Petition — A/S Ivarans Rederi v. Johnson

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FRICHAEL RODAK, JR., CLERR

Tn the

Supreme Court of the United States

Ooropzr Trrm, 1979

No. 9-158

A/S IVARANS REDEBRI,

PETITIONER,

v.

ROGER JOHNSON,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIROUIT

Leo F. Guynn

RioHarp A, DEMPSEY

Astrmw C. Guynn

Giynn & Dempsey

One Boston Place

Boston, Mass. 02108

Attorneys for Petitioner

————————————E—————E—=E=E=E=EeEEEE=EEEEEEEEEE=E=E=E=E=E=E=E=Ee=EaEeE__e_e_eleeee

Blanchard Press, Inc., Boston, Mass. — Law Printers

TABLE OF CONTENTS

Page

RN oo Nia, 50's VG Was see tual ce 1

8s te fo eR Oe Ay pate am 2

Question Presented ........... Spey ie es va hae eee 2

NI 00 0%, ir Pode ig, cadet bay alge 2

Ie SEN i ciOL sa in wees vce 3

Reasons for Granting the Writ ..................... 6

Background of the Question—Intent of Congress 6

Background of the Question—Delegable Duty ... 12

Conflicts Among the Circuits as to the Standard

for Imposing a Duty on the Shipowner ........ 15

Importance of the Question .................... 18

BN CE nS kas I es ee 8A ics 20

CU er tee PeaeeL a x och ee cde ee 20

SU 20 oF otkt ea en ow ae er A-1

ML BRO Sine vie fs er eee Ck ce ee ea B-1

TABLE OF CITATIONS

Cases

Anuszewski v. Dynamic Mariners Corp., Panama, 540

F.2d 757 (4th Cir. 1976), cert. denied, 429 U.S. 1098

REEVE Nees tees fa. Soe ace cs one eee hee 16

Briley v. Charente Steamship Co., 572 F.2d 498 (5th

CA PE Ga Fo Shae Sok eee oak ek oe eae 16

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

Ter? B.20. GBS (Rb Gk TORE). oe SES 16

Cox v. Flota Mercante Grancolombiana, 8.A., 577 F.2d

798, 1978 A.M.C, 1277 (2nd Cir. 1978) ............. i6

Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 1978 A.M.C.

1009 (nd Cie. 10TS) 20S Sas aa el arate ac 4 16

°°?

ii, Table of Contents

Page

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

Ie GABE SSAT Sgn ge Ra 16

Clemons v. Mitsui 0.S.K. Lines, Ltd., 596 F.2d 746 (7th

2. Ear ye TNE FRR Para ea ae 16, 18

Edmonds v. Compagnie Generale Transatlantique, —

Be aly Ps EP RIOD. oe i ee pe ws 14, 19

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

EEE oo SO 16

Griffith v. Wheeling-Pittsburgh Steel Corp., 610 F.2d

I ed Re wns dw 0 he 17

Hickman v. Jugoslavenska Linijski Plovidba Rijeka,

Zvir, 570 F.2d 449, 1978 A.M.C. 355 (2nd Cir. 1978) 16

Johnson v. A/S Ivarans Rederi, 613 F.2d 334 (1st Cir.

SERS SARIS RSP gL 1, 17

Lopez v. A/S, D/S, Svendborg, 581 F.2d 319, 1978

es ee CO ET. RTO) hee 16

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

837, 1977 A.M.C. 843 (2nd Cir. 1977) ............. 16

Napoli v. Hellenic Lines, 536 F.2d 505 (2nd Cir. 1976).. 16

Riddle v. Exxon Transportation Co., 563 F.2d 1103,

1978 A.M.C. 741 (4th Cir. 1977) .................. 16

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

1977 A.M.C. 1289 (2nd Cir. 1977) ................. 16

Samuels v. Empresa Lineas Maritimas Argentinas, 573

F.2d 884, 1978 A.M.C, 1647 (5th Cir. 1978) ......... 16

Santos v. Scindia Steam Navigation Co., Ltd., 598

EN a cee mv eke ee 17

Socony-Vacuum Oil Company, 305 U.S. 424, 59 S.Ct.

Som, oe taed. Soe, 1909 AMO. 1 ||.) eic ee... 11

Westcott v. Impresas Armadoras, S.A., 564 F.2d 875,

tere B.C. Se (9th Cir. 1977)... 2s. een. 16

Whirlpool Corp. v. Marshall, __ U.S. — 63 L.ed.2d 154 11

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

1978 A.M.C, 2427 (5th Cir. 1978) .................. 16

Table of Contents iii

Statutes

Page

PR es PC ek Ye ee ciel y Kees 2

UR RI so da. Sa Gus ack ER e.c ww RU 2

SE i aires > (dion | Dawe be dss Sh ete oe 3

Sia a ck, s, cake Ov cs water gi awbaben 18

a li IES SS Gedy eae i a ONES. S 18

SE S's eh ae ech aw Ack ees Coa 18

| ETS RERGREBIRL RERIEUA DENS SERRA tena 18

I a SB ON Ne rakes ly Sie ee Se gh 18

RE eR eC Ne ae ES a 18

Mass. General Laws, c. 231, § 85 .................... 10

Legislative Materials

Cong. Record, 92nd Cong., 2nd Sess. Vol. 118, Part 27,

36383, et seq. (October 14,1972) ................ 18, 19

H. Rep. 92-1441, 92nd Cong., 2nd Sess., (1972) ... 7, 8, 9, 10

S. Rep. 92-1124, 92nd Cong., 2nd Sess. (1972) ......... 11

S. Rep. 92-1125, 92nd Cong., 2nd Sess. (1972) ... Pe a, a 18

Miscellaneous

datas Ts Bees eS eS as 3 7, 8, 16

eRe Ua cat eS 7, 8, 16

dn the

Supreme Court of the United States

OctosEer Term, 1979

No.

A/S IVARANS REDERI,

PETITIONER,

Vv.

ROGER JOHNSON,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioner prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals for

the First Circuit in Case No. 79-1118, entered on January

11, 1980.

Opinion Below

There was no opinion in the District Court. The opinion

of the United States Court of Appeals for the First Circuit

is set forth in the Appendix, pages A-1 through A-34, and

is reported at 613 F.2d 334.

2

Jurisdiction

’

On January 11, 1980 the Court of Appeals entered its

judgment affirming the judgment of the District Court.

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

Section 1254(1).

Question Presented

The question presented is whether the duty of care

owed to a longshoreman on a vessel is a delegable duty

which can lawfully be delegated by the vessel owner to

an independent stevedoring contractor who employs and

who assumes charge of the work of the longshoreman.

Statutes Involved

Longshoremen’s and Harbor Workers’ Compensation

Act, as amended in 1972:

33 U.S.C. § 905(b) (added in 1972):

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 dam-

ages by reason thereof, may bring an action against

such vessel as a third party in accordance with the

provisions of section 933 of this title, and the em-

ployer shall not be liable to the vessel for such dam-

ages directly or indirectly and any agreements or

warranties to the contrary shall be void. If such per-

son was employed by the vessel to provide stevedoring

services, no such action shall be permitted if the injury

was caused by the negligence of persons engaged in

providing stevedoring services to the vessel. If such

3

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 re-

pair services to the vessel. The liability of the vessel

under this subsection shall not be based upon the war-

ranty of seaworthiness or a breach thereof at the time

the injury occurred. The remedy provided in this sub-

section shall be exclusive of all other remedies against

the vessel except remedies available under this chapter,

33 U.S.C. § 941(a) (added in 1958) :

Every employer shall furnish and maintain employ-

ment and places of employment which shall be reason-

ably safe for his employees in all employments

covered by this chapter and shall instail, furnish,

maintain, and use such devices and safeguards with

particular reference to equipment used by and work-

ing conditions established by such employers as the

Secretary may determine by regulation or order to be

reasonably necessary to protect the life, health, and

safety of such employees, and to render safe such

employment and places of employment, and to prevent

injury to his employees. ...

Statement of the Case

Plaintiff is a longshoreman whe filed an action in the

United States District Court for the District of Massachu-

setts in tort against the defendant based upon diversity

of jurisdiction. The gravamen was that his injury was

caused by the negligence of the defendant, the owner of

the vessel on which the plaintiff was working as a long-

a

4

shoreman in the employ of an independent stevedoring

contractor.

The ship was a general cargo ship with a tween deck or

intermediate deck below the main deck and above the lower

holds. There were hatch covers on the main deck and on

the tween deck for each of the five holds. There were

partial vertical partitions in the tween deck separating

each hatch area. Those vertical partitions had openings

17 feet wide on both the port and starboard sides which

permitted cargo to be moved between the hatch areas.

The plaintiff was assigned to work in the deep tank

of No. 2 hatch discharging cargo. His hatch foreman was

stationed in the same No. 2 tween deck giving orders to

the winchman for taking out the drafts. Prior to the

commencement of the stevedoring work, the ship’s crew

had been cleaning No. 3 hatch. For this reason the hatch

covers in No. 3 tween deck were left in the open position.

The covers were large lids and in the open upright position

they were 9 feet high and 19 feet wide, running athwartship.

They were some 12 feet inside the separation between

No. 3 and No. 2.

The stevedoring operation in which plaintiff was engaged

was limited to discharging the cargo in No. 2 hatch. Because

no discharging was occurring in No. 3 hatch the main deck

hatch covers of No. 3 hatch were closed. At the start of

work at 0800, the hatchman of the stevedoring contractor

was standing in the tween deck of No. 2 hatch where the

work was being performed. From that position he looked

in No. 3 hatch, and from that distance of 40 feet using

the light reflected from No. 2 hatch into No. 3 hatch

through the openings in the separation, he observed that

the covers in No. 3 tween deck were in the upright position.

He requested the mate to tie a line across the openings

on the tween deck between No. 2 and No. 3 hatches. The mate

agreed to do so but did not do so immediately. Neverthe-

5

less, the hatchman directed the longshoremen to proceed

with discharging the cargo.

It was the plaintiff’s evidence that at approximately 0830

he wanted to get another hard hat. He left the deep tank

in No. 2 and climbed to the tween deck. There the hatchman

told him to keep out of the way of the pallet which was

being lowered through No. 2 hatch. It took 45-60 seconds

for a pallet to be lowered, after which time the ladder in

No. 2, which was the normal means of access for the long-

shoremen, would be clear for safe passage for some five

minutes before the load was lifted. The stevedore’s mana-

ger testified :

‘*Yes. No question about it. You utilize the ladder in

the hatch in which you are working. I used the hatch

ladder myself to go down’’. (Record Appendix 116)

The hatchman did not warn the plaintiff to avoid No. 3

hatch or stop him from entering it although he knew the

rope had not been put up and knew that the covers in

No. 3 tween deck were in the upright position. The plaintiff

testified that, instead of waiting for the draft to clear and

then ascending to the main deck within No. 2 hatch using

the open hatch of No. 2 at the main deck, he elected to

walk through the offshore opening in the tween deck bulk-

head into No. 3 hatch for the alleged but patently impossible

purpose of using the ladder in No. 3 hatch to reach the

main deck, although he could see that No. 3 hatch covers

to the main deck were closed and necessarily no access

to the main deck from No. 3 hatch was possible. The

plaintiff testified that as he walked through the No. 3 hatch

area he could see the ladder leading to the main deck in

No. 3 hatch at the other end of No. 3 tween deck hatch,

but denied that he could see the 9 foot high and 19 foot

wide upright lid which was at the near end of No. 3 tween

La

6

deck. This was the same lid which the hatchman had seen

from 40 feet away. The plaintiff’s injury occurred when he

fell in the No. 3 tween deck hatch opening.

The Court denied the defendant’s Motion for a Directed

Verdict at the close of the plaintiff’s evidence and at the

close of all the evidence. The jury rendered a verdict for

the plaintiff in the amount of $400,000.00. The defendant

also took certain exceptions to the charge which were re-

jected by the Court. The defendant thereafter presented a

Motion for Judgment NOV and a Motion for a New Trial.

Both were denied by the Court.

The Court of Appeals for the First Circuit issued an

opinion denying the defendant’s appeal. That opinion is

Appendix A to this Petition.

