Opposition — Hunter v. Reardon Smith Lines, Ltd.

Office - Supreme Court, U.S.

FILED

No. 83-1566 MAY ® 1964

FEERANDSER |. STEVAS,

CLERK

In the Supreme Court of the United States

October Term, 1983

DARNELL HUNTER,

Petitioner,

VS.

REARDON SMITH LINES, LTD.,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourRT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

BRENDAN P. O’SULLIVAN, ESQUIRE

(Counsel of Record)

FOWLER, WHITE, GILLEN, Boccs,

VILLAREAL AND BANKER, P.A.

501 East Kennedy Boulevard

Tampa, Florida 33602

(813) 228-7411

Attorney for Respondent,

Reardon Smith Lines, Ltd.

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTION PRESENTED

Whether, as the appellate court stated, the Defendant

shipowner was entitled to have the jury instructed as to

the stevedore’s primary responsibility for the longshore-

men’s safety during loading operations, just as it was en-

titled to have the jury instructed that it had no general

duty to discover unknown dangers.

TABLE OF CONTENTS

QUESTION PRESENTED ....... » S&F

AUTHORITIES CITED ................... om

OPINION BELOW 1

JURISDICTION peticeemaeination soneipatienitieiti

STATEMENT OF THE CASE 2

EEE PEI TIPO oct tncctsrcnentensnnnesneentneiestnndasnnnasis 4

ARGUMENT FOR RESPONDENT. ..000..o.02.2.2.-cececeseeesees 6

SID . dehlodicscaiheataknchinineesbiitihientadehmediatiaibene 6

THE DECISION BELOW IS CORRECT .................. 7

NO QUESTIONS OF IMPORTANCE ARE IN-

VOLVED .. 11

RP ROIIIUIE ctincicanctninabiticsiomnsonsesitinctisiieinianehinvsbnbatnscaniinindieas 11

CERTIFICATE OF SERVICE nina aiaiabanwettiniaahdie 12

APPENDIX—

DECISION OF THE COURT OF APPEALS ........ Al

Im

TABLE OF AUTHORITIES

Albergo v. Hellenic Lines, Inc., 658 F.2d 66 (2d Cir.

BIE) <sicctirenesnssernsensanierasintantitihihiaeamaaiaamaaiaaaaae Yy

Bonds v. Mortensen & Lange, 717 F.2d 123 (4th Cir.

DIED: | sixisessecwsnsininsintiithsineninisinsieaiibtiliomsddiamaamaiadaasaniaas 8,9

Evans v. Transportacion Maritime Mexicana, 639 F.2d

EE CCR. MED eiietsicinisttssniesstecntianeepiniajunsicesienniiciailietaatiiaatas 7

Griffith v. Wheeling-Pittsburgh Steel Corp., 657 F.2d

25 (3rd Cir. 1981), cert. denied, 456 U.S. 914 (1982)

Helaire v. Mobil Oil Co., 709 F.2d 1031 (5th Cir. 1983) 7

Lemon v. Bank Lines, Ltd., 656 F.2d 110 (5th Cir. 1981)

Lieggi v. Maritime Co. of the Philippines, 667 F.2d 324

COG CI. FED ccecnisedntniscosssvcsinsiinlabassinieenatias 10

Scindia Steam Navigation Co. v. Santos, 451 U.S. 156

CRIIEE ) wiscirsscessinsistarintancsicsscistaimcnsanineideatianipindiemioimammenda passim

United States Fidelity & Guaranty Co. v. Jadranska

Slobodna Plovidba, 683 F.2d 1022 (7th Cir, 1982) .... 7-8

No. 83-1566

In the Supreme Court of the United States

October Term, 1983

DARNELL HUNTER,

Petitioner,

vs.

REARDON SMITH LINES, LTD.,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UnttTep STATES Court OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR RESPONDENT IN OPPOSITION

Respondent, REARDON SMITH LINES, LTD., replies

to the Petition for Writ of Certiorari filed by the Peti-

tioner and respectfully requests the Petition be denied as

no reason for granting the writ has been presented.

OPINION BELOW

In this personal injury suit brought by a longshore-

man against the shipowner, the jury was properly in-

structed that the shipowner had no general duty to

discover unknown dangers. However, the jury was not

instructed with regard to known dangers and the proper

allocation of responsibility. On the facts in this case, that

omission constituted reversible error, as found by the

appellate court. Petitioner’s request for rehearing on the

point was denied by the appellate court.

JURISDICTION

The jurisdictional requirements are adequately set

forth in the petition.

STATEMENT OF THE CASE

The facts of the case are presented fairly in the

opinion of the Eleventh Circuit Court of Appeals. Respon-

dent takes exception to the facts as augmented in Peti-

tioner’s brief. Where additional evidence must be cited,

reference will be made to the Record on Appeal.’

While petitioner states the evidence was uncontra-

dicted on certain points the record shows otherwise.

