Petition — American Commercial Lines, Inc. v. Griffith

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oC Oe —-

Supreme Court U &Y RT

FILED

NOV 23 1979

79-813

JR., CLERR

Saw * I lee

IN THE

Supreme Court of the United States

October Term, 1979

AMERICAN COMMERCIAL LINES, INC.,

Petitioner,

Vv.

THOMAS W. GRIFFITH and

WHEELING-PITTSBURGH STEEL CORPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

JOHN W. JORDAN IV

THOMSON, RHODES & GRIGSBY

Counsel for Petitioner

1724 Frick Building

Pittsburgh, Pennsylvania 15219

(412) 281-0737

BATAVIA TIBES, APPELLATE COURT PRINTERS ag

EDWARD W. SHANNON, SENIOR REPRESENTATIVE

HAROLD L. BERKOBEN, REPRESENTATIVE

1708 PARELINE DR., PITTSBURGH, PA. 15227

(418) 681-7463

INDEX.

Page

OO re tree srr es er Set es |

IRE ET CLARENCE UR NB YP RCL SATE Ee RNY. Oe MRE AT 2

SE PUES cc vk ccvacs G20 anaes Recon aee 2

I. NUON a Foie vid d'n's od 0-34 od ekaneciis Vewanoe eee 3

SE OE GE EG aaa s A Wik vocacke Sana cee bene Uae 4

Reasons for Granting the’ Writ ...............ceece0. 6

EGS EE IEP LEE AE OPE TD Ly RT Re 13

Appendix:

A—Opinion of the Court and Order Amending

CS a5 DR CLE ATSC EN RAN be ba eae ees la

B—Memorandum Opinion and Order ......... 28a

TABLE OF CASES.

Canizzo v. Farrell Lines, Inc., 579 F. 2d 682 (2d Cir.

PTUs inka Ries ka de wie boa Nees ce Een cian 7

Chavis v. Finnlines Ltd., O/Y, 576 F.2d 1072 (4th Cir.

SUED 6-06 a Rk cles ke Rds oh eenee rab eee ale ok kek koa 7

Gay v. Ocean Transport & Trading, Ltd., 546 F. 2d 1233

CS A BEF i 55 65 0-0 cs lain Ses bale’ eeu teueen 7,10

Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31

(3d Cir. 1975), cert. denied, 423 U.S. 1054 (1976)... 4

Munoz v. Flota Merchante Grand Combiana, S.A., 553

Fae re Coe Mls SP PEE Gs vcs vOAS « Faking Reea abe 7

Rogers v. United States Lines, 347 U.S. 984 (1954)... 8

II.

Page

Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp.,

I Be CEO. 6 Sik FNS Syiewa Uke ws cegmes tees 8

Santos v. Scandia Steam Navigation Co., 598 F.2d 480

PUR Sg Va kane 8 a4 cA heck ee pease e ane 7

Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946).... 8

STATUTES.

Act of Mar. 4, 1927, ch. 509, §5, 44 Stat. 1426...)... 7,8

OU ie ad AG bg eae eo + OA RE CRS eR we 4

EE SPN Ss bbs os bg he Ob dV Rae ORS bee e 0 3,8

OTHER AUTHORITIES.

H.R. Rep. No. 92-1441, 92d Cong. 2d Sess. .... (1982),

U.S. Code Cong. & Admin. News:

NR aa Ls SHS k a hn os S00 6 OUR Oa ows 0 06 en pe 8

" E SRCRRE et peer ase ae ee 4

as Aa Gin ge od ph EA Rane a Re a8 eae 10

Restatement of Torts, Object and Character of the Re-

stmtoment, Vol. 1 at. vili (1934) ..... ccc cee cerns 10

Restatement (Second) of Torts §§ 343 and 343A....7,10,11

IN THE

Supreme Court of the United States

October Term, 1979

AMERICAN COMMERCIAL LINES, INC.,

Petitioner,

Vv.

THOMAS W. GRIFFITH and WHEELING-

PITTSBURGH STEEL CORPORATION,

Respondents.

PETITION FOR WRIT OF CERTIORAR’ TO THE

UNITED STATES COURT OF APPEALS

- FOR THE THIRD CIRCUIT

Opinions Below

The opinion of the Court of Appeals has not yet been re-

ported. That opinion is set forth in Appendix A.

The opinion of the United States District Court for the

Western District of Pennsylvania has been reported at 452 F.

Supp. 841 (W.D. Pa. 1978). That opinion is set forth in Ap-

pendix B.

Jurisdiction

The judgment of the Court of Appeals was entered on

August 24, 1979.

An order denying. rehearing was entered by the Court of

Appeals on September 20, 1979.

It is believed that jurisdiction is conferred upon this Court

by 28 U.S.C. § 1254 (1).

Question Presented

Does a vessel owner satisfy its duty of care under the 1972

amendments to the Longshoremen’s and Harbor Workers’

Compensation Act if it provides a vessel in such a condition

that an expert and experienced stevedoring contractor will be

able, by exercising ordinary care, to load or discharge the

cargo with reasonable safety to the longshoremen it employs?

Statute Involved

This case involves the interpretation and application of 33

U.S.C. § 905(b) which states:

(b) In the event of injury to a person covered under

this chapter caused by the negligence of a vessel, then

such person, or anyone otherwise entitled to recover

damages by reason thereof, may bring an action against

such vessel as a third party in accordance with the pro-

visions of section 933 of this title and the employer shall

not be liable to the vessel for such damages directly or

indirectly and any agreements or warranties to the con-

trary shall be void. If such person was employed by the

vessel to provide stevedoring services, no such action

suall 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 vessel un-

der this subsection shall not be based upon the warranty

of seaworthiness or a breach thereof at the time the in-

jury occurred. The remedy provided in this subsection

shall be exclusive of all other remedies against the vessel

except remedies available under this chapter.

Statement of the Case

Plaintiff, Thomas W. Griffith, commenced this action to

recover damages for injuries sustained while unloading a

barge owned by American Commercial Lines, Inc.

(American), and in the possession of Wheeling-Pittsburgh

Steel Corporation (Wheeling-Pittsburgh) his employer.

Jurisdiction of the district court was based upon 28 U.S.C.

§ 1333.

Prior to trial this case came before the Court of Appeals in

Griffith v. Wheeling Pittsburgh Steel Corp., 521 F. 2d 31 (3d

Cir. 1975), cert. denied, 423 U.S. 1054 (1976), where it was

held that Wheeling-Pittsburgh might be found liable to plain-

tiff for any negligence chargeable to it in the capacity of

owner pro hac vice. The case was then remanded to the district

court where trial was held before the Honorable Hubert I.

Teitelbaum, sitting without a jury.

Judge Teitelbaum found that the accident occurred on May

26, 1973, on Barge 2730, which was owned by American

(568a, 569a).' Three days earlier the Barge had been delivered

to Wheeling-Pittsburgh and incorporated into its “coal fleet.”

(569a).

Plaintiff was not normally assigned stevedoring duties by

Wheeling-Pittsburgh and, including the day of the accident,

spent only three and three quarter days performing such

duties (568a-569a). The day of the accident, plaintiff worked

in a crew which was supervised part of the time by Joseph All-

free, Wheeling-Pittsburgh’s River Foreman (570a). The only

experienced riverman in the crew was one Joseph Armstrong

(570a).

' References are to the appendix filed with the Court of Appeals.

When the crew first began to load Barge —40 it became ap-

parent that the barge covers were difficu.. to move (570a).

After some loading had been accomplished, Allfree directed

that the covers be closed and then returned to his office away

from the work area (570a).

In order to close a cover that had become stuck, a cable at-

tached to a crane located on the seawall was attached to the

stuck cover and a second cable was attached to a second cover

for leverage (570a). Plaintiff and Armstrong stood on top of

one of the covers to hold the hook at the end of the cable un-

der the lip of the cover while tension was applied (570a). The

cover was raised by the crane before plaintiff and Armstrong

were able to reach a place of safety and both of them were

precipitated into the hold (570a).

