Respondents Brief — Scindia Steam Nav. Co. v. De Los Santos

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Supreme Court, U.S,

FILED

No. 79-512 SEP 26 1960

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

October Term, 1979

ScinpiA STEAM NAVIGATION Co., Ltp.,

Petitioner,

Lauro DE Los SANTOS AND SEATTLE STEVEDORE Co.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENT,

LAURO DE LOS SANTOS

James A. Grutz

Jackson, ULVEsTap,

Goopwin & Grutz

Attorneys for Respondent,

Lauro De Los Santos

Office and Post Office Address:

1425 IBM Building

Seattle, Washington 98101

Telephone: (206) 623-2300

—————

CRAPTOMAN Presse <Q saarrie. wasnincron

QUESTIONS PRESENTED FOR REVIEW

A. Did the Ninth Circuit Court of Appeals err when it

held that the negligence cause of action referred to by

Congress in the 1972 Amendments to the Longshoremen’s

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

tion 905(b), meant:

A vessel is subject to liability for injuries to long-

shoremen working on or near the vessel caused by

conditions on the vessel, if, but only if, the shipowner

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

would discover, the condition, and should realize it

involved an unreasonable risk of harm to such long-

~ shoremen, and

(b) the shipowner fails to exercise reasonable care

under the circumstances to protect the longshoreman

against danger?

B. Whether, a longshoreman, injured in the course of

his employment aboard a ship, by reason of the malfunc-

tion of a ship’s winch, can be barred, as a matter of law

on a motion for summary judgment from recovery against

the shipowner for negligence, when the shipowner has

failed to repair the winch which had been malfunctioning

over a two and one-half day period?

C. Have the 1972 Amendments to the Longshoremen’s

and Harbor Workers’ Compensation Act substituted con-

tributory negligence and/or assumption of risk principles

for comparative negligence principles in a longshoreman’s

claim against a shipowner for negligence for failing to

provide a safe place to work and failing to maintain and

repair a defective ship's winch?

TABLE OF CONTENTS

Page

Questions Presented for Review ..................---:c-0s-s0eee0-- i

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IE TE MI NI ci csssnecsnsnsnseosncnandsounnnysonsatsonn 2

Me. OMNEOE OF The Came ............0cc.ccececsccccsscessorveneee 2

Se ISIE BOAMOUI nsrcsswcvnnsserensssocnovssnnesenstevensvnvess 3

eee NN SOR AZUMI on... sncccsnesncsnsscacepesaenonsensssosenen 7

ES ERIE SN A a ae 8

A. Background—Negligence Action Retained ...... 8

B. Summary Judgment Inappropriate .................... 12

C. The 1972 Amendments to the Longshoremen’s

and Harbor Workers Compensation Act Have

Not Substituted Assumption of Risk and Con-

tributory Negligence Principles for Compara-

tive Negligence Principles ...................:.020000+-+ 22

D. Negligence-Concurrent Negligence - Compara-

a ct 34

E. Safe Place to Work—Dangerous Conditions .... 36

F. Argument in Response to Petitioner's Brief ...... 38

G. Response to Amicus Brief in Support of Peti-

Tia ticictiliciontihi niesieitabliconeltamistivicies tntaivietbbavieesecksashiensteuh 44

i A Nara icahlirants scanacsnlidinesbebiendinnlasess 48

ERAS TA ER CN eae Seale I WR I-1

iii

Page

TABLE OF AUTHORITIES

Table of Cases

Albanese v. N/V Nederl. Amerik Stomov. Maats, 346

F.2d 481 (2d Cir.), rev'd per curiam, 382 U.S. 283,

15 L. Ed. 2d 327, 86 S. Ct. 429, reh. den., 382 U.S.

1000, 15 L. Ed. 2d 490, 86 S. Ct. 534 (1965) ............ 38

Anuszewski v. Dynamic Mariners,

540 F.2d 757 (4th Cir. 1976) ....ccesescccccccccessssssseeeee 24, 26

Arney v. United States, 479 F.2d 653 (9th Cir. 1973).... 13

Bender v. Dingworth, 425 F.2d 378 (5th Cir. 1970) .... 36

Bloomer v. Liberty Mutual Insurance Co.,

RS. Ct OE TINS oe. 9

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

1976), cert. denied, 430 U.S. 969 (1977) ........---- 9, 32, 37

Cameron v. Vancouver Plywood Corp.,

266 F.2d 535 (9th Cir. 1950) ................esccsccenceceerees 13

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

1978), cert. denied, 439 U.S. 929 (1978) ................-.+- 26

Gates v. Beauregard Electric Cooperative, Inc., 328 So.

2d 367 (La. 1976), cert. denied, 429 U.S. 833 (1976)..34

Chavis v. Finnlines Ltd., 576 F.2d 1072 (4th Cir. 1978 )..26

Clemons v. Mitsui O.S.K. Lines, Ltd.,

506 F.2d 746 (7th Cir, 1979) os...ssessssssessssssseeeseeeeee 9A, 26

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

B77 F.2d 798 (2d Cir, 1978) ccccceeeeeeeeccessesesseeeeeeeesseenee 26

Croshaw v. Koninklijke Ned Lloyd, B.V. Rifswijk,

398 F. Supp. 1224 (D. Ore. 1975) 20... eeeeeeeeeees 24

Davis v. Inca Comp. Naviera,

440 F. Supp. 448 (W.D. Wash. 1977) ...............:2000+ 21

Dorton v. Darby, 373 F.2d 619 (5th Cir. 1967) ........... 13

Edmonds v. Campagnie Generale Transatlantique,

443 U.S, 256 (1979) cesccsssccsseseeesseseseeee 9, 10, 34, 35, 44, 46

Federal Marine Terminals Inc. v. Burnside Shipping

Ce ee etait 34

Page

Gallardo v. Westfal-Larsen & Co. A/S.,

435 F. Supp. 484 (N.D. Cal. 1977) ...........0........ 28, 32, 38

Garrett v. Moore-McCormack Co., 317 U.S. 239 (1949) ..23

Gay v. Ocean Transport & Trading Ltd.,

546 F.2d 1233 (5th Cir. 1977) .................ccccceceeee 25, 27, 31

Gerrity v. Kate Cann, 2 F. 241 (D.N.Y. 1880) ......00000..... 9

Griffith v. Wheeling-Pittsburgh Steel Corp.,

610 F.2d 116 (3d Cir. 1979) .000. 32, 33, 34, 35

Gutierrez v. Waterman Steamship Corp.,

373. U.S. 206, reh. den., 374 U.S. 858 (1963)................ 1]

Hartzog v. Head Line Co.,

358. F.2d 916 (N.D, Ill, 1973) ......0.........ccccssccccesessssseses 13

Hess v. Upper Mississippi Towing Corp.,

559 F.2d 1030 (5th Cir, 1977) -ccceccccccssssccccccsssesceceoeee 37

In re Dearborn Marine Service, Inc., 499 F.2d 263 (5th

Cir. 1974), pet. for rehearing den., 512 F.2d 1061....20-21

International Stevedoring Co. v. Haverty,

S72 U.S. BO, 47'S; Ct. 10 (BOBBY oo... cccccticccccceseccace 34

‘ Johnson v. A/S Ivarans Rederi A/S,

613 F.2d 334 (Ist Cir. 1980) -.....002022..... 9, 10-11, 32, 33

Kermarec v. Compagnie Generale Transatlantique,

SIP ts SI IIE gcd es inchtsestwscsncitasensncadssenarnensanns 7, 33, 48

Landon v. Lief Hoegh & Co.,

SBE FSG TOO CRG Cir, TOT) oan ssanvsivesicccssccsscsecessosene 35, 38

Leaf v. United States, 588 F.2d 733 (9th Cir. 1978)...... 13

Leathers v, Blessing, 105 U.S. 626 (1882) 0.0.0.0... 9

Lopez v. A/S D/S Svendborg,

581 F.2d 319 (2d Cir, 1978) ...0.....:.c.cccccsccsssssceseoee 26, 35

Lurbrano v. Royal Netherlands,

Ee eee I Es TD anise coccinea insiceseesersenes 26

Marant v. Farrell Lines, 550 F.2d 142 (3d Cir. 1977) .. 35

Matthews v. Ernest Russ S.S. Co.,

603 F.2d 676 (7th Cir. 1979) ...ccccccsssssccesessscssceseeceeesssee 26

Page

Miller Adm. v. Union Pacific R.R., 290 U.S. 227 (1933).. 36

Migut v. Hyman-Michaels Co.,

571 F.2d 352 (6th Cir, 1978) ccccccceccccesssssssssssssseecsssnneee 37

Mitchell v. Trawler Racer, 362 U.S. 539 (1960) ............ 11

Mounsey v. Ellard,

363 Mass. 693, 297 N.E.2d 43 (Mass. 1973) ................ 34

Napoli v. Hellenic Lines, Ltd.,

536 F.2d 505 (2d Cir. 1976) 000.20... 21, 25, 26, 37

O'Leary v. Coenen, 251 N.W.2d 746 (N.D. 1977) ........ 34

Poller v. Columbia Broadcasting Systems,

Us eee 13

Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1954) ......9, 23

Ramirez v. Toko Kaium K.K.,

385 F. Supp. 644 (N.D. Cal. 1974) -200000.. eee 2A, 27

Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97,

I 34

Ryan Stevedoring Co. v. Pan-Atlantic $.S. Corp.,

Pr is I IED cctiiceehincniiisdacticadiiniiciniintsionmnntacmnintinnds 9, 41

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

Shapiro v. Glekel, 380 F. Supp. 1053 (S.D.N.Y. 1974) .. 13

Shepler v. Weyerhaeuser Company,

279 Or. 477, 569 P.2d 1040 (Or. 1977), cert. denied,

434 U.S. 1051 nvsvsseseornsessacensasessensarsecnceesucensnsstoonsecee 32, 33, 37

Slaughter v. Ronde, 390 F. Supp. 637 (S.D. Ga. 1974),

aff d per curiam, 509 F.2d 973 (5th Cir. 1975) ........... 37

Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424 (1939).. 23

Solsvik v. Maremar Compania Naviera, S.A., So

399 F. Supp. 712 (W.D. Wash, (1975) ..-cccsccccces:. 37

Spinks v. Chevron Oil Co.,

507 F.2d 216 (5th Cir, 1975) .cccccccsssssscssscsssssesseesee 21, 36

The Max Morris, 137 U.S. 1 (1890) ccesecccccecesssssess000000-4.9, 23

United States v. Diebold, Inc., 369 U.S. 654 (1962) .... 13

Page

United States v. Dollar,

196 F.2d 551 (9th Cir, 1952) ooo. cccccccccccccsssesssssseee 13

United States v. Perry,

431 F.2d 1020 (9th Cir. 1970) 0.0... eceeececcesoecceceeeceeee 13

Van Horn v. Gulf Atlantic Towing Corporation,

388 F.2d 636 (4th Cir, 1968) occ. 18, 19, 37

Webb v. City & Borough of Sitka,

Met PAG Tor (Aba Or) 34

West v. United States, 361 U.S. 118 ‘4, Ree en 37

White v. United States, 400 F.2d 74 (4th Cir. 1968) .... 37

Wiles v, Delta Steamship Lines,

1976 A.M.C., 2646 (E.D. La. 1976) 20.0... cceseoeees 30

Statutes

Pa rn 45

ects I ic 45

tk 5) ) naa eae 16, 28

Se A i 8

Bees iri | RI ra aon et ES oF i, 1-2, 3, 9, 23

et, seq.

Pe i oretctaii chisinebace Seen ES LO mn 42,

et EISEN oi CoRR cee aE SORE 2,9

Oe se I erat pecsescicseedapstscssnsebiniticicts cecbic sce 2

Annotations and Textbooks

er a ne I resi tcheeete ia as 34

57 Am. Jur. 2d § 176 (2d ed. 1971) oo. ee ccc 36

1A, Benedict on Admiralty §§ 111, 112 (6th ed. Jhirad,

RETREATS ARR TR OE

3 E. Devitt and C. Blackmar, Federal Jury Practice and

Instructions, § 80.19 (2d Ed. 1977) oo. ccecceesecsecse-.. 36

Fleming, The Law of Torts, 111 (3d ed. 1965) ............ 33

vii

Page

Gilmore and Black, The Law of Admiralty,

MI FE OE FD ccna nnie ec eectevencovesennepmsnnoniods 8

ER iy os BG yf Beene eee ane 39, 40

7 Journal of Maritime Law and Commerce 447 (1976)... 22

2A A. Larson, The Law of Workmen’s Compensation

TN CID cece sseecsn cess ciawnrnanncponsencttocopinnnshomeniionns 8

2A A. Larson, The Law of Workmen’s Compensation

G TB2S (1GTB) ..-...---n-n.escnsverncceonnersnsinsnsarvencussnssnsnscsnnce 46

W. Prosser, Handbook of the Law of Torts, §§ 32, p.

SEE Eanes 33, 36, 43

Restatement (Second) of Torts § 343 (1965)..3, 22, 24, 25, 26

et. seq.

Restatement (Second) of Torts § 343(A) ....3, 22, 24, 25, 26

et. seq.

4 The Mar; Law. 305. (1979) .......-....-.--.c-crsessesonsseecsscecsore 26

6 Washington Practice, Washington Pattern Jury In-

structions, Civil (1967), W.P.I. 15.01 ................-.-------- 36

Other Authority

a I aaa cancentmnisienitonninstoeminncaieien 13

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

reprinted in 1972 U.S. Code Cong. & Admin. News

eek ran orcage creeping oss eens nonewee 10

H.R. Rep. No. 2448, 96th Cong., 2 CCH Cong. Index

(TODD) csccececccnnccnenvvanseosnsneterorsnseessserebsancessnonsvinssestecsnenans 48

S. Rep. No. 92-1125, 92nd Cong., 2d Sess., pp. 8-12 ...... 10

S. Rep. No. 1511, 96th Cong., 1 CCH Cong. Index

IN THE

Supreme Court of the United States

October Term, 1979

SCINDIA STEAM NAVIGATION Co., LTD.,

Petitioner,

Lauro DE Los SANTOS AND SEATTLE STEVEDORE Co.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF RESPONDENT,

LAURO DE LOS SANTOS

APPLICABLE STATUTES

Longshoremen’s and Harbor Workers’ Compensation

Act, 33 U.S.C. §905(b) (1976):

In the event of injury to a person covered under this

chapter caused by the negligence of a vessel, then

such person, or anyone otherwise entitled to recover

damages by reason thereof, may bring an action

against such vessel as a third party, in accordance

with the provisions of 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 contrary shall be void. If such

person was employed by the vessel to provide steve-

doring services, no such action shall be permitted if

the injury was caused by the negligence of persons

engaged in providing stevedoring services to the ves-

sel. If such person was employed by the vessel to

provide ship building or repair services, no such

action shall be permitted if the injury was caused by

the negligence of persons engaged in providing ship

building or repair services to the vessel. The liability

of the vessel under this subsection shall not be based

upon the warranty of seaworthiness or a breach

thereof at the time the injury occurred, The remedy

provided in this subsection shall be exclusive of ail

other remedies against the vessel except remedies

available under this chapter.

33 U.S.C. §933(a) (1976):

If on account of a disability or death for which com-

pensation is payable under this chapter the person

entitled to such compensation determines that some

person other than the employer or a person or per-

sons in his employ is liable in damages, he need not

elect whether to receive such compensation or to

recover damages against such third person.

33 U.S.C. §933(i) (1976):

The right to compensation or benefits under this

chapter shall be the exclusive remedy to an employee

when he is injured, or to his eligible survivors or legal

representatives if he is killed, by the negligence or

wrong of any other person or persons in the same

employ; Provided, That this provision shall not affect

the liability of a person other than an officer or em-

ployee of the employer.

Il.

STATEMENT OF THE CASE

A. Nature of the Case

This is a personal injury case brought by a longshore-

man, in the United States District Court of the Western

District of Washington with a demand for trial by jury.

Based upon the evidence disclosed in the depositions, the

attorney for the defendant moved for summary judgment.

Briefs were submitted by both parties.

On September 1, 1976, the Honorable Walter T. Mc-

Govern signed an order granting summary judgment of

dismissal. Santos filed a timely notice of appeal.