Petitioner argues that it is uncontradicted that the

ship’s crane was defective from the beginning of the steve-

dore’s operations while the more substantial evidence is

that the crane had been operating properly for at least

two days prior to the accident, that there were no repairs

to the crane following the accident and that the crane

continued to function properly following the accident for

the remainder of that day and the two following days.

(Baker deposition at 20-29, Hurst deposition at 16, 17, Tr.

268, 303, 305, 317, 326).

Similarly, petitioner contends that the evidence is

uncontradicted that the shipowner failed to properly re-

pair the ship’s crane some time prior to the accident but

3

again the substantial evidence is to the contrary. (Hurst

deposition at 16, 17, Baker deposition at 26, 28, 29, Tr.

303, 317, 326). The uncontradicted evidence is that there

were no repairs to the ship’s crane at the time of the ac-

cident, that the same crane was used continuously for the

remainder of the day following the accident without re-

pair and that it was used the two following days to work

cargo without repair. (Baker deposition at 20-29).

The stevedore reported no down time on the crane fol-

lowing the accident as would have been the case if cargo

operations were suspended for repairs to the crane, (Tr.

268, 305).

Petitioner’s argument is largely based on the premise

that the evidence was uncontradicted that the shipowner

failed to provide a safe place to work at the outset. The

substantial evidence is simply contrary to petitioner’s as-

sertions.

The alleged failure of the shipowner to provide a safe

place to work at the outset exists only in petitioner’s

argument.

Petitioner’s second point, the assertion that the ship

had actual knowledge of a defect in the winch immediately

prior to the accident is similarly misplaced.

_ Again petitioner argues that the evidence is uncontra-

dicted that the shipowner had knowledge of a defect in the

winch immediately prior to the accident. Again, the sub-

stantial evidence is to the contrary. (Tr. 303, 317, 326,

Baker deposition at 26, 28, 29).

Petitioner’s third and final point is that the evidence

was uncontradicted that Reardon attempted unsuccessfully

to repair the crane when it malfunctioned.

4

Like the other two points, this is simply not the case.

The substantial evidence again is to the contrary. (Tr. 303,

317, 326, Baker deposition at 28, 29, Hurst deposition at 16,

17).

Petitioner fails to note that he was employed by an

independent stevedore, Tampa Stevedoring Company, not

not by the shipowner. Petitioner does note that the ship’s

third officer was on deck, but fails to note that Petitioner

agreed at the trial level to delete any reference to Respon-

dent’s having undertaken, by contract or course of deal-

ing, any duty of supervision. (Al2, n.13). No duty of this

nature was shown by the evidence. Petitioner states that

there was evidence the crane was not functioning properly

but fails to state that direct evidence was presented that

the crane was functioning properly after the repairs. The

appellate court’s opinion recognized the evidence from the

ship’s captain, the chief officer, and several longshoremen

including the crane operator and the safety man, that either

the crane was operating properly or that they could not re-

call any problems. (A8,n.10). Thus, Petitioner’s assertion

that the direct evidence showed the crane was not operat-

ing properly presents a biased view of the facts as direct

evidence showed the crane was operating perfectly nor-

mally.

THE DECISION BELOW

As the appellate court stated, the facts in Scindia

Steam Navigation Co. v. Santos, 451 U.S. 156 (1981), were

similar to the facts in this case. (A6). In Scindia the court

required the exercise of ordinary care under the circum-

stances to have the ship and its equipment in such condi-

tion that an expert and experienced stevedore will be able,

5

by the exercise of reasonable care, to carry out its cargo

operations with reasonable safety to persons and prop-

erty. The ship must also warn the stevedore of any hazard

not known to the stevedore and not obvious to or an-

ticipated by him if reasonably competent in the per-

formance of his work. 451 U.S. at 166-67. The trial court

instructed the jury in this regard and in accord with

Scindia’s directives on unknown dangers. (AQ).

However, the trial court’s instructions gave no guid-

ance to the jury with regard to a problem known to both

the shipowner and the stevedore. (A9). In addition, the

trial court instructed the jury that for Plaintiff to pre-

vail, Plaintiff had to prove by a preponderance of the evi-

dence that the Defendant was negligent. The context of

the instruction implied that this negligence would have

been a failure to supervise the cargo operation. (A9, Tr.

482-83). Instruction in this regard failed to comply with

the law stated by the Supreme Court in Scindia. The

jury should have been made aware of the duties and

responsibilities of each entity. (A9).

Petitioner inaccurately characterized the appellate

court as holding that uncontradicted evidence showed a

failure to provide a safe place to work and showed that

the shipowner was in fact supervising and had failed to

repair a defect. (Br. at 5, 11, 13). Such uncontradicted

evidence does not exist and for the trial court to have as-

sumed it existed would have invaded the province of the

jury. Petitioner’s position fails to recognize that the

Scindia decision placed primary responsibility for the un-

loading operation on the stevedore and would deny that

the jury had a right to know of this decision.

