Petition — Dougherty v. Haaland
Supreme Court brief1979
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OCT 17 1979
Os THR L_ Mickie KODAK, JR., CLERK
Supreme Court of the United States ~
October Term, 1979.
No.
79-642
JOHN J. DOUGHERTY,
Petitioner,
o.
CHRISTIAN HAALAND,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
ABRAHAM E. FREEDMAN,
STANLEY B. GRUBER,
FREEDMAN AND LORRY,
Lafayette Building, 8th Floor,
Philadelphia, PA 19106
Attorneys for Petitioner.
international Printing Co., 711 So. 50th St., Phila., Pe. 19143 — Tel. (215) 727-8711
REASONS FOR GRANTING THE WRIT ........cccccccccccccces
I.
Il.
Ill.
The Standard of Care Adopted by the District Court
Under Section 5(b) of the Longshoremen’s and
Harbor Workers’ Compensation Act, as Affirmed by
the Court of Appeals, Conflicts With the Decision of
This Court in Edmonds v. Compagnie Generale
Transatlantique, — U.S. —, 61 L. Ed. 2d 521 (1979)
The Decision Below Is in Conflict With the De-
cisions of the Ninth Circuit in Santos v. Scindia
Steam Navigation Co., Ltd., 598 F. 2d 480 (9th Cir.
1979) and Another Panel of the Third Circuit in
Griffith v. Wheeling-Pittsburgh Steel Corporation, —
ee eae ca ccs bc ccsccecccecs
This Case Presents an Important Question of Federal
Law Which Has Not Been, But Should Be, Settled
ee ee Serre eee
Nee eee ccceecceccces
Appenprx A—Statute Involved ..............cccccccceees
Appenpix B—Portions of the Transcript of Record Setting
Forth the Reasoning of the District Court in Granting a
CES G ERNE DEd Gp cenceccccssccces
Aprenpix C—Order of the District Court Directing Verdict
for Defendant and Entering Judgment in Favor of De-
EE EE I
INDEX (Continued).
Aprenpix D—Opinion of the District Court Denying Motion
fe 2 Pen Cererr rer rer Ty Ti Tit TT err
Appenpix E—Order of the District Court Denying Motion
se Cer rerITTTe TT ere rrr TT Tite
ApreNpix F—Judgment Order of the U. S. Court of Appeals
for the Third Circuit ............0+-seeeeeeeeeeeeees
Apprenpix G—Opinion of the U. S. Court of Appeals for the
Third Circuit in Griffith v. Wheeling-Pittsburgh Steel
oO ar Tere ere re res ery TTL Tree ee ee.
Page
A42
A43
TABLE OF CITATIONS
Cases: Page
Anderson v. Iceland S. S. Co., 585 F. 2d 1142 (1st Cir. 1978) 15
Anuszewski v. Dynamic Mariners, Panama, 540 F. 2d 757
Se Ee OEE adi a dices ved ks ca mennu ths uke .. +14, 15
Canizzo v. Farrell Lines, Inc., 579 F. 2d 682 (2nd Cir. 1978)
14, 15
Cox v. Flota Mercante Grancolombiana, S. A., 577 F. 2d 798
SN ET NE hohe 4: ees ses hERa01s UPR Seekers s 14, 15
Edmonds v. Compagnie Generale Transatlantique, — U. S.
i 1 i ROE h 65'6 Vokes nn aed vS oes vad 7, 8,9
Gallardo v. Westfal-Larsen & Co., A/S, 435 F. Supp. 484
See ee ae tt bacd-ta bob escekanad eres ll
Griffith v. Wheeling-Pittsburgh Steel Corporation, — F. 2d —
(3rd Cir., August 24, 1979) ............... 8, 9, 10, 11, 14, 15
Hurst v. Triad Shipping Co., 554 F. 2d 1237 (3rd Cir. 1977) .14, 15
Samuels v. Empresa-Lineas Maritimas Argentinas, 573 F. 2d
ee Re NE as ko Ve esc dav oc ca wils dois bebidnas 14
Santos v. Scindia Steam Navigation Co., Ltd., 598 F. 2d 480
ar NOS Ae aT eronaey gee 9, 11, 14, 15
Statutes and Authorities:
en Gi acing os bs pGea Nawapieuecevep esas 2
ee a dy bo 65-5 b AMA DAR OA 0 Gea trons c 3
ee I isa 6s 0 6ale 4 cncha 5 hasbeen wens whscc 12
rr er eee 2, 3, 7, 11, 12, 13, 14, 15
3 U. S. Code Cong. Ad. News (1972) ...........ccceccuee 14
Restatement of Torts, 2d, §§ 343 & 343A .................. 14
IN THE
Supreme Court of the United States
OcroBER TERM, 1979
No.
JOHN J. DOUGHERTY,
Petitioner,
v.
CHRISTIAN HAALAND,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT.
To the Honorable, the Chief Justice and the Associate
Justices of the Supreme Court of the United States:
Petitioner, John J. Dougherty, respectfully prays that
a Writ of Certiorari issue to review the judgment of the
United States Court of Appeals for the Third Circuit, en-
tered herein on July 17, 1979.
OPINIONS BELOW.
The opinion of the United States District Court for
the Eastern District of Pennsylvania directing a verdict in
favor of defendant was orally stated from the bench, and
is not reported. Those portions of the record setting forth
2 Petition for Writ of Certiorari
the reasoning of the District Court in granting a directed
verdict are printed as Appendix B (A2). The order of the
District Court granting the motion for directed verdict and
entering judgment in favor of defendant is not reported
and is printed as Appendix C (A22).
The opinion of the District Court denying plaintiff's
motion for a new trial is officially reported at 457 F. Supp.
860 (E. D. Pa. 1978), and is printed as Appendix D (A23).
The Order of the District Court denying plaintiff's mo-
tion for new trial is not reported and is printed as Ap-
pendix E (A42).
The Judgment Order of the United States Court of
Appeals for the Third Circuit is not officially reported and
is printed as Appendix F (A43).
JURISDICTION.
The judgment of the United States Court of Appeals
for the Third Circuit was entered on July 17, 1979 (Ap-
pendix F (A43) ). The jurisdiction of this Court is invoked
under 28 U. S. C. § 1254(1).
QUESTIONS PRESENTED.
1. Did not the Trial Court err in holding that under
the 1972 amendments to Section 5(b) of the Longshore-
men’s and Harbor Workers’ Compensation Act an injured
longshoreman, as a condition of recovery against a ship-
owner for injuries sustained as a result of a condition
aboard ship, is required to show that the vessel was negli-
gent in relying upon the stevedore-employer’s expertise
in dealing with that condition and in assuming the work
could safely be done by the stevedore?
2. Under the 1972 amendments to Section 5(b) of
the Longshoremen’s and Harbor Workers’ Compensation
ni ita m
Petition for Writ of Certiorari . 3
Act, is not the appropriate standard of care one which
would permit a finding of negligence upon a showing that
(1) the vessel knew or by the exercise of reasonable care
could have discovered the condition on board the ship
that led to the injury; (2) that the vessel knew or should
have known that the condition would pose an unreason-
able risk of harm to longshoremen working on board ship;
and (3) that the vessel failed to exercise reasonable care
to protect the longshoremen against that danger?
STATUTES INVOLVED.
The statutory provision involved in Section 5(b) of
the Longshoremen’s and Harbor Worker's Compensation
Act, 33 U. S. C. §905(b). The full text of this statutory
provision is printed as Appendix A (Al).
STATEMENT OF THE CASE.
This action was brought by the petitioner longshore-
man against the respondent shipowner to recover damages
for personal injuries sustained by the longshoreman when
he was struck by a heavy piece of steel pipe while working
aboard respondent’s vessel, the S. S. Concordia Tarek.
Federal jurisdiction was based on diversity of citizenship.
28 U.S. C., Sec. 1332.
At the trial of this case, petitioner contended that the
vessel's officers were negligent in directing the petitioner's
longshore gang to load heavy pipe in the inshore portion
of the No. 3 hatch of the vessel when the vessel was
already listing in an inshore direction; in countermanding
the procedure adopted by the stevedore to deal with the
list; and in failing to take appropriate action to straighten
the vessel.
4 Petition for Writ of Certiorari
Viewing the evidence in a light most favorable to
plaintiff, the Trial Court found as follows. On the day in
question, plaintiff was a holdman with a longshore gang
that was assigned to load sections of 15 inch diameter
metal pipe, each about 50 feet long and weighing about
half a ton, into the lower hold of the vessel’s No. 3 hatch
(A25). As plaintiff's gang boarded the vessel that morn-
ing, they observed that the vessel was listing approximately
5 to 8 degrees to the inshore side (A25).
When the No. 3 hatch was opened, the longshoremen
observed that 30 foot sections of 5 inch pipe, stacked 2
tiers high, were already stowed in the offshore portion of
the lower hold (A25-26). The longshoremen determined
that in order to help correct the ship’s list, they would
stack the 30 foot sections of pipe into the wing and then
load the longer and heavier sections of pipe on the offshore
side of the hold, alongside and inboard the 30 foot section
(A26). While the longshoremen were making prepara-
tions to carry out this procedure, a ship’s mate instructed
the gang’s foreman that the longer pipe was to be stowed
in the inshore side of the hold (A26). The hatch foreman
argued with the mate, contending that it would be more
logical to stow the pipe on the offshore side rather than on
the inshore side since the ship was already listing to the
inshore side. However, the ship’s mate insisted that the
pipe be stowed on the inshore side (A26). Accordingly,
the hatch foreman instructed his men to so proceed (A26).
While the 50 foot sections of pipe were being landed by
plaintiffs gang, one section of pipe got away from the
longshoremen who were attempting to steady it at each
end and rolled inshore with the ship’s list, striking and
injuring the petitioner (A26-27).
It was undisputed that the ship’s mate had authority
to direct where in the vessel particular cargo was to be
Petition for Writ of Certiorari 5
stowed and, in particular, to direct that the pipe taken on
at Philadelphia be stowed on the inshore, rather than the
offshore side of the lower hold (A27). Moreover, the Trial
Court found that evidence had been submitted which
arguably could support a jury finding that an experienced
stevedore could not safely carry out the mate’s instruction
to load the pipe in the direction of the list (A31).
At the conclusion of all the evidence, the Trial Judge
granted the motion of the defendant vessel for a directed
verdict. At that time, the Trial Judge concluded that the
plaintiff longshoreman had the burden of proving that the
condition in question created an unreasonable risk of harm
“which could not be overcome by a method of operation
conducted by a competent, experienced stevedore” (A21)
and that “there is no evidence that this operation could
not have been conducted by an experienced, competent
stevedore given the seven degree list.” (A21).
Thereafter, plaintiff moved for a new trial and referred
the Trial Judge to portions of the record containing evi-
dence which, in fact, did support a finding that the opera-
tion could not have been conducted safely by an ex-
perienced, competent stevedore given the list. The Trial
Judge acknowledged that the evidence submitted arguably
could support such a jury finding (A31). Nonetheless, the
motion for new trial was denied.
In denying the motion for a new trial, the Trial Judge
formulated the following standard of care:
“In short, an injured longshoreman seeking to impose
liability on the vessel under Section 905(b) must show
that the vessel was negligent in relying upon the steve-
dore’s expertise and in assuming that the work could
be safely done by the stevedore. This in turn requires
a showing that (1) the conditions aboard ship created
an unreasonable risk of harm, even for a longshoreman
6 Petition for Writ of Certiorari
working under the guidance of an expert stevedore,
and (2) the vessel, although not possessed of the
stevedore’s expertise, knew or should have known of
this unreasonable risk of harm.” (A29-30)
The Trial Judge did find that evidence had been sub-
mitted which arguably could support a jury finding that
the mate’s instruction gave rise to an unreasonable risk of
harm to the longshoremen, “notwithstanding that they
were working under the direction of an expert stevedore.”
(A31). “However, the Trial Judge found that the evidence
was insufficient to demonstrate that the defendant vessel
knew or should have known “that an experienced stevedore
could not safely load this cargo on the inshore side of the
ship, given the ship’s inshore list.” (A32).
The Court of Appeals affirmed the judgment of the
District Court, without opinion, by the issuance of a Judg-
ment Order which stated:
“After considering the contentions raised by appellant,
it is
Apyupcep and Orperep that the judgment of the
District Court be and is hereby affirmed.
Each side to bear its own costs.” (A43)
— |
Petition for Writ of Certiorari 7
REASONS FOR GRANTING THE WRIT.
I. The Standard of Care Adopted by the District Court
Under Section 5(b) of the Longshoremen’s and
Harbor Workers’ Compensation Act, as Affirmed by
the Court of Appeals, Conflicts With the Decision of
This Court in Edmonds v. Compagnie Generale
Transatlantique, — U. S. —, 61 L. Ed. 2d 521 (1979).
Under the standard of care formulated by the District
Court and affirmed, sub silento, by the Third Circuit, a
vessel is relieved of liability to a longshoreman for unrea-
sonably dangerous conditions on board ship unless the
longshoreman can establish that these conditions created
an unreasonable risk of harm “even for a longshoreman
working under the guidance of an expert stevedore” and
the vessel, “although not possessed of the stevedore’s ex-
pertise, knew or should have known of this unreasonable
risk of harm.” In short, this standard of care relieves a
vessel from liability for unreasonably dangerous conditions
aboard ship whenever the stevedore fails to perform its
tasks in an “expert” fashion, regardless of whether the
individual longshoreman is personally at fault. The effect
is to impute to the longshoremen the negligence of a steve-
dore employer and establish that negligence as a complete
bar to recovery against the vessel.
In Edmonds v. Co.apagnie Generale Transatlantique,
— U.S. —, 61 L. Ed. 2d 521 (1979), this Court held that
the 1972 amendments to the Longshoremen’s and Harbor
Workers’ Compensation Act did not modify a longshore-
man’s pre-existing right to recover for his injuries in full
against a negligent shipowner, even in cases where the
negligence of the stevedore contributed to the injury.
Thus, regardless of the conduct of the stevedore employer,
8 Petition for Writ of Certiorari
a negligent shipowner is liable for the full amount of the
longshoreman’s damages.
In Edmonds, this Court declined to impute the negli-
gence of the stevedore to the longshoreman to reduce the
longshoreman’s recovery against the negligent shipowner.
Yet, the rule formulated by the District Court in this case
would bar recovery against a negligent shipowner if the
stevedore did not carry out its duties in an “expert” fashion.
If the negligence of the stevedore employer is not per-
mitted to reduce the longshoreman’s recovery against a
negligent shipowner, it certainly should not be permitted
to totally bar a longshoreman’s recovery as resulted in the
instant case.
A different panel of the United States Court of Ap-
peals for the Third Circuit reached this conclusion in a
case decided a little over a month after the entry of the
Judgment Order in the case at bar. In Griffith v. Wheeling-
Pittsburgh Steel Corporation, — F. 2d — (3rd Cir., August
24, 1979),’ at page 12 of the Slip Opinion (A58), the
Third Circuit rejected a standard of care similar to the one
adopted by the District Court in this case, as follows:
“ .. Under America’s first proposed standard of care,
the vessel would be relieved of liability to a long-
shoreman for unreasonably dangerous conditions on
board ship whenever the stevedoring contractor failed
to perform his task in an ‘expert and experienced’
fashion. This would occur whether or not the indi-
vidual longshoreman was personally at fault. The
proposed rule thus imputes to the non-negligent long-
shoreman the negligence of his stevedore employer,
and establishes that negligence as a complete bar to
1. A copy of the Slip Opinion in the Griffith case is appended
hereto as Appendix G (A45).
Petition for Writ of Certiorari 9
recovery against the vessel. This result is at variance
with the Supreme Court’s interpretation of the 1972
Amendments in Edmonds v. Compagnie Generale
Transatlantique, supra. It is inconceivable to us that
the Court, which disapproved a rule that imputes the
negligence of the stevedore to the longshoreman to
reduce his recovery against a negligent shipowner,
would approve a rule barring all recovery against the
negligent shipowner on the basis of imputed employer
negligence.”
It is submitted that the reasoning of the Griffith panel
should also have been followed by the panel in the case at
bar. That reasoning clearly indicates that the result in this
case is at odds with this Court’s interpretation of the 1972
Amendments in Edmonds. Accordingly, certiorari should
be granted and the decision below should be reversed.