Reasons for Granting the Writ

The Writ of Certiorari should be granted because the

Court of Appeals has in this case:

1. Rendered a decision in conflict with decisions on

the same matter in the Second, Fourth, Fifth, and Seventh

Circuits.

2. Decided important questions of Federal law which

have not been, but should be, settled by this Court.

BACKGROUND OF THE QuESTION—INTENT OF CONGRESS

The maze of conflicting analyses which Section 905B of

Title 33 has produced among the Federal Courts has been

caused by their common quest for the intent of Congress.

The House and Senate attempted to anticipate that prob-

lem by using an identical section in their respective Reports

on the bill under the caption, ‘‘ Elimination of Unseaworthi-

ness Remedy’’. From within that section we have selected

1 The verdict was in the amount of $400,000.00. The Judgment,

with interest, totalled $488,333.35.

79

7

five excerpts as expressly material to the present case.”

From each of those excerpts we have drawn conclusions.

Excerpt 1: ‘*The Committee believes that where a long-

shoreman 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.’’ H. Rep.

92-1441, 92nd Cong., 2nd Sess., 4 (1972).

Conclusion: This is a strong, clear statement that all

the normal land-based standards of care apply. Those land-

based standards are authoritatively found in the Restate-

ment of Torts, Section 343 and 343A, which are accepted

sources for the statements of the common law duty of a

possessor of land. Whether the term ‘‘possessor”’ is pre-

cisely applicable to a shipowner who has delegated control

of the work locus to an individual contractor may be ques-

tioned, but the land-based standard of care certainly ought

to be no greater than the land-based standard of a possessor

of land. n

Excerpt 2: ‘‘ Accordingly, the Committee has concluded

that, given the improvements in compensation benefits

which this bill would provide, it would be fairer to all con-

cerned and fully consistent with the objective of protecting

the health and safety of employees who work on board ves-

sels for the liability of vessels as third parties to be predi-

cated on negligence, rather than the no-fault concept of

seaworthiness. This would place vessels in the same posi-

tion, 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

2? These excerpts are set forth seriatim in Appendix B hereto.

The portion of the Senate Committee Report entitled ‘‘ Elimination

of Unseaworthiness Remedy’’ is set forth in Appendix B with the

quoted excerpts italicized for convenient reference. °

8

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 judicial

nomenclature it may be called, such.gas ‘unseaworthiness’,

‘non-delegable duty’, or the like.’? H. Rep. 92-1441, 92nd

Cong., 2nd Sess., 6 (1972).

Conclusion: This is not only a second co ation ofan

the land-based doctrine and thereby the suitability of Sec-

tions 343 and 343A, but it expressly rules out ‘‘any special

maritime theory of liability’? which the minority view

among the Circuits followed by the First Cireuit Court of

Appeals in this case have adopted. The term ‘‘constant

concern’’ employed by the Court of Appeals for the First

Circuit at page 7 of its opinion is antithetical to a duty

which can be delegated. The term ‘‘censtant concern”’ as a

synthesis of the standard of care selected by the Court of

Appeals for the First Circuit is, in effect, a non-delegable

duty, and a non-delegable duty has been expressly rejected

by Congress as stated in this excerpt.

Excerpt 3: ‘*Permitting actions against the vessel based

on negligence 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 appropriate correc-

tive action where it knows or should have known about a

dangerous condition.

‘*So, for example, where a longshoveman slips on an oil

spill on a vessel’s 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; 0: 2) the foreign substance had been on the deck

9

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 em-

ployee of the stevedore.’’ H. Rep. 92-1441, 92nd Cong., 2nd

Sess., 6, 7 (1972).

Conclusion: This is the third positive statement by both

House and Senate Committee that land-based principles

are to be applied. The requirement that the vessel have

actual or consiructive knowledge is typical of land-based

law. Perhaps even more important to the present Petition

is the frank declaration by two Congressional Committees

in the opening words of this excerpt that they have reached

a policy balance among the various benefits and various

gradations of legal responsibilities. Their decision coneern-

ing the options selected is controlling. It is not open to a

Court to re-evaluate those options even under the guise of

statutory construction. For some thirty years case law

was controlled by the severity of the Sieracki decision.

Understandably judicial departure from that severity, in

substance and not just in form, may be more difficut than

it was for the Congressional Committees who were con-

sidering the Thiru Party modification essentially de novo.

But the will of Congress is final.

Excerpt 4: ‘‘This 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 ves-

sel 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 paviy 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.’’ H. Rep. 92-1441, 92d

Cong., 2d Session, 7 (1972).

-,

10

Conclusion: There seemingly can be no clearer refuta-

tion of the decision of the First Circuit than the plain and

direct language of this excerpt. Congress can hardly have

used more explicit language to negate such specialized

concepts as Jones Act negligence, the duty to provide a safe

place to work and other maritime doctrines exemplified by

the shipowner’s mandated ‘‘constant concern”’ in the pres-

ent decision. In spite of the definitive Congressional state-

ment, the decision of the Court of Appeals for the First

Cireuit extends to a delegating shipowner the affirmative

duty to provide a safe place to work for employees of an

independent stevedoring contractor who has knowledge of

the conditions and who has control both of the locus and of

his personnel.

Excerpt 5: ‘‘The Committee intends that legal ques-

tions which may arise in actions brought under these pro-

visions of the law shall be determined as a matter of Fed-

eral law. In that connection, the Committee intends that

the admiralty concept of comparative negligence, rather

than the common law rule as to contributory negligence,

shall apply in cases where the injured employee’s own neg-

ligence may have contributed to causing the injury. Also,

the Committee intends that the admiralty rule which pre-

cludes the defense of ‘assumption of risk’ in an action by

an injured employee shall also be applicable.’’? H. Rep.

92-1441, 92nd Cong., 2d Sess. 8 (1972)

Conclusion: This excerpt must necessarily be read in

conformance with excerpts 1, 2, 3 and 4 herein, all of which

have repeatedly rejected a non-delegable duty and repeat-

edly affirmed landbased law. The comment concerning com-

parative negligence is consistent with the trend in which

many States have modified the classic doctrine of contrib-

utory negligence as a total bar by statutorily changing to

a pro tanto defense, c.f. Massachuetts General Laws, c.

231, Sec. 85.

11

The reference to ‘‘assumption of the risk’’ which appears

herein has been regarded as pivotal in the split of authority

among the Circuits. It was given almost controlling weight

by the decision of the Court of Appeals for the First Cir-

cuit in the present case. We would first note the reference

to the word ‘‘admiralty’’ in this excerpt. Although it is

used here in juxtaposition with common law, ‘‘admiralty’’

in a broader context is a part of the common law when it is

placed in juxtaposition with statutory laws. The use of the

term ‘‘admiralty,’’ therefore, excludes any connotation from

statutory law such as the Jones Act or FELA where the

term ‘‘assumption of the risk’’ appears. It is rather a ref-

erence to admiralty as a part of the common law.

Further, the reference to assumption of the risk is in-

exact, for that doctrine historically resulted from the fact

that a seaman as an employee of the shipowner was under

the disciplinary control of the ship’s master and had no

alternative but to obey the master’s commands. Socony-

Vacuum Oil Company, 305 U.S. 424, 59 S. Ct. 262, 83 L.ed.

265, 1939 A.M.C. 1; S. Rep. No. 92-1124, 92nd Cong., 2nd

Sess., 9-10 (1972). In the present instance there is no

employer-employee relationship between the vessel and the

longshoremen and, therefore, no compulsion or control can

be a concern. Finally, the private contractual right to stop

work on safety issues has been given statutory and regula-

tory accreditation in the recent decision of the Supreme

Court in the case of Whirlpool Corp. v. Marshall, (1980)

63 L.Ed.2d 154, 167, footnote 29.

There are wide and major differences between the cir-

cumstances of a seaman who is under disciplinary control

of the ship master out at sea and the volitional employment

of a longshoreman alongside a pier. The reference by Con-

7%

i

12

gress was an exclusion of whatever vestige of the older doc-

trine might be applicable to a longshoreman but that can

hardly be employed to destroy the repeated references in

the Committee’s Report that land-based principles of law

shall apply.

BACKGROUND OF THE QuEsTION-DELEGABLE Duty

If the duty is no longer non-delegable, then it is now

delegable. That may be a mere truism, but that truism has

not been accepted by the decision of the Court of Appeals

for the First Circuit in this case. The legal effect of that

decision is that the duty of care is not fully delegable but

only partly delegable. It is delegable only insofar as the

stevedore actually fulfills his responsibility and thus, ac-

cording to the First Circuit Court of Appeals, some re-

sponsibility remains with the vessel owner. Necessarily,

therefore, the First Circuit has ruled with respect to the

‘*some’’ responsibility remaining with the vessel owner that

to that extent the duty is still non-delegable. That con-

clusion is in conflict with the expressly asserted will of Con-

gress. No such qualifications appear in the Committees’

explicit rejection of the previous non-delegable duty.

If there is such a delegation of duty, what is the nature

of that delegated duty? First, inherent in the delegation is

the delegation of control. There need be no delegation of the

control of the personnel of the independent contractor since

those personnel are under his control ab initio. The limits

of that delegation of control are most reliably found in the

express consent of the independent contractor. Here the

stevedoring contractor agreed that his personnel were to

stay in the hatch concerned:

‘Yes, no question about it. You utilize the ladder for

the hatch in which you are working. In fact, I used the

ladder myself to go down.’’ (Record Appendix 116)

i3

Nothing can be more central to the stevedore’s consen-

sual undertaking than his agreement to supervise his own

personnel in respect to conditions of which he has actual

knowledge.

These principles of law derive from the simple elemen-

tary concept that responsibility follows control. Indeed,

that rule is a cornerstone of the so-called independent con-

tractor doctrine. Since an independent contractor is one who

assumes and exercises control of a locus he is uniquely re-

sponsible for the actions and conditions within that locus.

Here the shipowner has employed the services of an inde-

pendent stevedoring contractor, has provided to that con-

tractor control of the locus which supplements the con-

tracter’s inherent control of his own employees. In addition

the contractor has knowledge and notice of the conditions

in the neighboring area beyond the area of his assigned

work. It would violate the classic concept that responsibility

follows control to graft onto the delegation of control and

responsibility to the stevedore an anomalous supplementary

and concurrent duty of the shipowner.

Yet the decision of the First Circuit is strangely silent

in the matter of control. There is no recognition in the

Court’s synthesis on page 26 of its opinion of the classic

characteristic of an independent contractor, namely, control

of the enterprise. It is as if the Court were ruling that

the duty of care in the locus is delegable in form only and

non-delegable in substance. It is error not only because it

does not adhere to the express will of Congress but also

because it negates the political wisdom of Congress. Al-

though we frankly agree it is not recited in the Committee

Reports, the Committees may have recognized the funda-

mental truth in human conduct that shared responsibility

is divided responsibility, and divided responsibility is fatal

to the success of an enterprise. To be operationally efficient,

responsibility must be singular and not plural. Any such

| i

14

divided responsibility also frustrates the most important

concern of Congress, the safety of personnel. If we accept

the rationale that tort damages have not only a compensa-

tory purpose but also the purpose of prevention of other

injuries, any division of responsibility defeats the latter

purpose in this particular situation. A reading of the

OSHA Regulations reveals the broad sweep of the steve-

dore’s native responsibility as seen by the Department of

Labor. Yet in this particular situation, the stevedore’s

failure to fulfill those broad regulations is only initially

assessed against him in the compensation forum. There-

after—and far more important in this context—the compen-

sation payment by the stevedore is totally recouped to him

in the litigation forum for, indeed, he recovers his lien in

total before the longshoreman recovers a single dollar.

As a result, the stevedore who has the broadest responsi-

bility and control and thereby is in the best position to

prevent injury to the longshoreman incurs no financial

burden.* Any such construction of the statute is a dis-

incentive toward safety which was and is the paramount

Congressional purpose. In an attempt to safeguard the

longshoreman’s purse in tort damages, the safety of his

person may be put at risk.

After the stevedore has accepted from the shipowner

control of the locus and control of the enterprise and has

knowledge of its conditions, the delegation of the duty of

reasonable care has passed to the stevedore, especially in

respect to the conduct of his own employees. Any synthesis

of the duty of the vessel owner which negates or dilutes

the delegation of control by the vessel owner to the steve-

dore contractor such as appears at page 26 of the decision

3 The stevedore in Edmonds who was 70 per cent at fault assum-

edly recovered his lien. Thus, while Edmonds succeeded financially

fully under. that decision, the result gave no punitive motivation

to the stevedore against later injuries.