ARGUMENT

Introduction

The Court’s instruction must not invade the province

of the jury by determining questions of fact. However,

the instructions must provide jury members with those

principles of law which they are duty bound to apply to the

facts in the case in order to render a verdict. The in-

structions given at the trial level dealt only with the ship-

owner’s duty with respect to unknown dangers. These

instructions did not give the jury any guidance about the

scope of the shipowner’s duty regarding known problems.

The shipowner was legitimately concerned at the trial

level that the jury be given guidance on all applicable

elements of law. The appellate court’s decision will now

require an instruction in the essential elements of law

as set forth in Scindia.

Scindia held that the shipowner has the right to rely

on the stevedore to avoid exposing the longshoremen to

unreasonable hazards, as a general matter. The sieve-

dore, not the shipowner, is required by statute to provide a

“reasonably safe” place to work and to take such safe-

guards with respect to equipment as may be determined

necessary. Id. at 170. On the facts in Scindia, it was ap-

parent to those working with the ship’s winch that it had

been malfunctioning for two days prior to the accident.

As the court noted, “even so, whether it could be safely

used or whether it posed an unreasonable risk of harm

to Santos or other longshoremen was a matter of judg-

ment committed to the stevedore in the first instance.”

Id. at 175. The court made clear that the “legal duties

placed on this stevedore and the vessel’s justifiable ex-

pectations that those duties will be performed are relevant

7

in determining whether the shipowner has breached its

duty.” Id. at 176, and where appropriate, the jury should

thus be made aware of the scope of the stevedore’s duty

and of the positive law. Id.

The Scindia court further stated that disputed material

facts should not be resolved by the district court alone. Id.

at 178. That determination is equally applicable in the

instant case.

As the Fifth Circuit found in Helaire v. Mobil Oil Co.,

709 F.2d 1031 (5th Cir. 1983), the most basic principle

emerging from Scindia is that the primary responsibility

for the safety of the longshoremen rests upon the steve-

dore. Id. at 1036. It is up to the jury to then resolve

disputed evidence under the proper instructions. Id. at

1040.

An. erroneous or incomplete statement to the jury on the

duties of all involved would affect a vital issue. (A13, n.15).

Such incomplete statements could well affect a jury find-

ing. Evans v. Transportacion Maritime Mezicana, 639 F.2d

848, 860 (2d Cir. 1981). In Evans, the court found it totally

“unrealistic” to assume that a jury could meaningfully

assess shipowner participation without being informed of

the primary responsibility of the stevedore.

The Decision Below Is Correct

Reardon admittedly knew the crane was down from

shortly after 0800 to 0955, but the ship’s log shows a dis-

pute as to whether it was the ship’s fault or the stevedore’s

fault. (Baker deposition at 21). The fact that the shipowner

knew of the malfunction would not in and of itself make

the shipowner negligent; it might be reasonable for the

shipowner to rely on the stevedore’s judgment that the

equipment, though defective, was safe enough. United

States Fidelity & Guaranty Co. v. Jadranska Slobodna

Plovidba, 683 F.2d 1022 (7th Cir. 1982). A similar finding

was made in Bonds v. Mortensen & Lange, 717 F.2d 123

(4th Cir. 1983). In Bonds, the bell on the operator’s cab

was found to have been malfunctioning from the com-

mencement of the stevedoring operation three days prior

to the incident. This malfunction was known to all and

the shipowner was held to be entitled to rely on the steve-

dore’s judgment as to whether discharge operations could

be safely undertaken. The stevedore had obviously con-

cluded that the conditions did not pose an unreasonable

risk of harm, for the longshoremen proceeded to unload

the ship’s cargo without complaint or incident until the

time of the incident.

In the instant case, whether there even was a mal-

function at the time of the incident is debatable. No com-

plaints were received by the shipowner after the crane

was returned to service. No stoppage of work occurred

because of the incident. (Tr. 90, 268). The crane worked

two full days before this incident and two full days after

this incident. Plaintiff's fellow longshoreman actually

working the crane stated that it was “operating fine.” He

continued to use it after the incident. (Tr. 303). The hatch

tender, also a fellow employee of petitioner, stated that

the crane was “running normally. It was okay.” (Tr. 326).

These witnesses were plaintiff's co-workers. They owed

nothing whatsoever to the ship. They had reason to know.

Those testifying to a malfunction were all in the hold,

same distance from the operation. In any case, the jury

should have been properly instructed, as the appellate

court required.

As noted, the statutory duty for providing a safe

place to work rests on the stevedore. The shipowner owed

no duty to supervise or inspect. The presence of an of-

ficer has not been taken to mean that the shipowner under-

took any duty beyond those required in Scindia. In par-

ticular, the presence of an officer of the ship’s crew does

not constitute “active involvement.” Bonds v. Mortensen

& Lange, 717 F.2d i23 (4th Cir. 1983). As the shipowner

in Albergo v. Hellenic Lines, Inc., 658 F.2d 66 (2d Cir.