II. The Decision Below Is in Conflict With the Decisions
of the Ninth Circuit in Santos v. Scindia Steam Navi-
gation Co., Ltd., 598 F. 2d 480 (9th Cir. 1979) and
Another Panel of the Third Circuit in Griffith v.
Wheeling-Pittsburgh Steel Corporation, — F. 2d —
(3rd Cir. 1979).
As previously noted, the Third Circuit panel in
Griffith, supra, rejected any standard of care which would
bar a longshoreman’s recovery against a negligent vessel
due to negligence on the part of the stevedore employer.
Instead, the Griffith panel formulated the following stand-
ard of care at page 14 of the slip opinion:
“The sounder approach, we think, is to recognize that
Section 905(b) imposes on vessel owners the same
duty to exercise ‘reasonable care under the circum-
stances of each case’ that would be applicable to a
10 Petition for Writ of Certiorari
land based business. Accord, Santos v. Scindia
Steam Navigation Co., supra, 598 F. 2d at 485-88;
Gallardo v. Westfal-Larsen & Co. A/S, supra, 435 F.
Supp. at 496. See Kermarec v. Compagnie Generale
Transatlantique, supra, 358 U. S. at 632; Brown v.
Ivarans Rederi A/S, supra, 545 F. 2d at 863. Cf. Re-
statement (Second) of Torts, §§ 281-83, 302A, 305,
452. Proceeding from this broad common law stand-
ard, Federal Courts may develop on a case by case
basis, a uniform federal law of negligence, referring
for guidance to the ‘land based’ standards of care
established in the Restatement (Second) of Torts
whenever such reference accords with the Congres-
sional intent and is helpful to decision of the case at
hand.
“At a minimum we think that the standard of rea-
sonable care under the circumstances would permit a
finding of negligence upon a showing: (1) that the
vessel knew of or by the exercise of reasonable care
could have discovered the condition on board ship
that led to the injury; (2) that the vessel knew or
should have known that the condition would pose an
unreasonable risk of harm to longshoremen working
on board ship; and (3) that the vessel failed to ex-
ercise reasonable care to protect the longshoremen
against that danger. See Santos v. Scindia Steam
Navigation Co., supra, 598 F. 2d at 485.”
The standard of care formulated in Griffith in no way
tests the conduct of the vessel in light of the conduct of
the stevedore employer. The vessel is liable if it knew or
should have known that the dangerous condition on board
its ship posed an unreasonable risk of harm to longshore-
men and failed to exercise reasonable care to protect the
longshoremen against that danger, even if it might have
Petition for Writ of Certiorari 1]
assumed that an expert stevedore could deal with the
situation. Under such a standard of care, this case would
have been submitted to a jury for determination.
So, too, in Santos v. Scindia Steam Navigation Co.,
supra, a case heavily relied upon in Griffith, the standard
of care adopted by the Court would have resulted in this
case being submitted to a jury.” In Santos, the Court
adopted the following standard of negligence in actions
brought under 33 U. S. C., Section 905(b) (598 F. 2d at
page 485):
“A vessel is subject to liability for injuries to long-
shoremen working on or near the vessel caused by
conditions on the vessel if, but only if, the shipowner
(a) knows of, or by the exercise of reasonable care
would discover, the condition, and should realise that
it involves an unreasonable risk of harm to such long-
shoremen, and
(b) the shipowner fails to exercise reasonable care
under the circumstances to protect the longshoremen
against the danger.”
As in Griffith, the adoption of the standard of care
set forth above would have resulted in the instant case
being submitted to the jury since analysis of the steve-
dore’s behavior is not pertinent to that standard.
It is respectfully submitted that certiorari should be
granted to resolve the clear conflict between the standard
of care formulated in the instant case and the standard
of care followed by the Ninth Circuit and the Griffith
panel of the Third Circuit.
2. Interestingly, the Santos decision relies in large measure
upon the scholarly opinion of Judge Orrick in Gallardo v. Westfal-
Larsen & Co., A/S, 435 F. Supp. 484 (N. D. Cal., 1977), a case
squarely rejected by the District Court in its opinion denying the
motion for new trial in this case (A28-29).
12 Petition for Writ of Certiorari
III. This Case Presents an Important Question of Federal
Law Which Has Not Been, but Should Be, Settled
by This Court.
In 1972, Congress adopted sweeping amendments to
the Longshoremen’s and Harbor Workers’ Compensation
Act which resulted in the modifications of the right of an
injured longshoreman to recover in an action against a
“vessel.”* These Amendments included a revision of
Section 5(b) of the Act, 33 U. S. C. §905(b) to read as
follows: *
“In the event of injury to a person covered under
this chapter by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover dam-
ages by reason thereof, may bring an action against
such vessel as a third party in accordance with the
provisions of section 933 of this title, and the employer
shall not be liable to the vessel for such damages di-
rectly or indirectly and any agreements or warranties
to the contrary shall be void. If such person was
employed by the vessel to provide stevedoring services,
no such action shall be permitted if the injury was
caused by the negligence of persons engaged in pro-
viding stevedoring services to the vessel. If such
person was employed by the vessel to provide ship
building or repair services, no such action shall be
permitted if the injury was caused by the negligence
3. The term “vessel” is defined at 33 U. S. C. §902(21) as
follows:
“The term ‘vessel’ means any vessel upon which or in connec-
tion with which any person entitled to benefits under this
chapter suffers injury or death arising out of or in the course
of his employment, and said vessel’s owner, owner pro hac
vice, agent, operator, charter or bare boat charterer, master,
officer, or crew members.”
4. Pub. L. 92-506, § 18(a), 86 Stat. 1263.
ii ith ae
Petition for Writ of Certiorari 13
of persons engaged in providing ship building or re-
pair services to the vessel. The liability of the vessel
under this subsection shall not be based upon the
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
available under this chapter.”
Clearly, the language of Section 905(b) provides no
meaningful guidance to uncovering an appropriate stand-
ard of care under the statute. It merely refers to the “neg-
ligence of the vessel” without attempting to cast further
light on any standard to be followed in determining vessel
negligence.
In the seven years that have elapsed since the 1972
amendments to the Act, no decision has emanated from
this Court which would issue guidance to the lower courts
in adjudicating longshoremen’s personal injury actions. As
a result, the various Courts of Appeals which have con-
sidered actions arising under Section 905(b) have adopted
a myriad of standards to deal with these cases. The re-
sulting lack of uniformity flys squarely in the face of the
intent of Congress to develop a uniform body of law under
Section 905(b). Thus, the House Report accompanying
the 1972 Amendments ° provides at 3 U. S. Code Cong. Ad.
News (1972) at page 4705:
“Finally, the Committee does not intend that the neg-
ligence remedy authorized 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
5. H. R. Rep. No. 92-1441, 92d Cong., 2d Sess. (1972), 3 U. S.
Code Cong. Ad. News 4698 (1972).
14 Petition for Writ of Certiorari
law shall be determined as a matter of Federal law
>
At the present time, however, the divergent views of
the various Circuits which have considered this area of
law have in fact resulted in the negligence remedy au-
thorized by Section 905(b) being “applied differently in
different ports” depending on the law of the Circuit in
which the port is located.
A brief survey of the standards presently applied by
the various circuits demonstrates the following:
1. The Second, Fourth and Fifth Circuits have defined
“negligence” under Section 905(b) in terms of a land-
owner's duty to invitees under Sections 343 and 343A of
the Restatement of Torts, 2d. See e.g., Canizzo v. Farrell
Lines, Inc., 579 F. 2d 682, 684-5 (2nd Cir., 1978); Samuels
v. Empresa-Lineas Maritimas Argentinas, 573 F. 2d 884,
885-6 (5th Cir., 1978); Anuszewski ». Dynamic Mariners,
Panama, 540 F. 2d 757, 758-9 (4th Cir. 1978);
2. The Ninth Circuit in Santos v. Scindia Steam Navi-
gation Co., supra, and at least one panel of the Third
Circuit in Griffith v. Wheeling-Pittsburgh Steel Co., supra,
have adopted a standard based on a duty of a shipowner
to exercise reasonable care under the circumstances of each
case to protect longshoremen against danger;
3. Other Court of Appeals’ decisions have focused on
the question of whether the shipowner relinquished control
of the stevedoring operations to the stevedore-employer of
the injured longshoremen, as opposed to focusing on the
reasonableness of the shipowner’s conduct in light of his
practical opportunities to discover and remedy defective
conditions aboard his vessel. See Cox v. Flota Mercante
Grancolombiana, S. A., 577 F. 2d 798 (2nd Cir. 1978);
Hurst v. Triad Shipping Co., 554 F. 2d 1237, 1249-53 (3rd
¥
Petition for Writ of Certiorari 15
Cir. 1977); Anderson v. Iceland S. S. Co., 585 F. 2d 1142
(1st Cir. 1978);
4, Even within the same Circuit, different panels have
taken divergent views on the appropriate standard of care
under Section 905(b). See e.g., the different views ex-
pressed in Canizzo v. Farrell Lines, Inc., supra, and Cox
v. Flota Mercante Grancolombiana, S. A., supra, within the
Second Circuit, and Hurst v. Triad Shipping Co., supra,
and Griffith v. Wheeling-Pittsburgh Steel Co., supra, within
the Third Circuit.
Clearly, no clear direction has emerged from the
myriad of cases decided by the various Courts of Appeals.
However, a sufficient number of decisions have been issued
by the Courts of Appeals to afford this Court a broad base
upon which to distill an appropriate standard of care under
Section 905(b). We submit that the formula distilled by
the Ninth Circuit in Santos and a panel of the Third Circuit
in Griffith is best suited to carry out the congressional
intent underlying the 1972 amendments.
CONCLUSION.
For the foregoing reasons, it is respectfully requested
that a writ of certiorari issue to review and reverse the
decision below.
Respectfully submitted,
ABRAHAM E. FREEDMAN,
STANLEY B. GRUBER,
FREEDMAN AND LorRRY,
Attorneys for Petitioner.
APPENDIX A
Statute Involved
Section 5(b) of the Longshoremen’s and Harbor
Workers’ Compensation Act, 33 U. S. C., § 905(b) reads
as follows:
“In the event of injury to a person covered under this
chapter by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover dam-
ages by reason thereof, may bring an action against
such vessel as a third party in accordance with the
provisions of Section 933 of this title, and the em-
ployer shall not be liable to the vessel for such dam-
ages directly or indirectly and any agreements or
warranties to the contrary shall be void. If such
person was employed by the vessel to provide steve-
doring services, no such action shall be permitted if
the injury was caused by the negligence of persons
engaged in providing stevedoring services to the
vessel. If such person was employed by the vessel to
provide ship building or repair services, no such
action shall be permitted if the injury was caused by
the negligence of persons engaged in providing ship
building or repair services to the vessel. The liability
of the vessel under this subsection shall not be based
upon the warranty of seaworthiness or a breach
thereof at the time the injury occurred. The remedy
provided in this subsection shall be exclusive of all
other remedies against the vessel except remedies
available under this chapter.”
(Al)
A2 Appendix B
APPENDIX B
Portions of the Transcript of Record Setting Forth the
Reasoning of the District Court in Granting
a Directed Verdict
[231]
oO a °
Tue Court: We are aware, Mr. Gruber, that time
and again vessels arrive with certain conditions, and once
those conditions are made known to the stevedore then
there is a burden on the part of the plaintiff, it seems to
me, to establish that there was no way for that work to
have been done in a safe manner. And therein lies the
deficiency in your case. We have no evidence whatsoever
that this work could not have been accomplished, this
stowage could not have been accomplished in a safe man-
ner, even stowing it with a list on the inshore side, on the
low side, That is your deficiency in your case. You keep
on arguing, but you are omitting the main point in the
case, and that is the deficiency in your evidence.
Mr. GrusBer: It seems to me, Your Honor, that Mr.
Keeler testified that in his opinion it was not safe to work
against the list, and it was not safe to work with the list,
but we do have evidence, Your Honor. We have evidence
from Mr. McKenna, the gang boss of 25 years’ experience.
He testified that the proper way to do this work was to
work against the list.
Tue Count: But he also testified that he left the vessel
because the condition was such that it required no special
instructions to his men. It was a very common procedure,
he testified.
Appendix B A3
[232]
You see, this is the problem. You have a deficiency
of evidence in your case. Mr. McKenna testified that he
was not aboard the vessel at the time this occurrence
took place.
Mr. GruBer: That’s correct.
THE Court: But there was nothing unusual. He had
given no special instructions to his men. Nothing unusual.
So, even assuming a list, apparently, it was a condition
that didn’t require any special instructions to his men, any
special precautions. This is according to Mr. McKenna.
Mr. GrusBer: But there is evidence both from Mr.
McKenna, Mr. McBride, Mr. Dougherty and Mr. Keeler,
whether or not it required any special precautions or any-
thing like that, that loading in that direction under the
conditions that existed would be a dangerous method of
operation.
Tue Court: All right. That is your recollection. My
recollection differs. So go ahead.
Mr. GruBer: Well, all right. But again, the evidence
is that the stevedore wanted to do it in a specific way,
which it felt was the safest way of doing it——
THE Court: And you presented no evidence that that
was in fact a safe way of doing it.
Mr. Gruser: I did present evidence, if I may say
with all respect, Your Honor. The testimony of Mr.
McKenna, a gang boss of 25 years’ experience.
THE Court: All right.
[233]
Mr. Gruser: Who so testified.
I would say finally, Your Honor, here at my argument,
that even if we assume that there was negligence on the
A4 Appendix B
part of the stevedore, that that does not absolve the ship-
owner from responsibility. Because if we have a situation
where the shipowner was negligent, and then the steve-
dore was negligent, if we have concurrent negligence,
under my reading of the Lucas decision there is still re-
sponsibility and liability of the shipowner. He cannot
escape responsibility for creating a dangerous condition,
and then trying to get out of it because the stevedore
doesn’t correct the circumstance, doesn’t correct the con-
dition. And that is exactly what they are trying to do in
this case. And I would submit that if we find a directed
verdict in this case, then I think that might effectively lock
the door on all of these cases, and I don’t think that is
what the intent of the Court was in the Brown decision, or
any of the decisions that have come down.
Obviously there still has to be an area where negli-
gence exists. We are trying to find that area. But in this
case we clearly have a dangerows condition that existed, I
submit, aboard the ship. We have the stevedore trying to
do what he thought was the safest method of operation,
instructed by the shipowner, “No, you don’t do that, you
do this. You work in the direction of the list.” Now, if
that is not negligence, I am not sure what would be negli-
gence under the 1972 amendments.
[234]
THe Court: Well, Mr. Gruber, what you have pro-
posed here is, with no expert testimony of any kind, except
perhaps Mr. McKenna and Mr. Dougherty and Mr. Mc-
Bride, is an alternative of working everything against the
list, piling things up on the high side, loading on the high
side, and we have no evidence that that would be a safer
method of operation than one that was undertaken.
You see, this is one of the problems in the case. Com-
mon sense would dictate that constantly working against
Appendix B A5
that list, having things piled on the side that wiil } ive
gravity push the load back down towards the workmen,
would be a dangerous way of operating. So that no mat-
ter which way you operate here under these conditions, it
requires some special precautions. And there is a defici-
ency in the plaintiff's case of evidence to establish that
that was in fact a safer and more reasonable method of
proceeding than the one that was used. Because no mat-
ter which method is used, even according to the plaintiff's
evidence, if you worked against the list you would have a
series of chocking procedures to use as you go along to
prevent the pipe from spilling down and sliding down in
the direction of the list. No matter which way you did it
you have these constant precautions that must be taken.
And by the same token, you have precautions that
must be taken when you are loading on the low side.
Mr. Gruser: What Your Honor has said, I think, it
[235]
shows that there was—they were put in a position that
there was no safe way to do the work. Now, the suggested
one way of doing it, straightening out the ship, the evi-
dence shows that no action was taken by the mate to
straighten the ship out. And he admitted
THe Court: Well, you have said, and I defy you to
show me where in the evidence this was done, I think you
said that the mate was requested to straighten the list. In
fact, all the evidence that there is in the case was that
these men undertook to straighten out what they con-
sidered a list, and the mate stopped them from doing that
particular procedure. There is no evidence, as I recall it,
of any request by the stevedore to the ship for the ship
to straighten out the list.