The order and opinion of the district court are not off-

cially reported but are found at 1976 A.M.C. 2583 and are

set forth in appendix pages A-1 through A-6 of the Petition

for Writ of Certiorari.

The United States Court of Appeals for the Ninth Cir-

cuit reversed the judgment and remanded the case for

further proceedings on May 1, 1979. The opinion of the

court is reported at 598 F.2d 480 and is set forth in ap-

pendix B-1 through B-23 of the Petition for Writ of

Certiorari. The shipowner petitioned for rehearing and

the court of appeals denied the petition in a per curiam

opinion which was not officially reported, but is set out

in appendix C-1 through C-3 of the Petition For Writ of

Certiorari.

The appellate court ruled that: (1) the district court's

dismissal of the Santos claim misdefined the negligence

standard under §905(b); (2) the district court relied

upon $343 and §343A, Restatement (Second) of Torts

(1965) which embrace the forbidden concepts of assump-

tion of risk and contributory negligence; (3) the district

court had inappropriately decided reasonably disputable

factual issues against Santos.

B. Statement of Facts

The plaintiff, Santos, was severely injured on December

10, 1972, while working as a longshoreman aboard the

vessel M/S JALARATNA. Certain of the facts involved

in the case are not in dispute as indicated by the “ad-

mitted facts” section of the pre-trial order (JA 10, 11).

Those facts are as follows:

On December 10, 1972, Santos was employed as a long-

shoreman by Seattle Stevedoring Company aboard the ves-

sel M/S JALARATNA. The vessel was moored at the

Fisher Flour Mills’ dock in Seattle, engaged in loading

sacks of bulgar wheat for the far east. The defendant,

Scindia Steam Navigation Co., Ltd., of Bombay, India,

was the owner of the vessel M/S JALARATNA.

Santos worked as a longshoreman on the night shift in

the No. 3 hatch, commencing at 7:00 p.m., on December

10, 1972, and was engaged in stowing the sacks of bulgar

wheat being brought in by the ship’s winch. He worked

continuously in the No. 3 hatch from 7:00 p.m., until the

injury at 8:45 p.m.

A short time prior to the accident, a pallet board con-

taining about seventy 50-Ib. sacks of wheat was lowered

into the No. 3 hatch and struck the pallet jack. About half

the sacks were spilled into the hatch.

Following the spilling of the sacks from the pallet

board, the balance of the load was lifted by the winch

driver upon the instructions of the hatch tender. The load

was raised about fifteen feet to the coaming of the hatch

and held there while Santos and his fellow worker were

engaged in cleaning up the spilled sacks from the deck of

the hatch. After about ten minutes, while Santos and his

fellow worker were still engaged in cleaning up the spilled

sacks of wheat, several more sacks fell from the raised pal-

let board. The sacks fell into the No. 3 hatch, striking

plaintiff and injuring him.

The remaining facts of the case are contained in the

deposition testimony of the winch driver, Lester Hawran,

the hatch tender, Alvin Botler, and Mr. Santos. Mr. Santos

was working in the hold of the ship stowing the sacks. On

December 10, Mr. Botler was the hatch tender (R. Hawran

Dep. 9). As the winch driver lowered the load into the

hatch, he received a signal from the hatch tender to stop

the load, but the winch did not stop the load when the

controls were put in the stop position. The load hit the

pallet jack and spilled many of the sacks from the pallet

board (R. Hawran Dep. 12). The winch had been failing

to hold and/or stop the loads during the work shifts on

December 8th, 9th and 10th. The winch driver had com-

plained to his foreman that the brakes on the winches

were not holding (R. Hawran Dep. 6, 12, 17, 27, 30, 57).

After the sacks had spilled, the hatch tender signaled

the winch driver to pick up the load and to hold it twelve

to fifteen feet above the bottom of the hold (R. Hawran

Dep. 13; Botler Dep. 37, 38). The load was held in that

position so that Mr. Santos and his partner could clear

away the sacks which had fallen. The runway had to be

cleared before the remainder of the load could be landed

(R. Hawran Dep. 14, 44, 45; Botler Dep. 11, 12, 40).

Santos and his partner were doing their job cleaning up

the spilled sacks at the time the other sacks fell and in-

jured Santos (R. Hawran Dep. 40; Botler Dep. 59). As

the winch held the partial load in the air, and Santos and

his partner worked to clean up the landing area, additional

sacks worked loose because of the creeping and slipping

of the winch (R. Hawran Dep. 58, 59).

Santos and his partner had worked eight to ten minutes

while the partial load was suspended. During that time

the partial load had crept down and was raised three or

four times during the clean-up procedure. The additional

sacks worked loose because of the creeping and slipping

of the winch and the need to adjust the load by raising

it after it had slipped (R. Hawran Dep. 57, 59). The

brakes did not hold the load and caused the additional

sacks to fall (R. Hawran Dep. 16).

The hatch tender, Botler, testified that December 10th

was his first work shift aboard the vessel. He replaced the

hatch tender who had worked the previous two evenings

(R. Hawran Dep. 4, 5). Mr. Botler was not aware that

there had been earlier difficulties. with the winches. He

could see that Hawran was having some difficulty, but

did not know that the brakes were faulty at the time (R.

Botler Dep. 7, 8). After the accident when Botler was

driving the winches, he noticed that the brakes did not

stop when the winches were cut off (R. Botler Dep. 7, 8,

12). After the initial spill, Botler signaled the winch driver

to hold the load twelve to fifteen feet in the air while the

men in the hold cleaned up. The hatch tender believed

there was only one way to clear the area and that was to

pick the load up and hold it there. Suddenly, he noticed

the remaining sacks start to slide and fall upon the plantiff

working below (R. Botler Dep. 10). He yelled a warning,

but it was too late (R. Botler Dep. 42, 43). One sack hit

the plaintiff in the back of the neck and two others also

struck him (R. Botler Dep. 10).

Mr. Santos testified that after the first half of the load

was spilled, when the load hit the pallet jack, he knew it

was his duty to clean up the spilled sacks (R. Santos Dep.

41, 42, 45, 57 and 58).

The winch driver, Hawran, testified that the M /S JA-

LARATNA was the only ship that he had ever worked on

in the eighteen years he had been a longshoreman that

positioned the winch controls so high and way up near

the “cross tree” (R. Hawran Dep. 3, 6). The electric

winches were part of the ship (R. Hawran Dep. 8, 17, 24),

and on the Indian ships the winches were generally bad

(R. Hawran Dep. 6, 18, 20, 21). The platform upon which

the winch driver was operating the winches was in the

cross tree of the ship more than twenty-five feet above

the deck (R. Hawran Dep. 18; Botler Dep. 24). He could

not see the hatch or the area where the men were work-

ing (R. Hawran Dep. 31, 32). He, therefore, had to rely

on the hatch tender for signals to stop the load as it was

lowered into the hold (R. Hawran Dep. 9, 33). Botler

testified that he believed this was the only ship that had

the winches set in the crow’s nest. Most other ships had

the winch controls positioned so that the winch driver

could see what was going on (R. Botler Dep. 11, 12, 21,

22, 24).

When Hawran went to work on December 8, he com-

plained to his foreman that the brakes were not holding

on the winches and was told that the “day shift was com-

plaining and they just can’t seem to do anything with

them.” (R. Hawran Dep. 6).

The sacks that were left on the pallet board after the

initial spill looked like they were going to stay where they

were (R. Botler Dep. 47). It was Botler’s best judgment

that the load should be picked up and held while Santos

and his partner worked to clean up the mess (R. Botler

Dep. 48, 50). After the load was picked up and held,

Botler inspected it and it appeared to be fine. It did not

appear to be dangerous (R. Botler Dep. 52). If he hadn't

felt the load was safe, he wouldn't have had it held there

(R. Botler Dep. 14).

Ill.

SUMMARY OF ARGUMENT

Although shipowners asked for immunity from all third-

party liability, Congress, in passing the 1972 amendments

chose to abolish the unseaworthiness cause of action only,

but chose to preserve for longshoremen the negligence

cause of action against shipowners. The maritime prohibi-

tions against assumption of risk and contributory negli-

gence defenses were also reaffirmed. The circuit court re-

versed the district court in this case because of its use of

the prohibited defenses and because the Court inappro-

priately made “findings of fact” on a motion for summary

judgment. The rule adopted by the circuit court in this

case is consistent with the several congressional goals ex-

pressed in the congressional reports, is faithful to tradi-

tional negligence concepts and is patterned on this Court’s

decision in Kermarec v. Compagnie Generale Transat-

lantique, 358 U.S. 625 (1959).

IV.

ARGUMENT

A. Background — Negligence Action Retained

The Longshoremen’s and Harbor Workers’ Compen-

sation Act (hereinafter, the Act) set up a compensation

system which insulated the employer (the Stevedore Com-

pany, 33 U.S.C. $902 (3)(4) (1976)) from liability in

exchange for compensation benefits. Since its inception,

the Act has made no attempt at insulating any other enti-

ties or parties from liability for damages. On the contrary,

it has preserved the right to sue any other negligent par-

ties. Thus, the Act is quite similar to many other compen-

sation Acts, particularly the state workmen's compensa-

tion acts. In most, if not all of these acts, the right of an

injured workman to sue a negligent third party is pre-

served, 2A A. Larson, The Law of Workmen’s Compensa-

tion $71, p.14-1 (1976). Typically, the system that has

arisen around third-party actions provides that after the

worker receives compensation through the particular com-

pensation act, he must repay the compensation program

the amount received in medical payments, time loss pay-

ments, and disability benefits from the proceeds of any

third-party recovery. The Act made the compensation

remedy exclusive against the injured worker's employer,

but preserved the worker’s right to bring a tort action

against any other liable entity. Gilmore and Black, The

Law of Admiralty, 436 (2d ed. 1975).

As this honorable Court well-knows, the case law de-

velopment of longshoremen’s third-party rights expanded

out of the pure negligence areas and into the “warranty

of seaworthiness” protection which had formerly been

afforded only to seamen. Seas Shipping Co. v. Sieracki,

328 U.S. 85 (1946). The 1972 amendments to the Act

abolished the unseaworthiness remedy recognized in Sie-

racki. The amendments eliminated any action for indem-

nity by the shipowner against the stevedore company as

recognized in Ryan Stevedoring Co. v. Pan-Atlantic S.S.

Corp., 350 U.S. 124 (1956). The amendments limited the

longshoreman’s right of action against the shipowner to

one based on negligence. 33 U.S.C. §905(b); Bloomer v.

Liberty Mutual Insurance Co., 100 S. Ct. 925 (1980);

Edmonds v. Compagnie Generale Transatlantique, 443

U.S. 256 (1979). From its inception, the 1927 Act provided

for suit against any other person or entity “liable in dam-

ages,” 33 U.S.C. §933(a). That section was not altered by

the 1972 amendments, but the scope of the longshoremen’s

right to sue a third party was restricted with reference to

the shipowner by §905(b) to injuries caused by the “neg-

ligence” of the shipowner or vessel.

33 U.S.C. §905(b) simply abolished the unseaworthi-

ness remedy, eliminated the indemnification action by the

shipowner against the stevedore and limited the longshore-

man’s action against the shipowner to one based on neg-

ligence. Bloomer; &dmonds. The history of third-party neg-

ligence actions in icngshore personal injury cases was

$0 well-established at the time of the 1972 amendments

that the language concerning the negligence of the ship

or shipowner did not create a new cause of action, but

simply preserved and retained the negligence cause of

action against the ship and shipowner as it had been

known in the case law long before the 1972 amendments.

Edmonds; Pope & Talbot, Inc. v. Hawn, 346 U.S. 406

(1953); The Max Morris, 137 U.S. 1 (1890); Johnson v.

A/S Ivarans Rederi, 613 F.2d 334 (1st Cir. 1980); Brown

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

denied, 430 U.S. 969 (1977); Leathers v. Blessing, 105

U.S. 626 (1882); Gerrity v. Kate Cann, 2 F. 241 (D.N.Y.

1880); 1A, Benedict on Admiralty §§111, 112 (6th ed.

Jhirad, 1979).

At the time of the 1972 amendments to the Act, Con-

gress was faced with a large body of case law dealing with

the rights of longshoremen vis-a-vis the shipowner as a

result of the shipowner’s negligence. A second large body

of case law existed which dealt with a longshoreman’s

rights vis-a-vis a shipowner, as a result of the unseaworthi-

ness of the shipowner’s vessel. Congress was aware of both

bodies of existing case law at the time of the amendments

to the Act. Congress understood the law as it existed at

the time of the amendments and specifically intended to

change only those rules of maritime law that it clearly ad-

dressed. Congress clearly intended to continue the rules

of maritime law that it chose not to change. Edmonds,

443 U.S. at 272, 273. The complete Senate Report perti-

nent to the issues presented in this case is attached hereto

as Appendix J.

Congress intended to “retain” and “continue” the long

familiar negligence action, but simply chose to abolish

the unseaworthiness action. The committee reports state

that “persons to whom compensation is payable under the

Act retain the right to recover damages for negligence

against the vessel, but under these amendments they can-

not bring a damage action under the judicially-enacted

doctrine of unseaworthiness.” (Emphasis added) Appen-

dix I-10.

The Senate Report states at 5:

The bill reported by the committee meets these ob-

jectives by specifically eliminating suits against ves-

sels brought for injuries to longshoremen under the

doctrine of unseaworthiness and outlawing indemni-

fication actions and “hold harmless” or eget a

agreements. It continues to allow suits against vessels

or other third parties for negligence.

(Emphasis added) Appendix I-6, The court in Johnson v.

A/S Ivarans Rederi, supra, at 613 F.2d 339, observed that

1. The House Report No. 92-1441, 92nd Cong., 2d Sess., (1972), re-

printed in 1972 U.S. Code Cong., and Admin. News 4698-4705. is

identical to the Senate Report No. 92-1125, 92d Cong., 2d Sess., pp. 8-12

in its discussion of the elimination of the unseaworthiness remedy and

the retention of the negligance action against the shipowner.

the legislative history “strongly implies that Congress be-

lieved the 1972 amendments continued rather than created

a duty on the part of the vessel to maintain a safe place

to work.”

Congress was aware of the rule that there was a “com-

plete divorcement of unseaworthiness liability from con-

cepts of negligence.” Mitchell v. Trawler Racer, 362 U.S.

.539, 550 (1960). The negligence cause of action was dis-

cussed by this Court in the case of Gutierrez v. Waterman

Steamship Corp., 373 U.S. 206, 210, reh. den., 374 USS.

858 (1963). The shipowner was found negligent in allow-

ing beans to be unloaded in defective bagging which

caused the beans to spill out of the broken bags through-

out the unloading process.

The discussions, both in the majority and dissenting

opinions, in the Gutierrez case, point up the clear distinc-

tion between concepts of unseaworthiness and those of

negligence. In the unseaworthiness action, the knowledge

of the shipowner was irrelevant. His opportunity to dis-

cover and correct the defective and dangerous condition,

was irrelevant. In the negligence action, the question was

whether the shipowner knew or should have known of the

defective condition of the bags being unloaded. In the

case at bar, the question is whether the shipowner knew

or should have known of the defective and slipping

winch, and whether the shipowner knew or should have

known of the dangers attendant upon placement of a

winch driver so high above the deck that he could not

see the loading operation.

That Congress clearly understood the distinction be-

tween negligence and unseaworthiness is demonstrated

in the committee reports:

For example, under present law, if a member of a

longshore gang spills grease on the deck of a vessel

and a longshoreman slips and falls on the grease a

few moments later, the vessel is liable to pay damages

for the resulting injuries, even though no member of

the crew was responsible for creating the unseaworthy

condition or was even aware of it.

Appendix I-8. The reports continued.

So, for example, where a longshoreman slips on an

oil spill on a vessel’s deck and is injured, the proposed

amendments to Section 5 would still permit an action

against the vessel for negligence. To recover he must

establish that: 7% the vessel put the foreign substance

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

of [sic] negligently failed to remove it; or 2) the

foreign substance had been on the deck for such a

period of time that it should have been discovered

and removed by the vessel in the exercise of reason-

able care by the vessel under the circumstances. The

vessel will not be chargeable with the negligence of

the stevedore or employees of the stevedore.