The District Court held that Wheeling-Pittsburgh in its

capacity as owner pro hac vice was negligent in (1) failing to

give adequate safety instructions to steelworkers unfamiliar

with river work, (2) providing a defective barge for steve-

doring work, and (3) failing to inspect, repair or reject the

defective barge (573a). American was found to have been

negligent in delivering a defective barge to Wheeling-Pitts-

burgh; specifically, a barge whose cover mechanisms were

rusted and bent and which had the eyelets on the stuck cover

completely missing (573a).?

Wheeling-Pittsburgh qua stevedore was found to have been

negligent for not having the barge repaired before having its

longshoremen work on it and for enlisting the aid of a novice

while employing a questionable procedure for closing a stuck

cover (574a).

* Eyelets were only “missing” in the sense that the barge was not built with

eyes in the center of the covers. The eyes were located at the quarter points

of the ends of the cover and were all present (394a, Defendant's Exhibit 2,

Plaintiff's Exhibit 9).

American was found to have been fifty percent negligent,

Wheeling-Pittsburgh in its nonstevedoring capacity was found

to have been twenty-five percent negligent and Wneeling-

Pittsburgh as stevedore was found to have been twenty-five

percent negligent (577a).

In addition to the above findings of fact, the information

set forth below was shown by uncontroverted testimony.

Prior to delivery of Barge 2730 to Wheeling-Pittsburgh,

American’s Maintenance Supervisor, Franklin Merritt,

visually inspected it but did not perform an operating in-

spection to see if the covers moved freely (lla, 23a).

Barge 2730 had eight covers, which were numbered 1

through 8 with 1 being nearest the bow (18a-19a). Each cover

weighed slightly less than ten thousand pounds, about the

weight of three normal-sized automobiles (402a).

Only covers 1, 2, 3, 4 and 5 were moved during the

operations preceding the accident (200a-205a). Immediately

before the accident, plaintiff and Armstrong were located on

cover 3 attempting to hook the crane cable to the edge of that

cover (212a-213a). The other cable was attached to cover 5

(212a). After the hook was attached to cover 3, plaintiff and

Armstrong began to move toward the bow but the crane tifted

cover 3, causing cover 2 to move away and sending plaintiff

and Armstrong into the hole thus created (214a-215a).

Reasons for Granting the Writ

The decision rendered by the Court of Appeals is in con-

flict with decisions of other Courts of Appeals on the same

matter. That is, the Second, Fourth and Fifth Circuits have

held that the standard of care for vessel owners under the

1972 amendments to the Longshoremen’s and Harbor

Workers’ Compensation Act (LHWCA) is that set forth in Re-

statement (Second) of Torts §§ 343 and 343A. E.g., Canizzo v.

Farrell Lines, Inc., 579 F. 2d 682 (2d Cir. 1978); Munoz v. Flota

Merchante Grand Combiana, S.A., 553 F.2d 837 (2d Cir. 1977);

Chavis v. Finnlines Ltd., O/Y, 576 F. 2d 1072 (4th Cir. 1978);

Gay v. Ocean Transport & Trading, Ltd., 546 F. 2d 1233 (Sth

Cir. 1977). In this case the Third Circuit rejected this stan-

dard.‘ (Court of Appeals Opinion at 12a.) It is submitted that

this conflict in the circuits requires resolution and should be

resolved in favor of the standard adopted in the Second,

Fourth and Fifth Circuits.

As originaliy enacted LHWCA did not define the legal ac-

tions available to an injured longshoreman beyond declaring

that it constituted the exclusive liability of his employer. Act

3 These sections state:

“§ 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 on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the

condition, and should realize that it involves an unreasonable risk of

harm to such invitees and,

(b) should expect that they will not discover or realize the danger,

or will fail to protect themselves against it, and,

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 danger is

known or obvious to them, unless the possessor should anticipate the harm

despite such knowledge or obviousness.

(2) [This subsection is omitted because it concerns a public utility’s duties

to the public. ]”

* This standard has also been rejected by the Ninth Circuit. Sanios v. Scan-

dia Steam Navigation Co., 598 F.2d 480 (%h Cir. 1979).

of Mar. 4, 1927, ch. 509, §5, 44 Stat. 1426. While this statute

was in force this Court held that a longshoreman could main-

tain an action against the vessel on which he was working for

breach of the warranty of seaworthiness. Seas Shipping Co. v.

Sieracki, 328 U.S. 85 (1946). Such an action would lie even

though the “unseaworthiness” was caused by inadequate

equipment supplied by the stevedore. E.g., Rogers v. United

States Lines, 347 U.S. 984 (1954). The shipowner did not nor-

mally bear the ultimate liability, however, because it was able

to obtain indemnity from the stevedore for breach of the lat-

ter’s implied warranty of workmanlike service. Ryan

Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124

(1956).

By the 1972 amendment to LHWCA Congress substantially

increased the benefits provided under the Act, and restricted

the other remedies available to an injured longshoreman. It

abolished the vessel’s liability for unseaworthiness and the

stevedore’s warranty of workmanlike service. 33 U.S.C. § 905

(b). However, that section also expressly permits the long-

shoreman to maintain a negligence action against the vessel.

The report of the House Committee on Education and-Labor

explained:

“The committee believes that where a longshoreman or

other worker covered under this Act is injured through

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

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

in nonmaritime pursuits are liable for damages when,

through their fault, a worker is injured.” H.R. Rep. No.

92-1441, 92d Cong. 2d Sess. . . . (1982), U.S. Code

Cong. & Admin. News, p. 4702.

That report also states:

“The Committee believes that especially with the vast

improvement in compensation benefits which the bill

would provide, there is no compelling reason to continue

to require vessels to assume what amounts to absolute

liability for injuries which occur to longshoremen or

other workers covered under the Act who are injured

while working on those vessels. In reaching this con-

clusion, the Committee has noted that the seaworthiness

concept was developed by the courts to protect seamen

from the extreme hazards incident to their employment

which frequently requires long sea voyages and duties of

obedience to orders not generally required of other

workers. The rationale which justifies holding the vessel

absolutely liable to seamen if the vessel is unseaworthy

does not apply with equal force to longshoremen and

other non-seamen working on board a vessel while it is in

port.

Accordingly, the Committee has concluded that, given

the improvement in compensation benefits which this bill

would provide, it would be fairer to all concerned and

fully consistent with the objective of protecting the

health and safety of employees who work on board

vessels for the liability of vessels as third parties to be

predicated on negligence, rather than the no-fault con-

cept of seaworthiness. This would place vessels in the

same position, insofar as third party liability is concern-

_ @d, as land-based third parties in non-maritime pursuits.

Thé’ purpose of the amendments is to place an em-

ployee injured aboard a vessel in the same position he

would be if he were injured in non-maritime employment

ashore, insofar as bringing a third party damage action is

concerned, and not to endow him with any special mari-

time theory of liability or cause of action under whatever

judicial nomenclature it may be called, such as ‘unsea-

worthiness’, ‘nondelegable duty’, or the like.” H.R. Rep.

iWo. 92-1441, 92d Cong. 2d Sess. ...... (1972). U.S.

Code Cong. & Admin. News, p. 4703.

“Finally, the Committee does not intend that the

negligence remedy authorized in the bill shall be applied

differently in different ports depending on the law of the

runs bn dade coun ea tn tee. Tas Gee

intends that legal questions which may arise in actions

brought under these provisions of the law shall be deter-

mined as a matter of Federal law.” Id. at . . . ., U.S.

Code Cong. & Admin. News, p. 4705.