Se |
A6 Appendix B
Mr. Gruser: Well, Your Honor, it may be that you
are right on that, that there is no——
Tue Court: It isn’t a question of maybe. It is in-
deed the fact.
Mr. Gruser: I don’t remember precisely, but my
recollection is that you are probably right, with all due
respect, because I don’t remember that specifically. But
whether you are right or not, it seems to me is not the im-
portant thing here. The important thing here——
Tue Court: ‘I think it becomes extremely important
because it does present the alternative.
The testimony in the case reflects that if there is
[236]
a condition on the vessel, when a vessel arrives, that re-
quires correction, there is an alternative. Either the steve-
dore undertakes to do what is necessary to work under
those conditions, or the stevedore requests the vessel to
make the appropriate correction. It really devolves only
to finally who is going to pay the stevedore to do the very
thing that needs to be done. Because in most instances it
appears that what has to be done is that after finding out
what the cause of it is is to make a correction by perhaps
restowing cargo, or whatever. But usually it means paying
detention time and probably for the same work that would
have to be done by the stevedore in any event.
Mr. Gruser: Well, that is true. But is Your Honor
suggesting that there is a talismanic phrase, magic words
that the stevedore has to say, “Please straighten out the
list”?
Tue Court: It is really the question of whether a
duty is created at some point. That is the problem.
Appendix B A7
Mr. GruBer: It seems to me a duty is created when
the mate has knowledge or should have knowledge that
the list exists and should realize that to work under those
conditions is going to create a danger or hazard for the
men that have to go into the hold, has the ability to take
action and doesn’t take action, whether he is asked to do
so or not. And I think that is exactly what we have in this
case, and I don’t think it makes any difference whether
they actually said, “Please help us straighten out this list”
or they didn’t.
[237]
The evidence shows they must have known about the
list and danger and did nothing about it to try to straighten
out the list.
I think Your Honor has our argument, and there is °
little more than I can say. I think you see the arguments
here. I submit that there is evidence that this case can go
and should go to the jury.
Tue Court: Well, tell me precisely what should be
submitted to the jury. First of all, of course there should
be the question of whether a list exists. For the puropse of
this argument, obviously we have to accept the fact that
indeed a list exists.
Assuming that the list did exist, the problem that
concerns me is this: You have presented no evidence that I
can recall that the ship was requested to correct the condi-
tion. Work just started on four hatches; they went right
ahead and proceeded to work. No evidence whatsoever
that any attempt was made through the ship’s boss, or
otherwise, to request that some correction be made, or
that some arrangement be made to correct whatever the
condition might be. One must presume, therefore, under
those circumstances that the stevedore was quite content
A8 Appendix B
to proceed, that he was able to proceed and operate under
the conditions that then existed So then this is the prob-
lem in the case.
Mr. Gruser: I would respectfully disagree with
[238]
Your Honor. I think the best assumption you can make
from what you just said is that at worst the stevedore
should have asked for something to be done to straighten
out the list, and maybe the stevedore is negligent for not
doing so, maybe not. But we have to go back and look at
what the duty of the shipowner is when he has knowledge
of a dangerous condition.
Tue Court: You are using the talismanic phrase
“dangerous condition.”
Mr. GruBer: Yes.
Tue Court: The evidence on that score is precisely
what? I asked you before what was the evidence that a
five, six, or seven-degree list is a “dangerous condition”
per se? Is there any evidence that a longshoreman, that
stevedores cannot operate under such conditions and take
the necessary precautions to operate safely under those
conditions?
Mr. Gruser: Mr. Keeler himself said it would have
been dangerous to work either way, either against or with
the list.
Tue Court: With pipe that was intended to be re-
leased on the runner, with no means of holding it. Now
that is my recollection. I don’t recall his saying that there
was no way that you could operate under those conditions.
Mr. Gruser: I think what was asked to him was:
Would you consider it a safe operation to load pipe of this
Appendix B AQ
size with a three or five-degree list, and there was no at-
tempt to say,
[239]
could you do it this way, could you do it that way, could
you do it this way. His answer was that, no, after some
thought on his part, he didn’t think it would be a safe way
of proceeding.
Tue Court: I simply have a distinct recollection
quite to the contrary, and where that comes from I am not
sure. Let me just check my notes. But I get no such im-
pression that there was no way that one could operate
under these conditions. And here again is whether I point
to the deficiencies in the plaintiff's case. There was no
evidence that this work could not be accomplished in a
safe manner, even with a seven-degree list, which is the
maximum I think that was testified to, seven degrees.
Somewhere in that area, seven degrees, eight degrees,
whatever it was.
But even assuming that, apparently this operation
was proceeding, and in particular, in part of the plaintiff's
own case, appears to be the judgment on the part of the
hatch boss that the condition was one that was quite
ordinary and common in the sense that it required no spe-
cial instructions to his men. Do you recall that? He was
not aboard the vessel and his answer was he gave no spe-
cial instructions.
Mr. Gruser: I don't think you can infer from that
it was an ordinary and common situation.
Tue Court: That is his testimony.
Mr. Gruser: That he said it was ordinary and com-
mon?
Al0O Appendix B
[240]
Tue Court: That they knew how to handle this, there
was nothing unusual about it. Words to that effect. I
don’t recall the precise words. I very definitely have the
impression that when asked if he gave special instructions,
he seemed quite perplexed: “No, I gave no special instruc-
tions. These men were experienced. They knew how to
handle these things.” Words to that effect.
Mr. Gruser: That's true. His men work under
dangerous conditions every day. Let's face it, we know
it is an extra hazardous activity, longshoring. We have
special regulations to deal with it. I don’t think there is
any question the legislative history shows what a hazard-
ous occupation it is.
Tue Court: The best your argument can be is that
all that proved is that the hatch boss was negligent.
Mr. Gruser: No. I don't think that even says the
hatch boss was negligent. I think all it shows is the hatch
boss felt he did all he could in arguing with the chief mate
or the mate about which way it should be done. When he
did all he could do, he left it in the hands of his men to
operate safely, and he left.
Tue Court: You mean not even to tell them, “Be
sure to keep the wires on until you are ready to push it in
the hold, until you are sure Mr. Dougherty is not between
the pipe and the other pipes”?
You mean he could possibly think he had done all he
could?
[241]
Mr. Gruser: I guess he didn’t know at that time that
that situation was even going to come up.
Appendix B All
THE Court: What, that the pipe might possibly slide
and fall, the same thing you say was the obviously danger-
ous condition?
Mr. Gruser: Yes, that is true. I suppose that is true,
that is one of the reasons he thought it was dangerous to
do it that way, I suppose, because just that sort of thing
could happen, and that is the whole point of my argument,
that by putting them in the position they had to work it
that way, that what could have happened did happen.
And sure, I suppose he could have told his men, “Be extra
careful, don’t let that pipe get out of your hands.” That’s
assumed he has experienced men, they are supposed to be
as careful as they can be, and by him telling them to be
careful doesn’t make it any better and doesn’t make the
ship any less responsible for putting them in that position
of peril.
You keep coming back to one thing and I keep com-
ing back to another, and I guess that is where the dis-
agreement lies here.
THE Court: Yes, I think so. I think it is a basic dis-
agreement. And obviously the Court of Appeals is going
to have to resolve this because your office is bound and
determined to get the vessel back in. And with good
justification, obviously. And it just seems to me that we
keep ignoring the fact that there are the amendments,
there has been a recognition that the stevedore
[242]
is the expert, and presumably the one who knows how to
cope with situations and deal with them. And the only
problem, the only thing that gives me the slightest pause,
is whether in my view of this situation I am in the slightest
degree invading the jury’s province. It is the one thing I
am trying to be most careful and cautious about, which is
Al2 Appendix B
why I cautioned Mr. Putz. You must accept there was a
list, you must accept there was a statement made to a
mate, whoever that mate may have been, for this purpose,
for the purpose of this argument, that there was a state-
ment made to the mate that we are going to—or at least
the mate was there when they started to move the pipe
up, and the mate said, “Don’t touch that. Stow it in the
inshore side.” That we must accept, and I am accepting
all these things.
And then I am going further in trying to resolve every
conflict in your favor in determining what evidence the
plaintiff has presented here to establish that this was a
“dangerous condition,” i.e., a condition under which there
was an unreasonable risk of harm, even assuming a proper
and safe method of operation. This is where you and I
have a disagreement. You are saying that because the
condition creates a risk of harm the ship is negligent for
- failing to appreciate that the stevedore might negligently
fail to operate in a safe fashion. And I say that nullifies
what we have understood to be the requirement of the
1972 amendments that there be negligence of the vessel
established separate and apart from the negligence of the
stevedore.
[243]
Mr. Gruser: And I submit, Your Honor, that if we
assume that the condition is created through the negli-
gence of the shipowner, or at least the condition exists
THe Court: Existed. I don't know why we talk
about the negligence of the shipowner. If there is a list,
there is a list, and there is no evidence as to what caused
the list. So we can't say it was caused by the negligence
of the vessel.
Appendix B Al3
Mr. Gruser: In this case I submit that what you
have just posed is exactly the situation contemplated by
Section 302(a) which was looked on with favor in both
Brown and Hurst, although I concede not expressly the
subject of the holding.
THe Court: Well, I think we will have to get that
guidance from the Court of Appeals, because I think I
would have to come to the conclusion that there is really
no way I could submit this case to the jury. If I did, it
would be more in the nature of an advisory opinion. I
think if I were to reserve judgment it would only be for
the purpose of entering the NOV in any event if the jury
were to come in. And I think I would rather have it in a
pure fashion resolved by the Court of Appeals.
Of course, there is some advantage to submitting it
to the jury and have the jury resolve the factual issues.
I have refrained from any comment about the factual is-
sues because they are for the jury. But one must question
of course this so-called list when the testimony is very
clear that it took eight men to push this pipe into the
“low side.” But that is a jury argument.
[244]
That is not for me.
I am trying to be as much of a devil’s advocate as
I can to see whether I should submit this to the jury. In
my view there really is nothing. But I am trying to see
is there anything at all here that could possibly be re-
garded by the appellate court as a factual issue to be re-
solved by the jury. And we get solely into the areas that
I questioned you about: Number one, does the plaintiff
have the burden to establish as part of his case that the
condition was one which created an unreasonable risk of
harm, i.e., one which, assuming a competent stevedore,
Al4 Appendix B
could not be carried out without still an unreasonable
risk of harm. And here is where I think there is a defici-
ency, because although there is no testimony clearly on
the point, Mr. Keeler’s testimony touches on it, and that is
that if this operation continued in the presence of a list,
that you must not release the wires until the time you are
ready to move the pipe into position. This is what I under-
stood his testimony to be.
However, my recollection is not all that infallible
either, and it is conceivable that he may have said that it
would be dangerous under any circumstances to load cargo,
particularly pipe, if there were that degree of list. And
this is why if I seem to be arguing with myself, before it is
too late, I am trying to determine whether I should or
should not. But I say it is on that very, very fine line, and
nothing more because I think in all other respects it is
quite clear that the obligation is
[245]
on the stevedore to operate under the conditions that are
existing and to operate in a safe fashion. And you have
not shown——
Mr. Gruser: All I can say, Your Honor, I do think
there is evidence in this record from which a jury could
conclude that to load against the pipe is an unreasonable
and unsafe method of operation.
Tue Court: To load against the pipe?
Mr. Gruser: I am sorry, to load with the list. From
the testimony both of Mr. Keeler and the three witnesses
that we presented showing what is entailed, the hazards
that are involved in doing it that way.
THe Court: Do you have anything more you want
to say, Mr. Putz?
Appendix B Al5
Mr. Putz: Your Honor, in citing Hurst and Minus v.
Triad, counsel stopped short at Page 28, I believe, when he
said that the Court of Appeals points to Sections 410 to
429 of the Restatement of Torts. The Court disposes of
most of those sections, and in fact concentrates on Section
414, and in looking at Section 414, does not accept all of
414, It goes on to say, “Second Comment C to Section 414
indicates that the ultimate control over stevedoring opera-
tions retained by a shipowner is not the sort of control to
which Section 414 is directed.”
It then quotes from that section:
“The Court below cogently related the import of
Comment C to the case at Bar when it said, ‘thus at Com-
ment C it
[246]
points out an employer who retains only a general right to
order the work stopped or resumed, and the right to in-
spect the progress of the work and to let me correct that
to assure compliance with specification, owes no duty of
care to the employees of the independent contractor con-
cerning the manner in which his work is executed. Only
when a significant degree of control is retained over the
manner in which his work is performed is the duty under
Section 414 triggered for vessel owners. ”
I do not believe there is any evidence that there is a
significant degree of control.
Hurst v. Triad points to a couple of cases in which
the district courts have in fact found obligation and duty
upon the shipowner. One of the cases involves a situation
where the third mate is actually in the hatch telling the
men to put various weights to correct the list:
“Put one here, put one there, put one here.”
Al6 Appendix B
That kind of control is not in fact indicated in this
case. At most, we have a mate saying, “Do not break up
a tight stow.” )
Tue Court: But he went further: “Start stowing from
the inshore side.”
Mr. Putz: “Start stowing from the inshore side.”
Now we have evidence, and I believe it has to be accepted
from Mr. Keeler, that in fact that work, as he assumed
under the facts and circumstances from the plaintiff's case,
progressed for at
[247]
least eight two-thousand-ton sections of pipe without in-
cident, and that work had to be safe or obviously safe
without any knowledge or reason to know that it was un-
safe, or that the men couldn't handle it.
The basic question is: Could they handle it under the
circumstances. Plaintiff's own case shows that they did.
None of those witnesses, plaintiff or the other two men,
ever said, “Yes, a piece rolled prior to plaintiff's accident
because of the list, or because we didn’t control it, or be-
cause we let the wires go.”
As far as the question of was there a proper method
that this pipe could have been loaded given a seven-degree
list, it was, I submit, not defendant’s duty to establish that
one way or the other. I think that falls on the plaintiff's
side. And as I think the Court pointed out, the plaintiff
has not proved that either through Mr. Keeler one way
or the other.
I think Mr. Keeler said that given a situation where
you had the pipe on the offshore side, and you were going
to load pipe on the inshore side, with a seven-degree list,
at best, that was the situation, and he did not know
whether or not they could do it safely because it took the
Appendix B Al7
expertise of the men, and he called into play the thoughts
of, “Well, were these men experts, and could they in fact
handle it, and did they know what do so,” and he brought
that element of the ship boss’ expertise, and the hatch boss’
expertise, and the individual longshoremen’s expertise
[248]
into play, and the question that was asked was general and
not specific, asked by plaintiff's counsel and not by myself,
and I don’t think it was answered directly because he did
not have enough information upon which to give a direct
and definitive answer, and was not—the question was not
followed up. I don’t think the evidence is in the record.
Thank you, Your Honor.
Mr. Gruser: Your Honor, two sentences so I am as
clear as I can be for the record. I submit it is the province
of the jury to determine whether an unreasonably safe
condition existed and that whether or not there is expert
testimony or not it is still within the range, the ability of
the jury, to determine from the facts presented to them in
this case on this record they can make a determination as
to whether having to load the pipe under those circum-
stances did create an unreasonably safe condition for the
longshoremen.
Tue Court: Unreasonably dangerous.
Mr. GruBer: Unreasonably dangerous, I am sorry.
THE Court: I might agree with you ordinarily. We
place a great deal of faith always in the jury as the fact-
finders. But it is quite apparent that we are in an area
where one requires the guidance of some expert opinion.
Just as under Pennsylvania law, and I believe we use the
same thing, matters of medical complication which are not
within normal human understanding and must have some
expert opinion for guidance. I think the same
A18 Appendix B
[249]
‘hing is true when we are dealing in matters such as these.
i think it is not a part of daily human experience to know
the myriad things that these more expert people, these
longshoremen and stevedores are required to do under
most complicated circumstances in the loading and dis-
charging of cargo from vessels. Indeed, I am sure that
the lay person would be quite amazed to find some of the
feats that these men are able to accomplish by the use of
various type of rigging, and so forth. So, no, Mr. Gruber,
I cannot agree with you in this circumstance. This is why
I have had my reservation, that have you gone far enough,
have you brought in any expert opinion to establish that
with a seven-degree list there is no way of accomplishing
this kind of a mission successfully and safely.
