Petition for Writ of Certiorari — Castorina v. Lykes Bros. Steamship
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85-107
| JUL 18 1985
ALEXANDER |
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NO. '
IN THE
Supreme Court of the United States
| OCTOBER TERM, 1985
GUISEPPE CASTORINA,
Petitioner
V.
LYKES BROS. STEAMSHIP CoO., INC.,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
STEPHEN M. VAUGHAN
BARBARA J. GARDNER
MANDELL & WRIGHT
806 Main Street
Twenty-First Floor
Houston, Texas 77002
(713) 228-1521
Attorneys for Petitioner,
Guiseppe Castorina
Alpha Law Brief Co., Inc—5606 Parkersburg—Houston, Texas 77036—223-3003
I
QUESTIONS PRESENTED
Whether, under the Longshoremen’s and Harbor
Workers’ Compensation Act, the law in effect on the
date when a longshoreman is injured by the inhala-
tion of a toxic substance governs the substantive
rights and liabilities of the parties.
Whether a shipowner is obligated by Occupational
Safety and Health Act regulations to protect long-
shoremen who may be harmed by the shipowner’s
violation of a regulation.
Whether a shipowner, by performing its own steve-
doring operations, is charged with constructive or
actual knowledge of Occupational Safety and Health
Act violations committed by the stevedore arm of the
same corporation.
I]
TABLE OF CONTENTS
Page
(FUBSTIONG FIRESAINTER 6.056 i csewsd eeeeeekiws = I
(APRS Mets | as owes coc eee aee eee !
JURIST ook ics PE ee Satay Sia eee eyes 2
STATUTES INVOLVED ..... jy ane bss keg don ea 2
SRAM MNMS D Moe BOE CABO... 54.5 114s di sks eee 2
Statement of the Facts ....... eee es yey See 2
Conclusions by the District Court .. Vere r ae 3
The Court of Appeals’ Decision .................... 3
REASONS FOR GRANTING THE WRIT ............. 4
1. The Court of Appeals’ ruling equating “injury” with
diagnosis conflicts with other circuit court decisions
and with the definition of “injury” found in the statute 4
2. There is conflict among the circuits as to the applica-
tion of OSHA regulations ........................ 6
3. The Court of Appeals’ ruling, that Lykes’ shipowner
arm did not know of the OSHA violation by its steve-
dore arm, contradicts fundamental corporate principles 12
CARER Sika ds ech veneye eee 14
AEC R 6405 as eteedeacee EE ee eee A-i
Appendix A—Opinion of Fifth Circuit .............. A-1
Appendix B—Opinion of District Court ............ A-25
Il
TABLE OF AUTHORITIES
CASES Page
American Petroleum Institute v. OSHA, 581 F.2d 493 (Sth
Cir. 1978), aff'd, 448 U.S. 607 (1980) ............60.. 7,8
Arthur v. Flota Mercanta Gran Centro Americana, S.A., 487
GO Se S| a ee 9
Bachtel v. Mammoth Bulk Carriers, Ltd., 605 F.2d 438
(9th Cir. 1979), vacated on other grounds, 451 U.S. 978
a a ee ee eee eee ee eee ee 10
Beatty Equipment Leasing, Inc. v. Secretary of Labor, 577
i 3 gi. le Sh) | ror Sree ar 8
Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d
Ee ae ree eee eee 6
INA v. Forty-Eight Insulations, Inc., 633 F.2d 1212 (6th
Cir. 1980), cert. denied, 454 U.S. 1075 (1981) ...... 5
Marshall v. Isthmian Lines Inc., 334 F.2d 131 (Sth Cir.