15

of the First Circuit Court of Appeals becomes a disguised

resurrection of the outlawed non-delegable duty. It is error

in respect to an important Federal question. It rejects the

intent of Congress, and it is in conflict with the views of

the other Circuit Courts of Appeal.

Conruicts AMONG THE CIRCUITS AS TO THE STANDARD FOR

Impostne a Duty oN THE SHIPOWNER.

There seems no more convenient and persuasive proof

of conflicts among the circuits than the frank recital of

those conflicts in the decision of the First Cireuit Court

of Appeals in the present case. In the Court’s decision

Judge Bownes made a lengthy and scholarly analysis of the

various currents and eddys of authority among the Circuits

and not only recited the differences among them but also

provided the evaluation of those differences by the First

Circuit.

The existence of so varied a set of authorities among the

respective Circuits is alone a strong ground for attention

to the issue by the United States Supreme Court. Without

purporting to repeat herein all of the details of Judge

Bownes’ opinion, it may be sufficient to note some of those

issues which lie within each of the opinions of the Circuits

on this issue.

In those cases cited by the First Circuit Court of Appeals

as representing the majority view, the Second, Fourth,

Fifth and Seventh Circuits have recognized that if the con-

cept of non-delegable duty is to be truly eliminated from

the standard of care owed by the vessel to the longshoremen

that it may not be a conditional delegation, that is, a delega-

tion sufficient to limit the shipowner’s duty only as long as

the stevedore does not breach his duty. Napoli v. Hellenic

7%

16

Lines, 536 F.2d 505 (2nd Cir. 1976) ; Anuszewski v. Dynamic

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

cert. denied, 429 U.S. 1098 (1977); Chavis v. Finn Lines

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

Transport & Trading, Ltd., 546 F.2d 1233 (5th Cir. 1977) ;

Clemons v. Mitsui O.S.K. Lines, Litd., 596 F.2d 746 (7th

Cir. 1979).

These circuits are admittedly not uniform in their ex-

plicit adoption of Restatement of Torts, Second, Section 343

and 343A, and some look instead to the more general ques-

tion of control vested in the stevedore.* However, these

decisions are all premised upon the principle that except

as to those conditions which are uniquely within the ship-

owner’s knowledge and control, the shipowner may prop-

* Clemons v. Mitsui O.S.K. Lines, Ltd., 596 F.2d 746, 1979 A.M.C.

999 (7th Cir. 1979); Lopez v. A/S, D/S, Svendborg, 581 F.2d

319, 1978 A.M.C. 1655 (2d Cir. 1978); Canizzo v. Farrell Lines,

Inc., 579 F.2d 682, 1978 A.M.C. 1920 (2d Cir. 1978); Hickman

v. Jugoslavenska Linijski Plovidba Rijeka, Zvir, 570 F.2d 449,

1978 A.M.C. 355 (2d Cir. 1978) ; Ruffino v. Scindia Steam Navi-

gation Co., 559 F.2d 861, 1977 A.M.C. 1289 (2d Cir. 1977);

Napoli v. Hellenic Lines, Ltd., 536 Fd 505, 1976 A.M.C. 551

(2d Cir. 1976) ; Chavis v. Finnlines Ltd., 576 F.2d 1072 (4th Cir.

1978) ; Riddle v. Exxon Transportation Co., 563 F.2d 1103, 1978

A.M.C, 741 (4th Cir. 1977); Anuszewski v. Dynamic Mariners

Corp., 540 F.2d 757, 1976 A.M.C. 2048 (4th Cir. 1976) ; Samuels v.

Empresa Lineas Maritimas Argentinas, 573 F.2d 884, 1978 A.M.C.

1647 (5th Cir. 1978); Wiles v. Delta Steamship Lines, Inc., 574

F.2d 1338, 1978 A.M.C. 2427 (5th Cir. 1978) ; Brown v. Mitsubishi

Shintaku Ginko, 550 F.2d 331, 1977 A.M.C. 989 (5th Cir. 1977) ;

Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1977

A.M.C. 996 (5th Cir. 1977).

Cox v. Flota Mercante Grancolombiana, 8.A., 577 F.2d 798,

1978 A.M.C. 1277 (2d Cir. 1978); Hickman v. Jugoslavenska

Linijska Plovidba Rijeka, Zvir, 570 F.2d 449, 1978 A.M.C. 355

(2d Cir. 1978); Munoz v. Flota Merchante Grancolombiana, 553

F.2d 837, 1977 A.M.C. 843 (2d Cir. 1977); Briley v. Charente

Steamship Co., 572 F.2d 498 (5th Cir. 1978) ; Wescott v. Impresas

Armadoras, 8.A., 564 F.2d 875, 1979 A.M.C. 930 (9th Cir. 1977).

17

erly delegate responsibility to the stevedore and that once

that delegation has been effected, the shipowner’s duty does

not extend to supervising and intervening between the long-

shoremen and the known danger.

As the First Circuit itself recognized, the stevedore is

primarily responsible for the longshoremen’s safety. Juhn-

son v. A/S Ivarans Rederi, (1st Cir.), No. 79-1118, 613 F.2d

334 (1st Cir. 1980) decided January 11, 1980, at p. 8. How-

ever, the First Circuit, like the Third Cireuit in Griffith v.

Wheeling-Pittsburgh Steel Corp., Nos. 78-2159, 70-2160,

78-2161 (3rd Cir. August 24, 1979), 610 F.2d 116 (3rd Cir.

1979) and the Ninth Cireuit in Santos v. Scindia Steam

Navigation Co., Ltd., 598 F.2d 480 (9th Cir. 1979), errone-

ously equated a consideration of the stevedore’s breach of

its duty with imputing the stevedore’s negligence to the

longshoremen. Accordingly, the minority view which the

First Circuit adopted refuses to recognize that the ship-

owner’s duty is limited by the stevedore’s duty. The First

Circuit and the minority view it espouses holds that the

shipowner’s duty continues secondarily to the primary duty

of the stevedore and that the delegation of responsibility

to the stevedore is conditional only.

In effect, the First Circuit has held that the shipowner

was negligent for its reliance on a properly selected inde-

pendent contractor and that the shipowner became a surety

for the stevedore’s proper performance of the responsi-

bilities delegated to it.

In the case at bar there was no doubt that the stevedore

undertosk to regulate the ingress and egress of the long-

shoremen, was responsible for their safe passage under

OSHA regulations, knew of the open, unlighted hatch and

knew that it had not been roped off. There was no conten-

tion that the shipowner selected an inexpert stevedore or

that the demands placed upon the stevedore by the OSHA

18

regulations were beyond its ability or competence. 29 C.F.R.

1918, 1918.25(a), 1918.92(a)(c), 1918.31(e), 1918.32(c),

1918.41(b). The shipowner properly relied upon the steve-

dore to restrict the longshoremen to the working areas

(where no complaint of unsafe conditions was made) and

to generally exercise that control which had been delegated

to the stevedore and which placed the stevedore in the best

position to safeguard the workers. Clemons v. Mitsui

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

the minority view as applied by the First Circuit negates

the propriety of this reliance upon an independent con-

tractor and reimposes upon the shipowner the duty which

had been delegated.

The First Circuit, by rejecting the majority approach of

the Second, Fourth, Fifth and Seventh Circuits, improp-

erly extended the shipowner’s duty to include the steve-

dore’s duty. This Honorable Court should resolve the

conflict among the Circuits and should affirm that the ship-

owner is not the guarantor of the stevedore’s performance.

IMPORTANCE OF Te QUESTION

The disposition of claims by injured longshoremen, and

the cost of those claims, occupy a central position in the

flow of commerce and on the dockets of Federal Courts.

Hearings on S. 2318, S. 525 and S. 1547 Before the Subecom-

mittee on Labor of the Senate Committee on Labor and

Public Welfare, 92nd Cong., 2nd Sess., 29 (1972); State-

ment of Hon. James D. Hodgson, Secretary of Labor, May

2, 1972. S. Rep. No. 92-1125, 92nd Cong., 2nd Sess., 9 (1972).

The 1972 amendments to the Longshoremen’s and Harbor

Workers’ Compensation Act incorporated a Congressional

intention that the workmen’s compensation system was to

be the first remedy available to the longshoremen and gen-

erally the only appropriate remedy. Cong. Record, 92nd

19

Cong., 2nd Sess., Vol. 118, Part 27, 36383 et seq., (Oct. 14,

1972). To enlarge the shipowner’s duty dislodges the bal-

anced structure sought by Congress and burdens both the

judicial system, which hears claims of vessel negligence,

and the economic system, which carries the cost of non-

compensation benefits. Moreover, the burden gains for the

longshoremen no greater level of safety since the cost of

injury is separated from the control of the work place.

The need to precisely define the duty of the shipowner

has been magnified by the decision of this Court in Edmonds

v. Compagnie Generale Transatlantiquée, No. 78-479 (June

27, 1979), 99 S. Ct. 2753. It also appears essential to the

public safety that some puntive sanction be placed upon him

who is best able to prevent injuries. Here that is the steve-

dore who was general contractor of the work. As stated

elsewhere the Edmonds jury found the stevedore 70 percent

at fault yet by virtue of the lien recovery, the Edmonds

stevedore may ultimately pay nothing. If the shipowner

is to be held financially responsible for the totality of the

longshoremen’s damages when any part of those damages

are attributable to the ship’s breach of duty, it is essential

to carefully delineate what the ship’s duty is. It is submitted

that the expansive definition of that duty which the First

Circuit adopted in the present case minimizes the preven-

tion factor which is the keystone of the intent of Congress.

The balance between the longshoreman, stevedore, and

shipowner which Congress sought to create has been skewed

by the expansive standard of care adopted by the First

Circuit and the minority of Circuits. This Honorable Court

should intervene to recreate the intended and necessary

balance.

bl al

20

RELATED CasESs

The question raised by this case is closely allied to

questions raised in the Petition for Certiorari filed in

Scindia Steam Navigation Co., Ltd. v. Lauro de los Santos

and Seattle Stevedore Co., No. 79-512, American Commer-

cial Lines, Inc. v. Thomas W. Griffith and Wheeling-

Pittsburgh Steel Corporation, No. 79-813, Mammouth Bulk

Carriers, Ltd. v. James D. Bachtel, Donna Bachtel, and

Twin Harbor Stevedoring Co., No. 74-538, McCulley, Admin.

of Estate of Clemons v. Mitsui O.S.K. Lines, Ltd. and

Baba-Daiko Shosen, K.K., No. 79-706, and Ernest Russ

Steamship Co. v. John Matthews, No. 79-624.

Conclusion

We therefore respectfully submit that this Honorable

Court should grant the Writ of Certiorari to review the

decision of the Court of Appeals for the First Cireuit. It is

further submitted that this Honorable Court should con-

solidate this case for hearing with other cases in which Peti-

tioners for Certiorari are found raising the same question.

Respectfully submitted,

Leo F. Giyyn

Ricuarp A, DempsEy

Astrip C, GLYNN

Giynn & DEMPSEY

One Boston Place

Boston, Mass. 02108

Attorneys for Petitioner

A-1

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 79-1118

ROGER JOHNSON,

PLAINTIFF-APPELLEE,

v.

A/S IVARANS REDERI,

DEFENDANT-APPELLANT.

APPEAL FROM THE UNITED STATES DISTRIOT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. A. Davip Mazzone, U.S. District Judge]

Before

Corrin, Chief Judge,

Kunzie, Judge, U.S. Court of Claims*

Bowness, Circuit Judge.

Richard A. Dempsey, with whom Glynn & Dempsey was on brief,

for appellant.

Hiller B. Zobel, with whom Nathan Greenberg, and Brown, Rud-

nick, Freed & Gesmer were on brief, for appellee.

January 11, 1980 |

Bowness, Circuit Judge. Plaintiff-appellee, Roger John-

son, a longshoreman employed by the New Bedford Steve-

doring Company, was severely injured when he stepped into

the open No. 3 tween deck hatch of the general cargo ship

M/V SALVADOR and fell thirty feet into the hold of the

vessel. Following a three day trial, the jury found that

Johnson’s injuries were caused by the sole negligence of

the defendant-appellant shipowner, A/S ivarans Rederi.