It appears to me, as a lay person, and if I may be for-
given, with some very slight experience from my Army
days of having been involved with port operations, that
there are many, many ways of accomplishing this safely.
But I put that out of my mind because I am assuming the
jury knows nothing about such procedures. And that
being so, can I allow the jury to speculate that a seven-
degree list per se is a dangerous condition which would
preclude a safe operation by an experienced and com-
petent stevedore. And I say that without that guidance
the jury could only speculate. And I think your case is
deficient in that regard.
I start with a premise which has been adopted ap-
parently by the Court of Appeals, that the stevedore es-
sentially
[250]
has the expertise and the obligation to conduct the safe
operation. There is no evidence whatsoever in this case
Ee me pm an eee
Appendix B Al19
that the vessel’s officers attempted in any way to control
the manner of the loading operation. They did control the
end result where cargo was to be stowed. That they did
control. They did even dictate that the cargo stowage
would have to start from the inshore side and out. But
they made no efforts whatsoever to dictate or to control
the manner in which the stevedore then undertook to carry
out this obligation.
Now, I advert to one other factor, and that is the
testimony that if there is a dangerous condition, that the
stevedore has the obligation to bring it to the attention of
the vessel and call upon the vessel to correct it. There is
no evidence whatsoever in this case that that was done.
And I say it leaves then the only reasonable alternative
that the stevedore made the judgment that the stevedore
could operate in a safe manner under the conditions then
existing, even assuming this seven-degree list. And I am
assuming all of those things, and I come to the conclusion,
inevitably, that there is not enough evidence here to sub-
mit to the jury on the issue of control of the operation by
the ship’s officers. And having come to that conclusion, I
really find nothing to submit to the jury.
I have attempted here to resolve every fact issue in
favor of the plaintiff, and if I have failed, then the Court
of Appeals will have to straighten me out as to in which
particular
[251]
area I invaded the jury's province. I can be wrong, of
course, in my assessment of the plaintiff's obligation to
establish by something in the nature of expert testimony
that the condition existed, assuming a seven-degree list,
was one which precluded a safe operation.
I must, and do grant the directed verdict. And I sug-
gest that your further proceedings be direct.
A20 Appendix B
Mr. Gruber: I agree, Your Honor.
Does Your Honor intend to write an opinion on this?
Tue Court: No, indeed. Just as in Henry, what I
had to say I had said. I don’t want to hurt you or help
you.
Mr. GruBer: I understand.
Tue Court: What I have said I have said. If the
Court of Appeals wants to give us further explanation of
these complicated areas, we will certainly welcome it.
There is a certain amount of confusion which remains. I
had hoped that the Court of Appeals would create some
precedent in the Henry v. Orient Lines case. Instead it
did not write an opinion and did it only by judgment order,
and that has no precedential value. This goes a step
beyond Henry. In Henry the situation was simply that
the ship's officer was present in the hold, was aware that
the operation was a dangerous operation, just as the steve-
dore was aware it was a dangerous operation and did
nothing to correct it or to stop it. And I ruled that under
those circumstances a directed verdict for the defendant
was dictated. This goes a step beyond
[252]
that because we now have the further circumstances that
there was a list in the vessel upon the vessel’s arrival; that
that created problems with respect to stowage of cargo,
and particularly with cargo of the nature of pipe, which
has the propensity to roll, and particularly because of its
weight and length, and the ship’s officers dictating where
in the vessel it was to be stowed. So it does go beyond
Henry, but nevertheless in my view required the plaintiff
to produce evidence that with that list and with that cargo
the condition was one which presented an unreasonable
:
ny
4
iS
i tl
Appendix B A2l
risk of harm and one which could not have been overcome
by a method of operation conducted by a competent,
experienced stevedore. I think it required evidence, on
your part, to establish that that could not have been ac-
complished in a way that did not present an unreasonable
risk of harm.
I note further in entering this directed verdict that
the cause of this action, and we would have a problem of
causation here, was the fact that after a draft had been
landed, and apparently after the wires had been removed,
someone saw fit to question whether dunnage or plywood
had been placed along the path for the pipe to travel over.
And it was under those circumstances that Mr. Dougherty
undertook to walk between the draft and the stowed pipe
and this accident happened. Now this may have a bear-
ing only on contributory negligence. It may also have a
bearing on whether instructions by the stevedore as to
when and under what circumstances movement should
take place with a list
[253]
in the vessel would have enabled this operation to be car-
ried on in a safe fashion. This is why I commented on
Mr. McKenna’s testimony that he had not seen fit to give
any instructions, any special instructions, notwithstanding
the fact that there was a list in the vessel. So you may
have a problem of causation in the case also, ultimately.
But primarily, my ruling is based on the fact that
there is no evidence to establish that this operation could
not have been conducted in a safe fashion by an ex-
perienced, competent stevedore given the seven-degree
list.
Mr. Gruser: Thank you, Your Honor.
Mr. Putz: Thank you, Your Honor.
oO G oO
A22 Appendix C
APPENDIX C
Order of the District Court Directing Verdict for
Defendant and Entering Judgment in Favor
of Defendant
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN District OF PENNSYLVANIA
Civiz Action No. 76-1703
JOHN J. DOUGHERTY
v.
CHRISTIAN HAALAND
CIVIL JUDGMENT
Before Honorable Alfred L. Luongo
Anp Now, this 9th day of November 1977, in ac-
cordance with civil jury trial and defendant’s motion for
directed verdict upon conclusion of all the evidence, the
Court having GRANTED said motion,
It Is Onperep that Judgment be and the same is
hereby entered in favor of the defendant Christian
Haaland and against the plaintiff John J. Dougherty, to-
gether with costs.
By THE COURT:
ATTEST:
YATES
Deputy Clerk
Appendix D A23
APPENDIX D
Opinion of the District Court Denying Motion
for a New Trial
[1]
IN THE
UNITED STATES DISTRICT COURT
For THE EASTERN DistRICT OF PENNSYLVANIA
Civit Action No. 76-1703
JOHN J. DOUGHERTY
v.
CHRISTIAN HAALAND
OPINION
Lvonoo, J. SEPTEMBER 25, 1978
Plaintiff was injured on July 8, 1974, while working
as a longshoreman on the M/S Concordia Tarek, which
was moored at Girard Point in Philadelphia. On May 28,
1976, plaintiff instituted this tort action against the ship-
owner under the 1972 amendments to the Longshoremen’s
and Harbor Workers Compensation Act of 1927, 33
U. S. C. §905(b) (Supp. V 1975). Jurisdiction is based
solely on diversity of citizenship. The case was tried be-
fore a jury in November of 1977, and, at the close of plain-
tiff’s case, defendant moved for a directed verdict. See
generally Fed. R. Civ. P. 50(a). I reserved decision on
A24 Appendix D
that motion until the close of all the evidence, at which
time I granted the motion and discharged the jury. Plain-
tiff then made a timely motion for a new trial, asserting
that I erred in directing a verdict for defendant. See
generally Fed. R. Civ. P. 59(a). After considering care-
fully the points raised by plaintiff in support of his motion,
I conclude, for the reasons set out in this opinion, that the
motion must be denied.
In 1972, Congress completely overhauled the Long-
shoremen’s and Harbor Workers’ Compensation Act of
1927 (LHWCA). See Longshoremen’s and Harbor
Workers’ Compensation Act Amendments of 1972,
[2]
Pub. L. No. 92-576, 86 Stat. 1263. By so doing, Congress
“sought to achieve several goals: adequate, increased and
sure compensation for injured longshoremen, elimination of
the rubric of liability without fault for shipowners, and
encouragement of safety within the industry by placing the
duty of care on the party best able to prevent accidents”
Munoz v. Flota Merchante Grancolombiana, S. A., 553 F.
2d 837, 839 (2d Cir. 1977) (Kaufman, J.).
Under the 1972 amendments, an injured longshore-
man may no longer recover from the vessel for breach of
an implied warranty of seaworthiness, as he formerly could
under Seas Shipping Co. v. Sieracki, 328 U. S. 85 (1946).
E.g., Samuels v. Empressa Lineas Maritimas Argentinas,
573 F. 2d 884, 888 (5th Cir. 1978); Briley v. Charente S. S.
Co., Ltd., 572 F. 2d 498, 499 (5th Cir. 1978) (per curiam);
Davison v. Pacific Inland Navigation Co., 569 F. 2d 507,
511-12 (9th Cir. 1978). However, Congress did preserve
the longshoreman’s negligence action against the vessel.
33 U. S. C. § 905(b) (Supp. V 1975). Unfortunately, the
statute fails to specify the standard of care to which the
SE SS ™
Appendix D A25
vessel may be held, and, as a result, “the legal waters sur-
rounding the question of the proper standard have swirled
turgidly with confusion and controversy.” Davis v. Inca
Compania Naviera S. A., 440 F. Supp. 448, 451 (W. D.
Wash. 1977) (footnotes omitted). Although plaintiff here
has proffered several different legal theories, I conclude
that the evidence adduced at trial was insufficient to sup-
port a verdict for plaintiff under any of the potentially
applicable standards of care, and that it was therefore
proper to direct a verdict for defendant.
[3]
In essence, this motion for a new trial raises only one
issue, i.e., whether plaintiff presented enough evidence to
withstand defendant’s motion for a directed verdict. In
considering the instant motion, I shall of course view the
evidence in the light most favorable to plaintiff, as I am
required to do on a motion for a directed verdict. See
Patzig v. O'Neill, 577 F. 2d 841, 46 (3d Cir. 1978);
Denney v. Siegel, 407 F. 2d 433, 439 (3d Cir. 1969).
The evidence presented at trial may be summarized
as follows. On the day of the accident, plaintiff was em-
ployed as a longshoreman on the Philadelphia waterfront.
His employer was the Independent Pier Company, a steve-
doring concern. On the day in question, plaintiff was a
holdman with a hatch gang that was assigned to load
sections of fifteen-inch diameter metal pipe, each about .
fifty feet long and weighing about half a ton, into the
lower hold of the ship’s number 3 hatch. As plaintiff
boarded the ship ai eight o'clock that morning, he noticed
that it was listing to the inshore side. N. T. 18-19. The
extent of this list was approximately five to eight degrees.
N. T. 85, 106.
When the longshoremen opened the number 3 hatch,
they saw that thirty tons of five-inch pipe, stacked two
A26 Appendix D
tiers high, was already stowed in the offshore side of the
lower hold. They decided that, in order to help correct
the ship’s list, they would stack up the thirty-foot sections
of pipe into the wing, and then load the longer and
heavier sections of pipe on the offshore side of the hold,
alongside and inboard the thirty-foot sections. The
[4]
longshoremen lowered a forklift into the lower hold, in-
tending to use it to stack up the shorter pipe that was
already stowed there, but an unidentified ship’s mate in-
structed the hatch gang’s foreman that the longer pipe
was to be stowed on the inshore side of the hold. Edward
McKenna, the foreman, argued with the mate, contending
that it would be more logical to stow the pipe on the off-
shore side rather than on the inshore side, because the
ship was already listing to the inshore side. The ship's
mate insisted that the pipe be stowed on the inshore side,
however, and McKenna instructed his men to do so.
The longshoremen then began to load the pipe into
the inshore wing of the hold. They lowered and stowed
without incident six or eight sections of pipe, in drafts of
two each, although plaintiff continued to complain to his
foreman about working the inshore side of the ship. N. T.
28. A ship’s mate than asked McKenna whether his men
were putting plywood between the sections of pipe being
loaded and the steel deck of the lower hold. McKenna,
who was on the upper deck, called down into the hold
and instructed the men to put plywood under the pipe to
keep it from sliding around. There was very little ply-
wood in the hold at that time, and the holdmen asked that
more plywood be sent down. Before this could be done,
plaintiff picked up a piece that was already in the hold
and attempted to place it under a section of pipe that had
Appendix D A27
just been lowered. The pipe was then resting on two
wooden “chocks,” and a holdman was steadying it at each
end. One man apparently lost control :
[5]
of his end, and the pipe rolled inshore with the ship’s list,
striking and injuring plaintiff. N. T. 108.
It is undisputed that the ship’s mate had the authority
to direct where in the vessel particular cargo was to be
stowed, and, in particular, to direct that the pipe taken on
at Philadelphia be stowed on the inshore, rather than the
offshore, side of the lower hold. N. T. 75, 143. It is also
undisputed that the longshoremen exercised complete con-
trol of the loading operation, apart from the mate’s direc-
tion that the pipe be stowed on the inshore side of the ship.
In light of the uncertainty surrounding the applicable
standard of care in longshoremen’s negligence actions
under section 905(b), plaintiff has sought in his written
submissions to bring the facts of this case within eight
distinct theories of liability. Six of these theories are set
out in various sections of the Restatement (Second) of
Torts; the others are the unseaworthiness theory men-
tioned earlier and the Gallardo theory, derived from
Gallardo v. Westfal-Larsen & Co. A/S, 435 F. Supp. 484
(N. D. Cal. 1977).
At the outset, it appears that three of the eight
theories are in fact unavailable to plaintiff, and I will
briefly address these three before considering whether the
evidence adduced at trial warranted submitting this case
to the jury under any of plaintiff's other theories of lia-
bility. First, as I noted earlier, an injured longshoreman
may no longer recover from the vessel for breach of an
implied warranty of seaworthiness. See cases cited supra;
H. R. Rep.
A28 Appendix D
[6]
No. 92-1441, 92d Cong., 2d Sess. __-__ (1972), reprinted
in [1972] U. S. Code Cong. & Admin. News 4698. 4701-05;
S. Rep. No. 92-1125, 92d Cong., 2d Sess. 8-12 (1972).
Second, although there is law in other circuits to the con-
trary, the Third Circuit has intimated that the duties irn-
posed on possessors of land by sections 342 and 343 of
the Restatement (Second) of Torts are not to be imposed
on vessels. See Hurst v. Triad Shipping Co., 554 F. 2d
1237, 1249-50 n. 35 (3d Cir.), cert. denied, 434 U. S. 861
(1977); Brown v. Ivarans Rederi A/S, 545 F. 2d 854, 863-
64 n. 10 (3d Cir. 1976), cert. denied, 430 U. S. 969 (1977).
Accord, Canizzo v. Farrell Lines, Inc., No. 77-7292, slip
op. at 3210-11 (2d Cir. June 2, 1978) (Friendly, J., dis-
senting in part ), petition for cert. filed, 47 U. S. L. W. 3148
(U. S. Aug. 30, 1978) (No. 78-358).' Contra, e.g., Brown
v. Mitsubishi Shintaku Ginko, 550 F. 2d 331 (5th Cir.
1977) (Wisdom, J.); Gay v. Ocean Transp. & Trading
Co., 546 F. 2d 1233 (5th Cir. 1977). Third, the Gallardo
analysis, while not unpersuasive, diverges in important re-
spects from the Third Circuit’s analysis of the vessel’s
duties under section
[7]
905(b). These considerations led Chief Judge Lord to
reject the Gallardo analysis in a recent opinion, and I am
1. Judge Friendly’s observations bear repeating here:
“In retrospect it seems to have been a mistake for courts
to give such talismanic significance to §§ 343 and 343A of the
[Restatement (Second)] as has sometimes been done. These
sections are awkwardly drafted; the framers had no notion that
they would be ap lied to the tangled situations of ship loading
or unloading; and they must be read together with [§§ 409-29
of the Restatement fl Second)]. In dealing with : 905(b),
courts would do better to consider the policies that actuated
Congress in adopting the 1972 amendments.”
Canizzo v. Farrell Lines, Inc., supra, slip op. at 3210-11 (footnote
omitted ).
Appendix D A29
entirely in agreement with his conclusion. See Blackburn
v. Prudential Lines, Inc., No. 76-3554, slip op. at 2-6 (E. D.
Pa. July 19, 1978). Accordingly, I turn to plaintiff's five
remaining theories of liability.