oc iwenacasycdhencnse 8,9, 10
Porter v. American Optical Corp., 641 F.2d 1128 (Sth
Cir.), cert. denied, 454 U.S. 1109 (1981) ........... 5
Provenza v. American Export Lines, Inc., 324 F.2d 660
aac uakussnkuens 89,10
Reed v. The YAKA, 373 U.S. 410 (1963) ............ 3,12
Reyes v. Vantage Steamship Co., Inc., 558 F.2d 238 (Sth
ee Gk cece MAGS ORG NSO NK MAa a BOS eee 7
Steere Tank Lines, Inc. v. United States, 330 F.2d 719
dn eu seh 0s eek Gh keh 40 o Oe we 13
STATUTES
Longshoremen’s & Harbor Workers’ Compensation Act,
ee Se ) ee er passim
CE, MW ek tk meee ceavesnes 5
NT a a!) a 3,4, 5,12
I MEME 5 a csc Sas ene ances chess 6
eR er 2, 8,9, 10
ee BR eC.) ee 2,7
MISCELLANEOUS
H.R. Rep. No. 1441, 92nd Cong., 2d Sess., reprinted in
1972 U.S. Code Cong. & Ad. News 4698 ............ 11
S. Rep. No. 1125, 92d Cong., 2d Sess. 2 (1972) ....... 10, 11
NO. 7 sebiclia
IN THE
Supreme Court of the Mnited States
OCTOBER TERM, 1985
GUISEPPE CASTORINA,
Petitioner
V.
LYKES BROS. STEAMSHIP CO., INC.,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Guiseppe Castorina (“Castorina”) respectfully peti-
tions this Court to review the judgment of the United
States Court of Appeals for the Fifth Circuit entered in
this proceeding on April 15, 1985.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Fifth Circuit, reported at 758 F.2d 1025, is reprinted
in the Appendix at A-l. The judgment of the United
States District Court for the Southern District of Texas,
reported at 578 F. Supp. 1153, is reprinted in the Ap-
pendix at A-25.
2
JURISDICTION
The judgment of the Court of Appeals for the Fifth
Circuit was entered on April 15, 1985. This Court has
jurisdiction pursuant to 28 U.S.C. $ 1254(1) (1966).
STATUTES INVOLVED
This case is based on the Longshoremen’s and Harbor
Workers’ Compensation Act (“LHWCA”), 33 U.S.C.
S$ 901 et seg. (1978), and Occupational Safety and Health
Act (“OSHA”) regulations, 29 C.F.R. $$ 1504.2 and
1504.102(c)(1) (1965). The texts of pertinent pro-
visions are found in the Appendix at A-48 - A-49.
STATEMENT OF THE CASE
Statement Of The Facts
Respondent, Lykes Bros. Steamship Co., Inc. (“Lykes”),
owned ships which brought cargos of raw asbestos into
the Port of Galveston, Texas between 1965 and 1972.
Lykes also carried out its own stevedoring operations,
acting in the dual capacity as both shipowner and ste-
vedore. During 1965 to 1972 Lykes employed Castorina
as a longshoreman to offload loosely woven burlap bags
containing raw asbestos. The bags were often torn open
during shipment, and the longshoremen upon entering
the holds of the vessels would find raw asbestos loose in
the holds. The dust was so pervasive at times during off-
loading that it would actually cause clouds of asbestos
in the holds of the vessels. The asbestos would cling to
the bodies and clothing of the longshoremen to such an
extent that they would have to wipe their mouths, ex-
pectorate, or take a drink of water to clear their mouths
and throats of the raw asbestos. After the burlap bags
3
were discharged, longshoremen cleaned the holds by
sweeping the loose asbestos that was several inches deep.
Castorina in handling the asbestos cargo was exposed
to and inhaled large amounts of raw asbestos dust. Lykes
did not provide masks or respirators to Castorina, nor did
Castorina or any of his co-workers wear respirators when
working with the asbestos cargo. Lykes knew of the
extremely dusty conditions and knew that the men were
not wearing respirators.
Castorina consulted a physician in 1975 for wheezing
and respiratory discomfort. In 1979, Castorina was diag-
nosed as suffering from asbestosis caused from repeated
exposure to and inhalation of asbestos dust. Castorina
sued Lykes as shipowner under 33 U.S.C. § 905(b), even
though Lykes was his employer.’