Final judgment was entered for Johnson in the amount of

* Sitting by designation.

- S

Ad

$488,333.35, including interest. On appeal, defendant al-

leges the commission of three errors by the district court:

failure to properly charge the jury; denial of its motion

for judgment n.o.v.; and denial of its motion for a new trial.

The chief issue is the standard of care applicable in an

action by a longshoreman against a vessel for injuries re-

ceived while on the ship under section 905(b) of the Long-

shoremen’s and Harbor Workers’ Compensation Act, 33

U.S.C. § 905(b).

THE FACTS

The M/V SALVADOR carries general cargo between

ports in North and South America. New Bedford, the site

of this accident, is the ship’s northernmost port of call.

The ship has five cargo hatches, numbered sequentially

from fore to aft, and three working levels: the ‘‘weather”’

or top deck; the ‘‘hold’’ or bottom of the vessel; and an

interior deck, known as the ‘‘tween’’ deck, which runs

through the three middle hatches at a level approximately

one-third of the distance between the weather deck and the’

hold. The five cargo hatches are loaded through opened

hatch covers in the weather and tween decks. The cargo

hatches are separated by verticai partitions known as bulk-

heads.. Wide openings in the port and starboard sides of

the bulkheads separating the No. 2, No. 3 and No. 4 hatches

allow horizontal movement on the tween deck between

those hatches. Vertical movement between the three work-

ing levels of the ship is accomplished by the use of ladders

in the hatches.

On the day of Johnson’s fall, a crew from New Bedford

Stevedoring Company (the stevedore) boarded the ship at

8:00 a.m. to load cargo into the deep tanks of No. 2 hatch,

the lower hold of No. 4 hatch and the lower tween deck

of No. 5 hatch. No cargo was to be loaded into No. 3 hatch.

Johnson was assigned to work with a five person crew

unloading bags of fertilizer from pallets lowered by power

A-3

winch into No. 2 deep tanks. When Johnson’s crew de-

scended into No. 2 deep tanks, the two seventeen foot wide

openings in the bulkhead separating No. 2 and No. 3

hatch on the tween deck were not blocked off. The weather

deck hatch covers of No. 3 hatch were closed, but the

tween deck hatch covers of No. 3 hatch had been left open

by a ship’s crew that had been removing debris from the

hold. The No. 3 tween deck was dark, due to the absence

of artificial lighting and the fact that the weather deck

hatch covers were closed. The open tween deck hatch

covers in No. 3 left a square opening in the tween deck

measuring approximately twenty feet by twenty feet. The

opening had not been roped off and no hatch coaming or

safety net had been used to protect a person from falling

into the hold.

Prior to the commencement of work in No. 2 hatch, the

open tween deck hatch covers in No. 3 hatch and the open-

ings in the bulkhead leading to No. 3 hatch were noticed

by Robert Duarte, the signalman for No. 2 hatch. It is

the signalman’s responsibility to warn the crew in the hatch

of the approach of loads from above and to coordinate the

work of the winch operator and the crew. Duarte informed

the ship’s mate of his observations and asked him to either

rope off the bulkhead openings or close the hatch covers.

The mate said he would take care of it right away.

At approximately 8:30 a.m., Johnson obtained permis-

sion to go ashore to replace his defective safety helmet.

Johnson climbed the ladder to the No. 2 tween deck, where

Duarte told him to get out of the way of a pallet of ferti-

lizer bags being lowered into No. 2 hatch. Johnson then

walked through the offshore opening in the bulkhead to-

wards No. 3 hatch. After taking from five to seven steps,

he fell into the hold through the open hatch.

A-4

THE APPLICABLE. STANDARD OF LIABILITY

The backbone of. the charge given by the trict court

was derived from sections 343 and 343A of the Restate-

ment (Second) of Torts (the Restatement).’ Although this

court has, on previous occasions, reached into the Restate-

ment for principles to guide it in admiralty cases, see, e.g.,

Pino v. Protection Maritime Insurance Co., Ltd., 599 F.2d

10 (1st Cir. 1979) (Restatement of Torts § 766); Ander-

son v. Iceland 8.8. Co., 585 F.2d 1142 (1st Cir. 1978)

(Restatement (Second) of Torts § 414A), we have never

utilized the provisions of the Restatement that describe

the duties owed by landowners to invitees upon their land.

We approached the question of the applicability of these

sections in Anderson, noting the concern expressed by

other courts about the incorporation of the prohibited de-

fenses of assumption of the risk and contributory negli-

gence, but concluded that the sections were not controlling

1 Those sections read as follows:

§ 343. Dangerous Conditions Known to or Discoverable by

Possessor

A possessor of land is subject to liability for physical harm

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

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

cover 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

(c) fails to exercise reasonable care to protect them against

the danger.

§ 343A. Known or Obvious Dangers

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

physical harm caused to them by any activity or condition

on the land whose danger is known or obvious to them, unless

the possessor should anticipate the harm despite such knowl-

edge of obviousness.

(2) In determining wihethior ths possessor should antici-

pate 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 indi-

eating that the harm should be anticipated.

A-5

under the facts of that case. Anderson v. Iceland S.S. Co.,

585 F.2d at 1146-48.?

Today, we face squarely the question of whether sec-

tions 343 and 343A of the Restatement should be the basis

of the standard of care in a longshoreman’s action against

the vessel for personal injuries. This requires a review

of the legislative history of the statute and an analysis of

the pertinent case law and legal authority.

Section 905(b) of the Act? gives longshoremen a negli-

gence action, exclusive of all other remedies, against the

vessel for injuries received through the fault of the vessel.

Since the term ‘‘negligence’’ is not defined in the statute,

we look to the legislative history of the Act for assistance

in determining how ‘‘negligence’’ is to be construed and

applied.

2 As we noted in Anderson, there appears to be no place in the

law of admiralty for distinctions between licensees and invitees.

Anderson v. Iceland 8.8. Co., 585 F.2d 1142, 1146-47 n.5 (1st Cir.

1978).

3 Section 905(b) provides:

In the event of injury to a person covered under this chap-

ter 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 war-

ranties to the contrary shall be null and void. If such person

was employed by the vessel to provide stevedoring services,

no such action shall be permitted if the injury was caused by

the negligence of persons engaged in providing stevedoring

services to the vessel. If such person was employed by the

veasel 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 sea-

worthiness or a breach thereof at the time the injury occurred.

The remedy provided in this subsection shall be exclusive of

all other remedies against the vessel except remedies available

under this chapter.

A-6

The report of the House Committee provides the most

assistance. See H. Rep. No. 92-1441, 92nd Cong., 1st Sess.,

reprinted in [1972] U.S. Code Cong. & Adm. News 4698

(House Report). After detailing the infirmities of the

existing doctrines of unseaworthiness and indemnification

and the system of workmen’s compensation, the House Re-

port described the role the concept of negligence would play

in the new law:

Accordingly, the Committee has concluded that,

given the improvement in compensation benefits which

this bill would provide, it would be fairer to all con-

cerned and fully consistent with the objective of pro-

tecting 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 seaworthiness. 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 em-

ployee injured aboard a vessel in the same position

he would be if he were injured in non-maritime em-

ployment ashore, insofar as bringing a third party

damage action is concerned, and not to endow him

with any special maritime theory of liability or cause

of action under whatever judicial nomenclature it

may be called, such as ‘‘unseaworthiness’’, ‘‘non-

delegable duty’’, or the like.

Id. at 4703. We interpret this portion of the legislative

history, particularly those phrases beginning with ‘‘inso-

far,’’ as requiring the establishment of a doctrine of negli-

gence liability similar or analogous to the terrene legal

doctrine. on which suits based on the negligence of the

owner or occupier of land are based. See Anderson v. Ice-

land S8.S. Co., supra, 585 F.2d at 1146.

A-7

The overriding purpose of the 1972 amendments was to

create incentives for safety* in the nation’s second most

dangerous profession :° )

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 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.

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 re-

cover 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 dis-

covered 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.

House Report, supra, at 4704. This portion of the legis-

lative history unequivocally asserts the intention of Con-

gress that the vessel shall exercise a constant concern for

the safety of longshoremen. In addition, it strongly implies

that Congress believed the 1972 amendment continued,

* See S. Rep. No. 92-1125, 82nd Cong., 1st Sess. 2 (1972): ‘‘It

is the Committee’s view that every appropriate means be applied

toward improving the tragic and intolerable conditions which take

such a heavy toll upon worker’s lives and bodies in this industry.’’

5 At the time of consideration of the 1972 amendments, only

coal mining was a more dangerous vocation than longshoring.

A-8

rather than created, a duty on the part of the vessel to

maintain a safe place to work. Although the last sentence

acknowledges the stevedore’s primary responsibility for

safety in the work area, it also indicates that the vessel

and the stevedore can be concurrently negligent in regard

to a particular work hazard.

Having placed upon the vessel the general duty to exer-

cise reasonable care under the circumstances, Congress

then addressed the standard of care to be utilized in

implementing that duty:

Under this standard, as adopted by the Committee,

there will, of course, be disputes as to whether the

vessel was negligent in a particular case. Such issues

ean only be resolved through the application of ac-

cepted principles of tort law and the ordinary process

of litigation—just as they are in cases involving

alleged negligence by land-based third parties.

House Report, supra, at 4704.

While Congress delegated to the courts the responsi-

bility for fashioning the standard of care to be used in

section 905(b) cases, this authority did not come without

legislative constraints:

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 circum-

stances.

Finally, the Committee does not intend that the

negligence remedy authorized in the bill shall be

applied differently in different ports depending on

A-9

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 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.

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 Occupational Safety and Health Act of

1970. The Committee recognizes that progress has

been made in reducing injuries in the longshore in-

dustry, but longshoring remains one of the most haz-

ardous types of occupations. The Committee 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

improving occupational health and safety.

House Report, supra, at 4704-05.

Analyzing the House Report as a whole, we conclude

that in enacting section 905(b), Congress intended that

each of the parties in the stevedoring injury triangle—the

vessel, the stevedore and the longshoreman—owe a duty

to exercise reasonable care under the circumstances, Con-

gress left to the courts the articulation and application of

the standard of care in the particular circumstances of

each case. The parameters of the standard of care the

A-10

courts are to develop are clear: the vessel will continue to

be liable for any negligent failure on its part to pro-

vide a safe place to work; OSHA regulations will con-

tinue to apply to all parties and may, in certain circum-

stances, define the appropriate standard of care; no stand-

ard of care may incorporate the doctrines of assumption

of the risk, contributory negligence or liability without

fault (unseaworthiness); the standard of care may be

neither as unfavorable to the vessel as strict liability nor

more unfavorable to the longshoreman than land-based

tort law; the standard of care must evolve as a uniform

body of national law; and, the body of law must develop

so as to have the maximum impact on safety.

We discern in the statute and its legislative history

no requirement that, in fashioning this uniform body of

national law, the courts must adopt writ large the tort

concepts developed over the years as to possessors of land

as the standard of care for an industry that has until this

time been governed by the principles of maritime law.

We believe that our responsibilities under section 905(b)

are similar to those Congress placed upon the courts by

the adoption of the Federal Employer’s Liability Act® and

the Jones Act,’ at least in regard to the development of

the standard of care:

In the railroad and shipping industries, however, the

FELA and Jones Act provided the framework for

determining liability for industrial accidents. But in-

stead of a detailed statute codifying common-law

principles, Congress saw fit to enact a statute of the

most general terms, thus leaving in large measure

to the courts the duty of fashioning remedies for

injured employees in a manner analogous to the

development of tort remedies at common law. But it

645 U.S.C. §§ 51 et seg. (1972).

746 U.S.C. § 688 (1975).

A-1]

is clear that the general congressional intent was to

provide liberal recovery for injured workers, Rogers

v. Missouri Pacific R. Co., 352 U.S. 500, 508-510, and

it is also clear that Congress intended the creation

of no static remedy, but one which would be developed

and enlarged to meet changing conditions and chang-

ing concepts of industry’s duty toward its workers.

Kernan v. American Dredging Co., 355 U.S. 426, 432 (1958).