In considering whether defendant could properly
have been found liable here, I start from the general
proposition that the stevedore is an independent contractor
possessed of special expertise in the loading and unloading
of cargo. Congress, in enacting the 1972 amendments to
the LHWCA, chose to place primary responsibility for the
longshoremen’s safety on the stevedore, “the party best
able to prevent accidents.” Munoz v. Flota Merchante
Grancolombiana, S. A., 553 F. 2d 937, 939 (2d Cir. 1977);
see, e.g., Marant v. Farrell Lines, Inc., 550 F. 2d 142, 144
(3d Cir. 1977); Brown v. Ivarans Rederi A/S, 545 F. 2d
854, 860 (3d Cir. 1976), cert. denied, 430 U. S. 969
(1977). See generally 33 U. S. C. §941(a) (1970).
Thus, the vessel will ordinarily be justified in assuming
that the stevedore and its employees, i.e., the longshore-
men, can safely perform the required loading or unloading
operations, even under conditions that would be dangerous
to those not experienced in the calling. At least this is so
where, as here, no latent or concealed dangerous condi-
tions exist aboard ship. In short, an injured longshoreman
seeking to impose liability on the vessel under section
905(b) must show that the vessel was negligent in relying
upon the stevedore’s expertise and in assuming that the
work could be safely done by the stevedore. This
[8]
in turn requires a showing that (1) the conditions aboard
ship created an unreasonable risk of harm, even for a long-
shoreman working under the guidance of an expeit steve-
dore, and (2) the vessel, although not possessed of the
A30 Appendix D
stevedore’s expertise, knew or should have known of this
unreasonable risk of harm. Cf. Davison v. Pacific Inland
Navigation Co., 569 F. 2d 507, 513-14 (9th Cir. 1978) (no
evidence that defendant knew or should have known that
cargo could not be safely discharged from barge due to
its design; judgment against defendant reversed). See
generally Restatement (Second) of Torts § 289 (1965).
RESTATEMENT (SECOND) § 410
Plaintiff relies initially on section 410 of the Restate-
ment (Second), which provides:
“The employer of an independent contractor is sub-
ject to the same liability for physical harm caused by
an act or omission committed by the contractor pur-
suant to orders or directions negligently given by the
employer, as though the act or omission were that of
the employer himself.”
Hurst v. Triad Shipping Co., 554 F. 2d 1237, 1248-53 (3d
Cir.), cert. denied, 434 U. S. 861 (1977), suggests that
this rule is part of the federal common law that governs
an injured longshoreman’s negligence action against the
vessel. Section 410, of course, carves out an exception to
the general rule that an employer is not liable for the
negligence of an independent contractor he employs. See
Restatement (Second ) of Torts § 409 (1965). This section
deals with an employer's liability for negligently directing
an independent contractor to do work that “is dangerous
in itself, or dangerous
[9]
oecause of the manner in which it is directed to be done.”
Restatement (Second) of Torts § 410, Comment a (1965).
Plaintiff suggests that the jury here might have found
that the task assigned to plaintiff's hatch gang—the loading
Appendix D A3l
of additional cargo on the inshore side of the ship—was
unreasonably dangerous in view of the ship’s inshore list,
and that defendant was therefore negligent in directing the
longshoremen, who were employees of an independent
contractor (the stevedore), to proceed in that manner.
I believe, however, that such a jury determination would
not be supportable on the evidence that was presented
here.
In light of my earlier general observations, the proper
inquiry under section 410 is two-fold: (1) Did the mate’s
instruction give rise to an unreasonable risk of harm to
the longshoremen, notwithstanding that they were work-
ing under the direction of an expert stevedore? (2) If so,
did defendant know, or should it have known, of this un-
reasonable risk of harm?
With regard to the first question, I expressed con-
siderable doubt at the time of trial that plaintiff had pre-
sented enough evidence to warrant submitting this issue
to the jury. Although I remain doubtful, I recognize that
the following exchange between plaintiff's counsel and
Paul J. Keeler, a maritime consultant called as a defense
witness, arguably could support a jury finding that an
experienced stevedore could not have safely carried out
the mate’s instruction:
“Q. And would it be a safe practice in your
opinion for the mate on that vessel to direct the long-
shoremen
[10]
to work in the same direction as a five-degree list?
A. To work in the direction, you mean on the
low side of the list, or the high side?
Q. The low side.
A. With what kind of cargo?
A32 Appendix D
Q. The 15-inch pipe we talked about in this case.
A. With how much list, three degrees?
Q. Five degrees, first.
A. No way.
Q. Now three degrees.
A. Well, I would say three degrees, with 15-inch
pipe would not be a good practice either.”
N. T. 197 (emphasis supplied ).
With regard to the second aspect of plaintiff's case,
however, I am thoroughly convinced that the evidence
presented was insufficient to support a verdict in plaintiff's
favor. Plaintiff offered no evidence whatever tending to
show that the shipowner knew, or should have known,
that an experienced stevedore could not safely load this
cargo on the inshore side of the ship, given the ship's in-
shore list.
I note at the outset that plaintiff could not have car-
ried his burden here except by presenting expert testimony
that the shipowner knew, or should have known, that the
stevedore would be unable to operate safely to accomplish
the result prescribed by the mate. True, the jury generally
is permitted to determine, without the aid of expert testi-
mony, whether an actor should have known that
[1i]
his conduct exposed another to an unreasonable risk of
harm. Compare Restatement (Second) of Torts § 289
(1965) with id. § 328C(b). In the context of a longshore-
man’s negligence action, however, the question whether
the vessel knew, or should have known, that the stevedore
would be unable to operate safely in light of certain con-
ditions aboard ship cannot be answered without some
fairly specific knowledge of the relationship among the
Appendix D A33
vessel, the stevedore, and the longshoremen. The trier of
facts usually will need to know, for example, how the
responsibility for the safe conduct of loading operations is
allocated between the vessel and the stevedore. In par-
ticular, the trier of fact will need to know the extent to
which ships’ officers generally may be charged with knowl-
edge of the stevedore’s ability, or inability, to safely
perform loading operations under various conditions.
These matters clearly lie outside the common knowledge
and experience of ordinary persons. Consequently, the
jury must receive guidance from persons with special
knowledge of, or experience in, these matters if it is to
appraise the situation accurately. Cf., e.g., Robinson v.
Wirts, 387 Pa. 291, 297, 127 A. 2d 706, 710 (1956) (Sertn,
C. J.) (because jurors in medical malpractice case “would
presumably lack the necessary knowledge and experience
to render a just and proper decision, they must be guided
by the testimony of witnesses having special or expert
qualifications”); Ragan v. Steen, 229 Pa. Super. 515, 331
A. 2d 724 (1974) (same).
Plaintiff argues here, as he originally did in opposing
the directed verdict, that Mr. Keeler’s testimony provided
a basis for the jury to determine that the shipowner was
negligent.
[12]
I fail to see how Mr. Keeler’s testimony could support
such an inference. Mr. Keeler did not testify that the
ship’s officers actually knew that the operating conditions
presented an unreasonable danger to the stevedore, nor
did he testify that the ship's officers should have known
of the alleged danger. Rather, Mr. Keeler simply gave
his own expert opinion that the holdmen were working
under dangerous conditions, and he never addressed the
A34 Appendix D
question whether the ship’s officers should have perceived
that these conditions were unreasonably dangerous.
Mr. Keeler’s testimony consistently reflected the view
that the stevedore, rather than the ship’s personnel, is pri-
marily responsible for conducting operations safely. Thus,
Mr. Keeler testified that the ship’s boss, the highest-ranking
employee of the stevedore, makes a preliminary inspection
of the ship before any of his men board it, and that if he
observes any grave safety hazards, it is up to him to insist
that they be rectified before his men begin work on the
ship. N. T. 154-57, 199-200. Mr. Keeler also specifically
testified that, if a ship’s boss observes a list that makes its
dangerous for his men to load cargo, he is then obliged to
order that work be halted until the list is corrected, rather
than to permit his men to “work out” the list by rearrang-
ing cargo. N. T. 155-56. There was no testimony here
that the ship’s boss ever complained about the list, or that
anyone requested on behalf of the stevedore that the ship
itself
[13]
correct the list.2 The ship’s officers evidently assumed,
from the absence of such complaints or requests, that the
stevedore would be able safely to perform the loading
operation, notwithstanding the ship’s list. Plaintiff offered
no evidence, expert or otherwise, that this assumption was
unreasonable, i.e., that the ship’s officers knew, or should
have known, that the holdmen were in fact working under
unreasonably dangerous conditions.
2. Mr. McKenna, plaintiffs hatch boss, simply requested that
his men be itted to try to correct the list themselves. In light
of Mr. Keeler’s uncontroverted testimony that 30 tons of cargo in
the lower hold would have had absolutely no effect on the vessel’s
list, it appears that the longshoremen’s pr course of action
would have proven completely ineffective. N. T. 162-70,
Appendix D A35
Plaintiff points to the deposition testimony of Captain
Lars Vedo, the chief officer aboard the M/S Concordia
Tarek on the day of the accident. The following excerpt
from Captain Vedo’s testimony on cross-examination is
pertinent here:
6 Wee
I want you to assume that there was in fact a list
to the inshore or port side during the morning of July
8, 1974. I want you. . . to also assume that the
stevedore hatch boss asked permission from the deck
officer who was on hand at Number 3 [hatch] to take
corrective action in order to adjust this list.
Now, assuming those facts, what would be the
normal course for the deck officer on duty at that
time?
Mr. Putz: I'll object. I don’t know what you
mean by ‘normal course.’ You mean, would he come
to this witness; would he give authority? What would
he do?
Mr. Gruser: That’s right.
[14]
Mr. Putz: I see.
THE Witness: We would straighten up the ship.
By Mr. GrRuBER:
Q. Straighten up the ship?
A. Yes.”
N. T. 68-69 (emphasis supplied ).
Without belaboring the point, I fail to see how
Captain Vedo’s apparently unresponsive testimony could
support an inference that the shipowner was negligent
A36 Appendix D
here. At the most, the jury might have inferred from the
testimony quoted above that the ship’s mate should have
interpreted McKenna’s request that his men be permitted.
to work the offshore side, in an effort to correct the list, as
a request that the vessel itself correct the list, and further
that such requests, if made, are normally granted. Even
if the jury drew both of those inferences, however, it
would still have had no basis for charging the vessel's
officers with knowledge that it was unreasonably danger-
ous to load the cargo on the inshore side, given the ship’s
inshore list. There was no testimony that McKenna com-
municated to the mate any concern about the safety of
working the inshore side of the ship, nor was there any
evidence that a request to straighten up the vessel gen-
erally is made only where the stevedore believes the list
is dangerous, rather than simply inconvenient. Accord-
ingly, without the aid of additional expert testimony, the
jury would have had to resort to pure speculation in order
to infer from McKenna’s
[15]
request that the vessel should have known that it was un-
reasonably dangerous to load the cargo on the inshore
side, given the ship’s inshove list. Plaintiff therefore was
not entitled to go to the jury under section 410 of the
Restatement (Second ).
RESTATEMENT (SECOND) § 414
Plaintiff also relies on section 414 of the Restatement
(Second ) of Torts (1965), which provides:
“One who entrusts work to an independent contractor,
but who retains the control of any part of the work,
is subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise
Appendix D A37
~
reasonable care, which is caused by his failure to exer-
cise his control with reasonable care.”
Once again, Hurst v. Triad Shipping Co., 554 F. 2d 1237,
1251-52 (3d Cir.), cert. denied, 434 U. S. 861 (1977),
suggests that section 414 is part of the federal common
law that governs longshoremen’s negligence actions under
the LHWCA.
Plaintiff contends that the shipowner here retained
control of the loading operation, in that the ship’s mate
directed the holdmen to stow the pipe on the inshore side
of the ship. Defendant, by way of response, argues that
the holdmen were free to use any method they chose in
stowing the pipe, and to take any safety precautions they
thought appropriate, so that it did not retain “control”
over the work within the meaning of section 414. I agree
that defendant here did not retain “control” of the work
within the meaning of section 414. To begin with, the
panel in Hurst, supra, expressly held that the shipowner’s
ultimate control over stevedoring operations, i.e., its power
to halt the operations
[16]
at any time, does not amount to “control” as that term is
used in section 414. 554 F. 2d at 1251. The Hurst panel
noted that a contrary rule would effectively impose on
the vessel a nondelegable duty to supervise stevedoring
operations, and that the legislative history of section 905(b)
made it plain that Congress sought to preclude the im-
position of nondelegable duties on shipowners. Id.
Here, of course, plaintiff does not rely solely on de-
fendant’s ultimate power to terminate stevedoring opera-
tions. Rather, he emphasizes its direction that the pipe
be stowed on the inshore wing of the hold. However, in
view of the testimony here that the vessel generally deter-
mines where each particular part of its cargo is to be
A38 Appendix D
stowed, I cannot agree that mere control over where cargo
is stowed, without more, amounts to control of the load-
ing operation itself. The vessel, by specifying where the
cargo is to be stowed, in effect requires the stevedore to
accomplish a particular result. Yet the employer of an
independent contractor generally does not retain control
of the work simply by specifying the result that the ‘con-
tractor must accomplish. Although the stevedore is re-
quired to load the cargo in a certain location, it neverthe-
less remains “entirely free to do the work in [its] own
way. Restatement (Second) of Torts § 414, Comment c
(1965). Thus, it may direct its employees to use certain
equipment, or to take special precautionary measures, in
order safely to accomplish the job. The stevedore, in
short, retains control of the work. See, e.g., Wescott v.
Impresas Armadoras, S. A. Panama, 564 F. 2d 875, 882-83
& n. 8 (9th Cir. 1977).
[17]
I realize that in some unusual cases, the vessel's
direction to stow cargo in a particular location may, as a
practical matter, leave the stevedore with little or no con:
trol over how the task is to be carried out. For example,
a mate’s direction to stow an oddly-shaped ten-ton counter-
weight in a narrow space between two other items of
cargo may entail a direction to stow the weight in a par-
ticular position, if the weight cannot practically be stowed
in any other way. See Butler v. O/Y Finnlines, Ltd., 537
F. 2d 1205, 1208 (4th Cir. 1976) (“[i]nherent in the
mate’s choice of where . . . was a direction as to how”).
Under circumstances such as those, it might properly be
said that the vessel retains control of the work, and the
vessel might properly be held liable for a negligent direc-
tion. In this case, however, no evidence was presented
to show that the mate’s direction to load the inshore side
Appendix D A39
of the hold effectively dictated the method by which the
stevedore would accomplish that task. There was, there-
fore, no evidence to support a finding that the shipowner
retained control of any part of tle work, and it conse-
quently cannot be held liable under section 414.
RESTATEMENT (SECOND) § 302A
Plaintiff also seeks to impose liability on the ship-
owner under section 302A of the Restatement (Second),
which states that “[a]n act . . . may be negligent if the
actor realizes or should realize that it involves an unreason-
able risk of harm to another through the negligent . . .
conduct of the other or a third person.”
[18]
In short, plaintiff contends that the mate’s order to load
the pipe on the inshore side of the ship created an un-
reasonable risk of harm to plaintiff because of the likeli-
hood that plaintiff or other members of his hatch gang
would act negligently in carrying out that order. Brown
v. Ivarans Rederi A/S, 545 F. 2d 854, 863 (3d Cir. 1976),
cert. denied, 430 U. S. 969 (1977), suggests that section
302A is part of the federal common law governing long-
shoremen’s negligence actions under the LHWCA. On
the evidence presented here, however, plaintiff was not
entitled to go to the jury under section 302A. There was
no evidence here that defendant knew that the holdmen
were likely to be careless in loading the cargo on the in-
shore side of the ship, nor was there any evidence to
support an inference that defendant should have foreseen
the likelihood of negligence on their part.
RESTATEMENT (SECOND) § 305
Plaintiff also invokes section 305 of the Restatement
(Second ), which provides that “[a]n act may be negligent
A40 Appendix D
if the actor . . . should realize that it is likely to prevent,
another or a third person from taking action which the
actor . ... should realize is necessary for the aid or pro-
tection of the other.” In short, plaintiff urges that the
mate's instructions to the holdmen prevented them from
working against the ship’s list, and that working against
the list was necessary for the aid or protection of plaintiff.
Section 305 is apparently part of the federal common law
that governs longshoremen’s negligence actions under the
LHWCA.