Conclusions By The District Court
The District Court concluded that Castorina was not
entitled to recover for the reasons that the applicable
provisions of the LHWCA were those in effect in 1979
when Castorina’s asbestosis was diagnosed; that Lykes
did not, therefore, owe Castorina a duty to provide a
seaworthy vessel under pre-1972 law; that even if pre-
1972 law applied, the vessel was seaworthy; and that
Lykes as shipowner had not been negligent in the stowage
or carriage of the asbestos.
The Court Of Appeals’ Decision
The Court of Appeals affirmed, holding that the con-
trolling date for determining the applicable law for third
1. This fictional division is permitted by Reed v. The Yaka, 373
U.S. 410 (1963), to insure like treatment to all longshoremen under
the law.
4
party claims under 33 U.S.C. § 905(b) is the date when
a latent disease is diagnosed. The Court of Appeals
affirmed the District Court’s conclusion that Lykes did
not owe Castorina a warranty of seaworthiness “because
Castorina’s injury did not occur until after the 1972
ai.endments to the LHWCA.” 758 F.2d at 1031. Be-
cause of this conclusion the court found it unnecessary
to review the District Court’s finding of seaworthiness.
The Court of Appeals stated that Lykes as shipowner
was not obligated to follow an OSHA regulation requir-
ing that respirators be provided for protection against
pneumoconiosis producing dust and that, therefore, Lykes
was not negligent for failing to provide the respirators.
Lykes was the shipowner and performed its own stevedoring
operations. The court reasoned that the regulation did
not apply to Lykes as shipowner but applied to Lykes
only in its capacity as stevedore.
Castorina does not attack the lower court’s review of
the evidence but submits that the court misapplied the law
concerning the date of injury in third party actions under
the LHWCA and concerning the duty under OSHA regu-
lations to protect longshoremen from hazardous con-
ditions.
REASONS FOR GRANTING THE WRIT
1. The Court of Appeals’ ruling equating “injury”
with diagnosis conflicts with other circuit court deci-
sions and with the definition of “injury” found in the
statute.
The Court of Appeals’ definition of “injury,” that
injury is the date when a latent disease is diagnosed,
5
squarely conflicts with the definition of “injury” found in
other circuit court decisions. Section 5(b) of the LHWCA,
33 U.S.C. § 905(b), established the right to bring a tort
action against a shipowner and is intended to import tort
principles. Diversity cases involving tort liability are,
therefore, relevant in defining “injury” in a latent disease.
Other circuit courts have defined “injury” in asbestosis
cases. Manufacturers of asbestos products were sued in
products liability actions. Their insurance carriers denied
coverage under liability policies, claiming that the “injury”
did not occur and, thus, liability did not arise until as-
bestosis was diagnosed. Consequently, when “injury” oc-
curred giving rise to liability was the crucial issue. The
Fifth and Sixth Circuits stated that “injury” in asbestosis
occurs shortly after the initial inhalation of asbestos fibers.
Porter v. American Optical Corp., 641 F.2d 1128 (Sth
Cir.), cert. denied, 454 U.S. 1109 (1981); 7NA v. Forty-
Eight Insulations, Inc., 633 F.2d 1212 (6th Cir. 1980),
cert. denied, 454 U.S. 1075 (1981). These cases involved
insurance coverage for liability in tort suits, Likewise,
suits under 33 U.S.C. § 905(b) involve tort actions, and
the definition of “injury” under this section should be
governed by analogous tort cases. Moreover, the holdings
of Porter and Forty-Eight Insulations, that asbestosis re-
sults from the initial inhaling of asbestos fibers, conform
with the definition of “injury” found in the LHWCA.
“The term ‘injury’ means accidental injury or death arising
out of and in the course of employment, and such oc-
cupational disease . . . as naturally or unavoidably results
from such accidental injury” (emphasis added). The
definition applies to both the initial injury as well as any
occupational disease arising out of such injury. 33 U.S.C.
§ 902(2).