1981), argued and the court approved, the vessel owner is

entitled to anticipate that the stevedore and his longshore-

men will abide by regulations. Id, at 69. Otherwise, long-

shoremen will know they can ignore statutes, receive com-

pensation and then try for even more money by suing the

vessel. Id.

No continuing duty of supervision is or should be

imposed simply because a repair was needed at some

point in time. To impose such a requirement would place

the primary duty of supervision back on the shipowner

immediately after the vessel’s first repair. No repair

would ever be complete.

Plaintiff's reference to Lemon v. Bank Lines, Ltd., 656

F.2d 110 (5th Cir. 1981), and Griffith v. Wheeling-Pitts-

burgh Steel Corp., 657 F.2d 25 (3rd Cir. 1981), cert. denied,

456 U.S. 914 (1982), as support for such a continuing re-

sponsibility is inapposite. In both, the danger in the cargo

itself was not in controversy. In this case, if any prob-

lem existed, that problem had been repaired. The Chief

Officer testified that after the repairs were complete, the

operation was “perfectly normal.” (Baker deposition at 28).

Despite implications or suggestions otherwise, no author-

ity cited supports plaintiff's proposition that the ship-

owner has the duty constantly to monitor the stevedore’s

work after the completion of a repair.

As the appellate cuurt stated (A9, 11), the jury should

be instructed that the stevedore retains primary responsi-

10

bility for known dangers. In addition, Scindia held that

even when a shipowner had actual knowledge of a danger-

ous condition, the judgment as to whether the risk involved

is unreasonable is initially the stevedore’s. Id. at 175. Only

if such a risk is “obviously improvident” does the ship-

owner have any duty to intervene. Whether any danger

existed was certainly debated in the instant case. No

evidence at all was cited as to “obvious improvidence.”

The duty suggested by plaintiff ignores Scindia and would

in fact reverse Scindia’s holding.

Additionally, the evidence in this case does not support

such a duty. Plaintiff contends that the shipowner af-

firmatively joined in the decision to keep working and

that the longshoremen had no choice but to face the al-

leged danger. (Br. at 11). Petitioner cites Lieggi v. Mari-

time Co. of the Philippines, 667 F.2d 324 (2d Cir. 1981),

where the shipowner was actually involved and issued

specific directives. However, in the case at bar, no evi-

dence showed that the shipowner affirmatively joined any

decision made by the stevedore to continue working. The

party having the primary responsibility for that decision

was the stevedore, Scindia at 175, 180, and the jury should

have been informed as to these duties.

Had the stevedore determined that the working con-

ditions were unsafe (and there is no evidence that such

a decision was ever made), several options were available.

Plaintiff's assertion that no option existed is unfounded

and unsupported by the record. The stevedore could have

halted work until satisfied with the conditions. Or, the

stevedore could have brought in a shoreside crane.

11

No Questions of Importance Are Involved

As the Scindia court noted, certiorari may be granted

when the courts of appeal are in conflict or “considerable

disagreement”. Scindia at 169. Such conflict is not in

evidence here. Neither is any question of extreme public

importance. The case is important to the parties because

a sum of money is involved. In addition, having one’s “day

in court” is a cornerstone of our system. The decision of

the appellate court provides for those considerations, in

part by mandating a clear and appropriate instruction to

the jury under the facts of the case. Further review is

not warranted.

CONCLUSION

For the foregoing reasons, this Court should deny

the Petition for Writ of Certiorari.

Respectfully submitted,

BRENDAN P. O’SULLIVAN

Attorney for Respondent

Of Counsel:

Fow er, Wuite, GILLEN, Boccs,

VILLAREAL AND BANKER, P.A.

Post Office Box 1438

Tampa, Florida 33601

(813) 228-7411

& -

12

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing

has been mailed this 30th day of April, 1984 to: Joel S.

Perwin, Esq., of PODHURST, ORSECK, PARKS, JOSEFS-

BURG, EATON, MEADOW & OLIN, P.A., 25 West Flagler

Street, Miami, Florida 33130 and to Roger Vaughan, Esq.

of WAGNER, CUNNINGHAM, VAUGHAN AND Mc-

LAUGHLIN, P.A., 708 Jackson Street, Tampa, Florida

33602.

BRENDAN P. O’SULLIVAN

Fow er, WHITE, GILLEN, Boas,

VILLAREAL & BANKER, P.A.

P.O. Box 1438

Tampa, Florida 33601

(813) 228-7411

Attorneys for Respondent

Al

APPENDIX

Darnell HUNTER, Plaintiff-Appellee,

Cross-Appellant,

V.

REARDON SMITH LINES, LTD., a foreign

corporation, Defendant-Appellant,

Cross-Appellee.

No. 81-6143.

United States Court of Appeals,

Eleventh Circuit.

Nov. 14, 1983.

