pins, the seamen have to do that. That isn’t

our job“. (7la). Maresca knew that “the regulations re-

quire that no longshoreman is supposed to work until you

make sure that these beams are tied down”. (80a). Ma-

resca also said that in the afternoon before the accident “I

even told my hatch boss, ‘Why didn’t you put the pins in

them?’ He says, ‘The crew is going to put them in'.“ (80a).

He further testified “I looked and I told the hatch boss

again, ‘Get the pins in there, get the pins in the beam.’ I

told the hatch boss again. Then after I told the hatch boss

again in the afternoon, the mate, I said, ‘Make sure the

pins are in’.” (84a-85a).

The only other witness was Nicholas Simeone, a hatch

boss employed by UMS. Cox was not in his gang. As he

described it “there was two gangs that day. One was work-

ing in the lower hold and we were in the top deck, in the

after end.” (90a). Maresca had said to-him, “Before you

start working make sure the beams are secured”, and when

he looked he “noticed that the beams were not secured”.

(92a). The beam was in place and in the slot but [if

anything hits it it could fall”. (92a). He told a mate

several times that the pins were missing and the mate

said, We're going to take care of it”. (93a). Simeone

did not witness the accident but he saw a beam and hatch

covers in the lower hold. On cross-examination he con-

firmed Maresca’s orders saying, “the foreman instructed

me to make sure that the beams are secured, you know, see

that the beams are secured”. (100a). Simeone saw that

the beam wasn’t secured. “There was no pin in it”. (106a).

—_ —

5a

There was no testimony from any observer as to the

cause of the accident, namely, the dislodging and fall of

the beam and hatch covers. The closest clue is to be found

in Simeone’s testimony that “The beam was in place, it

was in the slot, but it wasn’t—if you just touch it it will

come up. If anything hits it it could fall”. (92a).

This, in substance, was plaintiff’s case against which the

shipowner’s motion for a directed verdict and post-trial

motion must be judged. As a further ground, the ship-

owner claims error in the charge and the refusal to give

various requests which “permitted the jury to find liability

on erroneous legal standards.” (Appellant’s Br. p. 2).

Although in light of the many cases already decided

with respect to the 1972 legislation, the law is not un-

developed in this field, the trial judge set as his standard

Napoli v. Hellenic Lines, 536 F.2d 505 (1976), saying:

“Napoli is this circuit. I am bound by that, aren't It”

(115a) and later “I am not interested in cases outside

the Cireuit, and Anuszewski is outside the Second Cir-

cuit.” (118a).

The trial court’s theory of the action was that the ship-

owner owed a duty to Cox to make sure that during the

stevedoring operation the beams on the upper level were

pinned. In short, the ship hence was unseaworthy—a theory

which might well have been argued before the 1972 LHWCA

enactments,

1 Congress intended that the LHWCA be applied uniformly nationwide.

The Committee Reports accompanying the 1972 Amendments state:

“Finally, the Committee does not intend that the negligence remedy

authorised in the bill shall be applied differently in different ports

depending on the law of the State in which the port may be located.

The Committee intends that legal questions which may arise in

actions brought under these provisions of the law shall be deter.

mined aa a matter of Federal law.” (emphasis supplied). 3 U.S.

Code Cong. & Ad. News 4608, 4705 and g. Rpt. No. 92-1125, 92

Cong., 24 Seas. 12 (1972).

—

6a

The shipowner on the other hand argues that it is not

liable to an employee of an independent contractor for

injuries sustained as the result of a dangerous condition,

latent or open and obvious, known to and within the con-

trol of such a contractor.

Court’s and defense counsel’s arguments actually are

travelling in parallel lines—never to meet. The Court

viewed the case as one by a longshoreman vis-a-vis the

shipowner; defense counsel as one against the stevedore,

who is protected by workmen’s compensation and the 1972

Amendments, absent proof the shipowner’s negligence as

the proximate cause of the accident.

The tendency of the law constantly to look for prece-

dential guidance may be at the root of the problem here,

but when Congress, by legislation clearly directed at, and

attempting to solve, the unseaworthiness-seamen-long-

shoremen-Sieracki-Ryan problem,’ has wiped these cases

off the judicial slate completely, new writing must be

expected to appear. It has. —

In this Cireuit, the reasons prompting the 1972 legisla-

tion, the changes it accomplished and the resulting deci-

sions therefrom cannot be better stated than in the opin-

2 Seas Shipping Co., Inc. v. Sieracki, 328 U.S, 85 (1946) extended the

doctrine of strict liability to seamen to include longshoremen on a theory

of unseaworthiness, Later, in Ryan Stevedoring Co. Inc. v. Pan Atlantic

8.8. Corp., 350 U.8, 124 (1956), the Court held that the shipowner could

recover from the stevedore damages for which the shipowner was held

liable. This was vased on the theory that the stevedore had breached

its implied warranty of workmanlike performance to the vessel.

The problems that these decisions created are indicated in the Com-

mittee Reports: 0

“The Committee heard testimony that the number of third-party

actions brought under the Sieracki and Ryan line of decisions has

increased substantially in recent years and that much of the finan-

cial resources which could better be utilized to pay improved com-

pensation benefits were now heing spent to defray litigation costs.”

8 U.S. Code Cong. & Ad. News 4698, 4702 (1972) and 8. Rept.

No, 92-1125, 92 Cong., 2d Sess, 9 (1972).

7a

ion of Chief Judge Kaufman, in which Judges Lumbard

and Van Graafeiland joined, in Munoe v. Flota Merchante

Grancolombiana, S. A., 553 F.2d 837 (1977).“ There, after

decision on motions for a directed verdict ut the close of

the plaintiff's case and at the close of trial had been re-

served, the case was sent to the jury for a special verdict

on six questions. The appeal was from the denial of the

motions and to set aside the verdict.

This Court not only reversed but dismissed the com-

plaint, saying, in part:

„. . . It would, in our view, contravene the clear con-

gressional intent and scheme to approve recovery

against Grancolombiana in this case. The shipowner

had no duty to supervise the minute details of work

totally entrusted to the competence of the stevedore.

Indeed, commercial reality and applicable union regu-

lations preclude a rule that would require a non-expert

constantly to intrude on the work of a master steve-

dore in the deepest recesses of the ship.

A careful consideration of the testimony below has

convinced us that Munoz is barred as a matter of law

from recovering damages from Flota Merchante Gran-

colombiana. Moreover, the appellee has not brought

to our attention, either in his brief or at argument,

any grounds that would warrant a new trial in the

event the verdict is set aside by this court, nor are

we of the view that such relief would be appropriate.