[19]
See Brown v. Ivarans Rederi A/S, 545 F. 2d 854, 863 (3d
Cir. 1976), cert. denied, 430 U. S. 969 (1977). On the
evidence presented here, however, section 305 does not
aid plaintiff's case. Indeed, plaintiff's contention here—
that the shipowner exposed plaintiff to an unreasonable
risk of harm by preventing the holdmen from working in
a safe manner (i.e., by loading the offshore side of the
ship )—is essentially the same contention he raised under
section 410 of the Restatement (Second), i.e., that the
vessel was negligent in directing the holdmen to work the
inshore side of the ship. I have already noted, however,
that the evidence offered at trial was insufficient to permit
a jury determination that the vessel was negligent in this
regard, and the same conclusion obtains here, notwith-
standing that plaintiff's theory of negligence under section
305 differs slightly from his theory under section 410.
The fact of the matter is that the ship’s list created a
danger for the longshoremen, whether they worked with
the list or against it. Mr. Keeler’s testimony, upon which
plaintiff relies so heavily, clearly established that loading
the pipe against the list, as plaintiff contends he should’
have been permitted to do, would itself have been a
Appendix D A4l
dangerous undertaking, perhaps even more dangerous than
working with the list. N. T. 166-72, 192-97.
RESTATEMENT (SECOND) § 452(1)
Finally, plaintiff apparently seeks to recover under
section 452(1) of the Restatement (Second) which pro-
vides that, in general, “the failure of a third person to act
to prevent harm to another threatened by the actor’s negli-
gent conduct is not a
[20]
superseding cause of such harm.” However, section 452
(1) does not in and of itself impose liability on the actor
for his negligent conduct; it simply provides that a third
person’s failure to act “does not relieve the actor of lia-
bility for the harm which he has in fact caused.” Restate-
ment (Second) of Torts § 452, Comment a (1965) (em-
phasis supplied). Thus, section 452(1) does not become
applicable until it appears that the actor was in fact negli-
gent and that he seeks to avoid liability for his conduct
on the ground that a third party’s failure to act was a
superseding cause of the harm that the actor caused. As
I have already noted, plaintiff has failed to establish de-
fendant’s negligence in the first instance, and so section
452(1) cannot avail him here.
In sum, then, I find that the evidence presented here
was insufficient to permit a jury to find in plaintiff's favor
under any of the potentially applicable theories of liability
that he advances. Defendant was therefore entitled to the
direction of a verdict in its favor. Inasmuch as plaintiff's
motion for a new trial is premised entirely on the asserted
error in directing a verdict for defendant, I conclude that
plaintiff's motion must be denied.
/s/ ALFRED L. Lvonco, J.
A42 Appendix E . Appendix F A43
APPENDIX F
APPENDIX E Judgment Order of the U. S. Court of Appeals
for the Third Circuit
Order of the District Court Denying Motion UNITED STATES COURT OF APPEALS
for a New Trial For THE Tuirp Circuit
No. 78-2575
IN THE hiatald
UNITED STATES DISTRICT COURT
For THE EASTERN District OF PENNSYLVANIA JOHN J. DOUGHERTY,
Appellant
eee v.
Civiz Action No. 76-1703 CHRISTIAN HAALAND
On APPEAL FROM THE UNITED StaTEs Districr Court
JOHN J. DOUGHERTY For THE EasTERN DisTRICT OF PENNSYLVANIA
v. C. A. No. 76-1703
Argued July 13, 1979
Before: ADAMS, ROSENN and HIGGINBOTHAM,
ORDER Circuit Judges.
This 25th day of September, 1978, it is
JUDGMENT ORDER
OrpERED that Plaintiff's Motion for a New Trial is tonal
DENIED.
CHRISTIAN HAALAND
After considering the contentions raised by appellant,
/s/ ALFRED L. Luonco, J. it is
A44 Appendix F
ADJUDGED AND OrpERED that the judgment of the dis-
trict court be and is hereby affirmed.
Each side to bear its own costs.
By THE COURT,
/s/ Artin M. ApAmMs
Circuit Judge
ATTEST:
/s/ THomas F. Quinn
Thomas F. Quinn, Clerk
Datep: July 17, 1979
Certified as a true copy and issued in lieu of a formal man-
date on August 8, 1979.
Test: THomas F. Quinn
Clerk, United States Court of Appeals for the Third Circuit
Appendix G- A45
APPENDIX G
Opinion of the U. S. Court of Appeals for the Third Circuit
in Griffith v. Wheeling-Pittsburgh Steel Corp.
[1]
UNITED STATES COURT OF APPEALS
For THE THirD Circuit
Nos. 78-2159, 78-2160 and 78-2161
THOMAS W. GRIFFITH
v.
WHEELING-PITTSBURGH STEEL CORPORATION,
et al.
THOMAS W. GRIFFITH,
Appellant in No. 78-2159
WHEELING-PITTSBURGH STEEL CORPORATION,
Appellant in No. 78-2160
AMERICAN COMMERCIAL LINES, INC.,
Appellant in 78-2161
On APPEAL FROM THE UNITED STATES District CouRT
For THE WESTERN DISTRICT OF PENNSYLVANIA
(D. C. Civil No. 73-0706)
Argued June 7, 1979
Before Gissons, Weis and HiccinsotTuaM, Circuit Judges
(Opinion filed August 24, 1979)
A46 Appendix G
Thomas L. Cooper, Esquire
(Argued )
Gilardi & Cooper
606 Oliver Building
Pittsburgh, Pennsylvania 15222
Attorneys for Thomas W. Griffith
[2]
William L. Standish, Esquire
( Argued )
Arthur H. Stroyd, Jr., Esquire
Reed Smith Shaw & McClay
747 Union Trust Building
Pittsburgh, Pennsylvania 15219
Attorneys for Wheeling-Pittsburgh
Steel Corporation
John W. Jordan, IV, Esquire
(Argued )
Thomson, Rhodes & Grigsby
1724 Frick Building
Pittsburgh, Pennsylvania 15219
Attorneys for American Commercial
Lines, Inc.
OPINION OF THE COURT
Grspons, Circuit Judge:
Thomas W. Griffith, an employee of Wheeling-Pitts-
burgh Steel Corporation (Wheeling) commenced this ac-
tion in August 1973 against his employer, and against
American Commercial Lines, Inc. ( American ), the owner
of barge No. 2730, pursuant to § 18(a) of the Longshore-
mens and Harbor Workers’ Compensation Act Amend-
ments of 1972. 33 U.S.C. § 905(b). He sought damages
Appendix G A47
for injuries sustained on May 26, 1973 when he fell into
the hold of barge No. 2730. Both defendants denied li-
ability to Griffith, and each cross-claimed against the other
for indemnification and contribution. Both also moved for
summary judgment against Griffith and against each other
on their respective cross-claims. The district court
granted Wheeling’s motion for partial summary judgment,
dismissing Griffith’s negligence claim against Wheeling,
and barring any claim for contribution or indemnity by
American against Wheel-
[3]
ing.' The order granting partial summary judgment was
entered as a final judgment, and this court then considered
appeals by Griffith and American from that order. We
reversed and remanded for further proceedings consistent
with our opinion.’
Following a non-jury trial the district court held both
Wheeling and American liable to Griffith on a negligence
theory. It further found that Griffith had suffered com-
pensatory damages in the amount of $209,299.45, but re-
duced his recovery by 25% because it found that 25% of
those damages was attributable to Wheeling’s negligence
in a stevedoring capacity. On June 15, 1978, the court
entered judgment against American for $104,649.73 (50%
of Griffith's damages ) and against Wheeling for $52,324.87
(25% of those damages ) a total of $156,974.60.° All parties
1. Griffith v. Wheeling Pittsburgh Steel Corp., 384 F. Supp.
230 (W. D. Pa. 1974).
2. Griffith v. Wheeling Pittsburgh Steel Corporation, 521 F. 2d
31 (3d Cir. 1975), cert. denied, 423 U. S. 1054 1976) (Griffith I).
The Griffith I court affirmed the district court’s holding that Griffith
was not a Jones Act seaman, and therefore had no Jones Act
remedy against either defendant. 521 F. 2d at 36-38.
3. Griffith v. Wheeling-Pittsburgh Steel Corp., 452 F. Supp.
841 (W. D. Pa. 1978).
\
A48 Appendix G
appeal from this final judgment. Once again we must
remand for further proceedings.
I. Facts
The facts respecting Griffith's employment in the
Wheeling common labor pool at Allenport, Pennsylvania,
his assignment on the day of the accident to work with a
barge crew at the river landing, and the happening of the
accident are detailed in our previous opinion. That ap-
peal reviewed the summary judgment record. The trial
court's findings of fact after the trial confirm that state-
ment in all material respects, and we repeat it here.
Appellee Wheeling-Pitt&burgh, Steel Corporation
(Wheeling) operates a steel mill along the banks of
the Monongahela River at Allenport, Pennsylvania.
[4]
It first employed appellant Thomas Griffith on Febru-
ary 11, 1973, about four months before the date of the
injury that was to become the subject of this action.
He worked out of a common labor pool in the con-
struction department and was assigned on a daily
basis to a variety of landbased jobs. On April 1, 1973
Griffith bid into the hot mill labor pool, where as be-
fore he was assigned to various jobs on a daily basis.
As part of this pool he was assigned to work at the
company’s barge landing on the river for a total of 3%
days including the date of the accident on May 26,
1973.
On that day, plaintiff was assigned to work with
the barge crew at the landing to assist in the loading
of two barges. The barge on which the accident was
to occur, No. 2730, was owned by defendant-appellant
American Commercial Lines, Inc. (American). Three
Appendix G A49
days earlier, on May 23, it had been delivered to
Wheeling and was incorporated into the latter’s “coal
fleet” to await future use. On May 25, No. 2730 was
relocated next to the seawall at the barge landing to
take on a load of sheet steel which was destined to
move down river to Louisville, Kentucky. A second
barge, described as a pipe barge, was positioned next
to No. 2730, and it too was to be loaded. The pipe
barge was positioned immediately next to the seawall,
and No. 2730 was lashed alongside further out on
the river.
On the morning of the day of the accident,
Griffith and the regular rivermen in the barge crew
first loaded pipe into the pipe barge. During the
loading of the pipe barge, which was completed be-
fore noon, Griffith worked on the seawall and barge.
No. 2730 was then moved into position for loading
by a procedure known as “rounding” in which a crane
on the seawall pushed the barges away from the wall
permitting the current to turn the boats around in the
water so that No. 2730 was situated next to the sea-
wall. Griffith’s sole as-
[5]
sistance during the procedure involved his throwing
ropes from one barge to the other.
The crew then turned to the loading of No. 2730.
At that time, Joseph Allfree, the crew’s foreman, who
was employed as river foreman by Wheeling, became
aware that the barge covers were difficult to move.
The wheels and track mechanism on which the covers
ordinarily roll were without lubrication and were
rusty and bent. At about 2:00 p.m. Allfree directed
the crew to stop loading the barge and to close the
A50 Appendix G
covers. Allfree then returned to his office away from
the area. The only other experienced riverman on the
crew, Joseph Armstrong, then had difficulty closing
one of the covers. A cable was attached from the
crane on the seawall to the cover to pull it shut; a
second cable was attached to an adjacent cover for
leverage. Because eyelets on the stuck cover were
missing, the hook at the end of the cable was attached
to the lip on the underside of the cover. Both Arm-
strong and plaintiff were standing on top of the stuck
cover when tension was applied to the cable. As the
stuck cover began to rise they stepped back onto an
adjacent cover, but that cover moved backward and
the two men fell into the hold and both were injured.
521 F. 2d at 34-35.
II. GrirFirH’s APPEAL
Griffth’s appeal contests the reduction of his re-
covery to $156,974.60. Griffith’s §905(b) claims were
against the barge owner, American, on the theory that it
had negligently furnished Wheeling a defective barge, and
against Wheeling as owner pro hac vice for negligently
directing him to work on that unsafe barge. As noted, the
trial court found in Griffith’s favor on both of these claims.
Both Wheeling and American contest liability to Griffith,
and their contentions are addressed in Parts III and IV
below. But neither contests the district court's finding of
fact that
[6]
Griffith suffered $209,299.45 in compensatory damages.
Nor does either contend that Griffith, himself, was guilty of
any negligence which contributed to the accident. In this
Part we address the reduction of Griffith’s damages on the
Appendix G A51
assumption that the trial court’s liability determinations in
Griffth’s favor are correct.
The court found that American was negligent in de-
livering a barge with defective cover mechanisms, knowing
that workers such as Griffith would be exposed to risk of
injury for those defects. It found that Wheeling, in its
capacity as owner pro hac vice of the barge, was negligent
in failing to give adequate instructions to steelworkers un-
familiar with river work, in providing a defective barge
for such work, and in failing to inspect, repair, or reject
the defective barge. It also found that in its stevedoring
capacity, as distinguished from its capacity as owner pro
hac vice, Wheeling was liable for the negligence of its em-
ployees, Griffith’s fellow servants. The court allocated the
responsibility for Griffith’s injuries 50% to American, 25%
to Wheeling as owner pro hac vice, and 25% to Wheeling
as stevedore. It then applied what has become known as
the equitable credit doctrine to reduce Griffith’s total re-
covery by 25%, representing the negligence attributable
to his employer, Wheeling, acting in its capacity as steve-
dore.
In adopting the equitable credit doctrine the trial
court decided the question which this court expressly re-
served in Marant v. Farrell Lines, Inc., 550 F. 2d 142, 147
(3d Cir. 1977). The theory behind that doctrine was that
when Congress in the 1972 Amendments to the LHWCA
eliminated the shipowner’s strict liability to longshoremen
for unseaworthiness, and at the same time created in
§905(b) a new negligence cause of action against the
shipowner, it did not intend to impose liability upon the
shipowner for that part of the longshoreman’s damages at-
tributable to the negligence of the longshoreman’s em-
ployer. The workman’s compensation remedy was said to
cover that percentage of the damages. This statutory com-
pensation
A52 Appendix G
[7]
was characterized as equitable in recognition of the fact
that under § 933(c) of the Act the stevedore employer had
a lien on the employee's third party recovery. Thus, in
the absence of a credit principle, the stevedore might in
some cases be fully repaid for its workmen’s compensation
payments by the shipowner, although its own employees
were significantly responsible for the injury. The ship-
owner would then be left to bear the burden of the long-
shoreman’s damage recovery, despite its lesser responsi-
bility. It was thought to be equitable to prevent this result
by reducing the longshoreman’s negligence recovery in
proportion to the percentage of the stevedore’s negligence.
In Edmonds v. Compagnie Generale Transatlantique,
47 U. S. L. W. 4868 (U. S. June 27, 1979), the Supreme
Court reversed an en banc decision of the Fourth Circuit *
which had applied the equitable credit doctrine to reduce a
negligence recovery in a § 905(b) action against a ship-
owner by a percentage equal to the proportionate fault of
the longshoreman’s employer. The Court held that Con-
gress did not intend to modify the longshoreman’s pre-
existing right to recover for his injuries in full against a
negligent shipowner, even in cases where the negligence of
the stevedore contributed to the injury. Whatever the
conduct of the longshoreman’s employer, a negligent ship-
owner is liable for the full amount of the longshoreman’s
damages. Justice White for the Court recognized that by
virtue of the stevedore employer's compensation lien on
the employee’s third party recovery the Edmonds result
may relieve a negligent stevedore even of the burden of
statutory compensation payments, 47 U. S. L. W. at 4871,
4. Edmonds v. Sag ory Generale Transatlantique, 577 F. 2d
1153, 1155-56 (4th Cir. 1978) (en banc).
Appendix G A53
but found that circumstance was not decisive. So much
for equitable credit.
Thus unless both Wheeling and American can prevail
in their appeal on liability issues, a judgment must be en-
tered in favor of Griffith against one or both in the full
amount of $209,299.45,
[8]
III. AMERICANS APPEAL AGAINST GRIFFITH
The district court held that American, as owner, had
breached its duty to exercise reasonable care by delivering
barge No. 2730 to Wheeling with its cover mechanisms
rusted, bent, and unlubricated, and with the eyelets on the
stuck hatch cover completely missing. The court con-
cluded that “[dJelivery of such a barge, with knowledge
that many workers would necessarily come into contact
with the deteriorated barge covers, was inexcusably negli-
gent.” 452 F. Supp. at 845.