Longshoreman brought action against shipowner seek-

ing damages for injuries sustained while working on the

vessel. The United States District Court for the Middle

District of Florida, George C. Carr, J., entered judgment on

a jury verdict in favor of longshoreman, and cross appeals

were taken. The Court of Appeals, R. Lanier Anderson, III,

Circuit Judge, held that: (1) trial court, which properly

charged jury that shipowner had no general duty to dis-

cover unknown dangers, committed reversible error in

failing to instruct jury that stevedore retained primarily re-

sponsibility even with respect to dangers which are known

to the shipper, and (2) effect of future inflation is properly

considered in calculating any award of future damages

which longshoreman received for injuries sustained while

working aboard vessel.

Reversed and remanded.

1. Federal Courts (Key) 911

Shipping (Key) 86 (3)

In suit brought by longshoreman against shipowner to

recover damages for injury sustained when he was struck

A2

by a bag of phosphate which had fallen from a pallet which

was being carried by a crane, trial court, which properly

charged jury that shipowner had no general duty to dis-

cover unknown dangers, committed reversible error in fail-

ing to instruct jury that stevedore retained primary re-

sponsibility even with respect to dangers which are known

to the shipper.

2. Damages (Key) 226

Effect of future inflation is properly considered in

calculating any award of future damages which longshore-

man received for injuries sustained while working aboard

vessel.

Appeals from the United States District Court for the

Middle District of Florida.

Before TJOFLAT, FAY and ANDERSON, Circuit

Judges.

R. LANIER ANDERSON, III, Circuit Judge:

Darneli Hunter, a longshoreman, was injured while

working aboard the motor vessel FRESNO CITY in Tampa,

Florida. Hunter brought this action for negligence against

the shipowner, Reardon Smith Lines. The District Court

for the Middle District of Florida entered judgment on

a jury verdict for $157,800 in Hunter’s favor. Reardon

Smith appeals, contending inter alia that the district

court’s instructions to the jury did not adequately set out

the governing law as interpreted by the United States

Supreme Court in Scindia Steam Navigation Co. v. Santos,

451 U.S. 156, 101 S.Ct. 1614, 68 LEd2d 1 (1981). We

agree, and thus we reverse and remand for a new trial.

In addition, we grant Hunter’s cross-appeal and order that

the effect of future inflation should be considered in cal-

culating any award for future damages Hunter receives on

remand.

A3

I. FACTUAL SUMMARY

On July 26, 1978, Hunter was employed as a long-

shoreman by the Tampa Stevedoring Co. (“the stevedore” )

and was assigned to a gang of approximately 14 men who

were loading bags of phosphate into hold number three

on the FRESNO CITY. The bags of phosphate weighed

approximately 110 pounds each and previously had been

loaded on pallets by the stevedore. Several members of

Hunter’s gang were on the dock attaching spreader bars

to the pallets. One gang member was operating the ship’s

number three crane and another member of the gang

was on the deck giving signals to the crane operator. The

remainder of the gang members, including Hunter, were

in hold number three, unloading bags off the pallets and

stowing them in the hold.

Longshoremen were working in all five of the FRES-

NO CITY’s holds on July 26, and work began at approxi-

mately 8:00 am. Within a few minutes, however, the

crane which was carrying pallets to the number three

hold was taken out of service, apparently because it was

leaking oil or hydraulic fluid! The ship’s engineers

worked on the crane for almost two hours, and the crane

was put back into operation sometime between 10:00 and

10:30 am. There was conflicting testimony regarding

whether the crane was functioning properly after it be-

gan operating again.”

1. One witness testified that the crane was “pouring oil,”

Record on Appeal (“ROA”), vol. 6, at 68. The ship’s chief of-

ficer testified that the crane lost 20 gallons of hydraulic fluid in

10 minutes. Deposition of Chief Officer Robert E. Baker at 60.

2. Hunter’s witnesses, all longshoremen who were down in

the hold, testified that during this time the crane was “dragging,”

“smoking bad,” leaking oil,” and making a “whining noise,” and

that the crane was just “barely coming over to the , and

then a lot of time it would stop in the middle of the and

(Continued on following page)

ier. x,

A4

Hunter’s accident occurred less than an hour after the

crane was put back into operation. Hunter and three other

longshoremen were building a runway in the hatch area

when two bags fell off off a pallet above them. One of the

bags landed on the deck, but the other bag fell into the

hold and hit Hunter on the back.’ One of the men work-

ing with Hunter testified that the bags fell because the

crane stopped suddenly and jarred the bags off the pallet.

Another man working in the hold testified that the crane

“cut off’ and dropped the pallet slightly, causing the

pallet to hit the edge of the hatch opening and thus knock-

ing the bags loose. Other witnesses testified that the

crane did not stop suddenly and that the pallet did not

hit anything, and some of the witnesses contended that

the bags of phosphate simply were slippery and often fell

off without explanation.