Munde v. Flota Merchante Grancolombiana, S. A.,

553 F.2d 837, at 840-841 (1977).

3 At the time of trial, the trial judge did not have the benefit of the

Munde decision,

8a

Following Munoz some three months later, this court

had a somewhat similar appeal in Ruffino v. Scindia Steam

Navigation Co., Ltd., 559 F. 2d 861, which affirmed the dis-

missal of the complaint and the grant of the motion for

judgment n.o.v. Judge Van Graafeiland for the Court said:

“In enacting the 1972 amendments to the Longshore-

men’s and Harbor Workers’ Compensation Act, 33

U.S.C. 6901 et geg., Congress intended to relieve ship-

owners of liability predicated upon the negligence of

stevedoring companies. Napoli v. Hellenic Lines, Inc.,

536 F. 2d 505, 507 (2d Cir. 1976). After the amend-

ment, Congress said, the vessel would be liable only

for its own failure to use reasonable care, Munoz v.

Flota Merchante Grancolombiana, 8.A., 553 F.2d 837,

840 (2d Cir. 1977) which would be determined in ac-

cordance with land-based principles of negligence.

Napoli, supra at 507.” Id. at 862.

(Napoli presented a state of facts where the shipowner

also acted as its own stevedore.)

It makes no difference here whether the alleged defect

was latent or open and obvious.‘ In either case, the situa-

tion was known to the stevedore. The stevedore from its

inception had complete charge of the unloading operation.

4 After a comprehensive analysis of post-1972 Amendments cases in this

field in this and other circuits, Judge Gottel rejected the distinction

between latent and obvious defects in two recent cases. Laying the

primary safety responsibility on the stevedore, he found no liability

where the shipowner did not have actual knowledge of possible unsea-

worthy conditions which arose aiter the stevedore began operations.

Eepinosa v. United States Lines, Inc., 444 F.Supp. 405 (8.D.N.Y. 1978)

(judgment n. 0. v.) ; Silverio v. Koninklijke Nederl. Stomb. Maats., 444

F. upp. 415 (G. D. N. V. 1978) (complaint dismissed). Similarly this

circuit has recently found that It be dichotomy of latent and obvious

defects referred to in the cases is not always controlling or pertinent

in determining che liability of the shipowner.” Hickman v. Jugoslavenska

Linijeka Plovidba Rijeka, Boi, 570 F.2d 449 (2d Cir. 1978).

9a

Only it could give orders to its employees. As said in

Munoz (same stevedore, UMS; same shipowner, Flota),

“Moreover, union regulations forbade crew members from

assuming any role in the enterprise”. 553 F.2d at 840. If

the beam was dislodged by cargo being hoisted out of the

hold (as has been suggested as the only possibility), then

the cause of the accident was an operation entirely in the

hands of the stevedore. It was the stevedore which had

exclusive control of the gangs and how, when and where

they worked.

This case is quite different on its facts from Lubrano v.

Royal Netherlands Steamship Company, No. 77-7211, slip

op. 1533 (2d Cir. February 15, 1978). In Lubrano, this

court reversed a directed verdict and remanded for a new

trial an action brought against a shipowner by a long-

shoreman who had slipped and injured himself while load-

ing slippery drums of tallow. The shipowner, which had

a contractual duty to supply dunnage, sought additional

dunnage when requested to do so, but plaintiff was in-

jjured before the dunnage arrived. The majority opinion

determined that in spite of the “ambiguous and unimpres-

sive” evidence, “it was enough to allow a jury to conclude

that the ship’s officer approved and joined in the direction

[of the stevedore] that the men keep working, although

the dunnage was not there”. Id. at 1538. The majority

determined that “if there is again evidence that a ship’s

officer, after being notified of the open and obvious danger

of insufficient dunnage for a slippery cargo, had the men

keep working or joined in the stevedore’s decision to do

so, then there would be a jury question”. (footnote omit-

ted). Jd. at 1539. Here there is no indication that the

shipowner took any affirmative action to instruct the long-

shoremen to continue work without the beams being secure,

or that he joined in the decision to do so. Likewise there

10a

is no indication that the shipowner attempted to remove

any part of the loading operation from the control of the

stevedore. |

This case is more similar to Hickman v. Jugoslavenska

Linijska Plovidba Rijeka, “Zvir’, 570 F.2d 449 (2d Cir.

1978), where this court reversed a jury verdict entered

in favor of a plaintiff-longshoreman who was suing the

shipowner after he was injured when his foot slipped be-

tween bales of rags which he was loading. The longshore-

man had complained earlier about a lack of dunnage to

the ship’s mate, who directed the longshoreman to the

location of the dunnage, but the dunnage was insufficient,

and he did not ask for more although other dunnage was

available. The court determined that the ship did not

have a duty as a matter of law to supply dunnage, and

“[s]Jince the loading operation was not under the control

of the shipowner, the mate had no right to interfere with

the loading by going down the hatch himself and placing

additional dunnage on the bales”. Id. at 452. Like Hick-

man, here the responsibility for the safety of the long-

shoreman was on the stevedore and it had the responsi-

bility to ensure the pins were in place.

The reasons for and the legislative history behind the

1972 Amendments have been rather fully stated in the

Third Circuit in Hurst v. Triad Shipping Company, 554

F.2d 1237 (3rd Cir. 1977), cert. denied, 46 U.S.L.W. 3208

(1977). That court reaffirmed Judge Van Dusen’s state-

ment in his opinion in Brown v. Ivarans Rederi A/S, 545

F.2d 854 (3rd Cir. 1976) that

„[E]xpress language in the statute and the legislative

reports accompanying the 1972 Amendments amply

demonstrate that the major responsibility for the

proper and safe conduct of the work was to be borne

by the stevedore.” (footnote omitted). Id. at 860.