6
The Court of Appeals’ holding, that “injury” is the
diagnosis of a latent disease, produces an incongruous
result. In a prior ruling, Harrison v. Flota Mercante
Grancolumbiana, §S.A., 577 F.2d 968. (Sth Cir. 1978),
the Fifth Circuit Court found that the operative facts of
inhaling fumes of a toxic chemical occurred prior to the
effective date of the 1972 amendments to the LHWCA
and that, consequently, pre-1972 law applied. However,
when confronted with facts almost identical to those in
Harrison the court below held that post-1972 applied
since Castorina’s asbestosis was not diagnosed until 1979.
Such was the holding below, even though, as in Harrison,
the operative facts giving rise to this suit occurred prior
to 1972. Further, the court’s distinction between trau-
matic injury and latent disease, both caused by the same
wrongful acts occurring before 1972, yields an incon-
gruous and absurd result, a result certainly not intended
by Congress.
Doubtless, there are thousands of longshoremen work-
ing in ports around the country who, before 1972, were
injured by a toxic substance but have yet to be diagnosed
as having an occupational disease. Moreover, many cases
involving asbestosis are currently pending. In all of those
cases, courts will be faced with conficting circuit deci-
sions as to when “injury” occurred attaching liability.
Given the frequency with which the rule of the court
below would be dispositive in such cases, its correctness
should be addressed by this Court.
2. There is a conflict among the circuits as to the
application of OSHA regulations.
Section 41 of the LHWCA makes OSHA regulations
applicable to longshoring work. 33 U.S.C. § 941. The
7
question presented in the instant case is whether Lykes
as shipowner, employer of seamen, was obligated to
follow OSHA regulations and provide respirators to the
longshoremen, employees of Lykes as stevedore. Circuit
courts have differed as to whether one employer owes
a duty under OSHA only to his own employees or also
to the employees of another employer. OSHA regula-
tions are intended to prevent work-related injuries and
to improve the tragic and intolerable working conditions
such as those found in longshoring. Longshoremen neces-
sarily perform their duties on and around vessels, not
just on their employers’ restricted premises as many land-
based employees do. The question of whether a ship-
owner or only a stevedore is responsible for complying
with OSHA regulations frequently will be raised, especially
when a hazardous condition is created by a shipowner.
Accordingly, this case ‘s an appropriate vehicle for con-
sidering whether OSHA -egulations apply to persons other
than an employee’s own employer.
The court below held that the OSHA regulation re-
quiring respirators applied only to Lykes in its capacity
as Castorina’s employer, not to Lykes as shipowner. The
regulation provides, “For protection against pneumoconi-
osis producing dusts, a respirator equipped with a type
of filter provided for such purposes shall be used.” 29
C.F.R. § 1504.102(c)(1) (1965). Lykes occupied the
role of two different employers: Lykes, the shipowner,
employed seamen; Lykes, the stevedore, employed long-
shoremen. There is a complex dispute among the circuits
as to whether OSHA regulations impose a duty on one
employer to provide safe working conditions for the
employees of another employer. In American Petroleum
Institute v. OSHA, 581 F.2d 493 (Sth Cir. 1978), aff'd,
8
448 U.S. 607 (1980), the Fifth Circuit rejected the argu-
ment that an OSHA regulation requiring each employer
to assure that caution labels were affixed to containers
of benzene applied only to the employer in protecting his
own employees. The court ruled that a duty of complli-
ance exists on the part of an employer who has created
a hazard. Similarly, in Beatty Equipment Leasing Co.,
Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978),
the Ninth Circuit Court of Appeals held that a sub-
contractor who erected a dangerous scaffold owed a duty
under OSHA to the employees of lathing and plastering
subcontractors. The policies of OSHA “can best be ef-
fectuated by placing the responsibility for hazards on
those who create them.” 577 F.2d at 537 (emphasis
added). Accordingly, even if a valid distinction can be
made between Lykes as shipowner and Lykes as steve-
dore, Lykes, in either capacity, had a duty under OSHA
regulations to protect workers from hazards which it
created. The holds filled with loose asbestos was a hazard
created by Lykes as shipowner.
The Secretary of Labor, in the OSHA regulations ap-
plicable to longshoring, defined “employer.” In explaining
this definition the Secretary noted situations in which a
shipowner may also act as a longshoreman’s employer.