Although Hunter was knocked down and momentarily

stunned by the blow from the bag, in a few minutes he

was able to slowly climb a ladder out of the hold* and was

taken to a hospital. The rest of the longshoremen in hold

number three continued the loading operation, using the

same crane which allegedly had caused Hunter’s injury.

eae

A5

The ship’s engineers did shut down the crane at 11:50

a.m., apparently to make some repairs or to perform some

maintenance,’ but the crane was back in operation at

1:00 p.m. when the longshoremen returned from lunch

and was used without incident for the rest of that day*

and the two days which followed.

Hunter spent two days in the hospital in traction.

Subsequently, he was treated by several physicians for a

variety of problems which he attributed to his injury.

The jury awarded Hunter $7,800 for “past damages” (lost

wages, medical bills, pain and suffering), $50,000 for future

pain and suffering, and $100,000 for loss of future wages.

Il. THE JURY INSTRUCTIONS

[1] Reardon Smith’s primary contention’ on appeal

is that the district court did not adequately instruct the

jury on the law which governs a shipowner’s duty to long-

shoremen working on board a vessel. Both parties agree

that the jury should have been instructed in accord with

the rules established by the Supreme Court in Scindia

Steam Navigation Co. v. Santos, supra, and we begin our

analysis of this issue with a brief review of the Scindia

decision.

5. The ship’s engineers did not testify at trial. Thus, it

~

A6

The facts in Scindia were similar to the facts in this

case. A longshoreman was injured when he was struck

by a sack of wheat that had fallen from a pallet being

held in suspension by one of the ship’s winches, which

was being operated by another longshoreman. The evi-

dence established that the braking mechanism which

slowed the winch’s descent had been malfunctioning for

several days, but it was not clear whether the sacks which

hit the longshoreman had fallen because the braking mech-

anism slipped or because the suspended pallet was swing-

ing back and forth.

The district court had granted summary judgment for

the shipowner, reasoning that the shipowner was not liable

for dangerous conditions created by the stevedore, the

longshoreman’s employer, while the stevedore was in ex-

clusive control of the loading operation. The Court of

Appeals for the Ninth Circuit had reversed, ruling that a

shipowner had to exercise “reasonable care under the

circumstances” and that there were factual questions about

the shipowner’s conduct which had to be resolved by a

jury. The Supreme Court affirmed the Ninth Circuit’s

judgment, but set forth a somewhat different standard re-

garding the duty the shipowner has to longshoremen

working on board a vessel.

The Supreme Court ruled that at the outset of cargo

operations the shipowner’s duty

extends at least to exercising ordinary care under the

circumstances to have the ship and its equipment in

such condition that an expert and experienced steve-

dore will be able by the exercise of reasonable care

to carry on its cargo operations with reasonable safety

to persons and property, and to warning the steve-

dore of any hazards on the ship or with respect to

its equipment that are known to the vessel or should

A7

be known to it in the exercise of reasonable care, that

would likely be encountered by the stevedore in the

course of his cargo operations and that are not known

by the stevedore and would not be obvious to or

anticipated by him if reasonably competent in the per-

formance of his work.

451 U.S. at 166-67, 101 S.Ct. at 1622. Once cargo opera-

tions have begun, however, the scope of the shipowner’s

duty usually is somewhat limited.’ According to the Su-

preme Court:

[A]bsent contract provision, positive law, or custom

to the contrary . . . the shipowner has no general duty

by way of supervision or inspection to exercise rea-

sonable care to discover dangerous conditions that de-

velop within the confines of the cargo operations that

are assigned to the stevedore. The necessary conse-

quence is that the shipowner is not liable to the long-

shoremen for injuries caused by dangers unknown to

the owner and about which he had no duty to inform

himself.

Id. at 172, 101 S.Ct. at 1624. Nevertheless, addressing the

situation where a shipowner learns that an apparently

dangerous condition has developed during the cargo op-

erations, the Supreme Court held that “there are cir-

cumstances in which the shipowner has a duty to act

where the danger to longshoremen arises from the mal-

functioning of the ship’s gear being used in the cargo

operations.” Id. at 175, 101 S.Ct. at 1626. Thus, although

3

operation.” 451 U.S. at 167, 101 S.Ct. at 1622.

A8

the court noted that the determination of whether problems

with the ship’s gear pose an unreasonable risk of harm

to the longshoremen is “a matter of judgment committed

to the stevedore in the first instance,” id., the court held

that if the shipowner is aware that the ship’s gear is mal-

functioning, that the stevedore is nonetheless continuing to

use it, and that the stevedore’s continued use of the gear

is “obviously improvident,” then the shipowner has a duty

to intervene and repair the ship’s gear. Id. at 175-76, 101

S.Ct. at 1626-27.