— a nS a Ca AI EE DAR i -—ñÜ als

lla

In the Fourth Circuit in a case factually almost identical

to the case at hand, Anuszewski v. Dynamic Mariners

Corp. Panama, 391 F.Supp. 1143 (D. Md. 1975), the Dis-

trict Judge entered judgment for the defendant, the facts

having disclosed the existence of beams known to the

stevedore to have been unpinned. The judge, after noting

that the primary duty under 29 C. F. R. §1918.43(e) (Safety

and Health Regulations for Longshoring) with respect to

the beams was on the stevedore and that the shipowner

should have known of the violation of the regulation, said,

“But that negligence on the part of the ship is not action-

able negligence in a post-1972 setting, for reasons which

are discussed infra.” Id. at 1145. This, he said, before the

1972 Amendments “would seemingly have constituted un-

seaworthiness”. Id. at 1146. After reviewing some eight

post-1972 decisions that land-based principles applied, re-

ferring particularly to §§343 and 343A of the Restatement

(Second) of Torts, he concluded that “in the context of

the facts in this case settled principles of land-based tort

law do not impose liability in favor of the employees of

an independent contractor for the open and obvious negli-

gence of the person in control of the premises upon which

those employees are at work.” Id. at 1149. On appeal,

the Court of Appeals affirmed, 540 F.2d 757 (1976), cert.

denied, 429 U.S. 1098 (1977), saying that the District

Judge’s conclusions were “in accord with the decisions

of the several courts who have had occasion to consider

the 1973 [sic] Amendments.” (citations omitted). Id. at

759.

Most recently that court in Riddle v. Exxon Transporta-

tion Co., 563 F.2d 1103 (4th Cir. 1977) had occasion to

review a judgment entered upon a jury verdict in favor

of the defendant (an independent contractor) and stated:

12a

“In both [Anuszewski, supra, and Bess v. Agromar

Line, 518 F.2d 738 (4th Cir. 1975)], we held, in keep-

ing with the manifest legislative purpose, that the

Amendments were intended to and did relieve the

shipowner of a nondelegable duty to furnish a safe

place to work and declared that its liability in a third-

party action, in which the stevedore or ship repairer

was ‘viewed generally as an independent contractor,’

was governed by ‘land-based’ negligence principles and

not by ‘maritime negligence concepts’.” Id. at 1110.

The Fifth Circuit, in consolidated appeals Gay and

Guerra Gay v. Ocean Transport & Trading, Lid., 546

F.2d 1233 (1977)), considered at length the effect of the

1972 Amendments and, after citing a host of cases in

their and other circuits, including the Second and Fourth,

concluded that “[s]ection 905(b) instructs that a long-

shoreman does not have a cause of action against a vessel

if his injury ‘was caused by the negligence of persons en-

gaged in providing stevedoring services to the vessel,’”

Id. at 1239-40, and affirmed summary judgment in favor

of the shipowner and against Gay. In Guerra (possibly

as here) a wire attached to a beam snagged on a pallet

causing it to fall into the hold, thus injuring Guerra. This

operation was under the control of the stevedore. Judg-

ment in favor of the shipowner was affirmed.

It is this case to which Chief Judge Kaufman referred

when he wrote:

“We therefore prefer [obviously to Napoli] the guid-,

ance afforded by Gay v. Ocean Transport d Trading,

546 F.2d 1233 (5th Cir. 1977) where, in two related

eases, the Fifth Circuit refused to hold a shipowner

liable for injuries sustained by longshoremen as a

direct result of their employers’ negligence in failing

13a

properly to ventilate the hold and omitting adequately

to secure pallets on the ship’s deck, The court recog-

nized, as we do, that it would be inimical to the intent

of Congress to charge the shipowner with the steve-

dore’s wrong... .” (citations omitted) Munoz v. Flota

Merchante Grancolombiana, S. A., 553 F. 2d 873 at 841.

It makes no difference in this, the Cox case, whether the

defect was latent or open and obvious. In either situation,

the potential danger was known to UMS.

Following Gay, the Fifth Circuit in Brown v. Mitsubishi

Shintaku Ginko, 550 F.2d 331 (5th Cir. 1977), in affirming

a summary judgment in favor of the shipowner and against

the injured longshoreman, said, “[T]here could be no duty

owed by the ship to Brown as a matter of law, even if the

ship’s crew was aware of the danger posed by the unstable

rack”, Id. at 335.

In view of the law as declared in at least the four cir-

cuits herein cited with respect to the changes in the law

effected by the 1972 LHWCA enactments and in view of the

facts presented in plaintiff’s case, the motion for a directed

verdict in defendant’s favor should have been granted. The

stevedore alone had been entrusted with the unloading

operation. It knew the location of its employees in the

hold; the work being done by the gang above in the ’tween

deck area; the necessity, as shown by its directions to the

hatch bosses, that the beams be secured and that they were

not secured. In addition, the operation of the boom was

in its exclusive control and if, as undoubtedly occurred,

some object, probably cargo, struck and dislodged the

beam, this was the stevedore’s act—not that of the ship-

owner. In view of the overwhelming decisional authority

and the conclusion therefrom that the shipowner had no

duty to supervise the operation entrusted to the stevedore

a ee SS eae eae

+

l4a

alone, the judgment must he reversed and the complaint

dismissed.“

This result does not impose a hardship or injustice on

the injured longshoreman. He receives the substantial‘

benefits intended to be accorded to him by the 1972 legisla-

tion. The entire philosophy of workmen’s compensation

would be thwarted by a contrary result.

Althongh a situation is here presented similar to that in

Munoz and Hickman, where this court reversed and dis-

missed the complaint in each case, brief comment should

be made with respect to the trial court’s charge and the

error claimed therein. The trial court charged:

“Tf you find that because of the untied beams the plain-

tiff did not have a reasonably safe place in which to

work and that the ship’s officers knew or in the exer-

cise of reasonable care should have known of the un-

safe condition, yet failed to take reasonable steps to

correct it, then you should find the defendant liable.

Additionally, if you find that the plaintiff did not

have a reasonably safe place in which to work, even if

you find that the plaintiff or his employer knew of the

danger facing him because of the untied beams, or that

the danger was obvious to him, you must still find for

the plaintiff if you find that the defendant should have

anticipated that an accident might occur with the

beams not tied down, despite such knowledge on the

5 In a New York case, brought by a co-worker of Cox, arising out of

the sme incident, the State Supreme Court dismissed the complaint based

in part on Anuszewski, distinguishing Napoli. The Appellate Division,

First Department affirmed without opinion. Williams v. Flota Mercante

Grancolombiana, S. A., No. 1465 (Ist Dept. December 20, 1977).

6 In Appellant’s brief (p. 20) it is represented that “Whereas, prior to

the amendment, the longshoremen received a maximum of $70.00 per

week in compensation, today the maximum is more than $350.00 per

week“.

15a

part of the plaintiff and despite the obviousness of the

danger to him.” (162a).

This charge, in effect, was merely a reiteration of the

pre-1972 law which imposed on the shipowner a non-dele-

gable duty to provide the employees of an independent con-

tractor with a safe place to work.’ It was exactly this legal

principle which Congress intentionally changed.