In reaching this conclusion, the trial court considered
at some length the applicable standard of care. It recog-
nized that some prior cases ° had relied upon $§ 343-343A
of the Restatement (Second) of Torts (1965), dealing
with the liability of landowners and occupiers, as defining
the standard of care applicable to vessel owners under
§ 905(b) of the Amendments.’ It concluded, however,
5. E.g., Lubrano v. Royal Netherlands Steamship Co., 572 F. 2d
364 (2d Cir. 1978); Gay v. Ocean Transport & Trading Ltd., 546
F. 2d 1233 (5th Cir. 1977); Anuszewski v. Dynamic Mariners Cor-
poration, Panama, 540 F. 2d 757, 759 (4th Cir. 1976) (per curiam),
cert. denied, 429 U. S. 1098 (1977).
6. Those sections read as follows:
§ 343. Dangerous Conditions Known to or Discoverable by
Possessor
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition en the land if, but only
if, he
A5A Appendix G
that the application of that formulation would introduce
into the maritime torts area distinctions between licensees
and invitees which would be inappropriate in the context
of commercial shipping. Relying on the Supreme Court’s
decision in
[9]
Kermarec v. Compagnie Generale Transatlantique, 358
U. S. 625 (1959), the court discerned an emerging trend
in the law toward imposing upon property owners a more
general “duty to exercise reasonable care under all the
circumstances of the case.” 441 F. Supp. at 844. The
court also observed that in most cases, including the case
sub judice, the same result would be reached whether one
applied the Restatement § 343 formulation or the more
universal duty to exercise reasonable care under all the
circumstances. The court therefore concluded that the
latter standard was the proper one to apply.
On appeal, American urges that the standard adopted
by the district court “leads to an improper imposition of
6. (Cont'd. )
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
b) should go that they will not discover or realize
the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them
against the danger.
§ 343A. Known or Obvious Dangers
(1) A possessor of land is not liable to his invitees for physical
harm caused to them by any activity or condition on the land
whose ores is known or obvious to them, unless the pos-
sessor should anticipate the harm despite such knowledge or
obviousness.
(2) In determining whether the possessor should anticipate
harm from a known or obvious danger, the fact that the invitee
is entitled to make use of public land, or of the facilities of a
ublic utility, is a factor of importance indicating that the
fares should be anticipated.
Appendix G A55
liability in this case and provides no real guidance for the
decision of future cases.” We are less concerned with the
latter objection than with the former, and we conclude
that the facts found by the trial court justify imposition of
liability on the vessel owner in this case.
A brief review of this court’s prior decisions discuss-
ing the standard of care under § 905(b) will serve as back-
ground for our review of the district court’s decision. In
Griffith I, supra, we pointed out, first, that the clear in-
tent of amended § 905(b) was to relieve vessel owners of
absolute liability for injuries to stevedores, whether that
liability was imposed on the basis of unseaworthiness or on
a respondeat superior theory. 521 F. 2d at 40. At the
same time, we recognized the apparent intention of Con-
gress “to apply land-based common law negligence prin-
ciples on a uniform national basis” in actions against the
vessel owner under § 905(b). Id. at 44 & n. 21. We did
not at that time undertake to specify the principles to be
applied to the record on remand.
This court’s subsequent decisions have concentrated
upon clarifying the implications of Congress’ r jection in
§ 905(b) of strict or respondeat superior liability as a basis
for recovery against the vessel owner. In Brown v. Ivarans
Rederi A/S, 545 F. 2d 854 (3d Cir. 1976), cert. denied,
[10]
430 U. S. 969 (1977), we concluded that § 416 of the Re-
statement (Second) of Torts, which imposes a non-dele-
gable duty of due care upon persons employing a con-
tractor to perform work “dangerous in [the] absence of
special precautions” was inconsistent with the intent of
Congress to eliminate shipowner liablity without fault.
Similarly, in Marant v. Farrell Lines, Inc., supra, we re-
versed a judgment for the longshoreman, because the jury
had been instructed that “responsibility for the safety of
A56 Appendix G
the longshoreman lies concurrently or jointly” with the
stevedore and the shipowner. Relying on Brown, we held
that “the major responsibility for the proper and safe con-
duct of the work was to be borne by the stevedore.” 550
F. 2d at 144 (quoting Brown, supra, 545 F. 2d at 860).
And in Hurst v. Triad Shipping Co., 554 F. 2d 1237 (3d
Cir.), cert. denied, 434 U. S. 861 (1977), we held that
§§ 318 and 416-429 of the Second Restatement were in-
applicable in a § 905(b) action, again on the basis that
each would have resulted in the imposition upon the ship-
owner of liability without fault. We held that § 414 of the
Restatement, which permits imposition of liability upon a
principal who retains control over some part the work
performed by an independent contractor, and who fails
to exercise that control with reasonable care, might pro-
vide a proper basis for liability under § 905(b), but con-
cluded that the plaintiff had failed to introduce sufficient
evidence of the shipowner’s control over the stevedore’s
operation to support a recovery. 554 F. 2d at 1252.
Rich v. United States Lines, 596 F. 2d 541 (3d Cir.
1979), relied on by American at oral argument, continues
the pattern of our earlier decisions. In Rich the plaintiff
longshoreman was injured when he slipped on sheet ice
which had accumulated on top of containers stacked on
board the defendant’s vessel. The panel first held that
plaintiff's evidence was insufficient as a matter of law to
support liability under § 414 of the Restatement. Id. at
550. The plaintiff, relying upon the legislative history of
the Amendments, also argued that the shipowner had
[11]
breached its duty to provide a “safe place to work” by
failing to take appropriate corrective action, despite its
knowledge of the dangerous ice conditions. In a discus-
Appendix G A57
sion closely tailored to the facts of the case, the panel
majority rejected this contention on the ground that the
plaintiff had failed to establish that the ice covered con-
tainers were a part of the ship for whose condition the
shipowner was customarily responsible. In the panel's
view, the evidence in the case showed “beyond a doubt”
that the stevedoring company, rather than the vessel, was
“in complete charge of the details of the handling of the
containers.” Id. at 557. (emphasis added). To impose
liability on those facts, the court concluded, would
“amount once again to the establishment of a non-dele-
gable duty.” Id. at 556 (citing Hurst v. Triad Shipping,
supra, 554 F. 2d at 1251). The panel majority’s view of
the case made it unnecessary for them to consider the
standard of care issue.
These decisions firmly establish that under § 905(b):
The vessel has no general duty continually to super-
vise the activities of the stevedore, to assume respon-
sibility for the stevedore’s equipment, or to assume
responsibility for dangerous conditions in the vessel
created by the stevedore during the course of its oper-
ations (at least when the vessel has no knowledge of
the dangerous conditions ).
Rich v. United States Lines, Inc., supra, 596 F. 2d at 560
(Garth, J., concurring) (footnote omitted). They do not,
however, speak directly to the scope of the vessel's inde-
pendent duty under § 905(b) to “exercise the same care
as a land based person in providing a safe place to work.” *
American presents two arguments against the stand-
ard of reasonable care under all the circumstances applied
by the district court. First, it argues that a vessel should
7. H. R. Rep. No. 92-441, 92d Cong., 2d Sess., nted in
[1972] U. S. Code Cong. & Admin. News 4698, 4704 [hereinafter
cited as House Report}.
A58 ' Appendix G
[12]
not be held liable in negligence under § 905(b) if it has
delivered the ship “in such condition that an expert and
experienced stevedoring contractor, mindful of the dan-
gers he should reasonably expect to encounter” will be
able to load or unload the vessel safely by exercising “or-
dinary care under the circumstances.”* Alternatively,
American urges this court to adopt the standard of care
established in Restatement (Second) §§ 343-343A to gov-
ern all actions under § 905(b).
We reject both suggestions. Under American’s first
proposed standard of care the vessel would be relieved of
liability to a longshoreman for unreasonably dangerous
conditions on board ship whenever the stevedoring con-
tractor failed to perform his tasks in an “expert and ex-
perienced” fashion. This would occur whether or not the
individual longshoreman was personally at fault. The
proposed rule thus imputes to the non-negligent longshore-
man the negligence of his stevedore employer, and estab-
lishes that negligence as a complete bar to recovery against
the vessel. This result is at variance with the Supreme
Court's interpretation of the 1972 Amendments in Ed-
monds v. Compagnie Generale Transatlantique, supra. It
is inconceivable to us that the Court, which disapproved a
rule that imputes the negligence of the stevedore to the
longshoreman to reduce his recovery against a negligent
shipowner, would approve a rule barring all recovery
against a negligent shipowner on the basis of imputed
employer negligence. We do not hold that the likelihood
of negligent conduct on the part of the stevedoring con-
8. American Brief at 14 (quoting Hugev v. Dampskisaktiesels-
kabet International, 170 F. Supp. 601 (S. D. Cal. 1959), affd sub
nom., Metropolitan Stevedore Co. v. Dampskisaktieselskabet Inter-
saienel 274 F. 2d 875 (9th Cir.), cert. denied, 363 U. S. 803
Appendix G A59
tractor is always irrelevant in determining whether the
vessel has breached its duty of due care. Compare Re-
statement (Second) of Torts § 302A ° with id. § 302. But
[13]
the fact that the stevedore has been negligent cannot be
automatically decisive of that question.
Similarly, we cannot agree that §§ 343 and 343A of
the Second Restatement define for all cases the appropri-
ate standard of care under §905(b). It is true, as Ameri-
can points out, that we have approved reference to the
Restatement (Second) in § 905(b) negligence actions “as
the national expression of non-maritime tort principles.”
Hurst v. Triad Shipping Co., supra, 554 F. 2d at 1248;
Brown v. Ivarans Rederi A/S, supra, 545 F. 2d at 863. But
as Hurst itself illustrates, those provisions are adopted
only when they are consistent with Congressional intent in
enacting §905(b). Sections 343 and 343A do not meet
that standard. Both sections would apparently relieve a
vessel owner of all liability for an unreasonably dangerous
condition on board ship if the invitee longshoreman has
failed to exercise ordinary care in dealing with that danger,
on the theory that a negligent invitee has assumed the risk
of injury. See §343A,Commente. As we stated in Hurst,
554 F. 2d at 1250, Brown, 545 F. 2d at 863-64 n. 10, and
Rich, 596 F. 2d at 551 n. 21, that principle is inconsistent
with the clearly stated intention of Congress to abolish the
doctrines of contributory negligence and assumption of
risk in cases decided under § 905(b).*°
9. Section 302A reads:
An act or omission may be negligent if the actor realizes or
should realize that it involves an unreasonable risk of harm to
another through the negligent or reckless conduct of the other
or a third person.
10. See House Report, supra n. 7, [1972] U. S. Code Cong. &
Admin. News.
A60 Appendix G
More fundamentally, we think that it would be unwise
to assume that the principles of negligence law applicable
to owners of land will in all cases provide an appropriate
“land based” standard of care for actions against a ves-
sel owner. In some cases the analogy will be appropriate.
In other cases, different portions of the Restatement, in-
cluding, for example, the duty of care owed by a supplier
of a chattel in commerce, may provide a more appropriate
standard of reference. Compare Restatement (Second ) of
Torts §§ 388-389. Indeed, it might persuasively be argued
that it was the latter duty which was breached in this case.
Moreover, we agree with the district court that insofar as
[14]
the standards of liability in § 343 and 343A are colored by
traditional economic and social attitudes uniquely asso-
ciated with land ownership, wholesale importation of those
sections into § 905(b) might be confusing and counterpro-
ductive. See Kermarec v. Compagnie Generale Transat-
lantique, 358 U. S. 625 (1959); Santos v. Scindia Steam
Navigation Co., 598 F. 2d 480, 486-88 (9th Cir. 1979):
Gallardo v. Westfal-Larsen & Co. A/S, 435 F. Supp. 484,
493-95 (N. D. Cal. 1977); Espinoza v. United States Lines,
Inc., 444 F. Supp. 405, 409-12 (S. D. N. Y.), affd, 586
F. 2d 832 (2d Cir. 1978); G. Gilmore & C. Black, The Law
of Admiralty 453-54 (2d ed. 1975).
The sounder approach, we think, is to recognize that
§ 905(b) imposes on vessel owners the same duty to ex-
ercise “reasonable care under the circumstances of each
case” that would be applicable to a land based business.
Accord, Santos v. Scindia Steam Navigation Co., supra, 598
F. 2d at 485-88; Gallardo v. Westfal Larsen & Co. A/S,
supra, 435 F. Supp. at 496. See Kermarec v. Compagnie
Generale Transatlantique, supra, 358 U. S. at 632; Brown
Appendix G A61
v. Ivarans Rederi A/S, supra, 545 F. 2d at 863. Cf. Re-
statement (Second) of Torts §§ 281-83, 302A, 305, 452.
Proceeding from this broad common law standard, federal
courts may develop on a case by case basis a uniform fed-
eral law of negligence, referring for guidance to the “land
based” standards of care established in the Restatement
(Second) of Torts whenever such reference accords with
the Congressional intent and is helpful to decision of the
case at hand.
At a minimum, we think that the standard of reason-
able care under the circumstances would permit a finding
of negligence upon a showing: (1) that the vessel knew of
or by the exercise of reasonable care could have discovered
the condition on board ship that led to the injury; (2) that
the vessel knew or should have known that the condition
would pose an unreasonable risk of harm to longshoremen
working on board ship; and (3) that the vessel failed to
exercise reasonable care to protect the longshoremen
[15]
against that danger. See Santos v. Scindia Steam Navi-
gation Co., supra, 598 F. 2d at 485."
Reviewing the record in this case, we think that the
district court’s application of the standard of reasonable
care under all the circumstances of this case touched all
of these bases. Certainly, there was ample evidence to
support the court’s conclusion that American knew or
should have known of the rusted, decrepit condition of the
covers on barge 2730, and that American failed to exercise
reasonable care to correct that condition. American does
not argue otherwise. Rather the substance of American’s
argument is that the evidence was insufficient to show that :
it knew or should have known that the condition of the
11. Compare Restatement (Second) of Torts, §§ 343(a)-(c);
Id. §§ 388(a) and (c).
A62 Appendix G
barge posed an unreasonable risk of harm to longshoremen
in Griffith’s position. Specifically American contends that
the difficulty with the stuck covers was obvious and could
have been solved without danger to anyone, and that
therefore American should not have been required to
anticipate that Wheeling would attempt to overcome the
defect in the covers by the unsafe method to which it
resorted.
‘In pressing this argument American attacks both the
factual and legal findings of the court below. American
points factual and legal findings of the court below.
American points to the district court’s reference to missing
eyelets to which the hook which Griffith was holding could
have been attached, and argues that that finding is clearly
erroneous. In fact, the record shows that there were two
eyelets on the covers, one close to each side of the barge
(Exhibit D2). But the uncontradicted trial testimony was
that Wheeling’s employees had tried ten or twenty times
without success to unstick the barge covers by attaching
cables to those eyelets. (224a-225a; 313a-3l4a). The
missing eyelets to which the court referred would have
been at the center of the covers, where they could have
been grasped in a balanced manner by the crane cables.
Because such eyelets were missing or had never been in-
stalled,
[16]
Wheeling’s employees had to remain on the cover, holding
the cable hooks under the rim of the cover, while tension
was applied.
American also argues that there were alternative
methods available to Wheeling-Pittsburgh by which the
covers might have been moved safely, which it was entitled
to assume that Wheeling would rely upon. One safe alter-
native method which American suggests is the use of the
Appendix G A63
outboard eyelets on the covers, a method which the testi-
mony discloses was tried and which, due to the defec-
tive condition of the barge, proved ineffective. William
Toutant, the designer of barge No. 2730, also testified that
with the use of a four part sling the covers, which weigh
over nine thousand pounds, could have been lifted off
safely. (393-a). But Frank Merritt, an American em-
ployee, was aware, before barge No. 2730 was furnished
to Wheeling, that at Allenport Wheeling regularly used
the double cable method of moving stuck barge covers.