Appendix I-10.

The quotations above demonstrate that Congress knew

and appreciated the difference between negligence and

unseaworthiness and intended that the negligence action

be retained but that the unseaworthiness cause of ction

be abolished.

B. Summary Judgment Inappropriate

Santos alleged that the shipowner was negligent and

careless:

(1) In failing to provide Santos with a safe place to

work aboard the vessel M/S JALARATNA;

(2) In providing the longshoremen with a faulty and

malfunctioning winch;

(3) In failing to have the faulty winch repaired prior

to the time of the accident.

The district court held there was no material question

of fact to be decided by a jury and granted the shipowner’s

motion for summary judgment. The circuit court reversed

because the district court had decided reasonably disput-

able factual issues against Santos.

On a motion for summary judgment, all of the facts sur-

rounding the allegations of negligence must be viewed in

a light most favorable to the non-moving party, Santos. It

is only where there is no material question of fact that a

motion for summary judgment pursuant to Fed. R. Civ.

P. 56 can be granted. Poller v. Columbia Broadcasting

Systems, 368 U.S. 464, 467 (1962); United States v. Die-

bold, Inc., 369 U.S. 654, 655 (1962).

Not only are the facts viewed in a light most favorable

to the non-moving party but all reasonable inferences to

be drawn from the facts are to be so viewed. If the evi-

dence presented on the motion for summary judgment is

subject to conflicting interpretations or if reasonable men

might differ as to its significance, summary judgment is

improper. United States v. Perry, 431 F.2d 1020 (9th Cir.

1970); Cameron v. Vancouver Plywood Corp., 266 F.2d

535 (9th Cir. 1959); United States v. Dollar, 196 F.2d

551 (9th Cir. 1952). Furthermore, the question of whether

the shipowner acted as a reasonably prudent and careful

shipowner under the circumstances existing at the time of

plaintiff's injury is a jury question. The reasonable man

standard is within the special competence of the jury and,

therefore, the issues of negligence, contributory negligence

and proximate cause cannot ordinarily be determined on

a motion for summary judgment. Leaf v. United States,

588 F.2d 733 (9th Cir. 1978); Arney v. United States, 479

F.2d 653 (9th Cir. 1973); Dorton v. Darby, 373 F.2d 619

(5th Cir. 1967); Shapiro v. Glekel, 380 F. Supp. 1053

(S.D.N.Y. 1974); Hartzog v. Head Line Co., 358 F.2d 916

(N.D. Ill. 1973).

The district court granted the motion for summary judg-

ment only after resolving several disputed facts against

Santos. It is respectfully submitted that the district court

subverted the jury’s function by weighing the evidence,

by making factual “findings,” by deciding questions of

negligence, contributory negligence, and proximate cause,

—

when reasonable minds could differ. For example, the dis-

trict court made the following “findings” of fact which

were crucial to any standard of negligence:

1. The shipowner did not know the ship’s gear was

defective.”

2. The shipowner should not reasonably have been ex-

pected to know the gear was defective.”

3. Exclusive control of the gear was exercised by the

stevedores during the relevant time period.?

4, The premises were in the exclusive control of the

stevedores during the loading operations.”

5. No one from the ship’s crew was ever informed of

the winch’s condition prior to the accident?

6. The initial spillage of sacks was caused by the pallet

striking the pallet jack.?

7. Following the initial spillage, the pallet was raised

fifteen feet overhead by the winch driver and left to swing

overhead.”

8. The jumpiness of the winch was open and obvious

to the plaintiff.

9. The plaintiff's activities were so dangerous that he

cannot recover against the shipowner.‘

10. Plaintiff recognized that the circumstances were so

dangerous that he cannot recover.‘

These examples are surely findings of fact. Certainly,

reasonable minds could differ on these “facts.” In “find-

ings of fact” 1 and 2, a jury could have found, for example,

based on the depositions, that the shipowner, in fact, did

know that the gear was defective. There is uncontradicted

evidence that the winch had been malfunctioning for two

2. Appendix A, Petition for Writ of Certiorari, p. A-4, District Court’s

Memorandum and Order Granting Summary Judgment of Dismissal.

3. Id. at A-5.

4. Id. at A-5, A-6.

and one-half days prior to the day of the accident and that

during that time the representatives of the shipowner were

back and forth in the vicinity of the loading operation.

(R. Hawran Dep. 60; Botler Dep. 53). A jury could have

found that the winch had been malfunctioning for two

full days prior to the accident and that this length of time

was adequate (contrary to the district court’s “findings” )

for a reasonably prudent shipowner to discover and cor-

rect the defect. A jury could have found that, in the words

of Hawran, “the day shift was complaining [about the

winches] and they [the shipowner] just can’t seem to do

anything with them.” R. Hawran Dep. 6).°

In “findings of fact” 3 and 4, the district court found

that the premises were in the exclusive control of the

stevedores during the relevant time period. The court

found that there was no dispute on that question. There

is, in fact, a very serious dispute as to exactly what control

was within the power of the stevedores and what re-

mained in the shipowner. The defective winch belonged

to the shipowner as an integral part of the ship itself.

5. Similarly, in “finding of fact” 5, the district court “found” that the

ship’s crew was never informed of the winch’s condition prior to the acci-

dent and that the ship’s crew did not know of the winch’s condition prior

to the accident. This is a pure “finding of fact.” Such “fact finding” is

beyond the power of the district court on a motion for summary judg-

ment. In the instant case, the shipowner has come forward with no evi-

dence in affidavit form or otherwise to indicate what its state of knowledge

was prior to the Santos injury. The shipowner has come forward with no

evidence indicating what the state of repair of the winch was. The ship-

owner chose to stand mute. The district court mistakenly placed upon

Santos the onus of the shipowner’s failure to come forward with any evi-

dence. The court inappropriately viewed the facts and infereaces in a

light most favorable to the shipowner.

A fact finder could infer that the shipowner had actually been in-

formed about the winch’s condition prior to the accident (R. Hawran

Dep. 6, 17).

Neither the plaintiff, Santos, nor any of the other long-

shoremen had any authority to take it upon themselves to

repair the winch. 29 C.F.R. §1918.53(c)(2) probihits

the stevedore from adjusting or repairing the electric con-

trol circuits of the winches. Repair of the winch in any

respect was not within the province of the longshoremen

or their employer.

Paragraph 7 of the “admitted facts” portion of the pre-

trial order (J.A. 11) states that the Seattle Stevedore Com-

pany was “in control of the loading.” This fact is far from

an admission that the “control of the premises” or the

“control of the gear” was exclusively in the stevedores.

Such a “finding” is absolutely unsupported by any evi-

dence in this record. A fact finder would have the right

to find that the shipowner maintained ultimate control

over the ship and its gear, and the amount of control the

longshoremen had in conducting their operations was ex-

tremely limited. It did not extend to the repair of the

ship’s gear or the alteration of the ship’s gear in any way

that would have been necessary to correct a slipping, de-

fective ship’s winch. A jury could find that plaintiff, Santos,

had no control over the premises or gear. The evidence is

uncontradicted that Santos was a “hold” man who worked

at the bottom of the hierarchy of command or control of

the ship in the loading operation. The “relevant time pe-

riod” determination was a jury question.

In “finding of fact” 6, the. district court “found” that the

initial spillage was caused by the pallet striking the pallet

jack, when the evidence is uncontradicted that the initial

problem was caused by the winch failing to stop the load

even though it was in an “off” position (R. Hawran Dep.

12, 13); Botler Dep. 9, 10). The district court’s “finding”

implies strongly that there was either nothing wrong with

the winch or that the cause of the initial spillage was neg-

ligence of the winch driver when there was evidence that

the spillage was caused by the defective brakes on the

winch. The weighing of evidence on the question of cause

was a jury function.

In “finding of fact” 7, the district court “found” that the

partially spilled pallet was raised fifteen feet overhead by

the winch driver and left to “swing” overhead. There is a

significant dispute in the evidence concerning the exact

amount of movement, if any, the pallet underwent immedi-

ately prior to the accident.®

In “findings of fact” 8, 9, and 10, the district court

“found” the load’s position as “dangerous.” The amount

6. The persons in the best position to see the load testified there was

little, if any, movement (R. Hawran Dep. 42; Botler Dep. 39). The

amount of swinging is significant because Santos claimed that the re-

maining sacks of wheat did not loosen because the pallet swung back

and forth, but because the winch continued to be defective in its braking

mechanism and allowed the pallet to creep down, requiring the winch

driver to keep moving the pallet back up to its desired height and thus

causing additional sacks to work loose. It is also most important because

the evidence concerning the personal knowledge of Santos as to exactly

what danger he faced, is subject to inference. Thus, it is arguable that

the only knowledge that Santos had concerning the malfunctioning

winch prior to his accident and his only knowledge concerning “danger”

was limited to some appreciation that the winch driver was having

trouble landing the loads because of jerkiness of the winch, but that his

knowledge did not include the fact that the brakes on the winch were

not holding the loads. It is further inferable that his appreciation of the

danger he faced was simply that of the danger of a longshoreman in

working in areas in which loads were coming in from above, a situation

hardly unusual for a “hold” man who worked under loads constantly.

The crucial finding of danger is necessarily dependent upon a weighing

of the testimony and a drawing of inferences. These were all jury ques-

tions. Santos had no appreciation that the load was slipping as he worked

to clean up the spill nor did he know that the brakes were not holding

on the winches.

of danger is a crucial “finding.” It should have been left

to the jury.” There is considerable conflict between what

the district court “found” to be obvious facts and what

the persons on the scene felt to be the case. The hatch

tender believed that the method of operation which he

adopted was the proper one under all the circumstances

existing at the time and immediately prior to the accident.

He did not discuss this with Mr. Santos, he merely went

forward in the same way that was generally accepted

procedure. Whether Santos acted prudently under the

circumstances existing in the hold of the vessel just before

his accident, considering his position in the hierarchy of

command, was a question of fact for the jury. In the case

of Van Horn v. Gulf Atlantic Towing Corporation, 388

F.2d 636, 639, (4th Cir. 1968), the court said at 639:

7. The hatch tender testified concerning the danger as he saw it

(R. Botler Dep. 47, line 7):

Q. How did this pallet load look after it was raised back up? Can

you describe how the sacks appeared on the pallet then?

A. The ones that were on there looked like they were going to stay

where they were unless somebody took them off.

Botler continued to testify at page 52:

Q. Okay, thank you. Is there some reason it was less dangerous to Mr.

Santos in the hold being suspended up ten or twelve feet?

A. It didn’t seem like it was dangerous to me at all.

Q. Even though half had spilled and it wasn’t square and balanced,

right. The tie rope had come off. It just didn’t seem dangerous to

youP

A. After I picked the load, like I said, I surveyed it and we looked at

it and everything seemed fine, so we held it there.

The question of the amount of danger existing as the load was held

twelve to fifteen feet above Santos, and his fellow workmen, is crucial

to any resolution of the case. It is a factual question for the jury. The

winch driver testified at page 55 of his deposition, in response to a ques-

tion as to whether it was dangerous to work under the suspended load,

as follows:

I wouldn't say that, I won’t say it is unsafe for the men to be picking

up the sacks when I was picking the load up, keeping the load

visually where I could see fifteen feet, roughly, above their heads.

Additional testimony concerning the amount of danger and the perception

of the workmen is contained at R. Hawran Dep. 56; R. Botler Dep. 14,

37 and 50.

Whether due care under all the circumstances was

observed by the present shipowner at the relevant

times and to what proportionate extent, if any, Van

Horn was at fault are clearly questions for jury de-

termination after a full trial. See Pope & Talbot v.

Hawn, 346 U.S. 406, 74 S. Ct. 202, 98 L.Ed. 143

(1953). As the noted admiralty text authors, Gilmore

and Black, observe regarding negligence under the

Jones Act [i]t would be a rare court in an unusual

case which would take the negligence issue away

from the jury. . . .” Gilmore and Black, The Law of

Admiralty, 311 (1957). The same principle should

be applicable under the general maritime concept of

negligence. As a result, we hold that the lower court

erred in taking this case from the jury and deciding

as a matter of law that Gatco was not negligent.

We therefore remand the case for trial’on the negli-

— and contributory negligence issues, while af-

rming the district court’s action on the unseaworthi-

ness claim.

Santos testified that he believed it was his duty to clean

up the spill and once he set upon cleaning it up he was

in no position to watch the load over his head (R. Santos

Dep. 41, 42, 43, 50). At page 60 of his deposition, Santos

testified that the only problem he knew about with the

gear was that it was “jumpy.” It was only later, and after

the accident, that he found out from the winch driver

that the brake on the winch was slipping and would not

hold the load (R. Santos Dep. 62).

A jury should have been allowed to find precisely what

Santos knew about his situation in the hold as he was

cleaning up the sacks of flour and precisely what appre-

ciation he had of the amount of danger that confronted

him. Whether Santos had a reasonable alternative to his

clean-up activities was a jury question. A jury should have

been permitted to find whether the jumpiness of the winch

had any part to play in this accident. A jury should have

been permitted to find whether the defective brakes which

allowed the winch to slip when in the stop position had

any part to play in his accident.®

The district court found that the “alleged defective con-

dition of the winch had only a remote cause-in-fact rela-

tionship to the accident and could not have been the

proximate cause of the accident.”

Typically, the questions of negligence, contributory

negligence, and proximate cause are jury questions, The

“finding” of lack of proximate cause by the district court

is surprising when one examines portions of the testimony

which indicate that the load, as it was held, appeared to

be stable, but it was only the brake failing to hold that

caused the load to loosen and slip and fall upon the

plaintiff. A winch with proper brakes would not have

allowed the load to slip. (R. Hawran Dep. 12, 13, 16,

17). The district court’s “finding” on proximate cause

seemed to be based on the court’s feeling that the steve-

dores’ negligence intervened and cut off any negligence

of the shipowner.

The Fifth Circuit was faced with the same type of

proximate cause argument in In the Matter of the Com-

plaint of Dearborn Marine Service, Inc., et al., For Exon-

eration From or Limitation of Liability of the Oil Screw

Carryback, 499 F.2d 263, 279 (5th Cir. 1974), pet. for

rehearing den., 512 F.2d 1061. The court said at 279:

We also reject Dearborn’s contention that Carry-

back, by being mcored too close to the platform,

merely created a condition on which intervening neg-

8. The evidence was clear that it was the slipping of the brake on the

winch that caused the sacks to fall on the plaintiff, not the jumpiness of

the winch. The jumpiness of the winch was significant only in the hatch

tender’s decision as to whether the load would be taken out to the dock

and then returned to the hold after the mess had been cleaned up. A

jury could find that the jumpiness of the winch was not the proximate

cause of Santos’ injury. A jury could find that under the circumstances

existing in the hold of the ship, Santos was not in any degree responsible

for his own accident. These and other questions which could be hypothe-

sized are classical (fact) jury questions.

9. Appendix A, Petition for Writ of Certiorari, p. A-6, District Court’s

Memorandum and Order Granting Summary Judgment of Dismissal.

ligence forces of others acted and was not itself a

proximate cause of the deaths in issue. This theory

of proximate causation, now almost universally re-

jected, in admiralty as elsewhere, is an argument

“srowl[ing] out of the discredited notion that only

the last wrongful act can be a cause—a notion as

faulty in logic as it is wanting in fairness.” In re Kins-

man Transit Co., 338 F.2d 708, 719 (CA 2 1964),

cert. den. sub nom. Continental Grain Co. v. City

of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L. Ed. 2d

963 (1965). The correct rule is that actionable

negligence may consist of failure to take precautions

against forseeable acts of third persons, and this rule

applies though the conduct of the third person is itself

negligent. Restatement 2d, Torts §§ 302, 302A; Trans-

continental Gas Pipe Line Corp. v. Mobil Drilling

Barge, 424 F.2d 684, 689 (CA 5), cert. den. sub nom.

Ocean Drilling & Exp. Co. v. Signal Oil and Gas Co.,

400 U.S. 832, 91 S.Ct. 65, 27 L.Ed.2d 64 (1970);

Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d

1131 (CA 5., 1970), cert. denied, 400 U.S. 993, 91

S. Ct. 461, 27 L.Ed.2d 441 (1971); Harper & James,

Law of Torts §20.05, at 1144 n. 34 (1956). See also

Restatement 2d, Torts §449.