Judgment reversed ; complaint dismissed.

7 Appellant requested two charges to the jury which were erroneously

denied. (146a). He requested, in request 18, that the shipowner would

not be responsible if the plaintiff or his fellow workers were negligent

in failing to take adequate precautions to prevent the accident (189a)

and in request 21, that the shipowner Flota had no duty to supervise

the work of the stevedore UMS. (190a-91a).

16a

UNITED STATES COURT OF APPEALS

For tus Sroonp Omourit

— . — —

Nos. 346, 488— September Term, 1977.

(Argued December 8, 1977 Decided June 2, 1978.)

Docket Nos. 77-7292, 77-7332

Antnony Can1zzo,

Plaintiff-Appellee and

Cross-Appellant,

v.

Fan. Lives, Ixo.,

Defendant-Appellant and

Cross-Appellee,

and

Unrvaersa, TerminaL AND Sreveporra Corr.,

Defendant-Appellee and

Third Party Plaintiff,

Fan, Livgs, Ivo.,

Third Party Plaintiff-Appellant,

v.

Fnaxx J. Holux, IxC.,

Third Party Defendant-Appellee.

—

17a

Before:

Framenviy, Surrn and Mzsxnu,

Circuit Judges.

—

Appeal from money judgment for personal injuries to

longshoreman against shipowner in the United States

District Court for the Southern District of New York,

Charles L. Brieant, Jr., Judge.

Affirmed in part, reversed in part and remanded for

further proceedings. N

os

Juarrrey V. Boxer (Lilly, Sullivan & Purcell,

New York, N. V.), for Farrell Lines, Inc.

Rionarp J. Canan (Cohen & Cardali, New

York, N. V.), for Anthony Canizzo.

Ausert S. Commetre (Commette, Quencer &

Annunziato, New York, N.Y., Robert K.

Marzik, of counsel), for Universal Terminal

and Stevedoring Corp.

Joun T. Suean, New York, N.Y. (J. Robert

Morris, New York, N.Y., of counsel), for

Frank J. Holleran, Inc.

=e

Surrn, Circuit Judge:

Farrell Lines, Inc. (“Farrell”) appeals from a decision

and order of the United States District Court for the

Southern District of New York, Charles L. Brieant, Jr.,

Judge, finding Farrell liable for injuries sustained by

appellee Anthony Canizzo in an accident on board Far-

rell’s ship, the 8.8. African Comet. The court found Far-

rell liable for damages in the net amount of $65,628.60,

after a deduction which included $8500 per year for re-

18a

maining earning ability and 40% contributory negligence,

and Canizzo cross-appeals from this reduction in the

damage award.

For the reasons adduced below, we affirm in part and

reverse in part the judgment of the district court and re-

mand the case for further proceedings consistent with this

opinion.

I.

This suit commenced with the filing of a complaint

against Farrell and Universal Terminal and Stevedoring

Corp. (“Universal”), an independent stevedore loading

cargo on board the African Comet on the day of the acci-

dent. Farrell impleaded Frank J. Holleran, Inc., Canizzo’s

employer, as a third-party defendant, and filed a cross-

claim against Universal. Universal then filed a cross-claim

against Holleran. The district court dismissed Canizzo’s

action against Universal, Farrell’s cross-claim against Uni-

versal, Farrell’s third party complaint against Holleran

and Universal’s cross-claim against Holleran.

On January 12, 1973, the day of the accident, Universal

was employed by Farrell to load the African Comet. Hol-

leran provided lashing and carpentry personnel to secure

the cargo after it was loaded by Universal. Canizzo worked

for Holleran as a carpenter. At approximately 5:00 p.m.

Canizzo was instructed to move from one part of the ship

to another in order to continue his work. In so doing, he

was forced to traverse a narrow passageway between a

locomotive stowed on the inshore area of the deck and a

nearby hatch coaming. While walking through this pas-

sageway, Canizzo slipped on a patch of grease which was

partially covered by a pile of wires which lay on the deck.

Canizzo sustained permanent injury to his knee, and as a

result, is unable to work as a marine carpenter or long-

shoreman. He is not, however, totally disabled.

19a

The trial court found that the ship’s crew placed cluster

lights and their attached electrical wires in the passageway

in question after 4:00 or 4:30 p.m., but at least one-half an

hour before Canizzo’s accident, The lights, wires, and other

clutter which lay on top of the greasy deck created an “ob-

viously dangerous” condition which would have been ob-

vious to any prudent person. The court found that Farrell

had actual or constructive notice of this condition inasmuch

as the ship’s personnel should have seen the grease on the

deck when they put out the cluster lights. Furthermore, the

crew should have anticipated that Canizzo would be unable

to avoid the dangerous condition on the deck. This, the

district court believed, was sufficient to bring Farrell with-

in the negligence standard of § 343A of the Restatement

(Second) of Torts (1965), which was adopted in this

court’s opinion in Napoli v. Trans Pacific Carriers Corp.,

536 F.2d 505 (2d Cir. 1976).

The court found further, however, that Canizzo had

been contributorily negligent in failing to walk with suffi-

cient caution, or alternatively, in failing to avoid the wires

by taking a different route to the No. 6 hatch. It was

further held that Canizzo’s damages were reduced, inas-

much as he was capable of earning $8500 per year. Ace-

cordingly, the trial court awarded Canizzo $109,381.00

reduced by reason of contributory negligence to $65,628.60.

II.

This suit is brought pursuant to the Longshoremen's and

Harbor Workers’ Compensation Act (“LHWCA”), 33

1 Section 348A provides:

(1) A possessor of land is not liable to his invitees for physical

harm caused to them by any activity or condition on the land whose

danger is known or obvious to them, unless the possessor should

anticipate the harm despite such knowledge or obviousness.

oe |

20a

U.S.C. § 901 et seg., as amended. Amendments to the Act

passed in 1972 increased levels of compensation payable to

injured longshoremen, eliminated the doctrine of unsea-

worthiness as it pertained to shipowners, made a ship-

owner’s negligence a necessary condition of his liability,

and immunized independent stevedore-employers from li-

ability in excess of compensation payments. In the words

of the House Report:

The Committee believes that where a longshoreman or

other worker covered under this Act is injured through

the fault of the vessel, the vessel should be liable for

damages as a third party, just as land-based third

parties in non-maritime pursuits are liable for dam-

ages when, through their fault, a worker is injured.