The Supreme Court has recently noted that, within legis-

lative parameters, ‘‘admiralty law is judge-made law to a

great extent.’’ Edmonds v. Compagnie Generale Trans-

atlantique, 47 U.S.L.W. 4868 (June 27, 1979).

In developing this uniform body of national law, we

must discard any concept antithetical to the intent of Con-

gress and may incorporate into it recognized legal con-

cepts that will promote the primary congressional objec-

tive of longshoremen safety. A review of recent case law

and an examination of scholarly inquiry® into the 1972

amendments, discloses three relevant strains of law from

which we may synthesize a standard of care to implement

® The 1972 amendments to the LHWCA have been the subject of

extensive study. Among the more pertinent articles discussing

section 905(b) are the following: Gorman, The Longshoremen’s

and Harbor Workers’ Compensation Act—After the 1972 Amend-

ments, 6 J. Maritime L. 1 (1974) ; Hazen and Toriello, Longshore-

men’s Personal Injury Actions Under The 1972 Amendments to

the Longshoremen’s and Harbor Workers Compensation Act, 53

St. John’s L. Rev. 1 (1978); Robertson, Negligence Actions by

Longshoremen Against Shipowners Undcr the 1972 Amendments

to the Longshoremen’s and Harbor Workers Compensation Act,

7 J. Maritime L. 447 (1976) ; Thompson, Duty Owed the Shipowner

Under 1972 Amendments to Longshoremen’s Act Is That of Land-

Based Premises Owner to Business Invitee, 6 J. Maritime L. 643

(1975); Comment, Shipowner’s Duties And Apportionment of

Iiability Under The Longshoremen’s and Harbor Workers’ Com-

pensation Act, 40 Fordham L. Rev. 323 (1978) ; Note, The Injured

Longshoreman vs. The Shipowner After 1972: Business Invitees,

Land-Based Standards, and Assumption of Risk, 28 Hastings L. J.

771 (1977) ; Comment, The Vessel Qwner’s Standard of Care Under

The 1972 Amendment to The Longshoremen’s and Harbor Workers’

Compensation Act, 23 Loyola L. Rev. 986 (1977).

A-12

section 905(b): the standards of negligence developed for

seamen under the Jones Act; the body of negligence law

developed in longshoremen’s .cases prior to the adoption

of the exclusivity provisions of section 905(b) in 1972;

and the principles of land-based tort law embodied in the

Restatement.

The remedies now available to injured seamen and iong-

shoremen are the products of a turbulent evolution. Al-

though admiralty law has always provided longshoremen

with the remedy of an action in negligence against third

parties, including the vessel, that remedy appears to have

been limited by the concurrent applicability of the doc-

trines of assumption of the risk and contributory negli-

gence. See, e.g., The Omsk, 266 F. 200, 202 (4th Cir. 1920).

Until the passage of the Jones Act in 1920,° injured sea-

men could sue the vessel for violation of the warranty of

unseaworthiness, The Osceola, 189 U.S. 158, 175 (1903),

but they could not recover for the vessel’s negligence

unless the negligence coincidentally created the unsea-

worthy condition. See Chelentis v. Luckenbach S.S. Co.,

243 F.. 536 (2d Cir. 1917), aff’d, 247 U.S. 372 (1918). With

passage of the Jones Act, both the seaman and the long-

shoreman could sue the vessel in negligence, but the long-

shoreman could not sue the stevedore due to the continued

viability of the fellow servant rule. However, this barrier

soon fell as the Supreme Court construed the term ‘‘sea-

man’’ in the Jones Act to include longshoremen. I[nter-

national Stevedoring Co. v. Haverty, 272 U.S. 50 (1926).

Congress reacted to Haverty by enacting the LHWCA

within six months.”° It established the first workmen’s

compensation system for longshoremen and made it the

exclusive remedy against the stevedore. This eliminated

* The Merchant Marine Act, 1920, ch. 250, 41 Stat. 988.

1033 U.S.C. §§ 901 et seq.; Act of March 4, 1927, ch. 509;

44 Stat. 1424.

A-13

negligence suits by longshoremen against the stevedore,

but it did not affect the right of longshoremen to proceed

in negligence against third parties, including the vessel.

Seas Shipping Co. v. Sieracki, 328 U.S. 85, 100-102 (1946).

The final and most important remedy added to the long-

shoremen’s arsenal prior to the 1972 amendments was

the extension of the warranty of seaworthiness to long-

shoremen in Scas Shipping Co. v. Sierackt. This extension,

which largely supplanted negligence actions against the

vessel, until terminated by the 1972 amendments, was

premised, as was the judicial extension of the Jones Act,

on a determination by the Supreme Court that longshore-

men and seamen worked under sufficiently similar condi-

tions to warrant the same legal protection. Jd. at 90-100.

There are cogent reasons for turning to the standard of

care owed seamen under the Jones Act for guidance in

developing the standard of care to apply under section

905(b): the similarity of the work environments regulated

by the Jones Act and section 905(b), the absence of as-

sumption of the risk and contributory negligence as total

bars to recovery under both the Jones Act and section

905(b), the absence of land-based status distinctions under

the Jones Act, and the obvious usefulness of the body of

case law precedent accumulated under the Jones Act.™

See G. Gilmore & C. Black, Jr., The Law of Admiralty,

449-455 (2d ed. 1975).

—_ --—-

11 The cases that have rejected the incrporation of Jones Act

negligence standards into § 905(b) did so either because of a belief

that the humanitarian concerns prompting the extension of Jones

Act negligence to longshoremen in International Stevedoring Co. v.

Haverty, 272 U.S. 50 (1926), were satisfied by the 1972 amend-

ments, Griffith v. Wheeling-Pitisburgh Steel Corp., 384 F. Supp.

230, 235 n.3 (W.D. Pa. 1974), rev’d on other grounds and re-

manded, 521 F.2d 31 (3c Cir.), cert. dented, 423 U.S. 1054 (1976),

or because of a conclusion that the Jones Act standard established

a higher standard of care than that permitted by § 905(b), Citizen

v. M/V TRITON, 384 F. Supp. 198, 202 n.3 (E.D. Tex. 1974).

Both decisions were premised on the assumption that we have

A-14

Due to the historic availability of the negligence remedy

in suits by longshoremen against the vessel, there exists a

significant body of longshoremen’s negligence law. Al-

though the availability of the Sterackt seaworthiness doc-

trine greatly decreased reliance upon negligence from 1946

to 1972, the constancy of working conditions and employer-

employee relationships in longshoring over the years makes

this body of negligence law relevant today. The general

rule concerning injuries received by longshoremen who fell

into the open holds of ships was that the vessel was not

negligent in leaving cargo hatches open and unguarded to

permit the loading of cargo. See, e.g., Miller v. The Sultana,

176 F.2d 203, 206 (2d Cir. 1949); Ove Tysko v. Royal Mail

Steam Packet Co., 81 F.2d 960, 962 (9th Cir. 1936); Long

v. Silver Line, Ltd., 48 F.2d 15, 16 (2d Cir. 1931). How-

ever, it was negligence for the vessel to leave cargo

hatches open and unguarded on a working deck if the

particular hatch was not to be worked. See, e.g., Balda-

menti v. United States, 160 F.2d 422 (2d Cir. 1947); The

already rejected, t.e., that there can somehow be a difference be-

tween Jones Act negligence and any other kind of negligence that

does not incorporate assumption of the risk and contributory negli-

gence as total bars to recovery. For there to he negligence of any

variety, there must be a failure to exercise reasonable care under

the circumstances which causes harm. By definition, the standard

of care is dictated by the circumstances. The Griffith and Citizen

courts appear to have been misled by the many cases that state

that Jones Act negligence involves a higher standard of care than

does common-law negligence because only the slightest evidence of

negligence is required to sustain a Jones Act verdict. See, e.g.,

Ferguson v. Moore-McCormack Lines, 352 U.S. 521 (1957). Since

neither the Jones Act nor § 905(b) may incorporate the doctrines

of assumption of the risk and contributory negligence which are

part of common-law negligence, there is no way the standards of

eare applicable to similar circumstances under both the Jones Act

and § 905(b) could differ as long as both were negligence stand-

ards. In either case, the jury could find the vessel negligent only

if there were some evidence that the harm was caused by a failure

to exercise reasonable care under.the circumstances. See generally

U.S. Const. amend. 7; Atlantic & Gulf Stevedores, Inc. v. Ellerman

Lines, Lid., 369 U.S. 355, 360 (1962).

A-15

Omsk, 266 F. 200 (9th Cir. 1920); West India and P. 8.8.

Co. v. Weibel, 113 F. 169 (5th Cir. 1902). In Baldamenti,

a longshoreman was injured when he fell into an un-

guarded open hatch in an unlighted lower tween deck.

The hatch had been left open by a carpentry crew under

the control of the ship. The crew had closed the hatches

of the upper decks. The longshoreman, part of a crew

working an adjacent hatch, fell into the open hatch when

he entered the darkened hatch in search of rope. In

affirming the trial judge’s finding that the vessel’s negli-

gence had been the sole cause of the longshoreman’s

injuries, the court said:

We think it was foreseeable that they might have

occasion to go to parts of the deck that were not

lighted in pursuit of their calling. If they did, the

open hatch was a great danger for it was not pro-

tected by any guardrail or ropes, or by any coaming

sufficient to prevent an accident. It was not reason-

able to suppose that stevedores would not be likely to

go about the deck where they were working and not

to foresee danger to them from an open hatch which

was only about 50 feet away. As a distinguished court

said in Pioneer S.S. Co. v. McCann, 6 Cir., 170 F. 873,

878: ‘‘It is hardly to be expected that men entering

or working within a ship’s hold will always keep

within the exact parts of the hold where their employ-

ment, strictly construed, would call them.’’

The opinion of Judge Woods in The Omsk, 4 Cir.,

266 F. 200, supports the view that some warning or

protection against an open hatch was required in cir-

cumstances like those here, where the open hatch was

in the control of the shipowner.

Baldamenti v. United States, 160 F.2d at 425. This well

settled principle of longshoremen’s negligence law is obvi-

ously applicable to the facts of the instant case.

A-16

We next consider the applicability of sections 343 and

343A of the Restatement. This court has previously con-

strued the 1972 amendments to the LHWCA as mandating

the development of a nationally uniform body of negligence

law ‘‘derived from analogies to land-based tort concepts.’’

Anderson v. Iceland S.S. Co., 585 F.2d at 1146. Other

courts have construed the 1972 amendments as requiring

direct application of land-based tort concepts. See, e.g.,

Hite v. Maritime Overseas Corporation, 380 F. Supp. 222,

226 (E.D. Tex. 1974).

The circuit courts of appeals that have considered the

question of the applicability of land-based standards are

divided into two schools of thought. A plurality of the

circuits, following the lead of the Second Circuit in Napoli

v. Hellenic Lines, 536 F.2d 505 (2d Cir. 1976), have either

explicitly or implicitly adopted sections 343 and 343A of

the Restatement (Second) of Torts as the standard of care

owed longshoremen by the vessel. A minority of the cir-

cuits have rejected sections 343 and 343A, adopting in-

stead a standard first developed by Judge Orrick in Gal-

lardo v. Westfal-Larsen & Co. A/S, 435 F. Supp. 484 (N.D.

Cal. 1977). The one state supreme court to consider the

issue has declined to utilize sections 343 and 343A. Shepler

v. Weyerhaeuser Co., 279 Or. 477, 569 P.2d 1050-52 (1977)

(en banc). i

The Second Circuit rule places upon the vessel a re-

sponsibility to provide a safe place to work, but that

responsibility shifts when the stevedore assumes exclusive

control of the workplace. Lubrano v. Royal Netherlands

S.S. Co., 572 F.2d 364 (2d Cir. 1978). Consequently, the

vessel is liable when it has actual or constructive knowl-

edge of dangerous conditions before the stevedoring oper-

ation begins and when it has actual knowledge of condi-

tions that arise during stevedoring, but only if the vessel

should anticipate that the longshoreman will be unable to

A-17

protect himself against the unreasonable risk of harm.

Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d

789, 795 (2d Cir. 1979).- Interestingly, a major reason for

adoption of sections 343 and 343A by the Second Circuit

was the superiority of those sections to section 340 of the

Restatement of Torts, which the court found to be riddled

with connotations of assumption of the risk and contribu-

tory negligence. Napoli v. Hellenic Lines, supra, 536 F.2d

at 508. Although Judge Friendly has strongly criticized

the attribution of ‘‘talismanic significance’’ to sections 343

and 343A by the courts, his criticism appears to have been

concerned with the fact that those sections are in some

situations more favorable to longshoremen than Judge

Friendly believes Congress intended. Camnmizo v. Farrell

Lines, Inc., 589 F.2d 682, 688 (2d Cir. 1978) (Friendly, J.,

dissenting).

The Fourth Circuit has specifically approved the use of

section 343 and implied its approval of section 343A in

longshoremen’s actions against the vessel. In Anuszewski

v. Dynamic Mariners Corp., Panama, 540 F.2d 757 (4th

Cir. 1976), cert. denied, 429 U.S. 1098 (1977), the court

affirmed the use of section 343 in a case in which the

danger causing the injury was ‘‘open, obvious, apparent

and known to the plaintiffs.’’ Jd. at 759. The court did

not discuss section 343A, which deals specifically with open

and obvious conditions and which is meant to be read in

conjunction with section 343. See Restatement (Second)

of Torts § 343, comment a. It adopted section 343A by

implication in Chavis v. Finnlines Ltd., O/Y, 576 F.2d

1072 (4th Cir. 1978), when it stated its approval of adop-

tion of that section by the Second Circuit in Napoli.

However, the court declined to reach the issue in the case

because it found the alleged error in the charge to be

harmless. Id. at 1079-80.

A-18

Also relying on Napoli, the Fifth Circuit adopted sec-

tions 342, 343, and 343A in Gay v. Ocean Transport &

Trading, Ltd., 546 F.2d 1233, 1241-42 (5th Cir. 1977).

As in Napoli, section 343A was found preferable to sec-

tion 340 of the original Restatement because of section

340’s incorporation of the doctrines of contributory negli-

gence and assumption of the risk. Gay v. Ocean Transport

¢& Trading, Litd., supra, 546 F.2d at 1241-42. However,

the Gay court tempered Napoli by noting that vessel owners

do not have the identical duties of owners of land because

‘‘fa] ship presents its own special hazards. As always, a

determination of the reasonableness of the defendant’s

action (or lack thereof) requires an examination of all the

cifcumstances surrounding the injury.’’ Jd. at 1242 n.20.

Gay remains the law of the Fifth Circuit today. See Wiles

v. Delta Steamship Lines, Inc., 574 F.2d 1339 (5th Cir.

1978) ; Samuels v. Empresa Lineas Maritimas Argentinas,

573 F.2d 884, 886 (5th Cir. 1978), cert. denied, 47 U.S.L.W.

3839 (June 26, 1979).

Although the Seventh Circuit has not decided the ques-

tion of the applicability of sections 343 and 343A to section

905(b) actions, it is one of the few circuits to address the

alleged conflict between those sections and the section

905(b) prohibitions against the doctrines of assumption

of the risk and contributory negligence. In Clemons v.

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

the court assumed arguendo that section 343A applied and

stated:

[W]e read Section 343 together with Section 343A not

as providing defenses but as defining when it is negli-

gent to allow the existence of a dangerous condition.

Under the Restatement, when the danger is open and

obvious and in addition is avoidable in the exercise

of ordinary care and therefore the harm is not fore-

seeable, it is not negligent to allow the danger to exist.

A-19

Clemons v. Mitsui O.S.K. Lines, Lid., 596 F.2d at 750 n.17.

Thus, it appears that the Seventh Circuit will eventually

adopt section 343A in some form. The only significant

issue that remains in doubt is whether the circuit will

adopt the qualifying clause ‘‘unless the possessor should

anticipate the harm despite. such knowledge or obvious-

ness’’ of section 343A." See Matthews v. Ernst Russ

Steamship Co., 603 F.2d 676, 679 n.3 (7th Cir. 1979).

12 The Clemons court relied heavily on the decision of this court

in Stanley v. United States, 476 F.2d 606 (1st Cir. 1973), in ruling

that the ‘‘unless’’ exception of § 343A was not applicable because

there was no evidence that the stevedore would employ careless

workers or fail to take necessary safety precautions. Clemons,

supra, 596 F.2d at 750. This is an excellent example of the pitfalls

inherent in the use of § 343A in § 905(b) cases. In Stanley, this

court applied Maine law in reversing a district cou.'t verdict prem-

ised on a finding that the government had negligently failed to

supply guards around the holes or ‘‘cut-outs’’ in the work plat-

forms of a radio tower. See Stanley v. United States, 347 F. Supp.

1088 (D. Me. 1972). We noted that the ‘‘burden of establishing

the exception should be substantial. Otherwise, since whenever a

party has been injured the warning has in fact been ineffective,

there will be a danger of the exception being found to swallow up

the rule.’’ Stanley v. United States, 476 F.2d at 609 n.5. This

rule, which we believe applies only on land, imposes a heavy burden

on the plaintiff. The plaintiff must prove that the defendant should

have known the plaintiff could not competently assume the risk

associated with the known danger or would be negligent in dealing

with the danger. Underlying this burden is the assumption that a

landowner may allow the existence of an unreasonably dangerous

condition on his land and may contract with persons for them to

work around those dangers without incurring any liability, on the

grounds that the contractors assumed the risk of working around

those known dangers. The landowner would be liable only if it

failed to warn the workers of latent conditions or if it oppressed

them, such as by allowing them to work when the landowner knew

, should have known the workers could not possibly avoid the

anger.

While this may be a terrene rule of this court, the dictates of

§ 905(b) would prohibit the creation of a second and similar rule

for application upon navigable waters, By enacting § 905(b), Con-.

gress sought to focus attention on the amelioration of dangerous

conditions.on board ship. The rule in Stanley, as lowered into the

ship by Clemons, focuses on the accuracy of the longshoreman’s.

‘

A-20

As noted earlier, the two circuit courts that have rejected

sections 343 and 343A were strongly influenced by the

opinion of Judge Orrick in Gallardo v. Westfal-Larsen &

Co. A/S, 435 F. Supp. 484. In Gallardo, Judge Orrick

modified the standard of care he had enunciated earlier

in Ramirez v. Toko Kaiun K.K., 385 F. Supp. 644 (N.D.

Cal. 1974). In Ramirez, the court ruled that the vessel

owed longshoremen ‘‘the same standard of care that a

land based owner of a premises owes to a business invitee,’’

including placing the vessel in such condition that an

experienced stevedore exercising ordinary care would be

able to perform his job in a workmanlike manner with

reasonable safety and warning the stevedore of latent

defects known to the vessel. Jd. at 646. Gallardo trans-

formed this section 8483 and 343A standard of care into

one more favorable to the longshoreman:

Before the conmencement of stevedoring operations,

the owner of a vessel in navigable waters has a duty

to take reasonable remedial action with respect to all

unreasonably dangerous conditions of which it has

actual or constructive knowledge. After the commence-

ment of stevedoring operations, the owner of a vesscl

in navigable waters has a duty to take reasonable

remedial action with respect to all unreasonably dan-

gerous conditions of which it has actual knowledge.

Gallardo v. Westfal-Larsen & Co. A/S, 435 F. Supp. at 491.

The transformation of the standard of care resulted from

Judge Orrick’s conclusion that the land-based standards of

care of sections. 343 and 343A were antithetical to section

perception that he can avoid the danger. Once the stevedore and/or

the longshoreman makes that decision under Clemons, the issue of

the vessel’s lack of care in allowing the condition to exits evapo-

rates. There would be no balancing of the usefulness of the

dangerous condition and the burden involved in curing it against

the risk to others of its continued existence. The effect of this

rule, contrary to the intent of Congress, is to allow the vessel to be

protected from its negligence.

A-21

905(b). This conclusion flowed from an analysis of the

legislative history of section 905(b) and of the Restate-

ment (Second) of Torts:

[T]he Restatement sections force courts to define a

shipowner’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 reasonableness

of a vessel’s conduct under the circumstances of a

particular case and tend to limit the liability of ship-

owners for their proven negligence. See, e.g., Anus-

zewski v. Dynamic Mariners Corp., Panama, 391 F.

Supp. 1143, 1145 (D.Md.1975). The amendments, of

course, permit limitations upon a plaintiff’s recovery

based upon the admiralty doctrine of comparative

negligence. However, the amendments specifically re-

ject any bar to recovery based upon contributory

negligence and assumption of risk. Yet, the authors

of the Restatement clearly indicate that the contribu-

tory negligence of the plaintiff and assumption of

risk have a direct bearing upon liability under Sec-

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

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

Gallardo v. Westfal-Larsen & Co., A/S, 435 F. Supp. at 494,

Judge Orrick then confronted the issue of whether sections

343 and 343A merely define negligence, see Clemons v.

Mitsui O.S.K. Lines, Ltd., 596 F.2d at 750 n.17, or actually

relieve the proprietor of land of responsibility for crea-

tion of an unreasonably dangerous condition:

The authors also state that whether or not courts

conceive of a plaintiff’s perceptions of a hazardous

condition as relieving a defendant of proven liability

or of preventing a finding of liability altogether, the

effect of either analysis is the same. Id. § 496C, com-

ment d. Defendants receive the benefit of a partial

A-22

or absolute bar to liability having the characteristics

of a defense based upon an implied assumption of risk.

Id. Judge Orrick concluded his rejection of the once-

embraced sections 343 and 343A by discussing section

905’b) cases in which sections 343 and 343A were used

as bars to recovery in contravention of the intent of Con-

gress, and by adopting the reasonable care under the cir-

cumstances standard of Kermarec v. Compagnie Generale

Transatlantique, 358 U.S. 625 (1959). In adopting the

Kermarec standard, Judge Orrick noted that ‘‘excessive

reliance upon property distinctions for guidance in admi-

ralty law complicates the task of satisfying the consider-

ations contained in the House Report and, thereby, frus-

trates the intent of Congress to develop a body of admiralty

law under the 1972 amendments.’’ Gallardo v. Westfal-

Larsen &€ Co., A/S, 435 F. Supp. at 495.

The Ninth Circuit relied heavily on Gallardo in rejecting

sections 343 and 343A in Santos v. Scindia Steam Navi-

gation Co., Ltd., 598 F.2d 480 (9th Cir. 1979). Citing the

conflict between section 905(b) and the defenses of assump-

tion of the risk and contributory negligence, the persuasive-

ness of Kermarec and the fact that section 905(b) never

mentions such property distinctions as the term ‘‘invitee,’’

the court adopted the following standard of care to imple-

ment section 905(b) :

A vessel is subject to liability for injuries to long-

shorenien 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 conditions, and should realize that

it involves an unreasonable risk of harm to such long-

shoremen, and (b) the shipowner fails to exercise

reasonable care under the circumstances to protect

the longshoremen against the danger.

Santos v. Scindia Steam Navigation Co., Ltd., 598 F.2d

at 485.

A-23

The Third Circuit first warned that it might be error to

utilize sections 343 and 343A in section 905(b) cases in

Hurst v. Triad Shipping Co., 554 F.2d 1237, 1249 n.35 (3d

Cir.), cert. denied, 434 U.S. 861 (1977). This warning was

followed by a formal rejection of the sections in Rich v.