The conclusion that Dearborn was negligent must

be affirmed.

Proximate cause is not destroyed merely because plain-

tiff may also have contributed to his own injury. Spinks

v. Chevron Oil Co., 507 F.2d 216, 221 (5th Cir. 1975).

If Santos were found by a jury to have been guilty of

some negligence, a jury could also have found that the

failure of the shipowner to take precautions (by repairing;

the winch) against foreseeable acts of third persons was

negligence. Santos’ only real alternative to doing his job

as he did, assuming he had enough knowledge to make

such a decision, may have been refusal to continue, with

all of its repercussions. Napoli v. Hellenic Lines, Ltd., 536

F.2d 505, 509 (2d Cir. 1976); Davis v. Inca Comp. Na-

viera, 440 F. Supp. 448, 452 (W.D. Wash. 1977). Thus,

how much negligence, if any, was Santos’ responsibility

should have been submitted to the jury.

22,

C. The 1972 Amendments to the Longshoremen’s and

Harbor Workers Compensation Act Have Not

Substituted Assumption of Risk and Contributory

Negligence Principles for Comparative Negligence

Principles

The district court found that “the manner in which the

accident occurred, the fact that plaintiff's activities were

so dangerous and the fact that plaintiff undertook his

actions free from any direction by the defendant while

recognizing that the circumstances were so dangerous, is

such that the defendant cannot be held liable as a matter

of law.”

Thus, the essential and overwhelming thrust of the

Memorandum and Order Granting Summary Judgment

was that Santos was fully aware of the specific risk in-

volved in working as he was working at the time of his

injury, and that he voluntarily accepted that risk. The

words “assumption of the risk” were never used in the

district court’s decision, but, it is submitted, that there

can be no doubt, the court held as a matter of law, that

Santos assumed the risk of his own injury. The court

seemed to say that the changes in the Act necessitated

this result. The appellate court held that the district court

was in error in invoking §343 and §343A of the Restate-

ment (Second) of Torts to the extent that they placed

limitations on the shipowner’s liability inconsistent with

Congress’ explicit direction to reject the defenses of con-

tributory negligence and assumption of risk.

Clearly, the amendments did not change the maritime

rules concerning assumption of risk and comparative negli-

gence." The shipowner, in essence, has argued that Santos

may not recover as a matter of law because the faulty

10. Id. at A-5, A-6.

11. Robertson, Negligence Actions by Longshoremen Against Ship-

owners Under the 1972 Amendments to the Longshoremen’s and Har-

bor Workers’ Compensation Act, 7 Journal of Maritime Law and Com-

merce 447, 474 (1976).

condition of the winch was at all times known to him,

that it was open and obvious, and that he voluntarily sub-

jected himself to the risk of injury. The district court

essentially adopted that view. The statutory section in-

volved, 33 U.S.C. §905(b), clearly provides that an injury

caused by the negligence of a vessel gives rise to a cause

of action against the vessel. There is no mention in the

amendments of any change which would substitute as-

sumption of the risk principles for the former comparative

negligence principles. The law on this subject remains the

same as stated by this Court in Socony-Vacuum Oil Co. v.

Smith, 305 U.S. 424, 431 (1939).

It has been the law for decades that in a trial of a case

of maritime tort on navigable waters, the maritime rule

of comparative negligence rather than the common law

rule of contributory negligence will prevail. Pope & Talbot,

Inc., v. Hawn, 346 U.S. 406, 409 (1954); Garrett v. Moore-

McCormack Co., 317 U.S. 239, 243 (1949); The Max

Morris, 137 U.S. 1, 14 (1890).

To eliminate any doubt that Congress intended no

change in the application of assumption of risk and com-

parative negligence, the committee reports state:

Finally, the Committee does not intend that the negli-

gence remedy authorized in the bill shall be applied

differently at different ports depending on the law

of the state in which the port may be located. The

Committee intends the legal questions which may

arise in actions brought sale ese provisions of the

law shall be determined as a matter of federal law.

In that connection, the Committee intends that the

admiralty concept of comparative negligence, rather

than the common law rule as to contributory negli-

gence, shall apply in cases where the injured em-

ployee’s own negligence may have contributed to

causing the injury. Also, the Committee intends that

the admiralty rule which precludes the defense of

“assumption of risk” in an action by an injured em-

ployee shall also be applicable.

(Emphasis added ). Appendix A-12.

The district court erred because it incorporated the

substance of the defenses of contributory negligence and

assumption of risk as contained in §§343 and 343A. The

sections and comments are permeated with the forbidden

concepts.” Thus, comment e. to §343 states:

In the ordinary case, an invitee who enters land is

entitled to nothing more than knowledge of the con-

ditions and dangers he will encounter if he comes.

If he knows the actual conditions, and the activities

carried on, and the dangers involved in either, he is

free to make an intelligent choice as to whether the

advantage to be gained is sufficient to justify him in

incurring the risk by entering or remaining on the

land. The possessor of the land may reasonably as-

sume that he will protect himself by the exercise of

ordinary care, or that he will voluntarily assume the

risk of harm if he does not succeed in doing so.

Reasonable care on the part of the possessor therefore

does not ordinarily require precautions or even warn-

ing, against dangers which are known to the visitor,

or so obvious to him that he may be expected to dis-

cover them.

(Emphasis added) See also, §343 comments b, d and

§343A comment d (Appendix II).

Most courts that adopted §§343 and 343A did not refer

to the conflict between the sections and the congressional

mandate to exclude defenses of assumption of risk and

contributory negligence. Clemons v. Mitsui O.S.K. Lines,

Ltd., 596 F.2d 746 (7th Cir. 1979); Anuszewski v. Dy-

namic Mariners, 540 F.2d 757 (4th Cir. 1976); Croshaw

v. Koninklijke Ned Lloyd, B.V. Rijswijk, 398 F. Supp. 1224

(D. Ore. 1975); Ramirez v. Toko Kaium K.K., 385 F.

Supp. 644 (N.D. Cal. 1974),

12. The sections and comments are attached hereto as Appendix II.

Other courts sought to reconcile §§343 and 343A with

the congressional mandate by using cautionary language to

assure that they were aware of the conflict, Napoli, supra

at 536 F.2d 508 (2d Cir. 1976); Gay v. Ocean Transport

and Trading Ltd., 546 F.2d 1233, 1241 (5th Cir. 1977).

In Napoli, supra, the appellate court reversed a jury

verdict in favor of the defendant, shipowner, and re-

manded for a new trial. The court criticized the jury

instructions at 536 F.2d 508:

Moreover, we do not think that instructions which

flatly negate the duty to protect against obvious

danger properly portray the present-day obligations

owed by 2 landowner to one whom he invites upon

his premises. . . .

Where dangers are unreasonable, their obviousness,

standing alone, should not necessarily relieve a de-

fendant of all responsibility for their presence. Al-

though the invitee (or in this case the employee ) may

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

from open and obvious dangers, he may not be in a

position fully to appreciate the risk or to avoid the

danger even though aware of it. . . .

Moreover, the traditional rule, while generally

phrased in terms of negligence, is really a com-

— of the doctrines of negligence, contributory

negligence and assumption of risk. Where, as in this

case, the doctrine of comparative negligence is ob-

served and assumption of risk is not a defense, the

arguments in support of the rule lose much of their

cogency.

(Emphasis added )

In the instant case, the jury could find that Santos was

not aware of the precise danger which injured him, that

the vessel owner might reasonably anticipate that Santos

would do his job despite any obvious danger (if the fact-

finder found it obvious) since his only alternative would

be to leave his job or face trouble for delaying the work,

that any negligence of Santos was only a concurring cause

with the shipowner’s negligence and therefore compar-

ative negligence could apply.

Thus, began the attempts by the courts to apply prem-

ises liability approaches to a longshoreman’s negligence

action against a shipowner and, at the same time, to steer

clear of assumption of risk and contributory negligence

defenses. The courts have been unsuccessful in their at-

tempt. Comments, “Section 905(b) and A Standard of

Negligence: Cosmos or Chaos,?” 4 The Mar. Law. 305

(1979), points out the confusion, chaos and irreconcil-

ability of the cases which rely too heavily on §§343 and

343A, and advocates the adoption of the Santos standard

in all other jurisdictions. The cases from the Second Cir-

cuit since Napoli demonstrate the confusion and irrecon-

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

(2d Cir. 1978), cert. denied, 439 U.S. 929 (1978): Lur-

brano v. Royal Netherlands, 572 F.2d 364 (2d Cir. 1978);

Cox v. Flota Mercante Grancolombiana, S.A., 577 F.2d

798 (2d Cir. 1978), cert. denied, 439 U.S. 881 (1978):

Lopez v. A/S D/S Svendborg, 581 F.2d 319 (2d Cir.

1978). In Lop :, the court said at 326: “This case also

will fall within what seems to be rapidly becoming an

overly complex and unpredictable body of law.”

The Seventh Circuit steers an uncertain and irrecon-

cilable course in the cases of Matthews v. Ernest Russ

S.S. Co., 603 F.2d 676 (7th Cir. 1979) and Clemons v.

Mitsui O.S.K. Lines Ltd., 596 F.2d 746 (7th Cir. 1979).

The Fourth Circuit cases of Anuszewski v. Dynamic

Mariners Corp., 540 F.2d 757 (4th Cir. 1976) and Chavis

v. Finnlines Ltd., 576 F.2d 1072 (4th Cir. 1978) point

up the same irreconcilable conflict between barring a long-

shoreman from recovery because he exposed himself to

an open and obvious danger, on one hand, and allowing

the jury to be instructed that a shipowner owed the long-

shoreman the duty to exercise ordinary care under the

circumstances to keep the premises in a reasonably safe

condition for longshoremen working aboard, on the other.

The conflict is created by applying premises liability prin-

ciples to negligence actions while at the same time at-

tempting to keep assumption of risk and contributory

negligence from barring recovery.

The court in Gay, supra, expressed the same concern

concerning assumption of risk and contributory negligence

as follows at 546 F.2d 1241:

The more telling criticism of the traditional rule,

however, is that it is premised in large part upon the

concepts of contributory negligence and assumption

of risk. As previously recounted both these concepts

_ are inappropriate in §905 (b) cases. It would be wholly

improper then indirectly to introduce these principles

into LHWCA suits by adopting the traditional rule

that if a hazard is open and obvious that fact alone

absolves the owner of his negligence.

(Emhasis added )

The Fifth Circuit made it clear in Gay, above, that it

would not allow “assumption of risk” or “contributory

negligence” defenses to enter into longshore personal in-

jury cases under the guise of “open and obvious” danger

obviating any duty on the part of the shipowner.

It is submitted that the district court applied assump-

tion of risk to the Santos cause of action in its judgment

of dismissal on the motion for summary judgment. The

judgment, therefore, was in error. A reasonable fact-

finder could conclude that a man in the position of the

plaintiff, Lauro De Los Santos, had no realistic or reason-

able way of protecting himself against the dangerous,

malfunctioning winch. He was merely doing the job he

felt was expected of him at the time of his accident.

Santos was at the bottom of the chain of work command

and had no power to alter the work methods. He had no

authority to repair the malfunctioning winch. There was

no evidence that Santos had the power or ability to devise

a better or safer method of doing the work. Thus, whether

Lauro De Los Santos acted reasonably under the circum-

stances was a question of fact for the jury under proper

instruction. Indeed, 29 C.F.R. §1918.53(c)(2) denies the

longshore crew the right to “tamper with or adjust electric

control circuits” of electric winches. The shipowner cer-

tainly maintained control over the repair of the winches

in this case. The observation of the circuit court is thus

well-taken that “[f]rom the record before us, it is not at

all clear that the shipowner did not maintain ultimate

control over the ship and its gear during the loading. Far

from concluding that only the stevedore could have had

the defective winch repaired, we cannot be certain from

the record that the stevedore had any authority to repair

it.” Santos, 598 F.2d at 490.

The contrast between the decisions of Judge Orrick in

the cases of Ramirez v. Toko Kaium K.K., 385 F. Supp. 644

(N.D. Cal. 1974), and Gallardo v. Westfal-Larsen & Co.

A/S., 435 F. Supp. 484 (N.D. Cal. 1977) is also instruc-

tive. The court discussed the use of §§343 and 343A in

Gallardo, supra, at page 494:

No matter whether courts use Sections 343 and

343A alone or together, the references to rules of real

property tort law conflict with the intent of Congress

expressed in the House Report. For example, the

Restatement sections force courts to define a ship-

owner's standard of care under the amendments in

terms of the plaintiff's perceptions of the danger

posed by a given condition. The sections thus tend

to foreclose a balanced inquiry into the reasonable-

ness of a vessel's conduct under the circumstances

of a particular case and tend to limit the liability of

shipowners for their proven negligence. See, e.g.,

Anuszewski v. Dynamic Mariners Corp., Panama, 391

F. Supp. 1143, 1145 (D. Md. 1975). The amend-

ments, of course, permit limitations upon a plaintiff's

recovery based upon the admiralty doctrine of com-

parative negligence. However, the amendments spe-

cifically reject any bar to recovery based upon con-

tributory negligence and assumption of risk. Yet, the

authors of the Restatement clearly indicate that the

contributory negligence of the plaintiff and assump-

tion of risk have a direct bearing upon liability under

Sections 343 and 343A. Restatement (Second) of Torts

§343, comment d; id. §343A, comment d. The authors

also state that whether or not courts conceive of a

plaintiffs perceptions of a hazardous condition as

relieving a defendant of proven liability or of pre-

venting a finding of liability altogether, the effect of

either analysis is the same. Id. §496C, comment d.

Defendants receive the benefit of a partial or absolute

bar to liability having the characteristics of a defense

based upon an implied assumption of risk.

The development of a body of precedent which

focuses upon the perceptions of the plaintiff has more

than theoretical importance. Reported cases already

contain examples of plaintiffs who were not permitted

to compare their personal negligence against the neg-

ligence of their opponents. See Anuszewski v. Dy-

namic Mariners Corp. Panama, supra, 391 F. Supp.

at 1145; Frasca v. Prudential-Grace Lines, Inc., supra,

394 F. Supp. at 1101-02. Furthermore, the “shield”

afforded by the Restatement sections reduces incen-

tives to remedy dangerous conditions and thus con-

flicts with the Congressional intent to promote safety

in the longshoring industry. House Report, reprinted

in 3 U.S. Cong. & Adm. News, supra, at 4705. Lastly,

a search for an appropriate standard of care for ship-

owners under the amendments among tort concepts

which emerged from a common law classification

system of diminishing importance makes little prac-

tical sense. The Supreme Court has discussed absorp-

tion of common law precedent concerning the duties

of real property owners toward persons on their land

into the law of admiralty and has flatly condemned

the effort. See Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625 (1959).

(Emphasis added )

With reference to the question of control, the court

stated at page 495:

However, analysis based upon retention or relinquish-

ment of control poses a potential for abuse by courts

which view the commencement of cargo operations as

extinguishing the liability of vessels for injuries subse-

quently sustained by longshoremen. See, e.g., Frasca

v. Prudential-Grace Lines, Inc., supra, 394 F. Supp.

at 1101-02 (duration of stevedore’s control absolved

shipowner of negligence in providing an unsafe place

to work). Furthermore, reliance on rules respecting

the duties of contractors and subcontractors has the

potential of introducing complex common law con-

cepts into admiralty law and thus invoking the same

criticisms raised above in the discussion of invitees

on real property. Federal courts should, therefore,

avoid reference to principles of control as a substitute

for a thorough investigation of the reasonableness of

conduct under given circumstances. See generally

The Injured Longshoreman, supra, 28 Hastings L.J.

at 788-90.

(Emphasis added )

The logical result of the lack of the “balanced inquiry

into the reasonableness of a vessel's conduct under the

circumstances of a particular case” which Judge Orrick

warned about above, is seen demonstrably in the case of

Wiles v. Delta Steamship Lines, 1976 A.M.C., 2646 (E.D.