[But] the Committee believes that especially with the

vast improvement in compensation benefits which the

bill would provide, there is no compelling reason to

continue to require vessels to assume what amounts to

absolute liability for injuries which occur to longshore-

men . . who are injured while working on those

vessels,

Accordingly . .. it would be fairer to all 3 .

kor the liability of vessels as third parties to be pre-

dicated on negligence, rather than the no-fault concept

of seaworthiness,

[Report of the House Education and Labor Commit-

tee, H.R. Rep. No. 92-1441, 92nd Cong., 2d Sess., 1972,

U.S, Code Cong. & Ad. News, 4698 at 4702-03. ]

See Lubrano v. Royal Netherlands Steamship Co.,.

F.2d ——— slip op. 1533 (2d Cir., Feb. 15, 1978); Ruffino v.

Scindia Steam Navigation Co., 559 F. 2d 861 (2d Cir. 1977);

Munoz v. Flota Merchante Grancolombiana, S. A., 553 F.2d

2la

837 (2d Cir. 1977); Napoli v. TransPacific Carriers Corp.,

supra, 536 F. 2d 505; Landon v. Lief Hoegh d Co., 521 F. 2d

756 (2d Cir. 1975), cert. denied, 423 U.S. 1053 (1976).

Under the relevant provisions of the Restatement (Sec-

ond) of Torts (1965), possessors of land, and hence ship-

owners, are liable for physical harm caused to invitees by

dangerous conditions which are not obvious to the invitee

(§ 343), but are absolved from liability when dangerous

conditions are known or obvious, except when the possessor

should anticipate the harm despite the invitee’s knowledge

or the obviousness of the condition. (§ 343A.)

Thus in Napoli, supra, we held that where a longshore-

man had fallen from unsecured planks, there was sufficient

evidence of the shipowner’s knowledge of “obviously dan-

gerous conditions” that were unlikely to be avoided by the

longshoreman, that the case should have gone to a jury for

a determination of the shipowner’s negligence under

§ 343A of the Restatement (Second) of Torts. 536 F.2d 505.

A shipowner, however, can only be liable under § 343A

if he knows or should have known of the obviously danger-

ous, but unavoidable, condition. Ruffino v. Scindia Steam

Navigation Co., supra, 559 F.2d at 862; Munoe v. Flota

Merchante Grancolombiana, S. A., supra, 553 F.2d 837.

While these principles are reasonably clear, considerable

legal uncertainty remains in cases in which the negligence

of a shipowner combines with the negligence of an indepen-

dent stevedore to cause injury to a longshoreman. Simi-

larly, when harm is caused by an independent stevedore

given complete control over the loading of a ship, it is

unclear whether, everything being equal, a shipowner is

liable for that harm even when he has knowledge of the

dangerous condition caused by the stevedore. See Restate-

ment (Second) of Torts, §§ 409-429; Lubrano v. Royal

Netherlands Steamship Co., supra, slip op. 1533 at 1539

22a

(Moore, J., dissenting); Hickman v. Jugoslavenska Lin-

ijska Plovidba Rijeka, “Zvir’, —— F.2d ——, slip op.

1459 (2d Cir., Feb. 2, 1978).

Too strict a view of a shipowner’s liability in these situa-

tions would do much to diminish the salutary effects of the

1972 amendments by, in effect, making shipowners liable,

once again, on what is akin to an unseaworthiness standard,

but without recourse to contribution on the part of a neg-

ligent stevedore. Too lax a view would specifically contra-

dict the congressional intention to make shipowners liable

for their own negligence under the amended statute. See

Report of the House Education and Labor Committee,

H.R. Rep. No. 92-1441, supra, at 4701-02. We are faced,

then, with a difficult problem of line drawing which, at this

stage in the development of the legal doctrine, is best

undertaken on a case by case basis.

In the instant case, the trial court found Farrell liable

on either of two alternative legal theories. First, it found

that the ship’s crew placed cluster light wires on top of a

patch of grease, thereby creating the dangerous condition

which was the proximate cause of Canizzo’s injury. Second,

it found that, in placing the cluster lights on the deck, the

crew observed or should have observed the greasy patch,

and was therefore on notice of the obviously unsafe condi-

tion aboard ship.

These findings rest on the trial court’s assessment of

the credibility of plaintiff and of two of plaintiff's wit-

nesses, Mazze and Trovato, both of whom were fellow em-

ployees and friends of plaintiff and both of whom had

unrelated injury claims pending. The court found both

biased in plaintiff’s favor and rejected portions of the testi-

mony of each, notably that of Trovato that a ship’s officer

had observed the dangerous conditions at 1:00 or 2:00 p.m.

The court did, however, credit the testimony that the

23a

grease, wire and cluster light wires existed in the area of

the accident, that the grease was there at 1:30 or 2:00, and

that the cluster lights had been placed on deck by the ship’

company.’ ,

These conclusions are based primarily on the weighing

of testimony by the trier who had the opportunity to ob-

serve witnesses Mazze and Trovato on the stand and listen

to them under direct and cross-examination, and we find

no basis for setting them aside. The existence of a sub-

stantial area of grease in a narrow passageway, which

should have been known to the ship’s personnel, made more

dangerous by the positioning by the ship’s personnel of the

cluster lights and wires upon the greasy area supports

the finding of negligence on the part of the ship and justi-

fies the plaintiff's judgment even under the new dispen-

sation.

There is a strong presumption in favor of a trial court’s

findings of fact if supported by substantial evidence, Pam-

pillonia v. Concord Line, A/S, 536 F.2d 476 (2d Cir. 1976),

Luigi Serra, Inc. v. SS Francesco C, 379 F.2d 540 (2d Cir.

1967) (maritime negligence). Such findings may be set

aside only if clearly erroneous. Rule 52(a), Fed. R. Civ. P.

Where no substantial evidence supports a factual deter-

2 While the testimony concerning the cluster lights is to some degree

vague and inconsistent, there is some substantial basis for the court to

conclude that it was more probable than not that the crew put them

out. The longshoremen had often worked this ship and were familiar

with its lighting. Trovato testified that “they” put two lights near every

hatch and that the ship owns the cluster lights, Canizzo that the crew

takes care of them, Dennen (a Farrell witness by deposition) testified

that they are owned by the ship, are ship’s gear, are stowed adjacent

to the hatch, are made available and are available to where they are

needed. Holleran indicated hat they were ship’s gear but usually hooked

up by longshoremen, Davis, a ship superintendent for Universal, by

deposition testified that the crew puts the cluster lights out and brings

them to the hatch but that either the crew or Universal's men plug

them in. There is no indication that the cluster lights in question had

yet been hooked up.

j

N

. ˙ A

24a

mination, it is clearly erroneous, and properly set aside.