In such instances, the regulations expressly state that
additional duties are placed upon shipowners. 29 C.F.R.
§ 1504.2(b) (1965).
Moreover, the cited regulation directs that shipowners
shall not be relieved of duties placed upon them by law.
Landmark cases have established standards for determin-
ing negligence per se for violation of regulations. Marshall
v. Isthmian Lines, Inc., 334 F.2d 131 (5th Cir. 1964);
Provenza v. American Export Lines, Inc., 324 F.2d 660
(4th Cir. 1963).
9
Marshall established a three-part test to determine
negligence per se for the violation of regulations: (1)
was there a violation of the regulations? (2) were the
regulations designed to protect longshoremen? and (3)
were the regulations intended to protect against the risk
of the kind of harm that occurred? The Fifth Circuit has
applied this test to find negligence per se in at least two
cases decided since the 1972 amendments to the LHWCA.
Reyes v. Vantage SS Co., Inc., 558 F.2d 238 (Sth Cir.
1977) (For violating a Coast Guard regulation, a vessel
owner was found negligent per se in the drowning of a
seaman); Arthur v. Flota Mercanta Gran Centro Ameri-
cana, S.A., 487 F.2d 561 (Sth Cir. 1973) (A vessel
owner was found negligent per se when an inspector was
injured by a fall from a ship’s ladder. )
Although Provenza was principally concerned with the
doctrine of unseaworthiness, it also spoke to the issue of
negligence.
It follows, of course, if the jury should find that the
stevedore had violated the regulations such conduct
could also constitute negligence. If in turn the negli-
gent conduct of the stevedore were known, or by -
exercise of reasonable care should have been known
by the shipowner, and such negligence of the ship-
owner was a proximate cause of the plaintiff’s injury
then he too would be liable to the plaintiff on the
additional grounds of negligence.
324 F.2d at 665.
Nothing in the 1972 amendments of the LHWCA
changed the standards for negligence per se in the viola-
tion of a regulation. Section 1504.2(b) charged ship-
owners with “duties now placed upon them by law.”
10
Although the Marshall and Provenza standards continued
to apply, the court below nevertheless disregarded these
standards in its holding that OSHA regulations did not
apply to Lykes as shipowner. The Court of Appeals’
decision conflicts not only with Marshall and Provenza
but also with 29 C.F.R. § 1504.2(b) (1965).
Further, the decision of the court below conflicts with
a recent Ninth Circuit decision which held that OSHA
regulations are binding on the shipowner where he knew
or should have known of a violation of the safety regu-
lations. Bachtel v. Mammoth Bulk Carriers, Ltd., 605
F.2d 438 (9th Cir. 1979), vacated on other grounds,
451 U.S. 978 (1981). The court below held that Lykes
as shipowner was not negligent even though it knew that
the longshoremen were not being provided respirators to
work in the dusty conditions, an OSHA violation. This
holding directly conflicts with the Bachtel opinion.
In focusing on Lykes’ dual capacity as shipowner and
stevedore, the Court of Appeals ignored Congress’ intent
to protect longshoremen from the dangers inherent in
their profession. In amending the LHWCA 1972, the
Senate specifically addressed protection of the longshore-
men through OSHA regulations:
Longshoring, for example, has an injury frequency
rate which is well over four times the average for
manufacturing operations. It is the Committee’s view
that every appropriate means be applied toward im-
proving the tragic and intolerable conditions which
take such a heavy toll upon workers’ lives and bodies
in this industry, and such means clearly include
vigorous enforcement of the Maritime Safety Amend-
ments of 1958 and the Occupational Safety and
Health Act of 1970, as well as a workmen’s com-
11
pensation system which maximizes industry’s motiva-
tion to bring about such an improvement.
S. Rep. No. 1125, 92d Cong., 2d Sess., 2 (1972).
The House of Representatives echoed its concern:
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 industry,
but longshoring remains one of the most hazardous
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 the
present law by this bill has affected progress in im-
proving occupational health and safety.