A vessel’s obligations to a longshoreman, therefore, should

basically be the same as those generally imposed on a

possessor of land in favor of a business visitor. Since the

American Law Institute’s Restatement of the Law was design-

ed “to present an orderly statement of the general common

law of the United States,” that treatise is the best single in-

dicator of the national standard that is to become the Federal

law. Restatement of Torts, Object and Character of the Re-

staterr nt, Vol. | at viii (1934).

It should be noted that adoption of the Restatement stan-

dard does not relieve a vessel owner of liability simply

because a dangerous condition is known to the stevedore. In

fact, § 343 A is specifically directed to avoiding such a result.

Gay, 546 F.2d: ..** Further, § 343 A is intended to extend

enna vf ¢ ine the area that would be covered by

th. «..° suon of the risk defet.-c, leaving to other provisions

of he Restatemca: the quesiion of whether that defense is

available. This is shown by comment (f), which explains:

“There are, however, cases in which the possessor of

land can and should anticipate that the dangerous con-

dition will cause physical harm to the invitee notwith-

standing its known or obvious danger. In such cases the

possessor is not relieved of the duty of reasonable care

which he owes to the invitee for his protection. This duty

may require him to warn the invitee, or to take other

reasonable steps to protect him, against the known or ob-

vious condition or activity, if the possessor has reason to

expect that the invitee will nevertheless suffer physical

harm.

Such reason to expect harm to the visitor from know-

ledge or obvious dangers may arise, for example, where

the possessor has reason to expect that the invitee’s at-

tention may be distracted, so that he will not discover

what is obvious, or will forget what he has discovered, or

fail to protect himself against it. Such reason may also

arise where the possessor has reason to expect that the in-

vitee will proceed to encounter the known or obvious

danger because to a reasonable man in his position the

advantages of doing so would outweigh the apparent

risk. In such cases the fact that the danger is known, or is

obvious, is important in determining whether the invitee

is to be charged with contributory negligence, or assump-

tion of risk. (See §§ 466 and 496 D.) It is not, however,

conclusive in determining the duty of the possessor, or

whether he has acted reasonably under the circum-

stances. ”’>

The standards contained in §§ 343 and 343A are, therefore,

consistent with the 1972 amendments as explained by the

legislative history.

The fact that the stevedore’s negligence does not aute-

matically absolve the vessel owner of all responsibility does

* Illustration 5 to § 343A further demonstrates that this section extends

liability to situations that would normally be covered by assumption of the

risk. That illustration states:

“A owns an office building, in which he rents an office for

business purposes to B. The only approach to the office is over a slip-

pery waxed stairway, whose condition is visibie and quite obvious. C,

employed by B in the office, uses the stairway on her way to work,

slips on ii, and is injured. Her only alternative to taking the risk was to

forego her employment. A is subject to liability to C.”

not mean that the conduct of the stevedore is irrelevant in

determining whether an accident was caused by the negligence

of the vessel. Stevedores are employed for their expertise in

loading and unloading vessels which, due to theiz exposure to

the elements and the varying conditions encountered during a

voyage, are almost always less than perfect. In the present

case, barge 2730 had covers that were difficult to move. While

this condition was not apparent upon mere observation, it

necessarily made itself known to anyone who tried to move

the covers. Unlike oil spilled on a deck, this was not a con-

dition that could be overlooked or forgotten by men working

in the area. Also unlike a slippery deck, covers that are dif-

ficult to move are not, in themselves, dangerous. They do not

create any risk that must be removed before people can safely

work around them. Risk only arises when an unsafe method is

employed to move them.

The covers of Barge 2730 were designed to be lifted by the

eyes and stacked at the end of the barge if they became dif-

ficult to roll (393a). Wheeling-Pittsburgh had previously used

this safe method when it had encountered a stuck cover (448a).

The Court of Appeals held that American was nevertheless

liable because it also knew that Wheeling-Pittsburgh had also

sometimes used the “double cable” method. (Opinion at 16a. )®

Thus, liability is imposed upon the vessel owner for not

having its sole inspector in the Pittsburgh area hire a crane

and craneman to check every barge simply because it knew

that if a stuck cover were encountered Wheeling-Pittsburgh

might use a dangerous method to move it even though a safe

* Although the Court stated that American knew “Wheeling regularly used

the double cable method”’ (Opinion at 16a), neither the record nor the find-

ings of the district court indicates this method was used any more regularly

than other methods or that American had any reason to anticipate it would

be chosen in this case.

method was available. This liability is virtually indistinguish-

able from the absolute liability for unseaworthiness which

Congress sought to abolish in the 1972 amendments.

It is submitted that, under the land-based negligence stan-

dard which Congress stated should apply in longshoremen’s

actions against a vessel, an owner can not be found liable in a

situation like that presented here. This land-based standard

has been adopted in the Second, Fourth and Fifth Circuits

and should be the standard uniformly applied throughout the

country.

Conclusion

For the reasons set forth above a Writ of Certiorari should

issue to the United States Court of Appeals for the Third Cir-

cuit.

Respectfully submitted,

JOHN W. JORDAN IV,

THOMSON, RHODES & GRIGSBY,

Counsel for Petitioner.

APPENDIX A

UNITED STATES COURT OF APPEALS

For tHE Txuirp Crovir

Nos. 78-2159, 78-2160 and 78-2161

THOMAS W. GRIFFITH

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 LINKS, INC.,

Appellant in No. 78-2161

On Appeat From tHe Unirep States Distrraicr Court

FOR THE WESTERN District oF PENNSYLVANLA

(D.C. Civil No. 73-0706)

Argued June 7, 1979

Before Gissons, Weis and HiceinsorHam, Circuit Judges

(Opinion filed August 24, 1979)

Thomas L. Cooper, Esquire

(Argued)

Gilardi & Cooper

606 Oliver Building

Pittsburgh, Pennsylvania 15222

Attorneys for Thomas W. Griffith

Appendix A—Opinion of the Court and

Order Amending Opinion.

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

Grssons, Circuit Judge:

Thomas W. Griffith, an employee of Wheeling-Pitts-

burgh Steel Corporation (Wheeling) commenced this action

in August 1973 against his employer, and against Ameri-

can Commercial Lines, Inc. (American), the owner of barge

No. 2730, pursuant to §18(a) of the Longshoremen’s and

Harbor Workers’ Compensation Act Amendments of 1972.

33 U.S.C. §905(b). He sought damages for injuries sus-

tained on May 26, 1973 when he fell into the hold of barge

No. 2730. Both defendants denied liability 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 mo-

tion for partial summary judgment, dismissing Griffith’s

negligence claim against Wheeling, and barring any claim

for contribution or indemnity by American against Wheel-

Appendix A—Opinion of the Court and

Order ‘Amending Opinion.

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-jurMtrial 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 Fmount 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 par-

ties 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-Pittsburgh Steel Corporation

(Wheeling) operates a steel mill along the banks of

the Monongahela River at Allenport, Pennsylvania.

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).

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 Grif-

fith bid into the hot mill labor pool, where as before

he was assigned to various jobs on a daily basis. As

part of this pool he was assigned to work at the com-

pany’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

days earlier, on May 23, it had been delivered to Wheel-

ing and was incorporated into the latter’s ‘‘coal fleet’’

to await future use. On May 25, No. 2730 was relo-

cated 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 before 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 seawall. Griffith’s sole as-

" Sa

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 or-

dinarily 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 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. Be-

cause 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 Armstrong and plain-

tiff were standing on top of the stuck cover when ten-

sion was applied to the cable. As the stuck cover be-

gan 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.

TI. GrirritH’s APPEAL

Griffith’s appeal contests the reduction of his recovery

to $156,974.60. Griffith’s §905(b) claims were against the

harge owner, American, on the theory that it had negli-

gently 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 ITI and IV below.