United States ex rel. Pacos v. Rundle, 491 F.2d 447, 452

(3d Cir. 1974); Hodgson v. Fairmont Supply Co., 454 F.2d

490, 495 (4th Cir. 1972); Shenker v. United States, 322

F. 2d 622, 624 (2d Cir.), cert. denied sub nom. American

Stevedores, Inc. v. Shenker, 376 U.S. 907 (1963); Apache

Powder Co. v. Ashton Co., 264 F.2d 417, 422 (9th Cir.

1959); Cleo Syrup Corp. v. Coca-Cola Co., 139 F.2d 416,

418 (8th Cir. 1943), cert. denied, 321 U.S. 781 (1944); see

5A Moore’s Federal Practice 52.0311]; 9 Wright & Miller,

Federal Practice d Procedure § 2585 n. 8.

Here the question is not so much whether the evidence

supporting the findings on liability is substantial as

whether it is credible. We are not convinced that the deter-

mination of credibility is clearly erroneous, although a con-

trary ruling might have been supportable.

The judgment establishing the ship’s liability must be

affirmed.’

8 Coz v. Flota Mercante Grancolombiana, 8.A. was decided May 10,

1978, slip op. 2989ff, while this case was sub judice, Cor seems to us

in conflict with at least Lubrano v. Royal Netherlands 8.8. Co..

F.2d ——, slip op. 1538 (2d Cir. Feb. 15, 1978), among the decisions

in this circuit. a

While each case must be determined on its own facts, the result in

Com cannot reasonably be reconciled with our result here by the differ-

ences in the factual situations, for the proof of ship’s negligence in

was at least comparable to that here. With all respect, however,

we must disagree with the result in Coz. It appears to us to do what

the Congress was unwilling to do, abolish the shipowner’s liability to

the injured longshoreman in negligence as well as in unseaworthiness.

As Judge Friendly points out, liability of the ship for such negligence

as @ greasy deck attributable to the ship’s company was specifically

contemplated and thought to be preserved by the legislation. *

Litigation in this troubled field would be tidier if the Congress had

eliminated altogether the ship’s possible liability to longshoremen. There

are, however, other considerations.

Benefits under the Longshoremen’s and Harbor Workers’ Act have

been considerably increased. We cannot overlook the fact, however, that

as is usual under workmen’s compensation schemes, they do not fully

compensate for the loss suffered. If the ship, not a party to the em-

25a

III.

The trial court found that because of Canizzo's experi-

ence as a carpenter and his above-average intelligence, he

was capable of earning $8500 per year. While we do not

quarrel with the court’s estimation of Canizzo’s intelli-

gence, we are forced to conclude that it has taken an un-

founded view of the employment potential of a 58-year-old,

partially-disabled marine carpenter who has a history of

heart trouble. While Canizzo may be capable of some em-

ployment, the record lacks any evidence as to its nature,

availability or rate of compensation. The finding that he

can earn $8500 per year until his retirement leaves this

court “with the definite and firm conviction that a mistake

has been committed” and that this finding is consequently

clearly erroneous. United States v. U.S. Gypsum Co., 333

U.S. 364, 395 (1948); Schley v. CIR, 375 F.2d 747, 749-50

(2d Cir. 1967); Rule 52(a), Fed. R. Civ. P.

Accordingly, we must remand this case for redetermina-

tion of Canizzo’s damages.

The court’s dismissal of charges against Universal for

failure of proof of Universal’s negligence, and its dismis-

sal of charges against Holleran, as forbidden by the terms

of 33 U.S.C. § 901 et seg., as amended, were correct.

The judgment of the district court is affirmed on the

issue of liability, reversed on the issue of damages, and

the case is remanded for further proceedings consistent

with this opinion.

+or

ployment contract, is absolved from liability for its own negligence,

this uncompensated loss, which may be vory great, is shifted from the

negligent ship to the often innocent employee. The terms of the statute

and the legislative history indicate to us that while Congress was willing

to shift the burden of injury without fault to an improved compen-

sation system for shore workers (who arguably never should have been

classified with seamen anyway) it was not willing so to shift the burden

of injury through the fault of the ship. This policy judgment we would

leave to the Congress.

26a

Frrenpvxy, Circuit Judge, dissenting from the holding as

to liability:

Courts must be exceedingly careful in defining the con-

tours of the longshoreman’s action for negligence against

the ship, which was preserved by §905(b) of the 1972

amendments to the Longshoremen’s and Harbor Workers’

Compensation Act (LHWCA), lest too expansive notions

of the ship’s duty vitiate Congress’ intent to do away with

absolute liability for vessels (the “unseaworthiness” doc-

trine) and make greatly improved compensation benefits

the primary remedy for longshoremen and harbor workers.

Congress’ objective, as is well known, was to curtail the

triangular action whereby a longshoreman! who had al-

ready received compensation benefits from his employer’

would bring a suit for unseaworthiness against the ship,

which in turn would sue the employer. See Munoz v. Flota

Merchante Grancolombiana, SA, 553 F.2d 837, 839-40 (2

Cir. 1977). Much of any recovery by the longshoreman

would return to his employer’s compensation insurer in

satisfaction of its lien; another substantial portion would

go to the plaintiff’s lawyer and medical experts; and there

would be a further transactional cost in the ship’s recovery

from the employer of its cost of defending against the

longshoreman’s suit. See, e.g., McLaughlin v. Trelleborgs

Angfartygs A/B, 408 F.2d 1334 (2 Cir.), cert. denied, 395

U.S. 946 (1969). Unless the courts keep the longshore-

man’s negligence action against the ship within proper

1 For simplicity I shall generally use the word “longshorenan” to in-

clude all persons covered by the Longshoremen’s and Harbor Workers’

Compensation Act, and the word “stevedore” to include their employers,

although plaintiff Canizzo was a marine carpenter. Cf. 33 U.S.C. § 902

(3) and (4).

2 Before the 1972 amendments these were often inadequate, see Munoz

v. Flota Merchante Grancolombiana, 8.A., 553 F.2d 837, 839 (2 Cir.

1977). .