H.R. Rep. No. 1441, 92d Cong., 2d Sess., reprinted in
1972 U.S. Code Cong & Ad. News 4698, 4705 (emphasis
added). The words of Congress, unheeded by the court
below, demonstrate a clear intent to hold shipowners
responsible for obligations under OSHA regulations.
Certainly, by allowing a shipowner to perform its
own stevedoring operation and thereby evade its responsi-
bilities under OSHA regulations would defeat legislative
intent.
OSHA regulations are an integral part of Congress’
plan to improve the working conditions of longshoremen.
The ruling of the court below is in direct conflict with
OSHA regulations promulgated pursuant to the LHWCA,
with other circuit court decisions that established stand-
ards for regulatory violations, and with legislative intent
12
to vigorously apply OSHA regulations in the longshoring
industry. Resolution of these conflicts is particularly im-
portant to the future litigation of longshoring cases.
3. The Court of Appeals’ ruling that Lykes’ ship-
owner arm did not know of the OSHA violation by
its stevedore arm contradicts fundamental corporate
principles.
This Court in Reed v. THE YAKA, 373 US. 410
(1963), authorized a separate action against the vessel
under 33 U.S.C. § 905(b) even when there is no inde-
pendent stevedore and the longshoreman is employed
directly by the vessel owner. By this fictional division a
vessel owner acting as its own stevedore is held liable for
negligent actions done in its owner capacity.
The court below has used the fictional division created
in Reed v. THE YAKA to shield Lykes as shipowner
from consequences of the knowledge possessed by Lykes
as stevedore. This is not in keeping with the rationale of
Reed v. THE YAKA to give equal treatment to all long-
shoremen. The court below stated: “[L]ykes was entitled
to rely on its stevedoring arm to perform the cargo opera-
tions properly and had no duty to intervene in the cargo
operations which it did not know to be improper.” 758
F.2d at 1036. This statement contradicts the fundamental
principles of corporate law, as well as ordinary logic.
Lykes is one corporation, one entity. Although one divi-
sion carried out “shipowner” activities and another divi-
sion carried out “stevedore” activities, Lykes is neverthe-
less one juristic body with collective knowledge.
It is fundamental that a corporation is held responsible
for the knowledge possessed by its agents through whom
13
it acts. The corporation is considered to have knowledge
of all facts known to its representatives. See, e.g., Steere
Tank Lines, Inc. v. United States, 330 F.2d 719, 722
(Sth Cir. 1963) (corporation convicted for criminal vio-
lation on the basis of its manager’s knowledge. )
It defies logic to say that Lykes’ shipowner arm did
not know that its stevedore arm was violating an OSHA
regulation. Indeed, the court below stated, “Lykes knew
of the dusty conditions and knew that the men were not
wearing respirators.” 758 F.2d at 1036. Lykes, the cor-
porate entity, knew of the violation. Through its steve-
dore arm, Lykes had knowledge of the OSHA regulation
protecting longshoremen, as well as knowledge of the
violation of that regulation.
To allow a corporation to escape liability by dividing
the corporation into divisions, one with knowledge of an
OSHA violation and one without such knowledge, would
be contrary to the philosophy of Reed v. THE YAKA.
More importantly, to allow a corporation to shield one
division from consequences of the knowledge possessed
by another division would work an injustice. Such would
be contrary to this Court’s admonition that the LHWCA
must be liberally construed in conformance with its bene-
ficient purpose.
14
CONCLUSION
To address these issues of national concern, Castorina
prays that the writ of certiorari be granted.
B
Respectfully submitted,
, ~
y
STEPHEN M. VAUGHAN
Attorney-in-Charge
BARBARA J. GARDNER
Of Counsel
MANDELL & WRIGHT
806 Main Street
Twenty-First Floor
Houston, Texas 77002
(713) 228-1521
Attorneys for Petitioner,
Guiseppe Castorina
CERTIFICATE OF SERVICE
This is to certify that on the _. X day of July, 1985,
three true and correct copies of the foregoing instrument
were sent by regular mail to Mr. James R. Watkins,
Royston, Rayzor, Vickery & Williams, 205 Cotton Ex-
change Building, Galveston, Texas 77550.~
/
yy “6
STEPHEN M. VAUGHAN
/
(
A-1
APPENDIX A
Guiseppe CASTORINA,
Plaintiff-Appellant,
V.