But neither contests the district court’s finding of fact that

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 as-

sumption that the trial court’s liability determinations in

Griffith’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 reserved 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 elimi-

nated 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 attributable

to the negligence of the longshoreman’s employer. The

workman’s compensation remedy was said to cover that

percentage of the damages. This statutory compensation

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 negli-

gence recovery in a §905(b) action against a shipowner

by a percentage equal to the proportionate fault of the

longshoreman’s employer. The Court held that Congress

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 steve-

dore contributed to the injury. Whatever the conduct of

the longshoreman’s employer, a negligent shipowner 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 em-

ployee’s third party recovery the Edmonds result may re-

lieve a negligent stevedore even of the burden of statu-

tory compensation payments, 47 U.S.L.W. at 4871, 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 ef $209,299.45.

4. Edmonds v. Compagnie Generale Transatlantique, 577 F.2d 1153, 1155-56

(4th Cir. 1978) (en banc).

Appendix A-Opinion of the Court and

| Order Amending Opinion,

III. Amenican'’s Aprnan Acainar Gaivvitn

The district court held that American, as owner, had

breached its duty to exercise reasonable care by delivering

barge No. 2780 to Wheeling with its cover mechaniame

rusted, bent, and unlubricated, and with the eyelets on the

stuck hetch cover completely missing, The court concluded

that ‘‘[dJelivery of such a barge, with knowledge that many

workers would necessarily come into contact with the de.

teriorated barge covers, wae inexcusably negligent,'’ 4652

F. Supp. at 846,

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 §§ S40-440A

of the Restatement (Second) of Torta (1965), dealing with

the liability of landowners and occupiers, ae defining the

standard of care applicable to vessel owners under § 906(b)

of the Amendments,” It concluded, however, that the ap:

plication of that formulation would introduce inte the mari.

time torts area distinctions between licensees and invitees

which would be inappropriate in the context of commercial

shipping. Helying on the Supreme Court's decision in

Labrane, a Royal Nether jay ds Steamship Coa, a 2d AoA

Cir. “19985 Gay Y¥. n'tr ne ort & i na Lid, ido FF yy Mh fa Pa (i

1977); A AL. ariners malin Panam

759 inh nase (per curiam), ert, denied. 43 my ¢ (197

6. Those sections read as follows:

§ 343. Dangerous Conditions Known to or Diseaverable hy Possessor

A possessor of land is subject to liability for physical harm caused to his

ives ter a ‘. * Wi land if, 4 wey ; 4 ents

(a) knows oF he exercise of Ln de Tg eave would diseaver the

condition, oe realize that it involves an unreasonable risk of harm

to such invitees, aril

(b) showld oper) that they will 4 diseover ov realize the danger,

or will jail te proieet themselves againal i, a

§ 343A. Known or Obviows Dangers

(1) A possessor of land not liable to Whe inyltepe Ks physical har

caused to them by an gi or condition on “ hose danger te

known or obvious jot ene the possessor should ant lelpate ihe harm

despite such knowledge or owt nienens,

2 det ne iD

Known oF obvious ¥en sh he In ay tare * i

of public la wer ef et fact

we merge ating that the _ should be iver aint

Appendix A-—Opinion of the Court and

Order Amending Opinion,

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 cireum-

stances of the case,'’ 441 I’, Supp, at 444, The court also

observed that in moat cases, including the case aub judice,

the same result would be reached whether one applied the

Restatement § $48 formulation or the more universal duty

to exercise reasonable care under all the ciroumatances,

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

liability in thie case and provides no real guidance for the

decision of future cases,'’ We are leas concerned with the

latter objection than with the former, and we conclude that

the facts found by the trial court justify imposition of lia

bility on the vessel owner in this case,

A brief review of this court's prior decisions discussing

the standard of care under §905(b) will serve as back-

ground for our review of the district court's decision, In

Griffith 1, eupra, we pointed out, firat, that the clear in-

tent of amended §905(b) waa to relieve vessel owners of

absolute liability for injuries to atevedores, whether that

liability was imposed on the basis of unseaworthiness or on

a reapondeat aupertor theory, 621 2d at 40, At the same

time, we recognised the apparent intention of Congress ‘to

apply land-based common law negligence principles on a

uniform national basia’’ in actions against the vessel owner

under §906(b), /d, at 44 & n21, We did not at that

time undertake to apecify the principles to be applied to

the record on remand,

This court's subsequent decisions have concentrated

upon clarifying the implitationa of Congress’ rejection in

§ 905(b) of atriet or reapondeat aupertor liability as a baale

for recovery againat the vensel owner, In Brown v, Iva

rane Redert A/S, 046 F.2d Abd (Sd Ole, 1076), cert, dented,

10a

Appendix A-—Opinion of the Court and

Order Amending Opinion,

430 U.S, 969 (1977), we concluded that § 416 of the Re-

atatement (Second) of Torts, which imposes a non-dele-

gable duty of due care upon persons employing a contractor

to perform work ‘dangerous in [the] absence of special

precautions'’ waa inconsistent with the intent of Congress

lo eliminate shipowner lability without fault, Similarly,

in Marant v, Marrell Linea, Ine, aupra, we reversed a judg:

ment for the longshoreman, because the jury had been in-

atructed that ‘responsibility for the safety of the long.

shoreman lies concurrently or jointly’’ with the atevedore

and the shipowner, Relying on Brown, we held that ‘the

majov reaponasibility for the proper and safe conduct of

the work waa to be borne by the atevedore,’’ 650 Wad at

144 (quoting Hrown, aupra, 546 Wd at 460), And in

Hurat v, Triad Shipping Co,, 654 W8d 1887 (fd Clr,), cert,

denied, 484 U.S, 401 (1977), we held that 66418 and 416.

420 of the Mecond Heatatement were inapplicable in a

§905(b) action, again on the basis that each would have

resulted in the imposition upon the shipowner 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 con.

trol with reasonable care, might provide a proper basia for

liability under §905(b), but concluded that the plaintiff

had failed to introduce sufficient evidence of the ship.

owner's control over the stevedore's operation to support

a recovery, 664 W'2d at 1262,

Rich v, United Statea Linea, 606 WQd 541 (4d Cir,

1079), relied on by American at oral argument, continues

the pattern of our earlier decisions, In Rich the plaintiff

longehoreman wae injured when he slipped on sheet ice

which had accumulated on top of containers stacked on

board the defendant's vessel, The panel firat held that

plaintiff's evidence was insufficient as a matter of law to

support liability under § 414 of the Restatement, Jd, at

650, The plaintiff, relying upon the legislative history of

the Amendments, also argued that the shipowner had

lla

Appendix A-—Opinion of the Court and

Order Amending Opinion.

breached its duty to provide a ‘‘safe place to work’’

failing to take appropriate corrective action, despite

knowledge of the dangerous ice conditions, In a

sion closely tailored to the facts of the ease, the

majority rejected this contention on the ground that

plaintiff had failed to establish that the lee covered

talners were a part of the ship for whose condi

shipowner was customarily responsible, In the

view, the evidence in the case showed ‘beyond a

that the atevedoring company, rather than the vessel, was

‘tin complete charge of the detaila of the handling of the

containers,’’ /d, at 557, (emphasia added), To impose

linbility on thone facta, the court concluded, would ‘amount

once again to the establishment of a non-delegable daty,’’

Td, at 566 (citing Hurat vo, Triad Shipping, eupra, 564 F.8d

at 1251), The panel majority's view of the case made it

wnnecessary for them to consider the standard of care

inaue,

These decisions firmly establish that under § 006(b);

The vessel has no general duty continually to super.

vise the activities of the stevedore, to assume responsi.

bility for the stevedore’s equipment, or to assume

responsibility for dangerous conditions in the vessel

created by the stevedore during the course of ite oper-

ations (at least when the vessel has no knowledge of

the dangerous conditions),

Ktich v, United States Linea, Ine,, aupra, 506 Pad at 560

(Garth, J, concurring) (footnote omitted), They do not,

however, speak directly to the seope of the veasel’s inde.

pendent duty under §906(b) to ‘exercise the same care

as a land based person in providing a safe place to

work,''"

American presenta two arguments againat the stand.

ard of reasonable care under all the ciroumstances applied

by the district court, Mirat, it argues that a veesel should

Code Cong. & Aimin, News 40h, A704 WNeretmatter chet as Mouse Report}

12a

Appendix A—Opinion of the Court and

Order Amending Opinion.