—

27a

bounds, the ship’s situation will be worse in some respects

than before since it will be deprived of its former third

party action against the longshoreman’s employer. More-

over, the increased compensation payments, which Con-

gress conceived as the usual source of making the long-

shoreman whole, will absorb a still larger share of his

recovery against the ship with consequent attenuation of

any benefit to the injured worker. And all this despite the

fact that the employer is generally in a far better position

than the ship to prevent accidents to its employees. See

Lubrano v. Royal Netherlands S. S. Co., slip ops. 1533,

1546-47 & n.7 (2 Cir. Docket No. 77-7211, Feb. 15, 1978)

(Moore, J., dissenting). Such a result would contravene

the objective of Congress whereby

. . . adequate workmen’s compensation benefits.

by assuring that the employer bears the cost of un-

safe conditions, serves [sic] to strengthen the em-

ployer’s incentive to provide the fullest measure of

on-the-job safety.

H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972), reprinted

in 3 U.S. Code, Cong. & Ad. News 4698, 4699 (1972).

Nothing in the language of the statute or prior decisions

of this court or others can justify imposition of liability

on the ship under such circumstances as are presented

here.

In retrospect it seems to have been a mistake for courts

to give such talismanic significance to §§ 343 and 343A of

the Restatement of Torts 2d as has sometimes been done.

These sections are awkwardly drafted; the framers had

3 Identical language appears in the Senate Report, No. 92-1125, 92d

Cong., 2d Sess. 2 (1972).

4 Section 343A, on which liability is here sought to be predicated, is

a statement of when the possessor is not liable.

28a

no notion that they would be applied to the tangled situa-

tions of ship loading or unloading; and they must be read

together with Chapter 15, “Liability of an Employer of an

Independent Contractor”. In dealing with § 905(b), courts

would do better to consider the policies that actuated Con-

gress in adopting the 1972 amendments. In my view Con-

gress did not mean to subject the ship to liability for every

dangerous condition known or knowable to it when it had

a right to assume that this would be remedied by the em-

ployer, as 5941 (a) requires. The typical cases where the

ship was to be liable under § 905 (b) would be for condi-

tions of which it was or should have been aware but of

which the employer was not and could not reasonably be

expected to be and for affirmative acts of negligence for

which the employer bore no responsibility (e.g., when the

crew carelessly operated the ship’s machinery used in load-

ing and unloading or when such machinery was defective).§

Decisions in other circuits have emphasized the primary

responsibility of the employer and the right of the vessel

to assume that this will be discharged. The Third Circuit

5 This view does not run counter to the case stated in the House Report:

So, for example, where a longshoreman slips on an oil spill on a

vessel’s deck and is injured, the proposed amendments to Section 5

would still permit an action against the vessel for negligence. To

recover he must establish that: 1) the vessel put the foreign sub-

stance on the deck, or knew that it was there, and willfully or

negligently failed to remove it; or 2) the foreign substance had

been on the deck for such a period of time that it should have

been discovered and removed by the vessel in the exercise of rea-

sonable care by the vessel under the circumstances.

H.R. Rep. No. 1441, supra, 3 U.S. Code Cong. and Ad. News at 4704

(1972). The crucial words are “willfully and negligently” and “in the

exercise of reasonable care.” Reasonable care does not require the ship

to act if it could properly expect that the contractors who were con-

stantly coming and going in the area would do so. See Anuszewshi v.

Dynamic Mariners Corp., Panama, 391 F.Supp. 1148, 1149 (D. Md.

1975), aff'd, 540 F.2d 757 (4 Cir. 1976), cert. denied, 45 U.S. 3571

(1977).

29a

disapproved a jury instruction that “(t]he responsibility

for the safety of the longshoreman lies concurrently or

jointly with the longshoreman’s employer, and with the

shipowner.” Marant v. Farrell Limes, Inc., 550 F.2d 142

(3 Cir. 1977). Later, in Hurst v. Triad Shipping Co., 554

P.2d 1237, 1250 n.35 (3 Cir.), cert. denied, 46 U.S. L. W.

3218 (1977), Judge Hunter noted that

creation of a shipowner’s duty to oversee the steve-

dore’s activity and insure the safety of the longshore-

men would. . . saddle the shipowner with precisely

the sort of nondelegable duty that Congress sought

to eliminate by amending section 905(b). Every ship-

owner has the authority to oversee stevedoring opera-

tions. If that authority, without more, suffices to charge

the shipowner with a responsibility for detecting un-

safe methods of operations and warning the longshore-

men about them, then shipowners will be back in their

pre-1972 position.

The Fourth Circuit has taken a similar view. It approved

a jury instruction that the primary responsibility for the

safety of a repairman on a ship rested upon the shipyard

and not upon the shipowner. Riddle v. Exxon Transporta-

tion Co., 563 F.2d 1103, 1109 (1977).* After noting the

6 In support of this the court stated in footnote 9:

See, for instance, Ramirez v. Toko Kaiun K.K. (N.D. Cal. 1974)

385 F.Supp. 644, 653; Lucas v. “Brinknes” Schiffahrts Ges. (E. D.

Pa. 1974) 379 F.Supp. 759, 768.

In the first case, the Court said:

“The primary responsibility for the safety of a longshoreman

lies with the stevedoring company.”

In Lucas, the Court said:

„It is clear, however, that Congress decided that the pri-

mary duty to provide a safe place to work is on the stevedore.”

In Brown v. Ivarans Rederi A/S (3d Cir. 1976) 545 F.2d 854,

860 (U.S. appeal pending), the Court said:

30a

“modern” rule of a landowner’s liability set forth in $4 343

and 343A of Torts Restatement and applied by this court

in Napoli v. TransPacific Carriers Corporation, 536 F. 2d

505 (1976), Judge Russell went on to say:

However, even under the modern rule, a vessel is not

liable for “open and obvious” dangerous conditions,

whether existing at time control of the vessel is re-

linquished by the vessel or arising afterwards with

the knowledge of the vessel, if the danger is such

that the stevedore or shipyard would be expected to

correct the condition in the course of discharging its

responsibility for the safety of the longshoreman or

shipyard worker.

563 F.2d at 1111-12 (emphasis added). One author has

written:

The consistent philosophy of these decisions is that

in the ordinary situation shipowners are in no position

to learn of unsafe conditions or methods arising during

the stevedore’s operations; when the shipowners do

learn of such dangers, ordinarily the stevedore and his

employees will have an equal or greater awareness, so

that the danger can be said to be open and obvious;

and that the safety of stevedoring and other such oper-

ations is the primary and usually the sole respon-

sibility of the stevedore.

Robertson, Negligence Actions by Longshoremen Against

Shipowners Under the 1972 Amendments to the Longshore-

However, express language in the statute and the legis-

tive history reports accompanying the 1972 Amendments amply

demonstrate that for reasons of policy the major responsibility

for the proper and safe conduct of the work was to be borne

by the stevedore.