LYKES BROTHERS STEAMSHIP CO.,
INC., Defendant-Appellee.
No. 84-2047.
United States Court of Appeals, Fifth Circuit.
April 15, 1985.
Longshoreman who developed asbestosis after off-load-
ing asbestos from shipowner stevedore’s vessels brought
suit under the Longshoremen’s and Harbor Workers’ Com-
pensation Act to recover damages. The United States
District Court for the Southern District of Texas, Hugh
Gibson, J., 578 F.Supp. 1153, entered judgment in favor
of shipowner stevedore, and longshoreman appealed. The
Court of Appeals, Wisdom, Circuit Judge, held that:
(1) provisions of the Act which eliminated a longshore-
man’s seaworthiness remedy against a vessel and replaced
it with a negligence standard applied; (2) duty owed by
shipowner to longshoreman under the Act is neither
heightened nor diminished when longshoreman is em-
ployed directly by the vessel; and (3) shipowner steve-
dore was not negligent as a shipowner.
Affirmed.
A-2
Mandell & Wright, Stephen M. Vaughan, Houston,
Tex., for plaintiff-appellant.
Stephen C. Embry, Cynthia L. Fausold, Groton, Conn.,
for amicus-Ass’n of Trial Lawyers of America.
Royston, Rayzor, Vickery & Williams, James R. Wat-
kins, Ben L. Reynolds, Galveston, Tex., Howard R. King,
Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the
Southern District of Texas.
Before CLARK, Chief Judge, and WISDOM and HIG-
GINBOTHAM, Circuit Judges.
WISDOM, Circuit Judge:
This appeal from a final judgment against a longshore-
man who brought suit under the Longshoremen & Harbor
Workers Compensation Act, 33 U.S.C. § 905(b), to re-
cover damages from an allegedly negligent shipowner
raises two important questions of interpretation of that
Act. The plaintiff was exposed to asbestos dust while off-
loading asbestos from the defendant’s vessels, and later
contracted asbestosis. The defendant owned the vessels on
which the asbestos was carried and conducted its own
stevedoring operations. First, this court must decide
whether the date of the plaintiff's last exposure to the
asbestos or the date of manifestation of the disease is the
relevant date of injury for determining what remedies are
afforded the plaintiff by the LHWCA. Second, this court
must determine the standard of care imposed by the
LHWCA upon a shipowner-stevedore for actions under-
taken solely in its capacity as shipowner. The district
court, sitting in admiralty, found that the plaintiff was
not entitled to recover, for the reason that the applicabie
A-3
provisions of the LHWCA were those in effect in 1979,
when the plaintiff's disease first manifested itself; that the
defendant did not, therefore, owe the plaintiff a warranty
of seaworthiness of the vessel; and that the defendant
shipowner had not been negligent in the stowage or
carriage of the asbestos. We affirm.
I.
The plaintiff, Guiseppe Castorina, was employed as a
longshoreman in the port of Galveston, Texas, since 1955.
Castorina was exposed to large amounts of asbestos dust
on numerous occasions between 1965 and 1972 while
offloading burlap bags containing raw asbestos from ships
owned by several shipping lines including the defendant,
Lykes Bros. Steamship Co., Inc. (Lykes).
The district court concluded from the evidence pre-
sented at trial that Castorina worked on Lykes vessels dis-
charging asbestos approximately fifteen times between
1965 and 1972. Castorina and other longshoremen who
worked at the Port of Galveston testified at trial that the
asbestos carried on the Lykes vessels was shipped in loose-
weave burlap bags and was stowed in the closed holds of
the ships. The bags were often torn open during shipment
and during the offloading process, and longshoremen
handling the asbestos cargo were exposed to and inhaled
large amounts of raw asbestos dust. The workers testified
that the stevedores responsible for unloading this cargo
did not provide masks or respirators to the workers, nor
did the workers wear their own protective masks when
working with asbestos cargo.