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-

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

_8& American Brief at 14 (quoting Hugev v. Dampskisakticsclskabet Inter-

national, 170 F. Supp. 601 ( Cal. 1959), aff'd sub nom., Metropolitan

Stevedore Co. v. Se eT ema International, 274 F.2d 875 (%h Cir.),

cert. denied, 363 U.S. 803 (1960).

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 negli-

gent or reckless conduct of the other or a third person.

13a

Appendix A—Opinion of the Court and

Order Amending Opinion.

the fact that the stevedore has been negligent sade 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, Comment e. 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).?°

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

10. See House Report, supra n.7, [1972] U.S. Code Cong. & Admin. News.

| l4a

Appendix A—Opinion of the Court and

Order Amending Opinion.

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.), aff’d, 586 F.2d

832 (2d Cir. 1978) ; G. Gilmore & C. Black, The Law of Ad-

mira'ty 453-54 (2d ed. 1975).

The sounder approach, we think, is to recognize that

§ 905(b) imposes on vessel owners the same duty to exercise

‘‘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. Compagme Generale

Transatlamtique, supra, 358 U.S. at 632; Brown v. Ivarans

Rederi A/S, supra, 545 F.2d at 863. Cf. Restatement (Sec-

ond) of Torts §{ 281-83, 302A, 305, 452. Proceeding from

this broad common law standard, federal courts may de-

velop on a case by case basis a uniform federal law of negli-

gence, referring for guidance to the ‘‘land based”’ standards

of care established in the Restatement (Second) of Torts

whenever such reference accords with the Congressional in-

tent 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

15a

Appendix A—Opinion of the Court and

Order Amending Opinion.

against that danger. See Santos v. Scindia Steam Naviga-

tion 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

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 there-

fore 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. Amer-

ican 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 te unstick the barge covers by attaching

cables to those eyelets. (224a-225a; 313a-314a). The miss-

ing 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. Be-

cause such eyelets were missing or had never been installed,

‘ eat Restatement (Second) of Torts, §§ 343(a)-(c) ; Id. §§ 388(a)

and (c).

16a a

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 al-

ternative method which American suggests is the use of the

outboard eyelets on the covers, a method which the testi-

mony discloses was tried and which, due to the defective

condition of the barge, proved ineffective. William Tout-

ant, 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 employee, 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 longshoremen to the precise sort of

risk to which Griffith was exposed. The fact that Wheel-

ing’s chosen method of operation 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.

12. See Restatement (Second) of Torts § 302 quoted supra at n.9.

17a

Appendix A—Opinion of the Court and

Order Amending Opinion.

IV. WuHeeuinc’s AppeaL Acainst GRIFFITH

Wheeling does not contest that, if it was properly held

to be an owner pro hac vice, it was guilty of negligence in

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 pleadings,

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 concérning 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

18a

Appendix A—Opinion of the Court and

Order Amending Opinion.

that additional evidence in holding it liable. Finally, it

contends that even if the Blair standard as to pro nac 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 du-

ties 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 bear-

ing on its relationship to barge No. 2730 was excluded at

trial. Rather, it points to additional evidence introduced

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 removed

by American for repairs without [Wheeling’s] prior

permission (355a-356a) ; [Wheeling] was not respon-

sible for rent on American barges which were unavail-

able due to repair (358a); [Wheeling] paid American

for Barge 2730 according to tonnage shipped rather

than type of barge used (449a, 564a) ; [Wheeling] 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)

19a

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 remand 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 to 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 defi-

nition of pro hac vice owner announced in Blair and in Grif-

fith I. On the other hand, it may be read as relying solely

on the holding in Griffith I to determine the issue of owner-

ship status. There are a number of indications in the rec-

ord 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; 341a; 342a. Because we are unable to determine

from the record whether the district judge actually consid-

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 bane. Nor is this

panel persuaded that the Blair holding should be recon-

sidered,"* Wheeling argues that that holding imposes an

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. 698 (1962) ;

Leary v. United States, 81 U.S. 607, 612 (1871) ; Dobbins v. Crane, 567 F 2d

559 (3d Cir. 1977) ; Fitzgerald v. A. L. Burbank, 451 F.2d 670, 676 (2d Cir.

1971) ; Miller v. Union Barge Line Corp., 299 F. Supp. 718 (W.D. Pa. 1969).

20a

Appendix A—Opinion of the Court and

Order Amending Opinion.

inconvenience upon barge users who operate their own

landings and perform their own stevedoring. That ~.ay 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 responsibilities

of an owner. Another experienced admiralty court agrees.

See Eskine v. United Barge Co., 484 F.2d 1194 (5th Cir.

1973). |

Wheeling also contends that the trial court erred in

finding that it was negligent, in its capacity as owner pro

hac vice, in failing 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. Wueetine’s AppgeaL 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-

—

2la

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 found to be

negligent with respect to any injury-causing defect, 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-

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 Drilling

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 deci-

sion in United States v. Reliable Transfer Co., 421 US.

397 (1975). In that case the Court abandoned the tradi-

tional rule of ‘‘divided damages’’ for maritime collision

eases. That rule required ‘‘the equal division of property

damage whenever both parties are found to be guilty of

contributing fault, whatever the relative degree of their

228

Appendix A-Opinion of the Court and

Order Amending Opinion.

fault may have been,’’ 421 U.S, at 397, In the future, the

Court held, collision damages should be apportioned’ on a

comparative fault basia, The rationale behind that deci-

sion 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 in 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 oceurred, 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. U.g., The City of New York, 147 U.S, 72, 86

(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

responsibility, 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 leas 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 prinei-

ples endorsed in Reliable Transfer to achieve an equitable

appointment of liability between the two alleged joint

tortfeasore, The district court applied those principles

here, and we affirm that application.

23a

Appendix A-—Opinion of the Court and

Order Amending Opinion.

Thus we hold that the district court properly rejocted

Wheeling'’s claim that it should be fully indemnified by

American for ite 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

hae 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 determides on remand that Wheeling is an owner

pro hac vice, the defendants are jointly and severally lia-

ble under §905(b) for the full amount of GriMith’s dam-

ayes, That holding would require a redetermination of

ihe amount for which each defendant is liable, According

lo the district court, negligence actionable under § 905(b)

produced 75% of the damages, of which 60% 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% allecation was based

were sustainable it would be a simple matter to caleulate

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 hae vice in part on Wheeling's ‘[f]ailure to

give adequate safety instructions to steelworkers unfa-

miliary with river work,’’ 452 F.2d at 845, Wheeling notes

that there is a serious problem of proximate cause with

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

24a

Appendix A-—Opinion of the Court and

Order Amending Opinion.

agree, that on this record, ite failure to train Griffith and

his fellow servants was, insofar as it contributed to his

injuries, a failure to train them in longshoreman akilla,

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-

apect, reject, or correct [barge 2730,"' Appellant's Brief

in No, 78-2160 at 25, Sinee 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, Amentoan'’s Apprat Acainat Wreetine

American objects to the allocation of liability between

it as owner and Wheeling as owner pro hac vice on the

basia of 50%-25%. It urges that since the duties of an

owner and an owner pro hac vice are the same, their liabili-

ties 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 reapect 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

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 acta 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 Parte TV and V-B. above, we cannot find clearly errone-

25a

Appendix A—Opinion of the Court and

Order Amending Opinion.