563 F.2d at 1109 n. 9.

31a

men's and Harbor Workers’ Compensation Act, 7 Journ.

Maritime Law & Commerce 447, 473 (1976).

No decision of this court requires us to ignore the ship’s

justifiable reliance on the independent contractors to per-

form their duty. Napoli v. TransPacific Carriers Corp.,

supra, 536 F. 2d 505, which the district judge regarded as

the fons et origo of imposition of broad liability on the

ship, did nothing of the kind. Where, as in that case, there

is no independent contractor, it is part of the ship’s duty to

exercise reasonable care to inspect its own workers’ work-

place, to remove grease spills, etc. In such a case there is

no “independent contractor” with primary responsibility

upon whom the ship may properly rely. As the Napoli

court rightly said in rejecting the district court’s charge in

that case:

a charge which relieves a shipowner of liability for a

dangerous condition which was “known to the steve-

dore or to any of its employees” is clearly inappropri-

ate where the shipowner, itself, is the stevedore.

Napoli, supra at 508. Things are very different when the

longshoreman works for an independent stevedore who has

primary responsibility for the workplace. The decision of

a divided panel in Lubrano v. Royal Netherlands S. S. Co.,

supra, slip ops. 1533, is also distinguishable. In that case

there was evidence of direct knowledge and participation

of a ship’s officer who “approved and joined in the direc-

tion that the men keep working, although the dunnage was

not there.” It was not a case where either the ship did not

actually know of the danger and merely “should” have

known, nor a case where at most the ship knew of the prob-

lem but could rely on others to alleviate it—in Lubrano the

32a

court found that the ship’s officer may have himself or-

dered the continuance of the dangerous situation.

In contrast this court has repeatedly recognized how far

the ship may rely upon the independent contractor to

rectify dangerous conditions that arise during loading and

unloading. Munoz v. Flota Mercanta Grancolombiana, &. A.,

supra, 553 F. 2d at 840; Ruffino v. Scindia Steam Navigation

Co., 559 F. 2d 861 (2 Cir. 1977) ; Hickman v. Jugoslavenske

Linijska Plovidba Rijeka, “ZVIR”, 570 F.2d 449 (2 Cir.

1978). The last of this line of cases is Cox v. Flota Mer-

cante Grancolombiana, Docket No. 77-7338, decided May 10,

1978, slip opinions 2989. There a unanimous panel directed

dismissal of a complaint on facts which the majority prop-

erly concedes, see fn. 3, are indistinguishable from those in

the instant case.’ While the majority disregards Coz be-

cause the opinion was handed down in the face of known

disagreement by a majority of this panel, our district

judges can scarcely be expected to function with so dis-

cordant a chorus on this court.

The first basis on which the district judge and the ma-

jority would hold the vessel liable—knowledge of the ac-

cumulation of grease—is plainly untenable. When Farrell

Lines engaged Universal to load and Holleran to lash the

cargo, it was entitled to assume that they would perform

the job in a workmanlike fashion, including compliance

with the Safety and Health Regulations for Longshoring,

29 C.F.R. 1918.91(c), which require that “slippery condi-

tions shall be eliminated as they occur,” and place respon-

sibility for compliance on stevedores. See 29 C.F.R,

§§ 1918.2(a); 1918.3(c); Brown v. Mitsubishi Shintaku

Ginko, 550 F.2d 331, 333 (5 Cir. 1977). If grease had ac-

7 Indeed the facts in Cor were stronger for the employee, There was

evidence that placing pins in the beams was the ship’s responsibility

and that a mate had agreed with the hatch boss to supply them.

33a

cumulated on the site of the accident for several hours, the

responsibility for removing it or warning workers about

it rested primarily on the independent contractors whose

employees were regularly on the scene and were or shonld

have been supervised, not on the ship. The ship would

therefore certainly not have been negligent if it merely

failed to discover the existence of the grease within the

hours this assertedly was accumulating. Moreover, even if

some unidentified ship personnel might have (or, as the

district judge said even less convincingly, “should have”)

seen the grease when they were “pulling out” cluster lights

to help the longshoremen and carpenters—assuming there

was sufficient evidence for the judge to conclude that this

had occurred, which I seriously doubt—this does not estab-

lish negligence on the part of the ship. First, any knowl-

edge of the unknown deckhands about the grease would be

imputable to Farrell Lines only if they had a duty to in-

form Farrell about it, ALI, Restatement of Agency 2d

§ 272, which they may not have had, see id. at § 275 illust.

6, unless, for example, they were ship’s officers, for which

there was no proof at all. Moreover, even if the ship could

be said to have had constructive notice of the condition,

there was no reason to think that the independent con-

tractors who were primarily responsible for eliminating

or warning about it would not take care of the problem as

they were bound to do. This is particularly so since, as the

district judge noted, Trovato, a Holleran employee and

witness for Canizzo, said he saw the grease at 1:30 P.M.

and hence could have reported the condition to his em-

ployer for corrective action.

There is likewise no merit in the alternative theory that

the ship’s deckhands aggravated the danger by placing

the cluster lights on top of the grease and this aggrava-

tion was a substantial factor in causing Canizzo’s injury,

34a

ALI, Restatement of Torts 2d §§ 430, 431. In the first

place, there was no sufficient evidence to support this. Even

if the testimony were deemed adequate to sustain the con-

clusion that the lights were brought out by deckhands

rather than the longshoremen, there is no evidence that

deckhands were responsible for placing them where Canizzo

fell. Also, if the deckhands had placed the lights pre-

cisely at that spot, there were wires on the deck before

the cluster lights were put out and Canizzo made no claim

that he would not have fallen except for the lights. In

his contemporaneous accident report he made no mention

of the cluster lights, saying only that he “tripped over

debris (old gear and wire),” and at trial his account of

the accident was simply that he noticed grease on his over-

alls and shoes after his fall and that on the deck “there

was a few wires there, with grease on them, and cluster

lights with the wire hanging, you know, all messed up.”

The basic cause of Canizzo’s slipping was, of course, the

grease; its removal was the primary responsibility of the

independent contractors, not of the ship. Beyond this, if

the cluster lights in fact aggravated the danger caused by

the grease and the wires, Canizzo’s employer had the re-

sponsibility and the opportunity to place them elsewhere

and the ship was entitled to assume that it would.

The judgment should be reversed with instructions to

dismiss the complaint.

vv “Pty