United States, 596 F.2d 541, 551 n.21 (3d Cir. 1979), in

which the court relied on Hurst and Judge Friendly’s

dissent in Cannizo. The court expanded upon this rejec-

tion recently in Griffith v. Wheeling-Pittsburgh Steel Corp.,

Nos. 78-2159, 78-2160, 78-2161 (3d Cir. August 24, 1979),

holding that sections 343 and 343A incorporate the pro-

hibited defense of assumption of the risk. The Griffith

court agreed it had accepted the Restatement as ‘‘the

national expression of non-maritime tort principles,’’ but

declined to adopt principles of the Restatement which were

inconsistent with congressional intent in enacting section

905(b). Griffith v.-:Wheeling-Pittsburgh Steel Corp., slip

op. at 7-8. Sections 343 and 343A conflict with that intent,

the court reasoned, because both sections ‘‘would appar-

ently relieve a vessel owner of all liability for an unreason-

ably dangerous condition on board ship if the invitee long-

shoreman has failed to exercise reasonable care in dealing

with that danger, on the theory that a negligent invitee has

assumed the risk of injury.’’ Jd. at 8-9. See Restatement

(Second) of Torts § 343A, comment e. Instead, the court

adopted the reasonable care under the circumstances stand-

ard of Kermarec v. Compagnie Generale Transatlantique:

The sounder approach, we think, is to recognize that

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

exercise ‘‘reasonable care under the circumstances of

each case’’ that would be applicable to a land based

business. Accord, Santos v. Scindia Steam Navigation

Co., supra, 598 F.2d at 485-88; Gallardo v. Westfal-

Larsen & Co., A/S, supra, 435 F. Supp. at 496. See

Kermarec v. Compagnie Generale Transatiantique,

A-24

supra, 358 U.S. at 632; Brown v. Ivarans Rederi A/S,

supra, 545 F.2d at 863. Cf. Restatement (Second) of

Torts §4 281-83 302A, 305, 452. Proceeding from this

broad common law standard, federal courts may de-

velop on a case by case basis a uniform federal law

of negligence, referring for guidance to the ‘‘land

based’’ standards of care established in the Restate-

ment (Second) of Torts whenever such reference ac-

cords with the Congressional intent and is helpful to

decision of the case at hand.

At a minimum, we think that the standard of reason-

able care under the circumstances would permit a

finding of negligence upon a showing: (1) that the

vessel knew of or by the exercise of reasonable care

could have discovered the condition on board ship

that led to the injury; (2) that the vessel knew or

should have known that the condition would pose an

unreasonable risk of harm to longshoremen working

on board ship; and (3) that the vessel failed to

exercise reasonable care to protect the longshoremen

against that danger.

Griffith v. Wheeling-Pittsburgh Steel Corp., slip op. at 9-10.

Our review of the decisions of other courts in regard to

section 905(b) has convinced us that sections 343 and 343A

are too heavily laden with the prohibited defenses of as-

sumption of the risk and contributory negligence to be

followed rigidly as the standard of care owed Iongshore-

men by the vessel under section 905(b). Accordingly, we

hold that sections 343 and 343A and the rest of the Restate-

ment (Second) of Torts may be utilized in developing the

standard of care under section 905(b) only when purged

of concepts antithetical to the recognized purpose of sec-

tion 905(b).

From our review of the legislative history of section

905(b), the development of the pre-1972 maritime negli-

A-25

gence law and the diligent but contradictory efforts of the

courts to fashion a uniform national body of section 905(b)

negligence law, we conclude that the standard of care under

section 905(b) must reflect several important consider-

ations. ,

First, the standard must fully implement the intent of

Congress in enacting section 905(b). The standard must

be designed to have the maximum positive impact on safety.

Each party in the stevedoring triangle, including the ves-

sel, must bear the cost of his own negligence. No party

may be granted refuge in legal doctrines, such as seaworthi-

ness, strict liability, assumption of the risk or contributory

negligence, which foreclose inquiry into the reasonableness

of that party’s conduct under the circumstances. OSHA

regulations are to be considered and may provide the ap-

propriate standard of care in certain circumstances.

Second, to the extent this consideration does not conflict

with expressed legislative policy, the standard of care

should be consistent with the strong admiralty traditions

of simplicity and practicality. See Kermarec v. Compagnie

Generale Transatlantique, 358 U.S. at 630 n.5-631; The

Lottawanna, 88 U.S. (21 Wall.) 558, 575 (1874). Legal

doctrines that cause confusion shipboard and in the courts

must be jettisoned and replaced by standards which are

both understandable and effective.

Third, within the parameters previously discussed, the

courts should be free to borrow by analogy from existing

bodies of law. These include land-based tort law as ex-

pressed in the Restatement, negligence law developed under

the Jones Act and the negligence law developed in long-

shoring cases prior to the adoption of the 1972 amendments

to the LHWCA. By use of such precedent, some degree of

certainty of result and a great degree of judicial economy

will be achieved. Moreover, it is appropriate that workers

who form a human cargo bridge between sea and land

A-26

should be governed by a body of law that incorporates the

most relevant provisions of both maritime and terrene law.

Finally, standards developed to implement section 905(b)

must reflect the fact that the LHWCA is a remedial statute

enacted to protect the longshoreman and not the vessel.

Doubt as to the interpretation of the Act and the develop-

ment of standards of care implementing it must be resolved

in favor of the longshoreman. See Edmonds v. Compagnie

Generale Transatlantique, 47 U.S.L.W. 4868 (June 27,

1979).

In light of these important considerations, we adopt as

the standard of care owed longshoremen by the vessel the

standard of care born in Gallardo and raised to maturity

in Santos and Griffith.

The standard of reasonable care under the circumstances

permits a finding of negligence upon a showing:

(1) that the vessel knew of or by the exercise of

reasonable care could have discovered the con-

dition on board ship that led to the injury;

(2) that the vessel knew or should have known that

the condition would pose an unreasonable risk of

harm to longshoremen working on board ship;

and .

(3) that the vessel failed to exercise reasonable care

to protect the longshoremen against that danger.

Under this standard, the principal inquiry will be whether

the vessel permitted the existence of a condition that posed

an unreasonable risk of harm to the longshoreman. Whether

the risk of harm was in fact unreasonable may be deter-

mined by balancing the usefulness to the ship of the danger-

ous condition and the burden involved in curing it against

the probability and severity of the harm it poses. A useful

example is provided by the House Report:

So, for example, where a longshoreman slips on an

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

A-27

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 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.

House Report at 4704. Inherent in this analysis is a deter-

mination that spilled oil on the deck served no useful pur-

pose and could have been easily cleaned up, but signifi-

cantly increased the possibility that a person would fall

and be injured and it was therefore, unreasonable for the

vessel not to clean up the spill. This approach for deter-

mining the reasonableness of a shipboard danger is also

reflected in the pre-1972 law concerning open cargo hatches.

While it was negligence for a vessel to leave tween deck

hatch covers open and the hatch unlighted and unguarded

if the hatch was not to be loaded with cargo, the existence

of the very same conditions did not constitute negligence

if the cargo was to be loaded into the hatch, since an open

hatch is essential to the task of loading and unloading a

ship. Compare Miller v. The Sultana, 176 F.2d 203, 206,

with Baldamenti v. United States, 160 F.2d 422, 425-26.

Once a danger is determined to have been unreasonable,

the finder of fact will then determine whether the longshore-

man’s conduct was unreasonable. If it is found to hawe

been unreasonable, the traditional admiralty doctrine of

comparative negligence is then applied to place upon each

party the cost of his own negligence. The Supreme Court

has, of course, eliminated the stevedore.as an involved

party for comparative negligence purposes. Edmonds v.

Compagnie Generale wininisctre i 47 U.S.L.W. 4868

(June 27, 1979).

A-28

Our decision to reject a blanket adoption of sections 343

and 343A is strengthened by the fact that the standard we

use has been adopted by the two circuits to consider the

issue most recently, see Griffith v. Wheeling-Pittsburgh

Steel Corp., Nos. 78-2159, 78-2160, 78-2161 (3d Cir. August

24, 1979); Santos v. Scindia Steam Navigation Co., Lid.,

598 F.2d 480 (9th Cir. 1979), and that other circuits seem

to be loosening their carly grip upon sections 343 and

343.4. See Smith v. Eastern Seaboard Pile Driving, Inc.,

No. 78-7531 (2d Cir. August 15, 1979) ; Cannizo v. Farrell

Lines, Inc., 579 F.2d 682 (2d Cir. 1978); Wiles v. Delta

Steamship Lines, Inc., 574 F.2d 1338 (5th Cir. 1978);

Samuels v. Empresa Lineas Maritimas Argentinas, 573

F.2d 884 (5th Cir. 1978). Moreover, we conclude from our

review of the decisions of courts which have adopted sec-

tion 343 and 343A that those courts have, contrary to the

wishes of Congress, placed a higher value on national uni-

formity in the law than upon the creation of a standard of

eare that will enhance safety on board ship.

An important factor in our adoption of a standard of care ,

free of status distinctions was the guidance of Kermarec.

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

owner owes the duty of exercising reasonable care

towards those lawfully aboard the vesgel who are not

members of the crew. ...

The distinctions which the common law draws be-

tween licensee and invitee were inherited from a cul-

ture deeply rooted to the land, a culture which traced

many of its standards to a heritage of feudalism. In

an effort to do justice in an industrialized urban

society, with its complex economic and individual re-

lationships, modern common-law courts have found

it necessary to formulate increasingly subtle verbal

refinements, to create subclassifications among tradi-

tional common-law categories, and to delineate fine

A-29

gradations in the standards: of care which the land-

owner owes to each. Yet even within a single juris-

diction, the classifications and subclassifications bred

by the common law have produced confusion and con-

flict. As new distinctions have been spawned, older

ones have become obscured. Through this semantic

morass the common law has moved, unevenly and with-

out hesitation, towards imposing on owners and occu-

piers a single duty of reasonable care in all the cir-

cumstances. ’’

For the admiralty law at this late date to import

such conceptual distinctions would be foreign to its

traditions of simplicity and practicality. The Lotta-

wanna, 21 Wall. 558, at 575. The incorporation of

such concepts appears particularly unwarranted when

it is remembered that they originated under a legal

system in which status depended almost entirely upon

the nature of the individual’s estate with respect to

real property, a legal system in that respect entirely

alien to the law of the sea. °

Kermarec v. Compagnie Generale Transatlantique, 358

U.S. at 629-31.

Moreover, even in land-locked jurisdictions, the trend is

toward the abolition of status distinctions in the common

Iaw and the adoption of the single duty of reasonable care

under the circumstances.”

A final factor influencing our adoption of the new stand-

ard of care is that use of sections 343 and 343A alone

3 See, e.g., Rowland v. Christian, 69 Cal.2d 108, 448 P.2d 561,

70 Cal. Rptr. 97 (1968); Mile High Fence Co. v. Radovich, 175

Colo. 537, 489 P.2d 308 (1971) (en banc) ; Pickard v. Honolulu,

51 Haw. 134, 542 P.2d 445 (1969); Ouellette v. Blanchard, 364

A.2d 631 (N.H. 1976) ; Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d

868, 386 N.Y.S.2d 564 (1976) ; Marioenzi v. Joseph DiPonte, Inc.,

114 R.I. 294, 333 A.2d 127 (1975) ; Smith v. Arbaugh’s Restaurant,

Inc., 469 F.2d 97 (D.C. Cir. 1972), cert. denied, 412 U.S. 939

(1973). : ;

A-30

would have left longshoremen in a position considerably

inferior to that enjoyed prior to the adoption of the 1972

amendments. Since a rigid application of sections 343 and

343.\ is generally more favorable to the vessel than the

previous maritime negligence rule because of the presence

of status distinctions and eccnnotations of assumption of

the risk and contributory negligence, those sections should

not be made the basis of the standard of care without an

explicit indication that Congress so intended. As stated

by the Supreme Court in Edmonds, ‘‘we must reject a

‘theory that nowhere appears in the Act, that never was

mentioned by Congress during the legislative process, that

does not comport with Congress’ intent, and that restricts

.a remedial act ....’’’ (citations omitted). Edmonds v.

Compagnie Generale Transatlantique, supra, 47 U.S.L.W.

at 4872. Sce also Cooper Stevedoring Co. v. Fritz Kope,

Inc., 417 U.S. 106, 112 (1974) ; Halcyon Lines v. Haenn Ship

Ceiling and Refitting Corp., 342 U.S. 282, 285-86 (1952).

THE JURY CHARGE

In evaluating the charge, we review the entire charge.

If the charge fairly and accurately states the law, affirm-

ance is required. Since we observed early on in this

opinion that the charge to the jury was comprised mainly

of the concepts contained in sections 348 and 343A, and

have also concluded that those sections do not state the

standard of care applicable to suits under section 905(b),

it follows that the charge was to that extent erroneous.

However, since-we have also found sections 343 and 343A

to be more favorable to the vessel than the proper standard

of care, the district court’s error. was harmless, If the

jury found the vessel solely negligent while utilizing sec-

tions 343 and 343A as the standard of care, it would also

have found the vessel solely negligent under the standard

of cure adopted today by this court. See generally Chavis

v. Finnlines Ltd., O/Y, 576 F.2d at 1080; Riddle v. Exxon

Transp. Co., 563 F.2d 1103, 1112 (4th Cir. 1977).