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 hae 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 costa,

A True Copy:

Teate:

Clerk of the United States Court of Appeats

for the Thed Cirewt «

(A.0. U. S, Courts, International Printing Co, Phila, Pa.)

26a

Appendix A—Opinion of the Court and

Order Amending Opinion.

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 78-2159, 78-2160 and 78-2161

THOMAS W. GRIFFITH

WHEELING-PITTSBURGH STEEL CORPORATION,

et al.

THOMAS F. GRIFFITH, Appellant in No. 78-2159

WHEELING-PITTSBURGH STEEL CORPORATION,

Appellant in No. 78-2160

AMERICAN COMMERCIAL LINES, INC.

Appellant in No. 78-2161

(D.C. Civil No. 73-0706)

ORDER AMENDING OPINION

It is ORDERED that the slip opinion in the above

matter filed August 24, 1979, be and is hereby

amended as follows:

Page 15, Second Paragraph, second, third and

fourth line now reads:

factua! and legal findings of the court below.

American points factual and legal findings of

the court below. American points to the dis-

trict court’s reference to missing... .

The underscored sentence should be deleted and it

should now read:

factual and legal findings of the court below.

American points to the district court’s refer-

ence to missing... .

By the Court,

JOHN J. GIBBONS

Circuit Judge

Dated: October 3, 1979

27a

Appendix A—Opinion of the Court and

Order Amending Opinion.

A True Copy:

Teste:

Clérk of the United States Court of Appeals

for the Third Circuit

(A.O. U. S. Courts, The Legal Intelligencer, Phila., Pa.) ~<55

28a

APPENDIX B

Memoranduni Opinion and Order

RECEIVED

JUN 16 1978

THOMSON, RHODES & GRIGSBY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

THOMAS W. GRIFFITH,

Plaintiff,

WHEELING-PITTSBURGH STEEL CORPORATION

and AMERICAN COMMERCIAL LINES, INC.,

Defendants.

Civil Action No. 73-706

This is an action for damages brought by Thomas W. Grif-

fith pursuant to the Longshoremen’s and Harbor Worker's

Compensation Act, 35 U.S.C. § 901 et seq. arising out of a May

26, 1973 accident.' Jurisdiction is conferred on this Court by

28 U.S.C. § 1357(3).

' The pertinent provision of the Longshoremen’s and Harbor Worker’s

Compensation Act is Section 905(b) which states: “In the event of injury to

a person covered under this chapter caused by the negligence of a vessel,

then such person, or anyone otherwise entitled to recover damages by

reason thereof, may bring an action against such vessel as a third party in ac-

cordance with the provisions of Section 933 of this title and the employer

shall not be liable to the vessel for such damages directly or indirectly and

(Footnote continued on following page)

29a

Appendix B—-Memorandum Opinion and Order.

On February 11, 1973, Griffith began his employment with

the Wheeling-Pittsburgh Company at its Allenport, Penn-

sylvania plant. Griffith began work in the common labor pool

of the construction department. The nature of his work was

such that he would report to the pool each morning and

thereafter report to whatever assignment was available that

day. During this period, all of Griffith’s duties were per-

formed on land.

On April 1, 1973, Griffith bid into the hot mill labor pool.

As was the case with his work previously, while a member of

the hot mill labor pool, Griffith had no permanent duties, but

rather was assigned to various jobs on a daily basis.

Including the date of the accident as a full day of work,

Griffith worked 74 days for Wheeling-Pittsburgh. Of this

time, he was temporarily assigned to work at the company’s

barge landing with longshoreman-type duties for 3 3/4 days.

Thus, of Griffith’s work while he was employed by Wheeling-

Pittsburgh, 94.6% was exclusively upon the land and only

5.4% of the time that he was employed by the company was

spent in and about the barge landing at the Allenport plant.

(Footnote continued from preceding page)

any agreements or warranties to the contrary shall be void. If such person

was employed by the vessel to provide stevedoring services, no such action

shall be permitted if the injury was caused by the negligence of persons

engaged in providing stevedoring services to the vessel. If such person was

employed by the vessel to provide shipbuilding or repair services, no such

action shall be permitted if the injury was caused by the negligence of per-

sons engaged in providing shipbuilding 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 oc-

curred. The remedy provided in this subsection shall be exclusive of all

other remedies available under this chapter.”

30a

Appendix B—Memorandum Opinion and Order.

Of that 5.4% only about one-half of that time was actually

spent working on a barge while it was in the water. The rest of

the time that he was assigned to the barge landing, Griffith

spent working on the railroad cars in the billet yard.

On the date of the accident, Griffith 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 American Commercial

Lines, Inc. (American). Three days earlier, on May 23, it had

been delivered to Wheeling and was incorporated into the lat-

ter’s “coal fleet’ to await future use. On May 25, No. 2730 was

relocated next to the seawall at the barge landing to take ona

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 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 com-

pleted before 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 seawall. Griffith’s sole assistance

during the procedure involved his throwing ropes from one

barge to the other.

3la

Appendix B—Memorandum Opinion and Order.

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 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 at-

tached 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

Armstrong 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.

Griffith filed this action against both his employer

Wheeling and the vessel owner American alleging negligence

on the part of both. Both defendants have denied liability to

Griffith and cross-claimed against each other for in-

demnification or contribution. A non-jury trial was held on

October 25, 1977 through October 28, 1977. Considering all

the evidence elicited at trial, the following shall constitute

findings of fact and conclusions of law as required by Federal

Rule of Civil Procedure 52(a).

32a

Appendix B—Memorandum Opinion and Order.

LAND-BASED STANDARD OF NEGLIGENCE

There is general agreement that the case sub judice should

be governed by the applicable land bised standard of

negligence. Griffith v. Wheeling-Pittsburgh Steel Corporation,

521 F.2d 31, 44 (3d Cir. 1975). Far less consensus is available,

however, when discussion turns toward the question of what

is the appropriate land based standard.

The traditional judicial posture has been to rely upon the

Restatement (Second) of Torts 343A (1965) for standard of

care. As Judge Hunter noted in Hurst v. Triad Shipping Com-

pany, 554 F.2d 1237, 1248 (3d Cir. 1977):

‘““. , . admiralty courts applying amended section 905(b)

generally have turned to the Restatement (Second) of

Torts as the national expression of non-maritime tort

principles.”

Representative of such a history of adherence to the

Restatement standard has been the Western District Court of

Pennsylvania in general, and this Court in particular. Griffith

v. Wheeling-Pittsburgh Steel Corporation, C.A. No. 73-0706

(March 22, 1977); Duncan v. Dravo Corp., C.A. No. 76-540

(February 9, 1977).

An emerging trend, on the other hand, has favored defining

the standard of negligence as imposing a duty to exercise

reasonable care under all of the circumstances of the case.

Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625

(1959); Rowiand v. Christian, 443 P.2d 561 (1968). We take the

opportunity afforded by the instant case to reassess whether

or not Restatement (Second) Section 343A is a viable-national

standard of land based negligence.

33a

Appendix B—Memorandum Opinion and Order.

Restatement (Second), Section 343A provides:

‘‘A possessor of land is subject to liability for physicalharm

caused to his invitees by a condition on the land if, but

only if, he (a) knows or by the exercise of reasonable care

would discover the condition, and should realize that it

involves an unreasonabie risk of harm to such invitees.”

“The distinctions which the common law draws between licensee

and invitee were inherited from a culture deeply rooted to the

land, a culture which traced many of its standards to a heritage of

feudalism.” Kermarec, supra at 630. In many instances under

the Restatement standard, this feudal categorization

predetermined substantive consequences rather than being

one factor which contributed to an overall evaluation of the

alleged breach of duty. A general standard of reasonable care

under all the circumstances allows the relationship of the land-

owner vis a vis the plaintiff to be considered to the extent

relevant and invested with the weight deemed to be ap-

propriate. Varying standards of due care depending upon the

applicable agrarian classification cease to be dispositive of

the case, but rather the landowner/plaintiff relationship is

one factor among many which is relevant in determining the

negligence quotient.