In this case, Hunter argued at least two theories of

liability to the jury.’ First, Hunter argued that Reardon

Smith’s employees negligently turned over a malfunction-

ing crane to the stevedore, thus breaching the duty to

have the ship and its equipment in proper condition so

that the stevedore could carry on cargo operations with

reasonable safety. Second, Hunter argued in the alter-

native that a dangerous condition arose during the course

of the cargo operations, that Reardon Smith’s employees

were aware of the dangerous condition,’® and that Reardon

Smith’s employees failed to intervene even though they

knew or should have known that the stevedore’s con-

tinued use of the crane to load bags of phosphate created

an unreawettle risk of harm to the longshoremen, thus

breaching the shipowner’s duty to act when the steve-

dore’s actions are obviously improvident.

Although the district court properly instructed the

jury regarding the shipowner’s duty to have the ship and

9. Hunter suggests a third theory on appeal—that Reardon

Smith is liable because its employees “ee wy failed to repair

the crane after voluntarily undertaking a duty to make repairs.

We need not consider this theory or decide w it was ade-

quately submitted to the jury. a ae

10. Hunter made a the trial to con-

vince the jury that the were aware

that the crane was malfunctioning eltendieninn Ghar Gee tak tae ole

operation.

A9

its gear in proper condition for the stevedore,"* we conclude

that the court did not adequately inform the jury about

the limited nature of the shipowner’s duty once the steve-

dore has commenced, and assumed primary responsibility

for, the cargo operations. The only instructions the dis-

trict court gave regarding the shipowner’s duty after cargo

operations have begun were as follows:

{O]nce the stevedore’s cargo operations have begun,

absent positive law or custom to the contrary, the

shipowner has no general duty by way of supervision

or inspection to exercise reasonable care to discover

dangerous conditions that develop within the confines

of the cargo operations that are assigned to the steve-

dore. Thus, the shipowner is not liable to the long-

shoremen for injuries caused by dangers unknown to

the shipowner and about which he had no duty to

inform himself.

Record on Appeal, vol. 11, at 484 (emphasis added).

These instructions were in accord with Scindia, but they

dealt only with Reardon Smith’s duty, and the limits

thereon, with respect to unknown dangers. The instruc-

tions did not give the jury any guidance about the scope

of the shipowner’s duty when there is a problem with

the ship’s gear that is known to both the shipowner and

the stevedore. Such guidance was necessary for the jury

to properly consider Hunter’s second theory of liability.

In other words, there are two potential duties on the part

of the shipowner once cargo operations have begun: the

potential duty to discover unknown dangers, and the po-

tential duty with respect to dangers which are known to

the shipowner. The trial court here, in the instruction

11. The court’s instructions on Hunter’s first theory of

liability were taken almost verbatim from the Supreme Court's

Scindia decision.

Al0

quoted above, properly charged the jury that the shipowner

has no general duty to discover unknown dangers. How-

ever, the quoted instruction does not address the ship-

owner’s second potential duty, i.e., with respect to dangers

which are known to the shipowner. With respect to this

potential duty the Supreme Court in Scindia precisely de-

fined the very limited duty of the shipowner:

Yet it is quite possible, it seems to us, that .. . [the

stevedore’s] judgment in this respect was so ob-

viously improvident that . . . [the shipowner], if it

knew of the defect and that .. . [the stevedore] was

continuing to use it, should have realized the winch

presented an unreasonable risk of harm to the long-

shoremen, and that in such circumstances it had a

duty to intervene and repair the ship’s winch.

451 U.S. at 175-76, 101 S.Ct. at 1626 (footnote omitted)

(emphasis added). The Court also defined the primary

responsibility of the stevedore:

[Whether it could be safely used or whether it posed

an unreasonable risk of harm to. . . [the longshore-

men] was a matter of judgment committed to the

stevedore in the first instance.

Id, at 175, 101 S.Ct. at 1626. The Supreme Court went on

to rule:

[T]he legal duties placed on the stevedore and the

vessel’s justifiable expectations that those duties will

be performed are relevant in determining whether the

shipowner has breached its duty. The trial court and

where appropriate, the jury, should thus be made

aware of the scope of the stevedore’s duty under the

positive law.

Id. at 176, 101 S.Ct. at 1626.

a

All

Although the trial court here may have properly

charged the jury as to the primary nature of the stevedore’s

responsibility during cargo operations with respect to the

discovery of unknown dangers, it failed to instruct the

jury that the stevedore retains the primary responsibility

even with respect to dangers which are known to the

shipowner. Reardon Smith requested, and was entitled

to, such instructions. We thus conclude that the district

court erred. The error is significant because the trial fo-

cussed on Reardon Smith’s duty with respect to known

dangers. The Supreme Court in Scindia expressly held that

the jury should be made aware of the “duties placed on the

stevedore and the vessel’s justifiable expectations that

those duties will be performed.” Id. at 176, 101 S.Ct. at

1626.