(41a). Thus when American furnished barge No. 2730 it
knew or should have known that the combination of the
unlubricated, rusty and bent track mechanism and the
missing center eyelets would expose Wheeling’s longshore-
men to the precise sort of risk to which Griffith was ex-
posed. The fact that Wheeling’s chosen method of opera-
tion may have been negligent is therefore of no help to
American.”
The record before the district judge contained sub-
stantial evidence that American knew of the condition on
board its vessel; that it knew or should have known that
that condition posed an unreasonable risk to workers in
Griffith’s position; and that it failed to correct that condi-
tion. On this record, then, we hold that the district court's
findings of fact with respect to American’s liability to
Griffith are not clearly erroneous, and that its application
of a general standard of reasonable care in the circum-
stances was not legal error.
[17]
IV. WHEELING’s APPEAL AGAINST GRIFFITH
_ Wheeling does not contest that, if it was properly held
to be an owner pro hac vice, it was guilty of negligence in
12. See Restatement (Second) of Torts § 302 quoted supra at
n. 9.
A64 Appendix G
that capacity. But it contends that the judgment against
it in favor of Griffith must be reversed because as a matter
of law it is not an owner pro hac vice. An appreciation of
that argument requires an examination of the complex
procedural history of this case. As we indicated above,
the trial court in 1974 granted Wheeling’s motion for sum-
mary judgment against Griffith. In doing so it accepted
Wheeling’s argument that even assuming its alleged status
as an owner pro hac vice, the LHWCA precluded liability
against it in favor of an employee. 384 F. Supp. at 237.
Since that legal theory rendered its ownership status im-
material, Wheeling argues, it did not file affidavits contest-
ing that status in support of its motion for summary judg-
ment. On appeal this court, accepting as undisputed
Wheeling’s exclusive though temporary control of barge
No. 2730, rejected its legal position that the LHWCA
barred recovery against it as an owner pro hac vice. As
we explained: “Wheeling concedes that it might be found
to be an ‘owner pro hac vice’ as that term has been applied
in this circuit.” 521 F. 2d at 39-40 (footnote omitted ).
Thus, our reversal of summary judgment in Wheeling’s
favor established no more than that based on the plead-
ings, affidavits, and discovery materials then on file, a
factfinder could find Wheeling to be a pro hac vice owner
within the meaning of Blair v. United States Steel Corp.,
444 F. 2d 1390 (3d Cir 1971) (per curiam), cert. denied,
404 U. S. 1018 (1972).
Wheeling now points out that there is substantial ad-
ditional evidence in the record concerning its relationship
to barge No. 2730 which was not of record at the time of
the summary judgment. That evidence, it contends, estab-
lishes that it was not a pro hac vice owner as defined in
Blair. It contends, moreover, that the trial court, in mis-
placed reliance on the law of the case doctrine, disregarded
Appendix G A65
[18]
that additional evidence in holding it liable. Finally, it
contends that even if the Blair standard as to pro hac vice
ownership has been met, that case should be overruled.
When the case was first before us it was undisputed,
and still is after trial, that barge No. 2730 was delivered to
Wheeling’s Allenport landing by a river boat company,
and incorporated into a fleet there under the supervision
of Joseph Allfree, Wheeling’s river dock foreman. From
the time Wheeling received the barge until the time of the
accident it had exclusive possession. All movements of the
barge while it was in Wheeling’s possession were the re-
sponsibility of Wheeling’s employee rivermen. Their
duties included placing lights on the barges moored with
Wheeling’s fleet and moving them about the landing to
facilitate loading. Barge No. 2730 was one of a number
furnished to Wheeling for transportation of its products,
and it was free to chose which among them it would use.
These undisputed facts fit squarely with the Blair holding.
‘Wheeling does not contend that any available evidence
bearing on its relationship to barge No. 2730 was excluded
at trial. Rather, it points to additional evidence intro-
duced at trial, as follows:
[Wheeling] could load only material destined for
a pre-determined port (350a); the charter between
[Wheeling] and American was oral rather than written
(7a, 337a, 566a); Barge 2730 could have been re-
moved by American for repairs without [Wheeling’s]
prior permission (355a-356a); [Wheeling] was not
responsible for rent on American barges which were
unavailable due to repair (358a); [Wheeling] paid
American for Barge 2730 according to tonnage shipped
rather than type of barge used (449a, 564a); [Wheel-
A66 Appendix G
ing] had nothing to do with the route or time which
Barge 2730 took to arrive at its final destination (565a,
349a); and [Wheeling] could not move Barge 2730
from its landing without [American’s] consent and
without the assessment of an additional fee. (354a,
358a) (ICC Waterways Freight Tariff, 8-B, Items
420-435 )
[19]
Wheeling’s Brief in No. 76-2160 at 12. Wheeling argues
that because the trial court relied on the law of the case
doctrine it disregarded this trial evidence. Because the
record is not clear on this issue, we must remanded for fur-
ther factual findings.
The trial court found after trial that:
The status of [Wheeling] as owner pro hac vice at the
time of the injury is well established under both the
law of the case and the applicable case law.
452 F. Supp. at 845 (emphasis supplied). Since evidence
on the issue of Wheeling’s relationship in barge No. 2730
was received, and the court nowhere denied considering it,
the quoted language could be understood as a finding upon
all the evidence presented, that Wheeling fell within the
definition of pro hac vice owner announced in Blair and in
Griffith I.. On the other hand, it may be read as relying
solely on the holding in Griffith I to determine the issue of
ownership status. There are a number of indications in
the record that the district judge may well have erroneously
viewed our decision in Griffith I as foreclosing any factual
inquiry into Wheeling’s ownership status on remand. See
340a; 34la; 342a. Because we are unable to determine
from the record whether the district judge actually consid-
Appendix G A67
ered the further evidence bearing on ownership status sub-
mitted by Wheeling, and because Wheeling was entitled to
have the district judge pass on that evidence before he de-
termined its ownership status, a remand is required for
further findings of fact on that issue.
We reject, however, Wheeling’s further contention
that Blair and Griffith I should be overruled. In the first
place that would require action by the court in banc. Nor
is this panel persuaded that the Blair holding should be
reconsidered.** Wheeling argues that that holding im-
poses an
[20]
inconvenience upon barge users who operate their own
landings and perform their own stevedoring. That may be,
but such barge customers also undoubtedly obtain substan-
tial cost and convenience advantages from doing so. If the
barges remained in the possession and control of an
owner's crew, that crew would supervise use of the barge
at the landing and might possibly guard against injuries to
longshoreman invitees. But the bargeline customer would
be charged accordingly. When that customer chooses to
take exclusive possession and control of a barge in naviga-
tion, even for a limited time and in a limited space, it
should, as we have held, be obliged to discharge the re-
sponsibilities of an owner. Another experienced admiralty
court agrees. See Eskine v. United Barge Co., 484 F. 2d
1194 (5th Cir. 1973).
13. Judge Weis believes that Blair should not be extended but
should be limited to its facts, and that the burden of establishing a
demise charter rests upon the owner of the vessel. See Guzman v.
Pirchirilo, 369 U. S. (1962); Leary v. United States, 81 U. S.
607, 612 (1871); Dobbins v. Crane, 567 F. 2d 559 (3d Cir. 1977);
Fitzg v. A. L. Burbank, 451 F. 2d 670, 676 (2d Cir. 1971);
1000). v. Union Barge Line Corp., 299 F. Supp. 718 (W. D. Pa.
1 ;
A68 Appendix G
Wheeling also contends that the trial court erred in
finding that it was negligent, in its capacity as owner pro
hac vice, in falling adequately to train steelworkers un-
familiar with river work. That contention bears upon the
allocation of liability between Wheeling and American. It
does not, however, affect Wheeling’s liability to Griffith,
since findings that Wheeling was negligent as owner pro
hac vice in providing a defective barge, and in failing to
inspect, repair or reject it, are not challenged as factually
or legally erroneous.
Thus we hold that the judgment of liability in favor of
Griffith against Wheeling as owner pro hac vice must be
vacated and remanded for further findings regarding
Wheeling’s status as owner.
V. WHEELING’ APPEAL AGAINST AMERICAN
A. Indemnification
Wheeling also appeals from the district court’s rejec-
tion of its claim against American for indemnification.
While a factual finding in the district court that Wheeling
was not an owner pro hac vice would moot this claim, we
think that in light of the possibility that the issue of con-
[21]
tribution or indemnity is not foreclosed by our remand,
resolution of this question is proper on this record.
Wheeling contends that when a demise charterer—an
owner pro hac vice—and an owner are both tound to be
negligent with respect to any injury-causing defeat, the
negligence of the owner in supplying the defective barge
is active or primary, while that of the owner pro hac vice,
in failing to discover and remedy the defect is passive or
secondary. A tortfeasor who is only secondarily or pas-
Appendix G A69
sively negligent, it urges, is entitled to indemnification for
any loss occasioned by the primary or active negligence of
another. It points out that such a non-contractual duty
by a primary or active tortfeasor to indemnify a secondary
or passive tortfeasor has been recognized both by Penn-
sylvania law, e.g., Builders Supply Co. v. McCabe, 366 Pa.
322, 77 A. 2d 368 (1951); Tromza v. Tecumseh Products
Co., 378 F. 2d 601 (3d Cir. 1967), and in maritime cases.
E.g., Tri-State Oil Tool Indus., Inc. v. Delta Marine Drill-
ing Co., 410 F. 2d 178 (5th Cir. 1969); Standard Oil Co.
v. Robins Dry Dock & Repair Co., 32 F. 2d 182 (2d Cir.
1929).
We reject at the outset Wheeling’s suggestion that
rights of indemnity and contribution between maritime
joint tortfeasors should be governed by state law. Con-
sistent with the intent of Congress in enacting the 1972
Amendments, we think that whatever rule is adopted
should be uniform and federal. Brown v. Ivarans Rederi
A/S, supra, 545 F. 2d at 861-63; Griffith I, supra, 521 F. 2d
at 44 & n. 21. Moreover, while we recognize that the fed-
eral cases cited by Wheeling might once have had some
force, we think that the law of maritime indemnity has
been substantially altered by the Supreme Court’s decision
in United States v. Reliable Transfer Co., 421 U. S. 397
(1975). In that case the Court abandoned the traditional
rule of “divided damages” for maritime collision cases.
That rule required “the equal division of property damage
whenever both parties are found to be guilty of contribut-
ing fault, whatever the relative degree of their
[22]
fault may have been.” 421 U. S. at 397. In the future, the
Court held, collision damages should be apportioned on a
comparative fault basis. The rationale behind that de-
A70 Appendix G
cision was simple: allocation of liability directly in propor-
tion to fault was a much fairer method of determining
damages than the rough and ready 50-50 division imposed
by the traditional rule.
The rule of non-contractual indemnity pressed by
Wheeling, like the contribution rule at issue ir Reliable
Transfer, is designed to shift the primary burden of rep-
arations to the party more at fault, thereby avoiding
unjust, or at least unsatisfactory results. But the rule
performs that task by relieving a concededly negligent
tortfeasor—albeit his negligence was “passive’-—from any
liability for the damage that occurred. That result seems
strongly at odds with the preference for comparative
fault expressed in Reliable Transfer. A similar rule,
formerly applied in maritime collision cases, held that
when one ship’s negligence was “major,” and the other’s
“minor,” the grossly negligent party could be held solely
at fault. E.g., The City of New York, 147 U. S. 72, 85
(1893). The Reliable Transfer Court dismissed this rule
as “inherently unreliable” and unfair. “That a vessel is
primarily negligent does not justify it shouldering all re-
sponsibility, nor excuse the slightly negligent vessel from
bearing any liability at all.” 421 U. S. at 406. Similarly,
we can see no good reason why in this non-collision mari-
time context the fact that Wheeling’s conceded negligence
as owner pro hac vice may have been less egregious than
that of American should justify the creation of a right of
indemnity which would impose sole responsibility for the
accident on American, while allowing Wheeling to go scot-
free. In Griffith I, supra, we suggested that the preferable
approach would be to apply the comparative fault princi-
ples endorsed in Reliable Transfer to achieve an equitable
appointment of liability between the two alleged joint
tortfeasors. The district court applied those principles
here, and we affirm that application.
Appendix G A71
[23]
Thus we iiold that the district court properly rejected
Wheeling’s claim that it should be fully indemnified by
American for its liability to Griffith.
B. Percentage of Negligence
The trial court, as we noted above, entered judgment
against Wheeling for $52,324.87 and against American for
$104,649.73, because it held that Wheeling as owner pro
hac vice was responsible for 25%, and American for 50%
of the total damages of $209,299.45. In Part I we held
that it was improper to diminish Griffith's recovery by a
percentage equal to Wheeling’s stevedore negligence. If
the court determines on remand that Wheeling is an owner
pro hac vice, the defendants are jointly and severally liable
under § 905(b) for the full amount of Griffith’s damages.
That holding would require a redetermination of the
amount for which each defendant is liable. According
to the district court, negligence actionable under § 905(b)
produced 75% of the damages, of which 50% was attributa-
ble to American and 25% to Wheeling. The court's find-
ings suggest that on remand contribution in the ratio of
two thirds-one third would be appropriate. Thus, if the
findings upon which the 50%-25% allocation was based
were sustainable it would be a simple matter to calculate
the contribution of each defendant toward the $209,299.45
joint liability.
Unfortunately, however, we are not in a position to
make that simple calculation. As we noted above, the
trial court predicated its finding of negligence by Wheeling
as owner pro hac vice in part on Wheeling’s “[f]ailure to
give adequate safety instructions to steelworkers unfamiliar
with river work.” 452 F. 2d at 845. Wheeling notes
that there is a serious problem of proximate cause with
A72 Appendix G
respect to that finding, since in the same accident which
injured the untrained Griffith, his supervisor, Joseph Arm-
strong, a well-trained and experienced riverman, was also
injured. More fundamentally, Wheeling observes, and we
[24]
agree, that on this record, its failure to train Griffith and
his fellow servants was, insofar as it contributed to his
injuries, a failure to train them in longshoreman skills.
That failure must as a matter of law be attributed to
Wheeling in its capacity as a stevedore rather than as an
owner pro hac vice. “The only negligence of [Wheeling]
which could properly be . . . attributed to Wheeling [as
owner pro hac vice| was its negligence in failing to in-
spect, reject, or correct [b]arge 2730.” Appellant’s Brief
in No. 78-2160 at 25. Since the trial court did not disclose
to what extent its finding of 25% culpability was attributa-
ble to Wheeling’s failure to train, we cannot recalculate
the allocation between Wheeling and American for pur-
poses of contribution. A remand is necessary so that the
trial court can make that determination, excluding from
the calculation Wheeling’s negligence in failing to train.
VI. AMERICAN’s APPEAL AGAINST WHEELING
American objects to the allocation of liability between
it as owner and Wheeling as owner pro hac vice on the
basis of 50%-25%. It urges that since the duties of an owner
and an owner pro hac vice are the same, their liabilities
should be the same unless some special circumstance
alters the balance. We readily grant that the duties to
third parties of an owner and an owner pro hac vice are
the same, with respect to the condition of the vessel. Both
are required to exercise reasonable care under all the cir-
cumstances of the case. But it does not follow that because
Appendix G A73
their duties are the same and each breached those duties
in some manner their liability inter sese for a joint tort
should be the same. What we have said in Part V-A,
above about the applicability of the principles of Reliable
Transfer is equally applicable here. When two acts of
negligence concur in causing injury, contribution should
be allocated on a comparative fault basis. The trial court
heard the testimony and made a factual determination as
to comparative fault which, except to the extent discussed
in Parts IV and V-B, above, we cannot find clearly errone-
[25]
ous. Our decision in Part V-B, above requires a redeter-
mination of the percentage of contribution, excluding one
of the factors on which the trial court relied.
CONCLUSION
The judgment appealed from will be modified so as to
provide that American as owner is jointly liable to Griffith
for $209,299.45. The judgment will be vacated, insofar as
it determines that Wheeling was liable as an owner pro
hac vice, and the case remanded for a redetermination, on
all the evidence presented, of Wheeling’s ownership status.
If Wheeling is held to be an owner pro hac vice, then the
court should redetermine the liability of each defendant
consistent with Part V-B. of this opinion. Costs shall be
taxed in favor of Griffith against American, but Wheeling
and American shall between themselves each bear their
own costs.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.