This Court is of the belief that the major advantage to such

a uniform standard of negligence would be the forthright ar-

ticulation of reasons for decision. No longer would it be

judicially acceptable to state that because a plaintiff is an

invitee the standard of care is inflexibly prescribed. The

Court must instead state that the plaintiff/landowner

relationship is significant because of specified reasons.

Although as a practical matter most cases, such as the case sub

judice, would reach the same result under either a general

34a

Appendix B—Memorandum Opinion and Order.

standard of due care or the Restatement (Secona) for-

mulation, the decisions in the remaining minority of land-

owner negligence cases and the quality of jurisprudence in

all such cases would be enhanced. Accordingly, the ap-

plicable land based standard of negligence applied in the in-

stant case is a duty to exercise reasonable care under all of the

circumstances of the case.’

LIABILITY OF AMERICAN AND WHEELING-

PITTSBURGH

The potential liability of American can be examined

straightforwardly by measuring its conduct against the land

based negligence scale previously discussed. Liability can at-

tach to Wheeling-Pittsburgh under Section 905(b) if negligent,

only if two additional conditions precedent have also been

satisfied:

(1) Wheeling-Pittsburgh must have been owner pro hac vice

of the American Vessel at the time of injury;

(2) Wheeling-Pittsburgh must have been nepaemt in a non-

stevedoring capacity.

The status of Wheeling-Pittsburgh as owner pro hac vice at

the time of injury is well established under both the law of the

case and the applicable case law. 384 F.Supp. at 237, 521 F.2d

at 41; Blair v. United States Steel Corp., 444 F.2d 1390 (3rd Cir.

1971).

? For those who might contend that “a general duty of care under the cir-

cumstances” standard is too indefinite to be effective, brief mention need

only be made of the enduring quality of the “reasonable man” standard.

35a

Appendix B—Memorandum Opinion and Order.

It is also abundantly clear that Wheeling-Pittsburgh was

guilty of non-stevedoring negligence in conjunction with

plaintiff’s injury in the following particulars: 1) Failure to

give adequate safety instructions to steelworkers unfamiliar

with river work; 2) Providing a defective barge for stevedore

work;"3) Failing to inspect, repair, or reject the defective

barge. Both predicates to a finding of liability against

Wheeling-Pittsburgh having been established, its conduct also

need only be measured against the appropriate negligence

standard.

For the reasons which hereafter follow, American,

Wheeling-Pittsburgh in its non-stevedoring capacity, and

Wheeling-Pittsburgh in its stevedoring capacity, all breached

their duty of exercising reasonable care toward the plaintiff.

In view of our factual determination that negligence was

both pervasive and flagrant in the case sub judice, we will not

dwell on the relationship between plaintiff and the defen-

dants as would be appropriate were the conduct of defendants

less extreme. Suffice it to say that under the circumstances of

this case, both American and Wheeling-Pittsburgh in its dual

identity were negligent to such an extent that recovery for

plaintiff would be meritorious regardless of the feudal

catagorization, except trespasser. Thus, with regard to the

facts sub judice, even the most restrictive duty would have

found itself breached.

American failed to exercise reasonable care under the cir-

cumstances as evidenced by the delivery of Barge 2730 to

Wheeling-Pittsburgh in a defective condition. Specifically,

the barge cover mechanisms were rusted and bent with the

eyelets on the stuck cover comple.ely missing. Delivery of

36a

Appendix B—Memorandum Opinion and Order.

such a barge, with knowledge that many workers would

necessarily come into contact with the deteriorated barge

covers, was inexcusably negligent.*

Wheeling-Pittsburgh, as previously noted, was negligent in

its non-stevedoring capacity by failing to require the ob-

viously defective barge to be repaired or rejected and by

failing to adequately instruct inexperienced river workers,

such as plaintiff, on safety rules and proper work procedures.

Stevedoring is to engage in the loading or unloading of

vessels. It is apparent that Wheeling-Pittsburgh’s disregard of

its duty to provide a safe work environment for plaintiff was

separate from its considerable additional negligence in the ac-

tual conduct of stevedoring operations.

In its stevedoring capacity Wheeling-Pittsburgh was

negligent in attempting to close the barge covers through use

of a crane even though eyelets on the barge covers were

missing. An operation under the supervision of experienced

rivermen should also have shown better sense than to enlist

the aid of a novice in the questionable closing procedure. The

prudent solution for Wheeling-Pittsburgh would have been to

pursue repair of the barge. The fact that repair at the time of

plaintiff’s injury may have disrupted “business as usual” is no

justification for the blind pursuit of an expedient, but hazar-

dous course of action.

With due consideration for all the evidence and cir-

cumstances of the case sub judice, this Court holds that

3 This Court finds American’s argument that there was no unreasonable risk

of harm created by the defective barge because experienced rivermen were

capable of working safely to be singularly unappealing. Experienced river-

men supervised the operation in question and yet the accident still oc-

curred.

37a

Appendix B—Memorandum Opinion and Order.

American, Wheeling-Pittsburgh in its non-stevedoring

capacity, and Wheeling-Pittsburgh in its stevedoring capacity

were concurrently negligent in causing plaintiff’s injuries.

DAMAGES

Damages sustained by Griffith as a proximate result of

defendants’ negligence are quite extensive. When the accident

occurred, plaintiff landed at the bottom of the barge’s hold

on his right leg, then toppled onto his left leg. He fell on his

right wrist and over onto his back. Medical testimony of

record substantiates plaintiffs claim for past and future

medical expenses in the amount of $11,672.65.

A second component of plaintiff’s damages is past and

future wage loss. Plaintiff's wage losses are calculated at a

rate of $800.00 per month, the amount which plaintiff was

earning in 1973 for Wheeling-Pittsburgh. This Court finds

total past wages and future lost wages, reduced to present

worth at 6%, supported by evidence of record, to be

$42,626. 80.

The total figure of $54,299.45 for medical expenses and lost

earnings is largely uncontested as to reasonableness. Rather,

defendants have chosen to marshal their forces in opposition

to liability and the following two additional areas of claimed

compensable damages.

The first area is plaintiff’s claim for impairment of earning

capacity. Defendants are required to compensate plaintiff for

any lessened ability to earn money in the future as a result of

the injuries sustained. It is not the status of the immediate

present which determines capacity for remunerative em-

ployment. Where permanent injury is invoived, the whole

38a

Appendix B—Memorandum Opinion and Order.

span of life must be considered. It must be determined

whether or not the economic horizon of the plaintiff has been

shortened because of the injuries sustained as a result of

defendants’ negligence.

Evidence of record indicates that plaintiff will never again

be able to perform work requiring heavy labor. He is also

unable to pursue any occupation which would require stand-

ing for long periods of time or extensive movement such as

walking. Thus, although Griffith can stil! perform effectively

in many useful careers such as teaching, there are also many

tasks which plaintiff is permanently foreclosed from

pursuing.‘ Bearing in mind that plaintiff’s life expectancy is

approximately 41 years, this Court believes that the sum of

$80,000 adequately and fully compensates him for the con-

siderable reduction in future employment opportunities

caused by his severely restricted mobility and dexterity.

Lastly, plaintiff seeks to recover damages for past and

future pain, suffering and inconvenience. Following the ac-

cident, Griffith suffered from severe pain in the right leg,

back, wrist and heel. When he left the hospitai, piaintiff had

long casts on both legs and his right arm, and was completely

bedfast. From May, 1973, to September, 1973, Griffith was

confined completely to a stretcher, and was not permitted to

* Another example would be a trial attorney who suffers the loss of his left

hand due to some defendant’s negligence. The loss of his left hand would

probably not affect the ability of the lawyer to be a skilled advocate.