La., 1976). In that case, the trial court, sitting as the

finder of the fact, found that approximately three weeks

prior to the injury, a rung of the ladder had been knocked

off during cargo operations in Africa. Both the ship’s

captain and the chief mate were aware of the incident

and that the rung was missing. Repairs for the ladder

were scheduled. No warning of the missing rung on the

hatch ladder was given to the injured longshoreman and

he was unaware of the condition of the ladder. As he

climbed down the ladder, he lost his grip at the missing

rung and fell to the bottom of the hold sustaining injuries.

The court applied the following rule at 1976 A.M.C. 2649.

Under the 1972 amendments to the Longshoremen’s

and Harbor Workers Compensation Act (LHWCA),

this action is governed by the same law of negligence

as applies to the relationship between an owner of

land and an independent contractor/ business invitee.

See 33 U.S. Code, sec. 905(b); 1972 U.S. Code &

Admin. News, pp. 4703-04; Fedison v. Vessel Wislica,

1974 AMC 1967, 382 F. Supp. 4, 6-7 (E.D. La., 1974).

The pertinent principles have been summarized as

follows:

The owner of a premise [vessel] who contracts with

an independent contractor (business invitee) to

perform services for the owner upon the owner’s

premises owes a duty to the independent contractor

and his employees to exercise reasonable care to

have the premise in a reasonably safe condition for

use by the independent contractor and to give said

contractor warning of any concealed or latent de-

fects that are known by the owner and not by the

independent contractor. The owner of a premise

is under no duty to warn the independent contrac-

tor or his employees of dangers or open and obvious

defects which are known to the independent con-

tractor or his employees or which could be readily

observed by said employees in the exercise of ordi-

nary care.

See Hite v. Maritime Overseas Co., 1974 AMC 1274,

1279, 380 F. Supp. 222, 296 (E.D. Tex., 1974) and

cases cited therein. See also Cummings v. “Sidarma”

Soc., 409 F. Supp. 869, 871-72 (E.D. La., 1976);

Fitzgerald v. Compania Naviera La Molinera, 1976

AMC 739, 394 F. Supp. 413, 415 (E.D. La., 1975).

The trial court found that from an area across the main

deck looking toward the ladder, the missing tenth rung

would have been clearly visible to the longshoremen, and,

therefore, “the defendant owed no duty to notify plaintiff

of a defective ladder that readily could have been ob-

served in the exercise of reasonable care.” 1976 A.M.C., at

2653. The court, therefore, barred the plaintiff from re-

covery even though the shipowner was manifestly negli-

gent.

The Fifth Circuit reversed at 574 F.2d 1338 (5th Cir.

1978) in a per curiam decision which cited Gay, supra.

The court pointed to §343A, the admiralty rule of com-

parative negligence, and the primary question of whether

the vessel owner was negligent. Although the court did

not refer to the antithesis between the restatement sections

and the prohibition against use of assumption of risk and

contributory negligence, the court strongly advocates the

more balanced inquiry advocated in Gallardo, supra. The

lack of discussion does nothing to reconcile the use of

§§343 and 343A with congressional prohibitions against

assumption of risk and contributory negligence.

Finally, other courts have held that the inclusion of

§§343 and 343A in a longshoreman’s negligence action

against a shipowner embodied the forbidden concepts of

assumption of risk and contributory negligence and, there-

fore, were inapropriate. Johnson v. A/S Ivarans Rederi,

613 F.2d 334, 347 (Ist Cir. 1980); Griffith v. Wheeling-

Pittsburgh Steel Corp., 610 F.2d 116, 125 (3d Cir. 1979);

Santos, 598 F.2d at 490; Brown v. Ivarans Rederi A/S,

545 F.2d 854, 863 (3d Cir. 1976); Shepler v. Weyerhaeu-

ser Company, 279 Or. 477, 569 P.2d 1040, 1050 (Or. 1977),

cert. denied, 434 U.S. 1051.

Thus, the courts that have most recently examined the

developing case law have concluded that any incorpora-

tion of the substance of the defenses of contributory ne-

gligence and assumption of the risk through §§343 and

343A of the Restatement is error. Further, that the cited

sections are so permeated with assumption of risk and

contributory negligence concepts that the proper approach

to a trial of a case such as the one at bar is to apply the

test stated in this case at 485:

A vessel is subject to liability for injuries to long-

shoremen working on or near the vessel caused by

conditions on the vessel if, but only if, the shipowner

(a) Knows of, or by the exercise of reasonable care

would discover, the condition, and should real-

ize that it involves an unreasonable risk of harm

to such longshoremen, and

(b) The shpowner fails to exercise reasonable care

under the circumstances to protect the long-

shoreman against the danger.

Griffith, supra; Johnson, supra.” The test adopted by these

courts is supported by, and patterned after, this Court’s

decision in Kermarec, supra, wherein this Court said at

630:

It is a settled principle of maritime law that a ship-

owner owes the duty of exercising reasonable care

towards those lawfully aboard the vessel who are not

members of the crew... .

The distinctions which the common law draws be-

tween licensee and invitee were inherited from a cul-

tured deeply rooted to the land, a culture which

traced many of its standards to a heritage of feuda-

lism. In an effort to do justice in an industrialized

urban society, with its complex economic and individ-

ual relationships, modern common-law courts have

found it necessary to formulate increasingly subtle

verbal refinements, to create subclassifications among

traditional common-law categories, and to delineate

fine graduations in the standards of care which the

landowner owes to each. Yet even within a single

jurisdiction, the classifications and subclassifications

red by the common law have produced confusion

and conflict. As new distinctions have been spawned,

older ones have become obscured. Through this se-

mantic morass the common law has moved, unevenly

and with hesitation towards “imposing on owners

and occupiers a single duty of reasonable care in all

the circumstances.”

For the admiralty law at this late date to import

such conceptual distinctions would be foreign to its

13. The standard is in accord with traditional negligence concepts. W.

Prosser, Handbook of the Law of Torts, §§32 p.151 (4th ed. 1971);

Fleming, The Law of Torts, 111 (3rd ed. 1965). The standard is con-

sistent with congressional intent expressed in the oil spill example that

a shipowner should exert “reasonable care . . . under the circumstances”

Appendix A-10; Shepler v. Weyerhaeuser, supra, at 569 P.2d 1047.

traditions of ~~ and practicality... . We hold

that the owner of a ship in navigable waters owes to

all who are on board for purposes not inimical to his

legitimate interests the duty of exercising reasonable

care under the circumstances of each case.

(Emphasis added) Accord, Federal Marine Terminals

Inc. v. Burnside Shipping Co., 394 U.S. 404, 416 (1969)

It would be anomalous, indeed, if the maritime law, after

generations of rejecting assumption of risk principles,

would suddenly adopt such a doctrine at precisely the

same time the common law of premises liability is evolv-

ing toward the elimination of the doctrine through the

elimination of status designations. The modern trend of

premises Jjability is toward the view that a landowner

owes reasonable care to anyone lawfully on his premises.

Rowland v. Christian, 69 Cal.2d 108, 70 Cal. Rptr. 97,

443 P.2d 561 (1968); Annot., 32 A.L.R. 3d 508 (1970),

“Modern Status of Rules Conditioning Landowner’s Lia-

bility Upon Status of Injured Party as Invitee, Licensee,

or Trespasser’; Webb v. City and Borough of Sitka, 561

P.2d 731 (Alas. 1977); Cates v. Beauregard Electric Co-

operative, Inc., 328 So. 2d 367 (La. 1976), cert. denied,

429 U.S. 833 (1976); O'Leary v. Coenen, 251 N.W.2d 746

(N.D. 1977); Mounsey v. Ellard, 363 Mass. 693, 297 N.E.

2d 43 (Mass. 1973).

D. Negligence-Concurrent Negligence-Comparative Neg-

ligence

The negligence, if any, a jury might find, of a fellow

servant of Santos, should not be a bar to recovery. Ed-

monds, supra, 443 U.S. 265, 266; International Stevedor-

ing Co. v. Haverty, 272 U.S. 50, 47 S. Ct. 19 (1926); Grif-

fith, supra, 610 F.2d 124; Santos at 598 F.2d 489, 490.

In the case at bar, the jury could find that the shipowner

was negligent in allowing the winch to remain faulty for

almost three full work days, but could also find that the

winch driver and/or hatch tender and/or Santos and/or

his employer were somewhat negligent also. It is a factual

question whether the negligence of Santos, Santo’s em-

ployer, Santos’ fellow workmen or the shipowner solely or

concurrently caused the injuries. The shipowner cannot

avoid liability by pointing to the fact that there was a

concurrent duty upon the plaintiffs employer to refrain

from negligent actions. Lopez v. A/S D/S Svendborg, 581

F.2d 319, 324 (2d Cir. 1978); Landon v. Lief Hoegh and

Co., 521 F.2d 756, 763 (2d Cir. 1975). An injured long-

shoreman cannot be vicariously responsible or negligent

because of the negligence of the stevedore employer or

a fellow workman. Marant v. Farrell Lines, 550 F.2d 142,

151 (3d Cir. 1977); Griffith supra, at 610 F.2d 124."

This Court has recently spoken on the question of con-

current negligence in the Edmonds case, supra, at 443

U.S. 259:

As that law had evolved by 1972, a longshoreman’s

award in a suit against a negligent shipowner would

be reduced by that portion of the damages assignable

to the longshoreman’s own negligence; but, as a mat-

ter of maritime tort law, the shipowner would be re-

sponsible to the longshoreman in full for the remain-

der, even if the stevedore’s negligence contributed to

the injuries. This latter rule is in accord with the com-

mon law, which allows an injured party to sue a tort-

feasor for the full amount of damages for an indivis-

ible injury that the tortfeasor’s negligence was a sub-

stantial factor in causing, even if the concurrent neg-

ligence of others contributed to the incident.

The clear message from the case and the authorities

14. The court in Griffith said at 124:

“The proposed rule thus imputes to the non-negligent longshore-

man the negligence of his stevedore employer, and establishes 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 Edmonds v. Compagnie Generale Trans-

atlantique, supra. It is inconceivable to us that the Court, which dis-

approved a rule that imputes the negligence of the stevedore to the

longshoreman to reduce his recovery against a negligent shipowner,

would approve a rule baring al! recovery against a negligent ship-

owner on the basis of imputed employer negligence.”

cited is that where there is evidence of negligence of sev-

eral parties, one of whom is the shipowner, the longshore-

man has the right of recovery against the shipowner, with

a reduction in his award for the proportion of his own

personal, contributory negligence only. The longshoreman

does not have to show the shipowner solely responsible in

order to recover on a negligence cause of action. It is

axiomatic, there can be more than one proximate cause of

an injury.” The circuit court herein observed at 598 F.2d

489:

Thus, the contributory negligence of the longshore-

man's employer or fellow longshoreman will not pre-

clude or diminish recovery through a theory of im-

puted contributory negligence. It is the longshore-

man's own negligence that will reduce his recovery

from the negligent vessel.

E. Safe Place To Work — Dangerous Conditions

The legislative reports refer to the duties of the ship-

owner:

Permitting actions against the vessel based on neg-

ligence will meet the objective of encouraging safety

because the vessel will still be required to exercise the

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

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

derogate from the vessel’s responsibility to take ap-

propriate corrective action where it knows or should

have known about a dangerous condition.

So, for example, where a longshoreman slips on a

vessel's deck and is injured, the proposed amendments

to Section 5 would still permit an action against the

vessel for negligence. To recover he must establish

that: 1) the vessel put the foreign substance on the

15. 3 E. Devitt and C. Blackmar, Federal Jury Practice and Instruc-

tions, $89.19, p. 29 (3rd Ed. 1977); 6 Washington Practice, Washington

Pattern Jury Instructions, Civil, (1967), W.P.I. 15.01; 57 Am. Jur. 2d

§176 p. 542 (2d ed. 1971); Spinks v. Chevron Oil Co., 507 F.2d 216

(5th Cir. 1975); Bender v. Dingworth, 425 F.2d 378 (5th Cir. 1970);

Miller Adm. v. Union Pacific R. Co., 290 U.S. 227 (1933); W. Prosser,

Handbook of the Law of Torts 239 (4th ed. 1971).

deck, or knew that it was there, and willfully or neg-

ligently failed to remove it; or 2) the foreign substance

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

should have been discovered and removed by the

vessel in the exercise of reasonable care by the vessel

under the circumstances. The vessel will not be charge-

able with the negligence of the stevedore or em-

ployees of the stevedore.

(Emphasis added). Appendix I-10. Santos contended that

the shipowner was negligent for failing to furnish him with

a safe place to work. Cases which recognize that a shipown-

er is required to exercise reasonable care under the cir-

cumstances to furnish the longshoreman with a safe place

to work are: Migut v. Hyman-Michaels Co., 571 F.2d 352,

356 (6th Cir. 1978); Hess v. Upper Mississippi Towing

Corp., 559 F.2d 1030, 1033 (5th Cir. 1977); Napoli v. Hel.

lenic Lines Ltd., 536 F.2d 505, 507 (2d Cir. 1976); Brown

v. Ivarans Rederi A/S, 545 F.2d 854, 860 (3d Cir. 1976);

Van Horn v. Gulf Atlantic Towing Corp., 388 F.2d 636,

638 (4th Cir. 1968); White v. United States, 400 F.2d 74,

76 (4th Cir. 1968); Solsvik v. Maremar Compania Naviera,

S.A., 399 F. Supp. 712, 715 (W.D. Wash. 1975); Slaugh-

ter v. Ronde, 390 F. Supp. 637, 645 (S.D. Ga. 1974), aff d

per curiam, 509 F.2d 973 (5th Cir. 1975); Shepler v. Wey-

erhaeuser Co., 279 Or. 477, 569 P.2d 1040, 1056 (Or. 1977);

Cf., West v. United States, 361 U.S. 118, 123 (1959).

The committee reports made it very clear that nothing

was to “derogate from the vessel's responsibility to take

appropriate corrective action where it knows or should

have known about a dangerous condition.” Thus, actions

were permitted against the vessel to encourage safety. It

is ironic that since the amendments, the courts applying

the “open and obvious danger” approach seem to hold that

the more dangerous a ship is, and the more obvious that

danger is, the less likely it is that a shipowner can be held

responsible for a longshoreman’s injuries. Surely, Congress

did not intend to encourage shipowners to ignore danger-

ous conditions aboard their ships, and yet this was pre-

cisely the impact of the holding of the district court in

this case.

The circuit court's decision restores the dual safety

obligations of the shipowner and stevedore as Congress

intended. A shipowner is not absolved from his responsi-

bilities simply by pointing at an alleged failure of another

actor. The negligence of all the actors must be weighed

and evaluated just as Congress intended. Thus, the prac-

tical and simple approach of the Ninth Circuit in this

case is the best means to accomplish the intent of Congress.

F. Argument In Response To Petitioner’s Brief

Petitioner argues that reference to the Albanese case"

in the committee reports was a comment on the negligence

cause of action which was retained after the amendments.

The argument is fallacious because the citation of the

Albanese case in the legislative history does not refer to

negligence, but rather to the abolition of unseaworthiness.

The reports explicitly denied comment on the negligence

remedy.”

The requirement for actual notice of any danger as

urged by petitioner would fly in the face of the committee

reports that state “nothing in this bill is intended to dero-

gate from the vessel’s responsibility to take appropriate

action where it knows or should have known about a dan-

gerous condition.” Appendix I-10.

The petitioner argues that a great number of premises

liability cases should be looked to to limit the duty of the

shipowner by the limitations in §§343 and 343A of the

16. Albanese v. N/V Nederl. Amertk Stomov. Maats, 346 F.2d 481

(2d Cir.), rev’d per curiam, 382 U.S. 283, 15 L.Ed. 327, 86 S.Ct. 429,

reh. den., 382 U.S. 1000, 15 L.Ed.2d 490, 86 S.Ct. 534 (1965).

17. This listing of cases is not intended to reflect a judgment as to

whether recovery on a particular actual setting could be predicated on

the vessel's negligence. (Emphasis added) (Appendix I-10).

Restatement (Second) of Torts. The answer to this argu-

ment is contained at Section C of this brief.

Petitioner argues that other sections of the restatement

should be applied. At no point in this case, until petition-

ers brief, has anyone suggested the application of the other

restatement sections (§§409-415). To the extent that these

sections exonerate a shipowner from responsibility for his

own negligence, they are clearly in conflict with the legis-

lative intent.’*® The shipowner, under these sections would

simply not be vicariously liable for the negligence of the

stevedore. Nor is the shipowner vicariously liable under

the test applied by the Ninth Circuit. Santos alleged and

proved in a preliminary fashion the independent negli-

gence of the shipowner.