The error was magnified by a paragraph early in the

jury charge which suggested to the jury that the ship-

owner had a duty to supervise the cargo operations. The

district court instructed the jury:

In this case, the plaintiff claims that the defendant

was negligent and that such negligence was a legal

cause of damage sustained by the plaintiff. Specifi-

cally, the plaintiff alleges that the crane on the M/V

FRESNO CITY was malfunctioning before the accident

and that the defendant was negligent in failing to

properly maintain and repair the ship’s crane at hatch

number three or to properly supervise cargo operations.

In order to prevail on this claim, the plaintiff must

prove by a preponderance of the evidence, one, that

the defendant was negligent, and two, that such negli-

gence was a legal cause of damage sustained by the

plaintiff.

Record on Appeal, vol. 11, at 482-83 (emphasis added).

We recognize that this instruction merely told the jury that

Al2

“the plaintiff alleges ... that the defendant was negligent in

failing . . . to properly supervise cargo operations.” Id.

(emphasis added). However, the last sentence might have

given the jury the impression that the plaintiff could pre-

vail on his claims—including the “failure to supervise”

claim—merely by proving negligence and proximate cause.

Such an impression would have been reinforced by com-

ments Hunter’s counsel made during closing argument”

which also suggested that Reardon Smith had a duty to

supervise the cargo operations.”

We conclude, therefore, that the district court did not

adequately instruct the jury on the law relevant to Hunter’s

second theory of liability. Further, although the court

properly instructed on Hunter’s first theory of liability, the

jury returned only a general verdict and we are unable to

determine from the record which theory the jury relied

12. For example, in response to Reardon Smith’s argument

argumen sustain the verdict because at the charge

conference Hunter’s counsel expressly agreed to delete any refer-

ence in the jury to Reardon ’s having under-

Al3

upon in reaching that verdict.* Accordingly, we reverse

the judgment rendered below and remand for a new trial.”

14. This case again illustrates the potential value of special

verdicts. See Brown, Federal Special Verdicts: The Doubt Elim-

inator, 44 F.R.D. 338 (1968); cf. Petes v. Hayes, 664 F.2d 523

(5th Cir.1981).

15. Hunter argues that this court has discretion to affirm

the jury’s verdict because any error in the instructions on the

second theory was harmless in view of the sufficiency of the

evidence on the first theory of liability. We recognize that some

courts have affirmed jury verdicts under similar circumstances

See, e.g., Traver v. Meshriy, 627 F.2d 934, 938 (9th Cir. 1980)

(“Where more than one theory of recovery has been submitted

to the jury in a civil case, and where on appeal it is claimed

that as to one of the theories there was a lack of evidential sup-

port or an error of law in submitting the theory to the jury, the

reviewing court has discretion to construe a general verdict so

attributable to another theory if it was supported by substantial

evidence and was submitted to the jury free from error.”);

cf. American Airlines, Inc. v. United States, 418 F.2d 180 (5th

Cir.1969) (where trial court instructed jury that it could find

for plaintiff if it found defendant negligent on any of 31 par-

ticulars, the fact that one particular was not supported by the

record did not require reversal because it was “inconceivable

that in the mass of testimony so clearly esta ence

in thirty other particulars this issue could have uen the

verdict....”). But see, e.g., Mixon v. Atlantic Coast Line R.R.,

370 F. 2d 852, 860 (5th Cir.1966) (Brown, J., specially concurring)

(“Under the enigma wrapped in a mystery of the general charge

and general verdict, we are required to asst:me that the jury

followed only the erroneous instruction . ."). Kicklighter v.

Nails by Jannee, Inc., 616 F.2d 734, 742 (5th ir.1980) (Ander-

son, J.) (quoting Judge Brown's opinion in Mixon; however, the

question whether an appellate court has discretion to affirm

under such circumstances was not considered by the court). We

acknowledge the force of Hunter’s argument that an appellate

court d have some discretion to treat as harmless or non-

Al4

Ill. HUNTER’S CROSS-APPEAL

[2] On cross-appeal, Hunter contends that the district

court erred when it refused to permit expert testimony or to

instruct the jury regarding the effect of future inflation on

the award for future damages. In ruling on this matter,

the district court relied on Johnson v. Penrod Drilling Co.,

510 F.2d 234 (5th Cir.), cert. denied, 423 U.S. 839, 96 S.Ct.

68, 46 L.Ed.2d 58 (1975), which proscribed consideration

of inflation in making awards for future damages. Develop-

ments since the trial of this case indicate that Penrod is

no longer viable law. See Culver v. Slater Boat Co., 688

F.2d 280 (5th Cir.1982) (en banc);’* see also Jones &

Laughlin Steel Corp. v. Pfeifer, ........ BPRS: cxcteses , 103 S.Ct.

2541, 76 L.Ed.2d 768 (1983). Accordingly, if a new trial

is necessary, the effect of future inflation on any award

Hunter receives for future damages should be accounted

for in an appropriate manner.

REVERSED and REMANDED.

16. The mandate has not yet issued in Culver v. Slater

Boat Co., which expressly overrules Penrod, but Culver un-

doubtedly will govern if retrial is necessary.