Nonetheless, plaintiff counsel would be entitled to recover for impairment

of earning capacity inasmuch as he is now precluded from ever being able

_ to function in a job which requires the use of one’s left hand. It is the shor-

tening of the attorney’s economic horizon for which damages are awarded

and not any actual reduction in earnings.

”

39a

Appendix B—Memorandum Opinion and Order.

ambulate. From September until November 20, 1973, plaintiff

moved about only on platform crutches; in November, 1973,

he was permitted to change to a cane, and he has been

required to walk with a cane ever since. At the present time,

plaintiff continues to be affected by injuries of the right wrist,

left heel. spine, chest, right ankle and right leg: As a result of

the aforementioned physical restrictions, plaintiff has now

also been forced to limit both family and recreational ac-

tivities. With due regard for plaintiff’s 41-year life expectancy

and the disabling injuries previously detailed, this Court

believes an award of $75,000 to be appropriate for pain, suf-

fering and inconvenience.

In total, plaintiff is entitled to compensatory damages in

the amount of $209,299.45. It remains to be considered,

however, whether or not the equitable credit doctrine should

be applied to the damage award.

EQUITABLE CREDIT DOCTRINE

Under the Equitable Credit Doctrine, damages are ap-

portioned among the parties according to the extent of each

one’s fault. The Court calculates the award by assessing a

prorated share of the damages against each party. The parties

which would be considered in the case sub judice are:

1. Wheeling-Pittsburgh as owner pro hac vice;

2. Wheeling-Pittsburgh as stevedore;

3. American Commercial Lines.

40a

Appendix B—Memorandum Opinion and Order.

The vitality of the equitable credit doctrine is uncertain. As

_ Judge Aldisert stated in Marant v. Farrell Lines, Inc., 550 F.2d

“142, 147 (3d Cir. 1977):

“. . , the question of a possible credit to the vessel in

cases of concurrent stevedore-vessel negligence is, at

least in this circuit, very much an open question.”

It is in this unsettled context that we address the merits of ap-

plying the equitable credit doctrine in the instant case.

The concept of comparative negligence is consistent with

Section 905(b) of the Longshoremen’s and Harbor Workers’

Compensation Act. “Because a literal reading of Section 5(b)

creates irreconcilable conflict if the word ‘negligence’ is un-

derstood to mean any negligence at all, some alternative

meaning which harmonizes the section must be adopted. This

is simply and effectively achieved if ‘negligence,’ as used in

Section 5(b) is recognized as contemplating the extent of fault

in addition to its threshhold existence. Thus, the first sen-

tence creates a right of recovery for injuries received to the

extent such injuries were caused by the vessel, and the third

sentence limits the recovery of longshoremen hired directly

by the vessel only by the extent that their fellow workers

caused the injury. Thus viewed, Section 5(b) is internally con-

sistent and in accord with the general principles of maritime

law.” “EQUITABLE CREDIT: Apportionment of Damages

According to Fault in Tripartite Litigation Under the 1972

Amendments to the LHWCA,” 35 MARYLAND L. REV. 353,

369 (1976). Any construction of 905(b) other than one em-

bodying comparative negligence would result in an employee

of an independent stevedore re_overing full damages from a

negligent vessel no matter how little negligent the vessel may

have been.

4la

Appendix B—Memorandum Opinion and Order.

The Equitable Credit Doctrine is a method of damage

allocation which fosters fairness through the vehicle of

proportionate fault. Plaintiff Griffith should not be per-

mitted the double recovery of damages attributable to the

negligence of Wheeling-Pittsburgh as stevedore in addition to

workmen’s compensation. Recovery in the case sub judice will

therefore be limited to the proportionate damage caused by

Wheeling-Pittsburgh in its non-stevedoring capacity and

damage attributable to American Commercial Lines.

It is this Court’s opinion that American Commercial Lines

was 50% negligent, Wh-eling-Pittsburgh in its non-

stevedoring capacity 25% negligent, and Wheeling-Pittsburgh

in its stevedoring capacity 25% negligent. Accordingly,

damages are assessed against American Commercial Lines in

the amount of $104,649.73 and against Wheeling-Pittsburgh in

the amount of $52,324.87. Damages totalling $52,324.87 at-

tributable to the negligence of Wheeling-Pittsburgh in its

stevedoring capacity are not recoverable in view of the

Equitable Credit Doctrine. Recovery for such negligence

takes the form of plaintiff’s workmen’s compensation

payments.

CONCLUSION

A standard of negligence imposing a duty to exercise

reasonable care under all of the circumstances of the case and

the equitable credit doctrine are evolving judicial principles

not as yet firmly marked with the imprimatur of stare decisis.

However, one of the foremost responsibilities of any system

of jurisprudence is to actively engage in the pursuit of

adaptable legal principles appropriate for a changing social

environment. Adherence to precedent should not be so

42a

Appendix B—Memorandum Opinion and Order.

talismanic that underlying social policies justifying change

are muted. A general negligence standard of reasonable care

under the circumstances and the equitable credit doctrine

were adopted herein not because they are older than their

competing alternatives but because this Court believes they

are better. An appropriate Order will issue.

HUBERT I. TEITELBAUM,

Hubert I. Teitelbaum,

United States District Judge.

43a

Appendix B—Memorandum Opinion and Order.

ORDER

AND NOW, this 15th day of June, 1978, in accordance with

the foregoing Opinion, IT IS ORDERED that piaintiff is

hereby awarded damages against defendant American Com-

mercial Lines in the amount of $104,649.73 and against defen-

dant Wheeling-Pittsburgh in the amount of $52,324.87. Costs

to be taxed equally between American and Wheeling-Pitts-

burgh.

HUBERT I. TEITELBAUM,

Hubert I. Teitelbaum,

United States District Judge.

copies to:

Thomas L. Cooper, Esquire,

Gilardi & Cooper,

606 Oliver Building,

Pittsburgh, PA 15222.

William L. Standish, Esquire,

Arthur H. Stroyd, Jr., Esquire,

Allison M. Barnes, Esquire,

Reed, Smith, Shaw & McClay,

747 Union Trust Building,

Pittsburgh, PA 15219.

John W. Jordan, IV, Esquire,

Thomson, Rhodes & Grigsby,

Pittsburgh, PA 15219.

44a

Appendix B—Memorandum Opinion and Order.

AMENDED ORDER

RECEIVED

JUL 18 1978

THOMSON, RHODES & GRIGSBY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(Filed July 17, 1978.)

THOMAS W. GRIFFITH,

Plaintiff,

Vv.

WHEELING-PITTSBURGH STEEL CORPORATION

and AMERICAN COMMERCIAL LINES, INC.,

Defendants.

Civi! Action No. 73-0706

AND NOW, this 17th day of July, 1978, IT IS ORDERED

that the Memorandum Opinion and Order of this Court of

June 15, 1978 in the above-captioned case be amended to

delete the fcl.owing sentence which appears on page 1, lines 3

and 4: “Jurisdiction is conferred on this Court by 28 U.S.C.

§ 1357(3).”

HUBERT I. TEITELBAUM,

Hubert I. Teitelbaum,

United States District Judge.

45a

Appendix B—Memorandum Opinion and Order.

copies to:

Thomas L. Cooper, Esquire,

Gilardi & Cooper,

606 Oliver Building,

Pittsburgh, PA 15222.

Giles Gaca, Esquire,

Thomson, Rhodes & Grigsby,

1724 Frick Building,

Pittsburgh, PA 15219.

William L. Standish, Esquire,

Arthur H. Stroyd, Jr., Esquire,

Allison M. Barnes, Esquire,

Reed, Smith, Shaw & McClay,

747 Union Trust Building,

Pittsburgh, PA 15219.

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.