Petitioners brief, and Section II, in particular, is based

on the assumption that the shipowner was “minimally” and

“remotely” responsible and the stevedore employer was

“better able to make that decision [concerning the winch]

than the shipowner.” The petitioner assumes that the ship-

owner has been “minimally” responsible and the stevedore

company has been “greatly at fault.” This approach per-

meates the brief of petitioner and petitioner's amicus brief.

This approach is a subversion of the jury’s function of fact

finding. The relative knowledge, control, and fault of the

actors is for the jury. The determination cannot be made

by petitioner in his brief anymore than by the district

court in a motion for summary judgment.

Petitioner argues that safety considerations are not pro-

moted by the rule adopted by the court of appeals, but the

18. “Furthermore, reliance on rules respecting the duties of con-

tractors and subcontractors has the potential of introducing complex

common law concepts into admiralty law and thus invoking the same

criticisms raised above in the discussion of invitees on real property.

Federal courts should, therefore, avoid reference to principles of control

as a substitute for a thorough investigation of the reasonableness of con-

duct under given circumstances. See generally The Injured Longshore-

man, supra, 28 Hastings L.J. at 788-90.” Gallardo, supra, 435 F. Supp.

at 495.

rule it suggests would insulate the shipowner from all li-

ability in cases in which the “control” is in the stevedore

company or dangers are “open and obvious.”

An article in 28 Hastings L. J., 771 (1977), Note, “The

Injured Longshoreman v. The Shipowner after 1972: Busi-

ness Invitees, Land-based Standards, and Assumption of

Risk,” states at 772:

The business invitee standard, however, defines the

vessel's duty in terms of the plaintiffs perception,

frequently preventing inquiry into the reasonabieness

of the vessel’s conduct. Thus, the standards not only

fails to encourage the vessel to take remedial action,

but also contravenes the comparative negligence poli-

cy of balancing relative fault of all of the parties in-

volved. Moreover, the business invitee standard in-

corporates the defense of assumption of risk which

the legislative history expressly abolished.

(Emphasis added). Further, incorporation of assumption

of risk into the definition of the shipowner’s duty requires

the longshoreman to bear the burden of proving that he

did not assume the risk. See “The Injured Longshoreman,”

supra, at 781.

The petitioner's approach does not promote safety but

simply immunizes the shipowner from any possibility of

liability.

The court in Galardo, supra, at 435 Fed. Supp. 494,

concluded that the restatement sections reduced the ship-

owner's “incentives to remedy dangerous conditions,” and,

therefore, conflicted with congressional intent to promote

safety in the longshoring industry. The circuit court in

this case stated that the standard it adopted “will promote

safety within a comparative negligence framework while

avoiding both liability without fault and the defenses of

contributory negligence and assumption of risk.” Santos

at 498 F.2d 486. See also, Landon v. Lief Hoegh & Co.,

521 F.2d 756, 763 (2d Cir. 1975). Congress unequivocally

stated that it believed that the preservation of the negli-

gence action would promote safety. It said:

Permitting actions against the vessel based on negli-

gence will meet the objective of encouraging safety

because the vessel will still be required to exercise

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

safe place to work. Thus, nothing in this bill is in-

tended to derogate from the vessel’s responsibility to

take appropriate corrective action where it knows or

should have known about a dangerous condition.

(Emphasis added). Appendix I-10. Petitioner suggests

that immunity from liability for the shipowner is the only

way to encourage safety. Immunity was asked of Con-

gress and rejected specifically. The reports state:

The Committee rejected the proposal originally ad-

vanced by the industry, that vessels should be treated

as joint employers of longshoremen or other per-

sons covered under this Act working on board such

vessels. This would result in restricting the vessel's

liability in all cases to the compensation and other

benefits payable under the Act. The Committee be-

lieves that where a longshoreman or other worker

covered under this Act is injured through the fault

of the vessel, the vessel should be liable for damages

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

non-maritime pursuits are liable for damages when,

through their fault, a worker is injured.

(Emphasis added ). Appendix I-7.

Petitioner argues that “third-party actions continue to

divert resources to attorneys for what is often little or no

benefit to the injured worker, and in so doing undermine

the security inherent in the compensation system.” (Peti-

tioner'’s Brief at 28)

The argument is faulty because resources cannot be di-

verted from the compensation system by reason of third-

party suits. The amendments absolutely and clearly ban

the return of any indirect liability of the employer under

the Ryan case, supra. Thus, there can be no diversion of

compensation resources because the amendments state

that “the employer shall not be liable to the vessel for

such damages directly or indirectly and any agreements

or warranties to the contrary shall be void.” 33 U.S.C.

§905(b) (1976). The compensation system pays no more

than the scheduled compensation benefits regardless of

the fault of the employer or any one else.”

Both petitioner and petitioners amicus argue that the

rule of the Ninth Circuit completely exonerates the steve-

dore employer and, therefore, the stevedore is encouraged

to be negligent because it knows it will not have to bear

the cost of any injuries. This argument is patently trans-

parent because in all cases of injury to longshoremen, the

stevedore company is required to pay compensation bene-

fits without regard to questions of fault, there is no guaran-

tee that any individual longshoreman will bring a third-

party action against the shipping company, there is no

guarantee that any individual longshoreman who brings

an action against the shipping company will recover, and

there is no guarantee that the amount of recovery will be

sufficient to repay the stevedore company's lien. Thus,

the argument cannot stand because in all cases of ship-

board injury to longshoremen the stevedore company

must pay under the compensation act and there is cer-

tainly no guarantee that any reimbursement will be made

on the stevedore company’s lien. The certainty of compen-

sation benefits, thus requires, that the stevedore employer

exercise as much care as possible, but, at the same time,

the possibility that there can be a third-party recovery

against the shipowner also encourages the shipowner to

be prudent in its responsibility to furnish a safe place to

work and to make sure conditions aboard the vessel are

reasonably safe. This is perfectly consistent with the con-

gressional concept that there are mutual duties and in-

19. However, the compensation system can become more secure by

the collection of its lien rights for damages caused by negligent ship-

owners. 33 U.S.C. $933.

centives for both the stevedoring company and the ship-

owner to maintain safety in the working place.

Petitioner cites Prosser in arguing that the circuit court’s

decision in this case overlooks the first element in a negli-

gence action; namely, duty. The statement that there is

or is not a duty begs the essential question—whether the

plaintiff's interests are entitled to legal protection against

the defendant's conduct.” The work relationship involving

shipowners and longshoremen is one discussed in the com-

mittee reports and the legal protection to longshoremen

flowing out of that relationship is one which requires the

shipowner to exercise due care to provide “a safe place

to work” and to take “appropriate corrective action where

it knows or should have known about a dangerous con-

dition.”

Petitioner argues that the shipowner should be insu-

lated from any responsibility to longshoremen once the

working area has been turned over to the longshore crew.

The oil spill example at Appendix I-10 certainly refutes

this argument, since the question of control, time limits,

obviousness of danger and turning over the work areas

are not mentioned as limits on the shipowner’s duty. It is

significant, however, that the reports state that “nothing

20. “The statement that there is or is not a duty begs the essential

question—whether the plaintiff's interests are entitled to legal protection

against the defendant’s conduct. It is therefore not surprising to find that

the problem of duty is as broad as the whole law of negligence and that

no universal test for it ever has been formulated. It is a shorthand state-

ment of a conclusion, rather than an aid to analysis in itself. It is embedded

far too firmly in our law to be discarded, and no satisfactory substitute

for it, by which the defendant’s responsibility may be limited, has been

devised. But it should be recognized that “duty” is not sacrosanct in

itself, but only an extension of the sum total of those considerations of

policy which lead the law to say that the particular plaintiff is entitled

to protection.

There is little analysis of the problems of duty in the courts. Fre-

quently it is dealt with in terms of what is called ‘proximate cause,’ usually

with resulting confusion. In such cases, the question of what is ‘proximate’

and that of duty are fundamentally the same: whether the interests of

plaintiff are to be protected against the particular invasion by the de-

fendant’s conduct.” W. Prosser, Handbook of the Law of Torts, 325, 326

(4th ed. 1971).

in this bill is intended to derogate from the vessel’s re-

sponsibility to take appropriate corrective action where it

knows or should have known about a dangerous condi-

tion.””’ The continuing duty of the shipowner is therefore

obvious.

Petitioner argues that since this court decided Edmonds,

supra, there is no fair way that a case, such as the one at

bar, can be handled except to dismiss it on the same basis

that the district court did. It is respectfully submitted

that the question of proportional contribution is not an

issue in this case, but rather, the only question is whether

the shipowner acted prudently under the circumstances

existing at the time of the accident.

Petitioner decries the fact that the rule adopted by the

Ninth Circuit makes summary dismissal of cases more dif_i-

cult. The object of Congress was not to provide for easy

dismissal of cases of shipowners’ negligence. Congress

specifically preserved the right of injured workmen to sue

ships for negligence. To argue the cost of litigation, the

need to dismiss cases, and the need to regulate attorneys’

fees, is to argue irrelevancies. If Congress had desired to

regulate attorneys fees, it could have easily done so. If

Congress had decided to eliminate causes of action for

negligence, it could easily have done so. If Congress had

decided to immunize shipowners from their own negli-

gence, it could easily have done so. On the contrary,

Congress decided to preserve the cause of action for neg-

ligence against shipowners and litigation was foreseen as

the vehicle for deciding disputed questions. Appendix I-11.

G. Response to Amicus Brief in Support of Petitioner

1. Amicus argues that the shipowner has no responsibil-

ity in this case as a matter of law because the stevedore

employer was the only party with actual knowledge of an

unsafe condition, the stevedore controlled the area, and the

21. Committee Reports, Appendix I-10.

stevedore had affirmative duties under the safety and

health regulations for longshoring to either report the de-

fective winch or to not use it. As a result, therefore, amicus

urges adoption of the trial court’s dismissal by means of the

summary judgment device. The arguments of the amicus

are fallacious for the following reasons:

(a) 29 C.F.R. §1918.2(b) and 29 C.F.R. §1915.1(d)

make it clear that the responsibility for safety can be dual;

that is, can rest both on the stevedore-company and on the

shipowner, Thus, the regulation states:

It is not the intent of the regulations of this part to

place additional responsibilities or duties on owners,

operators, agents or masters of vessels unless such

persons are acting as employers. Nor is it the intent

of these regulations to release such owners, operators,

agents or masters of vessels from responsibilities or

duties now placed upon them by law, regulation or

custom,

(Emphasis added) Thus, even though the regulations are

directed against the longshore employer, nothing in them

derogates from the responsibility of the shipowner to per-

form duties placed upon him by law, regulation or custom.

The regulations pre-dated the amendments of 1972 and are

still in effect today. Thus, it is submitted that the committee

reports took into account and reaffirmed the mutual obliga-

tions of both stevedore employer and shipowner.” The

plain language of the reports makes it clear that the ship-

owner has a concurrent responsibility to exercise reasonable

care to provide a safe place to work, which continues.

22. The committee reports state:

“Thus, nothing in this bill is intended to derogate from the vessel’s

responsibility to take appropriate corrective action where it knows

or should have known about a dangerous condition.”

The reports go on to cite the oil spill example which permits actions

against the vessel for negligence in cases in which the oil or foreign sub-

stance “had been on the deck for such a period of time that it should

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

sonable care by the vessel under the circumstances.” (Appendix I-10)

(b) Amicus assumes, in the same manner that the

district court assumed, that the shipowner did not have

actual knowledge of the malfunctioning winch nor should

it have acquired knowledge in the exercise of reasonable

care. This assumption is an erroneous “finding of fact” in

the same sense the trial court’s conclusion was an erroneous

“finding of fact.””

any evidence of negligence on the part of the stevedore

company or its employees to immunize itself from all lia-

bility. Not only did Congress not intend this result, but this

Court in the Edmonds case, above, rejected the concept

that a concurrent tortfeasor may be either freed from its

responsibility in whole or in part by pointing to the negli-

gent acts of the stevedore employer. In 2A A. Larson, The

Law of Workmen’s Compensation $75.22 at 14-263 (1976),

Professor Larson states that when an employer's negligence

concurs with a third party’s negligence in causing an em-

ployee’s injury “it is generally held that the employer can-

not be met with the defense that his own employer's

negligence contributed to the injury.” The real effect of

the argument of the amicus is that the concurrent negli-

gence of the employer, as alleged in this case, must be an

absolute and total defense against the claim of the em-

ployee for injuries against the shipowner. Thus, the result

the amicus urges is the same result which was rejected

in the Edmonds case above that “leads to the conclusion

that the injured longshoreman should never be able to

bring suit against the vessel unless it is the sole cause of the

injury. This is a doubly absurd conclusion.” Edmonds,

supra, 443 U.S. 265, 266.

23. A jury could find that, in the words of Hawran, “the day shift was

complaining [about the winches] and they [the shipowner] just can’t

seem to do anything with them.”

A jury could find that the shipowner had an adequate opportunity to

discover the malfunctioning winch, that complaints were made, that the

condition had existed for two and one-half days prior to the accident,

and that the shipowner’s representatives were in the area throughout the

The amicus attaches three addenda which not only are

not in evidence in this case, but are irrelevant to the issues

in this case. Respondent respectfully objects to those ad-

denda and asks that they be stricken as improper. Likewise,

the arguments based on the addenda are improper and

should be stricken and ignored.

Thus, the amicus argues the vast and munificent benefits

flowing to injured longshoremen from the compensation

act under Addenda B and C.* Neither schedule is properly

before the court since neither is in evidence or in the record.

To argue as amicus does, that the cumulative benefits over

thirty-one years to a totally disabled longshoreman would

amount to $2,263,834.00 is just as irrelevant as if the re-

spondent were to argue that as a result of his injuries Mr.

Santos has been subjected to horrendous pain and suffering,

three major surgeries, quadraplegia, and has been denied

his benefits under the Act and, therefore, his wife and five

children are starving.

The amicus argument concerning “blindfolding the jury”

is irrelevant because there is no issue of damages before

the Court in this case. Likewise, the final argument of the

amicus concerning the reduction in numbers of longshore-

men's personal injury cases is totally irrelevant and inap-

propriate to any consideration of the issues in the case at

bar.

24. Identical bills are pending in the House and Senate which would

greatly reduce the benefits payable under the Act. $.1511, 96th Cong.,

1 CCH Cong. Index, 14,217 (1980); H.R. 2448, 96th Cong., 2 CCH

Cong. Index 28,276 (1980).

CONCLUSION

The decision of the circuit court in this case is care-

fully cognizant of, and faithful to, the intent of Congress

in amending the Act. The unseaworthiness remedy is

abolished, but the negligence remedy is preserved along

with the prohibitions against assumption of risk and con-

tributory negligence. Subjecting a vessel to liability for

injuries to longshoremen working on or near a vessel if

the shipowner knew or should have known of dangerous

conditions creating an unreasonable risk to longshoremen

and failed to exercise reasonable care under the circum-

stances to protect the longshoreman, is consistent with

traditional negligence principles as adopted by this court

in the Kermarec case. The standard adopted by the Ninth

Circuit is simple, practical and workable. The decision of

the Ninth Circuit should be affirmed in all respects.

Respectfuly submitted,

JAMEs A. GRuTz

JACKSON, ULVEsTap,

Goopwin & GrUTz

Attorneys for Respondent,

Lauro De Los Santos

I-]

APPENDIX I

Pertinent excerpts from Senate Report No. 92-1125, 92nd

Congress, 2nd Session:

LONGSHOREMEN’S AND HARBOR WORKERS’

COMPENSATION ACT AMENDMENTS OF 1972

SEPTEMBER 14 (Legislative day, SEPTEMBER 12),

1972. —

Ordered to be printed

Filed under authority of the order of the Senate

of September 13, legislative day, September 12, 1972

MR. EAGLETON, from the Committee on Labor and

Public Welfare, submitted the following

REPORT

[To accompany S. 2318]

The Committee on Labor and Public Welfare, to which

was referred the bill (S. 2318) to amend the Longshore-

men’s and Harbor Workers’ Compensation Act, and for

other purposes, having considered the same, reports fav-

orably thereon with an amendment and recommends that

the bill as amended do pass.