A-31

The remaining question i in regard to the charge is whether

the district court erred in not including the vessel’s re-

quested instructions in the charge. Requests 3, 23 and 24

were correct statements of the law, but none of the requests

in the form given the court were relevant to the issues of

the case. The district court was correct in refusing to

charge the jury by quoting statements apparently taken

from appellate opinions, but not tailored to the facts of this

case. Matthews v. Ernst Russ Steamship Co., 603 F.2d

676, 682 (7th Cir. 1978). In addition, Request No. 23 im-

properly assumed that the stevedore was negligen® in

failing to provide proper lighting and that hatch No. 3 was

a work area. These were issues fur the jury. Moreover,

the district court included in the charge points of law upon

which the vessel constructed requests 3, 23 and 24.

Request 26% was an incorrect statement of law. It

14 ~ 4 Requests 3723 and 24 read as follows:

**3. The jury is instructed that the defendant is entitled

to delegate the performance of the stevedoring work to an

independent stevedoring contractor. Therefore the defendant

is not responsible for the conduct of the stevedoring con-

tractor.

Riddle v. Exxon ‘Trans. Co. (CA 4 1977), 563 F(2)

1103.”’

‘*23. The major responsibility for furnishing a safe place

to work is on the stevedore. The ship is not liable for the

negligence of the stevedore in failing to provide sufficient

lighting in the work area.

Coz v. Flota Mercante Gran Columbia S.A. (CA 2 1978),

577 F (2) 798.

Munoz v. Flota Mercante Gran Columbia 8.A. (CA 2

1977), 583 F(2) 837.

Brown ¥. Ivarans Rederi A/8, (CA 3, 1976), 545 F(2)

‘*24. The loading of the cargo was under the direction

and control of the longshoremen who were performing all of

the work. There is no duty: on the ship to supervise or over-

see the work of the stevedores in loading the cargo.

Munoz v. Flota Mercante Gran Columbia 8.A., (CA 2

1977), 553 F(2) 837.’’

18 Request 26 reads as follows:

**26. If you find that the darkness of hatch No. 3, the

A-32

attempted to relieve the vessel of the burden of failing to

exercise reasonable care in leaving the hatch covers open,

the hatch opening unguarded and that hatch unlighted by

interposing the alleged negligence of the stevedore. Even

if the stevedore were negligent in failing to correct a dan-

gerous condition known to the vessel and found by the

stevedore upon boarding the ship, that would not relieve

the vessel of its negligence in allowing the dangerous con-

dition to exist. As the Griffith court observed, ‘‘[i]t is

inconceivable to us that the [Supreme] Court, which dis-

approves a rule that imputes the negligence of the steve-

dore to the Jongshoreman to his recovery against a negli-

gent shipowncr, would approve a rule barring all recovery

against a negligent shipowner on the basis of imputed

employer negligence.’’ Griffith v. Wheeling-Pittsburgh

Steel Corp., slip op. at 10. }

Request 297° also was an incorrect statement of the law.

absence of lighting therein, and the fact that the hatch lids

were in the open position, were open and obvious conditions

and the shipowner reasonably expected the stevedore in the

ordinary course of its work to supervise its personnel and keep

them from entering the darkened area, then the stevedore is

in the best position to abate the danger and the shipowner is

not liable.

Guerra v. Bulk Transport Co. (CA 5 1977), 546 F(2)

233.

Coz v. Flota Mercante Gran Columbia 8.A., (CA 2 1978),

577 F(2) 798.’

16 Request 29 reads as follows:

“*29. You are instructed that when a shipowner relin-

quishes control of the hold, in which the longshoremen are

assigned to work, in a reasonably safe condition to an experi-

enced stevedore pursuant to a contract to supply services with-

in its normal competence and the stevedore’s negligence in

failing to properly supervise its personnel and to keep them

in the assigned work area, and in failing to keep them from

entering a darkened, unused area proximately causes an in-

jury to the plaintiff, then the jury’s verdict will be for the

defendant.

Munoz v. Flota Mercante Gran Columbia 8.A., (CA 2

1977), 553 F(2) 1103.”’

A-33

8 > oe

As the Second Cireuit *aled in Baldamenti v. United States,

160 F.2d at 425, it is negligent for the vessel to leave hatch

covers open and unguarded in an unlighted hatch area

adjacent to a work area because it is foreseeable that long-

shoremen would utilize such an.area during their work,

The vessel acknowledged the wisdom of this rule when its

expert witness on marine safety, Captain George Roscoe,

testified that not even ropes across the openings in the

bulkheads would keep longshoremen from entering an un-

lighted hatch adjacent to a work area.

MOTIONS FOR JUDGMENTS N. OV.

AND NEW TRIAL

In determining whether the district court erred in deny-

ing the vessel’s motion for judgment n.o.v., we must view

the evidence in the light most favorable to Johnson and

determine whether ‘‘there are facts and inferences reason-

ably drawn from those facts which lead to but one con-

clusion.’’ Rios v. Empresas Lineas Maritimas Argentinas,

575 F.2d 986, 989 (1st Cir. 1978). We may neither weigh

credibility nor resolve conflicting testimony. Jd. at 990.

Utilizing these standards, we find that the jury could

reasonably have found that the hatch covers on the No. 3

tween deck of the M/V SALVADOR were left open by a

crew under the control of the ship, that the hatch opening

was left unguarded and the hatch was left unlighted, that

the vessel was reminded of this condition prior to the

commencement of work by the signalman in No. 2 hatch

and that the vessel should have reasonably expected long-

shoremen working in adjacent hatches to enter No. 3 hatch

and fall into the opening in the tween deck created by the

opened hatch covers. The district court did not err in

denying the motion for judgment n.o.v. Roche v. New

Hampshire National Bank, 192 F.2d 203 (1st Cir. 1951);

9 Wright & Miller, Federal Practice and Procedure §§ 2524,

2540 (1971).

7?

A-34

A motion for a new trial is directed to the sound discre-

tion of the trial court and will be reversed only for abuse

of that discretion. Rios v. Empresas Lineas Maritimas

Argentinas, 575 F.2d at 990. In considering a motion for

a new trial based on an allegation that a verdict is against

the weight of the evidence, the trial court will be found

to have, abused its discretion only if it refused to grant a

new trial when the verdict was against the clear weight of

the evidence. Id. at 990-91. 6A Moore’s Federal Practice

1 59.08[5] at 59-152 through 59-165 (2d ed. 1974). We do

not find the verdict to have been against the clear weight

of the evidence.

Affirmed.

B-1

APPENDIX B

92D CONGRESS SENATE REPORT

2d Session No. 92-1125

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. Eac.eton, from the Committee on Labor and Public

Welfare, submitted the following

REPORT

[To accompany S. 2318]

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 longhsoremen 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

be 4

B-2

party, just as land-based third parties in non-maritime pur-

suits 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 ab-

solute liability by decisions of the Supreme Court, commenc-

ing with Seas Shipping Co. v. Sieracki, 328 U.S. 25 (1946)

which held that the traditional seamen’s 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 performed 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

longshoremen as a result of “unseaworthy” conditions even

though the unseaworthiness was caused, created, or brought

into 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 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. Furthermore,

in the example given above, under the Supreme Court’s deci-

sion in Ryan Steredoring Co. v. Pan Atlantic S.S. Corp., 350

U.S. 124 (1956), the vessel may recover the damages for which

it is liable to the injured longshoreman from the stevedore

which employed the longshoreman 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 compensation and medical benefits provided in

the Act, a stevedore-employer is indirectly liable for damages

to an injured longshoreman who utilizes the technique of suing

the vessel under the unseaworthiness doctrine.

B-3

The Committee heard testimony that the number of third-

party actions brought under the Sieracki and Ryan line of deci-

sions has increased substantially in recent years and that much

of the financial resources which could better 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 longshoremen 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 possible recovery in a third

party action. The Committees attention was also called to the

decision in 1966 of the United States district court in

Philadelphia concerning the impact of third party claims in-

volving injured longshoremen on the backlog of personal in-

jury cases in that court.

The Committee also has taken note of the inescapable fact

that the controversy over third party claims by longshoremen

has had political ramifications which have resulted in

forestalling any improvements in the present Act for over

twelve years.

The Committee believes that especially with the vast im-

provement in compensation benefits which the bill would pro-

vide, there is no compelling reason to continue to require

vessels to assume what amounts to absolute liability for in-

juries 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 extreme hazards incident to their employ-

ment which frequently requires long sea voyages and duties of

“

B-4

obedience to orders not generally required of other workers.

The rationale which justifies holding the vessel absolutely

liable to seamen if the vessel is unseaworthy does not apply

with equal force to longshoremen and other non-seamen

working on board 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 consis-

tent 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::7ss. 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 in-

jured aboard a vessel in the same position he would be if he

were injured in non-maritime employment ashore, insofar as

bringing a third party damage action is concerned, an not to

endow him with any special maritime theory of liability or

cause of action under whatever judicial nomenclature it may

be called, such as “unseaworthiness”, “non-delegable duty”,

or the like.

Persons to whom compensation is payable under the Act re-

tain the right to recover damages for negligence against the

vessel, but under these amendments they cannot bring a

damage action under the judicially-enacted doctrine of

unseaworthiness. Thus a vessel shall not be liable in damages

for acts or omissions of stevedores or employees of stevedores

subject to this Act, Crumedy v. The J.H. Fisser, 358 U.S. 423,

Albanese v. Matts, 382 U.S. 283, Skibinski v. Waterman SS

Corp. 330 F.2d 539; for the manner or method in which

stevedores or employees of stevedores subject to this Act per-

form their work, A.N.G. Stevedores v. Ellerman Lines, 369

U.S. 355, Blassingill v. Waterman SS. Corp., 336 F 2d 367; for

gear or equipment of stevedores or employees of stevedores

B-5

subject to this Act whether used aboard ship, or ashore, Alaska

SS Co. v. Peterson, 347 U.S. 396, Italia Societa v. Oregon

Stevedoring Co., 376 U.S. 315, or for other categories of

unseaworthiness which have been judicially 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 negligence.

Permitting actions against the vessel based on negligence

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 appropriate corrective 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 vessel's deck and is injured, the proposed amendments to

Section 5 wold still permit an action against the vessel for

negligence. ‘0 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 has 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 stevedore or employees of the stevedore.

Under this standard, as adopted by the Committee, there

will of course, be disputes as to whether the vessel was

negligent in a particular 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 in-

volving alleged negligence by land-based third parties. The

Committee intends that on the one hand an employee injured

on board a vessel shail 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

B-6

shall not be liable as a third party unless it is proved 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 liability is

to be 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 con-

tribution agreements are prohibited as a matter of public

policy, vessels by their superior economic strength could cir-

cumvent and nullify the provisions of Section 5 of the Act by

requiring indemnification from a covered employer 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 con-

tract or tort.

Under the proposed amendments the vessel may noi by con-

tractual agreement or otherwise require the employer to in-

demnify it, in whole or in part, for such damages.

The Committee has also recognized the need for special pro-

visions to deal with a case where a longshoreman or ship

builder or repaiman is employed directly by the vessel. In such

case, notwithstanding the fact that the vessel is the employer,

B-7

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 believes 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 contractor. Accordingly, the

bill provides in the case of a longshoreman 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 per-

forming longshoring services. Similar provisions are applicabie

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 negligence

remedy authorized in the bill shall be applied differently in

different ports depending on the law of the State in which the

port may be located. The Committee intends that legal ques-

tions which may arise in actions brought under these provi-

sions of the law shall be determined as a matter of Federal

law. In that connection, the Committee intends that the ad-

miralty concept of comparative negligence, rather than the

common law rule as to contributory negligence, shall apply in

cases where the injured employee’s own negligence may have

contributed to causing the injury. Also, the Committee intends

that the admitalty 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 Occupational

Safety and Health Act of 1970. The Committee recognized

that progress has been made in reducing injuries in the

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longshore industry, “ut longshoring remains one of the most

hazardous types of occupations. The Committee expects to see

further progress in reducing injuries and stands ready to im-

mediately reexamine the whole third party suit question if it

appears that the changes made in present law by this bill have

affected progress in improving occupational health and safety.

The italics herein are ours to identify the excerpts cited in

Reasons for Granting Petition, under Background of This

Case.