SUMMARY

The principle purpose of S. 2318 is to amend the Long-

shoremen’s and Harbor Workers’ Compensation Act in

order to upgrade the benefits, extend coverage to protect

additional workers, provide a specified cause of action for

damages against third parties and to promulgate necessary

administrative reforms.

The benefit structure provided by S. 2318 will allow

a disabled worker to receive 24 of his average weekly

wage subject to a phased in maximum starting at 125

percent of the national average weekly wage and rising

in three years to 200 percent of the national average

weekly wage. Minimum benefits would also increase to

not less than 50 percent of the national average weekly

[-2

wage, or the average weekly wage of the disabled worker,

whichever is less. The new maximum and minimum limits

are substantially higher than the present maximum of $70

per week, and present minimum of $18 per week, which

were established in 1961.

The changes also provide for annual increases in com-

pensation benefits based on increases in the national aver-

age weekly wage, an upgrading of benefits payable for

injuries occurring before the effective date of the Act,

elimination of the present ceiling on temporary disabilities,

and expansion of survivors benefits and the schedule of

awards for disfigurements.

The bill also expands the coverage of this Act to cover

injuries occurring in the contiguous dock area related to

longshore and ship repair work.

The bill also resolves the longstanding dispute over

third-party actions by injured longshoremen by providing

that such actions may be brought against vessels on the

basis of negligence, but the remedy based on unseaworthi-

ness is eliminated. In: addition, indemnity actions against

stevedoring companies are prohibited. Agreements be-

tween stevedoring companies and vessels to indemnify the

later are prohibited.

A number of important administrative changes are made

in the bill respecting both the worker’s rights and the

operations of the Department of Labor. Among the fea-

tures of the administrative changes are that hearings be

conducted according to the Administrative Procedure Act,

assistance (including discretionary legal assistance where

circumstances warrant) be provided claimants, medical

services allowing for free choice of doctors and reduction

of waiting periods for compensation. A review board for

compensation cases is created within the Department of

Labor and a special fund to handle second injury cases,

rehabilitation and retroactive benefit payment is revised

and expanded.

In considering S. 2318 the committee has given most

careful consideration to the recommendations of the Na-

tional Commission on state workmen’s compensation laws

contained in its report issued on July 21, 1972. The com-

I-3

mittee believes that the provisions in this bill are fully

consistent with the recommendation of the National Com-

mission and that the Longshoremen’s and Harbor Work-

ers Compensation Act, as it would be amended by S.

2318, will provide an adequate, prompt, and equitable

system of compensation for the over 800,000 employees

who depend upon its protection.

SAFETY

It is important to note that adequate workmen’s com-

pensation benefits are not only essential to meeting the

needs of the injured employee and his family, but, by

assuring that the employer bears the cost of unsafe condi-

tions, serve to strengthen the employer's incentive to

provide the fullest measure of on-the-job safety.

This consideration is particularly crucial with respect

to high-risk occupations such as those covered by this Act.

Longshoring, for example, has an injury frequency rate

which is well over four times the average for manufactur-

ing operations. It is the Committee’s view that every ap-

propriate means be applied toward improving the tragic

and intolerable conditions which take such a heavy toll

upon workers’ lives and bodies in this industry, and such

means clearly include vigorous enforcement of the Mari-

time Safety Amendments of 1958 and the Occupational

Safety and Health Act of 1970, as well as a workmen’s

compensation system which maximizes industry’s motiva-

tion to bring about such an improvement.

BACKGROUND

On July 21, 1971, S. 2318 was introduced by Senator

Williams for himself and nine other Senators. A similar

bill, S. 525 was introduced by Senator Prouty, and Senator

Tower introduced S. 1547, a bill to extend the coverage of

the Longshoremen’s and Harbor Workers’ Compensation

Act to marine petroleum workers.

The Subcommittee on Labor held hearings on these

bills on May 2, 10, 17, and 24, 1972 in Washington, D.C.

and on June 5, 1972 in San Francisco, California. A field

trip to examine actual working conditions was held by the

Subcommittee in San Francisco and Oakland, California

on June 4, 1972.

1-4

Testimony was received from the Secretary of Labor

in support of the increase in benefits and a revision of the

law regarding third party liability for injuries to long-

shoremen.

Statements were received from the following persons

who represent employers involved in industries covered

by the Longshoremen’s and Harbor Workers’ Compen-

sation Act: Ralph Hartman and Edward Hood, repre-

senting the Shipbuilders Council of America; Andre Mai-

sonpierre, Vice President of the American Mutual Insur-

ance Alliance; Francis A. Scanlan, James A. Flynn, and

Edward D. Vickery on behalf of the National Maritime

Compensation Committee; Dennis Lindsay, representing

the Master Contracting Stevedoring Association of the

Pacific Coast, Inc.; Capt. John H. Anthony, President of

the Metropolitan Stevewore Co.; Fred R. Smith, Chair-

man of the Board of the Seattle Stevedore Co. & South-

east Stevedoring Corp.; Emmett J. Pierce, Vice President

of the Marine Terminals Corp.; Chester Eschen, Jr., Presi-

dent of the California Stevedore & Balast Co.; and Robert

P. Benfield, Vice President of Bayly, Martin & Fay, Inc.,

insurance brokers.

The Board of Trade for the District of Columbia asked

that separate workmen’s compensation legislation be

passed to cover the District of Columbia.

Testimony was also received from the following repre-

sentatives of employees covered by the Act and by law-

yers who represent such employees, all of whom favored

the increased benefits which are contained in the sub-

stitute bill: Howard McGuigan and James O’Brien of the

Social Security Department, AFL-CIO, and George Ap-

person, President, Greater Washington Central Labor

Council, AFL-CIO; Thomas Gleason and Joseph Leonard,

of the International Longshoremen’s Association; Patrick

Tobin, Julius Stern, Everett Ede, Richard Gladstein, and

Tom Lupher of the International Longshoremen’s and

Warehousemen’s Union; Mario Grossetti and C. W. Hud-

dleston of the International Brotherhood of Boilermakers,

Iron Shipbuilders, Blacksmiths, Forgers & Helpers; David

B. Kaplan, Chairman of the Admiralty Section, American

Trial Lawyers Association; and John R. Martzell, repre-

senting the Louisiana Trial Lawyers Association.

I-5

Representatives of employees employed in private in-

dustry in the District of Columbia indicated these work-

ers desired continued coverage under the Longshoremen’s

and Harbor Workers’ Compensation Act.

Testimony was received from Joseph Shelton and E.

Leland Richardson, representing the International Associ-

ation of Drilling Contractors, in support of S. 1547, and

from William Moody, representing the Maritime Trades

Department, AFL-CIO, in opposition.

Other statements by interested parties were also re-

ceived.

S. 2318 was reported favorably by the Subcommittee

on Labor on August 17, 1972 and was considered by the

full Committee on Labor and Public Welfare on Septem-

ber 8, 1972 which unanimously reported it to the Senate.

NEED FOR THE BILL

The Longshoremen’s and Harbor Workers’ Compensa-

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

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

Today the average weekly wage for private, non-agri-

culture employees in the United States is $135 a week.

The average longshoremen’s or ship repairman’s wage is

even higher, with longshoremen averaging $200 per week

in some ports. Clearly, in order to provide adequate in-

come replacement for disabled workers covered under

this law a substantial increase in benefits is urgently

required.

The National Commission on State Workmen’s Com-

pensation laws, in its recent report, recommends that the

maximum for temporary or permanent total disability be

phased up to no less than 200 percent of the statewide

average weekly wage. The Committee bill, consistently

with this recommended standard, raises the maximum

limit on compensation under this Act to 125 percent of

the national average weekly wage initially, going up to

200 percent of the national average well wage after

three years. Of course an individual's benefits, if he quali-

fies for maximum benefits, would be 24 of his average

wekly wage or this maximum, whichever is lower.

1-6

While everyone has agreed since at least the mid-

1960's that the benefits under this Act should be raised,

there has been some dispute over the years as to whether

such benefits should be raised so long as this compensa-

tion law was not the exclusive remedy for an injured

worker. It has been the feeling of most employers that

while they were willing to guarantee payment to an in-

jured worker regardless of fault, they would only do so

if the right to such payment was the exclusive remedy

and they would not be subject to additional law suits

because of that injury.

Since 1946, due to a number of decisions by the U.S.

Supreme Court, it has been possible for an injured long-

shoreman to avail himself of the benefits of the Long-

shoremen’s and Harbor Workers’ Compensation Act and

to sue the owner of the ship on which he was working for

damages as a result of his injury. The Supreme Court has

ruled that such ship owner, under the doctrine of sea-

worthiness, was liable for damages caused by any injury

regardless of fault. In addition, shipping companies gen-

erally have succeeded in recovering the damages for

which they are held liable to injured longshoremen from

the stevedoring on theories of express or implied war-

ranty, thereby core their liability to the stevedore

company, the actual employer of the longshoremen.

The social costs of these law suits, the delays, crowding

of court calendars and the need to pay for lawyers’ serv-

ices have seldom resulted in a real increase in actual

benefits for injured workers.

For a number of years representatives of the employees

have attempted to ea the benefit levels under the Act

raised so that injured workers would be properly pro-

tected by the Act. At the same time, employer groups

indicated their willingness to increase such payments but

indicated they could do so only if the Longshoremen’s

and Harbor Workers’ Compensation Act were to again

become the exclusive remedy against the stevedore as had

been intended since its passage in 1927 until modified by

various Supreme Court decisions.

The bill reported by the committee meets these objec-

tions by specifically eliminating suits against vessels

1-7

brought for injuries to longshoremen under the doctrine

of seaworthiness and outlawing indemnification actions

and “hold harmless” or indemnity agreements. It continues

to allow suits against vessels or other third parties for neg-

ligence. At the same time it raises benefits to a level com-

mensurate with present day salaries and with the needs

of injured workers whose sole support will be payments

under the Act.

ELIMINATION OF UNSEAWORTHINESS REMEDY

One of the most controversial and difficult issues which

the Committee has been required to resolve in connection

with this bill concerns the liability of vessels, as third

parties, to pay damages to longshoremen who are injured

while engaged in stevedoring operations. The Committee

rejected the proposal, originally advanced by the industry,

that vessels should be treated as joint employers of long-

shoremen or other persons covered under this Act working

on board such vessels. This would result in restricting the

vessel's liability in all cases to the compensation and other

benefits payable under the Act. The Committee believes

that where a longshoreman or other worker covered under

this Act is injured through the fault of the vessel, the vessel

should be liable for damages as a third party, just as land-

based third parties in non-maritime pursuits are liable for

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

The Committee also rejected the thesis that a vessel

should be liable without regard to its fault for injuries

sustained by employees covered under this Act, while

working on board the vessel. Vessels have been held to

what amounts to such absolute liability by decisions of the

Supreme Court, commencing with Seas Shipping Co. v.

Sieracki, 328 U.S. 25 (1946) which held that the traditional

seamans remedy based on the breach of the vessel’s

absolute, nondelegable duty to provide a seaworthy vessel

was also available to longshoremen and others who per-

formed work on the vessel which by tradition has been

performed by seamen. Under the Sieracki case, vessels are

liable, as third parties, for injuries suffered by longshore-

men as a result of “unseaworthy’ conditions even though

the unseaworthiness was caused, created, or brought into

I-8

play by the stevedore (or an employee of the stevedore )

rather than the vessel or any member of its crew. For

example, under present law, if a member of a longshore

gang spills grease on the deck of a vessel and a longshore-

man slips and falls on the grease a few moments later, the

vessel is liable to pay damages for the resulting injuries,

even though no member of the crew was responsible for

creating the unseaworthy condition or was even aware of

it. Furthermore, in the example given above, under the

Supreme Court’s decision in Ryan Stevedoring Co. v, Pan

Atlantic S.S. Corp., 350 U.S. 124 (1956), the vessel may re-

cover the damages for which it is liable to the injured long-

shoreman from the stevedore which employed the long-

shoreman on the theory that the stevedore has breached an

express or implied warranty of workmanlike performance

to the vessel. The end result is that, despite the provision in

the Act which limits an employer's liability to the compen-

sation and medical benefits provided in the Act, a steve-

dore-employer is indirectly liable for damages to an injured

longshoreman who utilizes the technique of suing the vessel

under the unseaworthiness doctrine.

The Committee heard testimony that the number of

third-party actions brought under the Sieracki and Ryan

line of decisions has increased substantially in recent years

and that much of the financial resources which could bet-

ter be utilized to pay improved compensation benefits

were now being spent to defray litigation costs. Industry

witnesses testified that despite the fact that since 1961

injury frequency rates have decreased in the industry, and

maximum benefits payable under the Act have remained

constant, the cost of compensation insurance for long-

shoremen has increased substantially because of the in-

creased number of third party cases and legal expenses

and higher recoveries in such cases. The Committee also

heard testimony that in some cases workers were being

encouraged not to file claims for compensation or to delay

their return to work in the hope of increasing their pos-

sible recovery in a third party action. The Committees at-

tention was also called to the decision in 1966 of the

United States district court in Philadelphia concerning

the impact of third party claims involving injured long-

shoremen on the ll ab of personal injury cases in that

court,

I-9

The Committee also has taken note of the inescapable

fact that the controversy over third party claims by long-

shoremen has had political ramifications which have re-

sulted in forestalling any improvements in the present Act

for over twelve years.

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 conclusion, the

Committee has noted that the seaworthiness concept was

developed by the courts to protect seamen from the ex-

treme hazards incident to their employment which fre-

quently requires long sea voyages and duties of obedi-

ence to si 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 on 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 concept of seaworthi-

ness. This would place vessels in the same position, insofar

as third party liability is concerned, as land-based third

parties in non-maritime pursuits.

The purpose of the amendments is to place an employee

injured aboard a vessel in the same position he would be

if he were injured in non-maritime employment ashore,

insofar as bringing a third party damage action is con-

cerned, and not to endow him with any special maritime

theory of liability or cause of action under whatever judi-

cial nomenclature it may be called, such as “unseaworthi-

ness’, “non-delegable duty”, or the like.

I-10

Persons to whom compensation is payable under the

Act retain the right to recover damages for negligence

against the vessel, but under these amendments they can-

not bring a damage action under the judicially-enacted

doctrine of unseaworthiness. Thus a vessel shall not be

lable in damages for acts or omissions of stevedores or

employees of stevedores subject to this Act, Crumedy vs.

The J.H. Fisser, 358 U.S. 423, Albanese vs. Matts, 382

U.S. 283, Skibinski vs. Waterman SS Corp. 330 F.2d 539;

for the manner or method in which stevedores or em-

ployees of stevedores subject to this Act perform their

work, A.N.G. Stevedores vs. Ellerman Lines, 369 U.S.

355, Blassingill vs. Waterman SS. Corp., 336 F 2d 367;

for gear or equipment of stevedores or employees of steve-

dores subject to this Act whether used aboard ship, or

ashore, Alaska SS Co. vs. Peterson, 347 U.S. 396, Italia

Societa vs. Oregon Stevedoring Co., 376 U.S. 315, or for

other categories of unseaworthiness which have been judi-

cially established. This listing of cases is not intended to

reflect a judgment as to whether recovery on a particular

actual setting could be predicated on the vessel's negli-

gence.

Permitting actions against the vessel based on negli-

gence will meet the objective of encouraging safety be-

cause the vessel will still be required to exercise the same

care as a land-based person in providing a safe place to

work, Thus, nothing in this bill is intended to derogate

from the vessel's responsibility to tape appropriate cor-

rective action where it knows or should have known about

a dangerous condition.

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

spill on a ails deck and is injured, the proposed amend-

ments to Section 5 would still permit an action against the

vessel for negligence. To recover he must establish that:

1) the vessel put the foreign substance on the deck, or

knew that it was there, and willfully or negligently failed

to remove it; or 2) the foreign substance had been on the

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

discovered and removed by the vessel in the exercise of

reasonable care by the vessel under the circumstances.

The vessel will not be chargeable with the negligence of

the stevedore or employees of the stevedore.

I-11

Under this standard, as adopted by the Committee,

there will of course, be disputes as to whether the vessel

was negligent in a soetaoutan case. Such issues can only

be resolved through the application of accepted principles

of tort law and the ordinary process of litigation—just as

they are in cases involving alleged negligence by land-

based third parties. The Committee intends that on the

one hand an employee injured on board a vessel shall be

in no less favorable position vis a vis his rights against the

vessel as a third party than is an employee who is injured

on land, and on the other hand, that the vessel shall not

be liable as a third party unless it is proven to have acted

or have failed to act in a negligent manner such as would

render a land-based third party in non-maritime pursuits

liable under similar circumstances.

The Committee also believes that the doctrine of the

Ryan case, which permits the vessel to recover the damages

for which it is liable to an injured worker where it can show

that the stevedore breaches an express or implied warranty

of workmanlike performance is no longer appropriate if the

vessel's liability is no longer to be absolute, as it essentially

is under the sea worthiness doctrine. Since the vessel's li-

ability is based on its own negligence, and the vessel will

no longer be liable under the seaworthiness doctrine for

injuries which are really the fault of the stevedore, there is

no longer any necessity for permitting the vessel to recover

the damages for which it is liable to the injured worker

from the stevedore or other employer of the worker.

Furthermore, unless such hold-harmless, indemnity or

contribution agreements are prohibited as a matter of

public policy, vessels by their superior economic strengt

could circumvent and nullify the provisions of Section 5 of

the Act by requiring indemnification from a covered em-

ployer for employee injuries.

Accordingly, the bill expressly prohibits such recovery,

whether based on an implied or express warranty, It is the

Committee's intention, to prohibit such recovery under any

theory including, without limitation, theories based on

contract or tort.

Under the proposed amendments the vessel may not by

contractual agreement or otherwise require the employer

to indemnify it, in whole or in part, for such damages.

I-12

The Committee has also recognized the need for special

provisions to deal with a case where a longshoreman or ship

builder or repairman is employed directly by the vessel.

In such case, notwithstanding the fact that the vessel is the

employer, the Supreme Court, in Reed v. S.S. Yaka, 373

U.S. 410 (1963) and Jackson v. Lykes Bros. Steamship Co.,

386 U.S. 371 (1967), held that the unseaworthiness remedy

is available to the injured employee. The Committee be-

lieves that the rights of an injured longshoreman or ship

builder or repairman should not depend on whether he was

employed directly by the vessel or by an independent con-

tractor. Accordingly, the bill provides in the case of a long-

shoreman who is employed directly by the vessel there will

be no action for damages if the injury was caused by the

negligence of persons engaged in performing longshoring

services, Similar provisions are applicable to ship building

or repair employees employed directly by the vessel. The

Committee’s intent is that the same principles should apply

in determining liability of the vessel which employs its

own longshoremen or ship builders or repairmen as apply

when an independent contractor employs such persons.

Finally, the Committee does not intend that the negli-

gence remedy authorized in the bill shall be applied dif-

ferently in different ports depending on the law of the State

in which the port may be located. The Committee intends

that legal questions which may arise in actions brought

under these provisions of the law shall be determined as

a matter of Federal law, In that connection, the Committee

intends that the admiralty concept of comparative negli-

gence, rather than the common law rule as to contributory

negligence, shall apply in cases where the injured em-

ployee’s own negligence may have contributed to causing

the injury. Also, the Committee intends that the admiralty

rule which precludes the defense of “assumption of Risk”

in an action by an injured employee shall also be applicable.

Finally, the Committee wishes to emphasize that nothing

in this bill is intended to relieve any vessels or any other

persons from their obligations and duties under the Occupa-

tional Safety and Health Act of 1970. The Committee

recognizes that progress has been made in reducing injuries

in the longshore industry, but longshoring remains one of

the most hazardous types of occupations. The Committee

————- — - O -+- — — wen ee Tee ee oe ns

I-13

expects to see further progress in reducing injuries and

stands ready to immediately reexamine the whole third

party suit question if it appears that the changes made in

present law by this bill have affected progress in improv-

ing occupational health and safety. (Emphasis added)

ad ® Q o

The House Report No, 92-1441, 92nd Congress, 2nd

Session, reprinted in 1972 U.S. Code Cong., and Admin.

News 4698-4705 is identical in its discussion of the legisla-

tive history as it applies to the case at bar contained in the

section entitled “Elimination of Unseaworthiness Remedy.”

II-1

APPENDIX II

TITLE E. SPECIAL LIABILITY OF POSSESSORS

OF LAND TO INVITEES

§ 343. Dangerous Conditions Known to or Discoverable

by Possessor

A possesor 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

against the danger.

See Reporter's Notes.

Comment:

a. This Section should be read together with § 343 A,

which deals with the éffect of the fact that the condition is

known to the invitee, or is obvious to him, as well as the

fact that the invitee is a patron of a public utility. That

Section limits the liability here stated. In the interest of

brevity, the limitation is not repeated in this Section.

b. Distinction between duties to licensee and invitee.

One who holds his land open for the reception of invitees

is under a greater duty in respect to its physical condition

than one who permits the visit of a mere licensee. The li-

censee enters with the understanding that he will take

the land as the possessor himself uses it. Therefore such

a licensee is entitled to expect only that he will be placed

upon an equal footing with the possessor himself by an

adequate disclosure ps any dangerous conditions that are

known to the possessor. On the other hand an invitee

enters upon an implied representation or assurance that

the land has been prepared and made ready and safe for

his reception. He is therefore entitled to expect that the

II-2

possessor will exercise reasonable care to make the land

safe for his entry, or for his use for the purposes of the

invitation. He is entitled to expect such care not only in

the original construction of the premises, and any activities

of the possessor or his employees which may affect their

condition, but also in inspection to discover their actual

condition and any latent defects, followed by such repair,

safeguards, or warning as may be reasonably necessary

for his protection under the circumstances.

As stated in § 342, the possessor owes to a licensee only

the duty to exercise reasonable care to disclose to him

dangerous conditions which are known to the possessor,

and are likely not to be discovered by the licensee. To

the invitee the possessor owes not only this duty, but also

the additional duty to exercise reasonable affirmative

care to see that the premises are safe for the reception of

the visitor, or at least to ascertain the condition of the

land, and to give such warning that the visitor may de-

cide intelligently whether or not to accept the invitation,

or may protect himself against the danger if he does

accept it.

As stated in § 342, the possessor is under no duty to

protect the licensee against dangers of which the licensee

knows or has reason to know. On the other hand, as stated

in § 343 A, there are some situations in which there is a

duty to protect an invitee against even known dangers,

where the possessor should anticipate harm to the invitee

notwithstanding such knowledge.

c. As to invitees who go beyond the scope of the invita-

tion, as to either time or place, see § 332, Comment I.

d. What invitee entitled to expect. An invitee is entitled

to expect that the possessor will take reasonable care to

ascertain the actual condition of the premises and, having

discovered it, either to make it reasonably safe by repair

or to give warning of the actual condition and the risk

involved therein. Therefore an invitee is not required to

be on the alert to discover defects which, if he were a mere

licensee, entitled to expect nothing but notice of known

defects, he might be negligent in not discovering. This is

of importance in determining whether the visitor is or

is not guilty of contributory negligence in failing to dis-

II-3

cover a defect, as well as in determining whether the de-

fect is one which the possessor should believe that his

visitor would not discover, and as to which, therefore, he

must use reasonable care to warn the visitor.

e. Preparation required for invitee. In determining the

extent of preparation which an invitee is entitled to expect

to be made for his protection, the nature of the land and

the purposes for which it is used are of great importance.

One who enters a private residence even for purposes

connected with the owner’s business, is entitled to expect

only such preparation as a reasonably prudent house-

holder makes for the reception of such visitors. On the

other hand, one entering a store, theatre, office building,

or hotel, is entitled to expect that his host will make far

greater preparations to secure the safety of his patrons

than a householder will make for his social or even his

business visitors. So too, one who goes on business to the

executive offices in a factory, is entitled to expect that

the possessor will exercise reasonable care to secure his

visitor's safety. If, however, on some particular occasion,

he is invited to go on business into the factory itself, he is

not entitled tv expect that special preparation will be

made for his safety, but is entitled to expect only such

safety as he would find in a properly conducted factory.

f. Appliances used on land< A possessor who holds his

land open to others must possess and exercise a knowledge

of the dangerous qualities of the place itself and the appli-

ances provided therein, which is not required of his pa-

trons. Thus, the keeper of a boardinghouse is negligent in

providing a gas stove to be used in an unventilated bath-

room, although the boarder who is made ill by the fumes

uses the bathroom with .knowledge of all the circum-

stances, except the risk of so doing. This is true because

the boardinghouse keeper, even though a man of the

same class as his boarders, is required to have a superior

knowledge of the dangers incident to the facilities which

he furnishes to them.

g. As to the duty of a possessor of business premises to

protect his invitees from harm threatened thereon by third

persons, see § 344.

II-4

§ 343 A. 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 ob-

vious to them, unless the possessor should anticipate

the harm despite such knowledge or obviousness.

(2) In determining whether the possessor should an-

ticipate harm from a known or obvious danger, the

fact that the invitee is entitled to make use of public

land, or of the facilities of a public utility, is a factor

of importance indicating that the harm should be

anticipated.

See Reporter's Notes.

Comment on Subsection (1):

a. The rule stated in this Subsection applies to all per-

sons who enter or remain on land in the capacity of in-

vitees, as defined in § 332. It includes in particular the

patrons of a public utility who enter land in its possession

seeking its services, to which as members of the public

they are entitled; and it includes members of the public

making use of the land of the government or a govern-.

ment agency which is held open for the use of the public.

As is stated in Subsection (2), such a public utility, gov-

ernment, or government agency may have special reason

to anticipate that one who so enters will proceed to en-

counter known or obvious dangers; and such a defendant

may therefore be subject to liability in some cases where

the ordinary possessor of land would not.

b. The word “known” denotes not only knowledge of the

existence of the condition or activity itself, but also ap-

preciation of the danger it involves. Thus the condition or

activity must not only be known to exist, but it must also

be recognized that it is dangerous, and the wtscee sea |

and gravity of the threatened harm must be appreciated.

“Obvious” means that both the condition and the risk are

apparent to and would be recognized by a reasonable

man, in the position of the visitor, exercising ordinary

perception, intelligence, and judgment.

c. The possessor’s activities may involve a risk which is

known or obvious to those who enter his land, either be-

cause the risk is inherent in the nature of the activity

II-5

itself, or because they are aware that it is carried on in

a manner which involves risks that are not necessarily

inherent in such activities.

d. A statute may require the possessor of land to keep it,

or anything upon it, in a condition safe for invitees, or even

for licensees, or to take particular precautions for the safety

of such visitors. If so, the fact that the visitor knows that

the possessor has not complied with the requirements of the

statute does not prevent the possessor from being subject

to liability for his breach of his statutory duty. Such knowl-

edge of the violation is material only in determining

whether the visitor is to be charged with contributory neg-

ligence, or assumption of risk, in coming in contact with the

dangerous condition. As to this, see § 288 B and Comment

b to that Section; also §§ 496 A—496 G.

e. In the ordinary case, an invitee who enters land is en-

titled to nothing more than knowledge of the conditions and

dangers he will encounter if he comes. If he knows the

actual conditions, and the activities carried on, and the

dangers involved in either, he is free to make an intelligent

choice as to whether the advantage to be gained is suffici-

ent to justify him in incurring the risk by entering or re-

maining on the land. The possessor of the land may

reasonably assume that he will protect himself by the

exercise of ordinary care, or that he will voluntarily assume

the risk of harm if he does not succeed in doing so. Reason-

able care on the part of the possessor therefore does not

ordinarily require precautions, or even warning, against

dangers which are known to the visitor, or so obvious to

him that he may be expected to discover them.

Illustration:

1. The A Company has in its store a large front

door, made of heavy plate glass. The door is well

lighted and plainly visible, and its existence is obvious

to any person exercising ordinary attention and per-

ception. B, a customer in the store, while preoccupied

with his own thoughts, mistakes the glass for an open

doorway, and runs his head against it and is injured.

A Company is not liable to B.

f. There are, however, cases in which the possessor of

land can and should anticipate that the dangerous condi-

II-6

tion will cause physical harm to the invitee notwithstanding

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 pro-

tect him, against the known or obvious 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 known or

obvious dangers may arise, for example, where the pos-

sessor has reason to expect that the invitee’s attention 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 invitee 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 assumption of risk. (See §§ 466

and 496 D.) It is not, however, conclusive in determining

the duty of the possessor, or whether he has acted reason-

ably under the circumstances.

Illustrations:

2. The A Department Store has a weighing scale

protruding into one of its aisles, which is visible and

quite obvious to anyone who looks. Behind and about

the scale it displays goods to attract customers. B, a

customer, passing through the aisle, is intent on look-

ing at the displayed goods. B does not discover the

scale, stumbles over it, and is injured. A is subject to

liability to B.

3. The A Drug Store has a soda fountain on a plat-

form raised six inches above the floor. The condition is

visible and quite obvious. B, a customer, discovers the

condition when she ascends the platform and sits down

on a stool to buy some ice cream. When she has fin-

ished, she forgets the condition, misses her step, falls,

and is injured, If it is found that this could reasonably

be anticipated by A, A is subject to liability to B.

4. Through the negligence of A Grocery Store a

fallen rainspout is permitted to lie across a footpath

II-7

alongside the store, which is used by customers as an

exit. B, a customer, leaves the store with her arms full

of bundles which obstruct her vision, and does not see

the spout. She trips over it and is injured. If it is found

that A should reasonably have anticipated this, A is

subject to liability to B.

5. 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 slippery waxed stairway, whose con-

dition is visible and quite obvious. C, employed by B

in the office, uses the stairway on her way to work,

slips on it, and is injured. Her only alternative to tak-

ing the risk was to forgo her employment. A is subject

to liability to C.

Comment on Susection (2):

g. In determining whether the possessor of land should

expect harm to invitees notwithstanding the known or ob-

vious character of the danger, the fact that premises have

been held open to the visitor, and that he has been invited

to use them, is always a factor to be considered, as offering

some assurance to the invitee that the place has been pre-

pared for his reception, and that reasonable care has been

used to make it safe. There is, however, a special reason for

the possessor to anticipate harm where the possessor is a

public utility, which has undertaken to render services to

members of the public, so that they are entitled to demand

the use of its facilities, and to expect reasonable safety

while using them. The same is true of the government, or a

government agency, which maintains land upon which the

public are invited and entitled to enter as a matter of public

right. Such defendants may reasonably expect the public,

in the course of the entry and use to which they are entitled,

to proceed to encounter some known or obvious dangers

which are not unduly extreme, rather than to forego the

right.

Even such defendants, however, may reasonably assume

that members of the public will not be harmed by known

or obvious dangers which are not extreme, and which any

reasonable person exercising ordinary attention, percep-

tion, and intelligence could be expected to avoid. This is

true particularly where a reasonable alternative way is

open to the visitor, known or obvious to him, and safe.

II-8

Illustrations:

6. An incoming train of the A Railroad deposits B,

a passenger, upon a platform from which the only

exit is over a footbridge crossing the tracks. Em-

ployees of the Railroad have encumbered the bridge

with baggage from the train. B, crossing the bridge,

attempts to climb over the pile of baggage, falls, and

is injured. A Railroad is subject to liability to B.

7. The same facts as in Illustration 6, except that

B is told by the train conductor that he may safely

walk across the tracks. A Railroad is not liable to B.

8. The only convenient approach from the east to

the station of A Railroad is over a footbridge which,

through the negligence of the Railroad, is covered

with snow and ice. The condition of the bridge is

obviously dangerous, but not extremely so. The only

other approach to the station, from the west, would

require a detour of six blocks. B, a prospective pas-

“i od coming from the west, attempts to use the

bridge rather than detour, and slips and is injured.

A Railroad is subject to liability to B.

9. The A Steamship Company is engaged in un-

loading a passenger ship. Its pier is encumbered with

trunks, baggage trucks, and many other large visible

objects, but there is ample room for passage between

them. B, a passenger leaving the ship, is preoccupied

with her own thoughts, and stumbles over a trunk

and is injured. The A Company is not liable to B.

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.