Castorina was last exposed to asbestos dust on a Lykes
vessel in May 1972. In the spring of 1975, Castorina con-
A-4
sulted a physician, complaining of wheezing in the left
side of his chest and of respiratory discomfort. Chest
x-rays taken at that time revealed a dense infiltrate in the
left anterior aspect of the right middle lobe; later x-rays,
taken in October 1976, showed further manifestations of
asbestosis. In 1979, Castorina was diagnosed as suffering
from asbestosis.’
On October 9, 1980, Castorina brought suit against
Lykes and against Hellenic Lines, seeking recovery under
the LHWCA and under general maritime law for injuries
sustained as a result of his exposure to raw asbestos while
working aboard the defendants’ vessels. By amended com-
plaints filed on February 2, 1982 and une 21, 1982,
Castorina added numerous other shipowners as party de-
fendants. Lykes and other named defendants also filed
third party complaints against various shipping and steve-
doring companies. All of the direct defendants, except
Lykes, and all third parties in this action either have
settled or have been dismissed from this suit. Our specific
inquiry on appeal, therefore, is limited to the question
whether Lykes, as shipowner, is liable to Castorina under
the LHWCA or under general maritime law.
At trial, Castorina contended that Lykes, as shipowner,
owed to him under the LHWCA both a duty to exercise
due care and a warranty of seaworthiness of the Lykes
vessels on which he worked. Castorina further alleged
that Lykes breached its warranty of seaworthiness by
1. The record testimony and plaintiff's medical history shows
that the nlaintiff smoked two to three packs of cigarettes a day for
26 years ‘astorina stopped smoking in 1969. The trial court found
that the totality of plaintiff's medical history showed that his res-
piratory problems were caused by asbestosis, which the plaintiff
contracted as a result of his repeated exposure to and inhalation
of asbestos dust. This finding is not disputed on appeal.
A-5
shipping raw asbestos in bags that allowed the asbestos
dust to escape, and by allowing the dust to accumulate
in the holds of Lykes’s ships. Castorina contended that
Lykes knew or should have known of the danger to long-
shoremen presented by the asbestos dust and that Lykes
negligently failed to protect Castorina from the hazards
of asbestos exposure to which he was subjected while
working aboard Lykes’s vessels. Lykes argued at trial that
Castorina’s cause of action against Lykes did not accure
until the asbestosis manifiested itself—sometime between
1975 and 1979. Lykes argued that the LHWCA as
amended in 1972, which abolished the longshoreman’s
seaworthiness remedy against a shipowner, was applicable
and that Lykes was not negligent in its handling of the
asbestos cargo. It therefore urged the district court to hold
that Lykes was not liable to the plaintiff for any injury.
The trial court found that the law applicable to the
suit was that in effect on the date Castorina was diagnosed
as having asbestosis and that Lykes, therefore, owed no
warranty of seaworthiness to the plaintiff. The court found
in the alternative that the Lykes vessels were not unsea-
worthy and that Lykes was not negligent in its handling
of the cargoes of asbestos. Accordingly, the district court
entered judgment for the defendant dismissing Castorina’s
claims with prejudice.
We agree with the district court’s conclusion that the
LHWCA as amended in 1972 is applicable to the instant
suit and that Castorina does not, therefore, have an un-
seaworthiness claim against Lykes. We therefore find it
unnecessary to address the question whether the Lykes
vessels on which the plaintiff worked were seaworthy.
We also concur with the district court’s finding that Lykes
was not negligent in failing to protect Castorina from the
A-6
hazards of asbestos exposure on Lykes’s vessels. We there-
fore affirm the district court judgment.
Il.
Our first inquiry on appeal is whether the law applic-
able to Castorina’s cause of action is the warranty of sea-
worthiness under the pre-1972 LHWCA or section 905
(b) of the LHWCA as amended in 1972. Castorina, who
filed suit under the LHWCA and under general maritime
law, asserts that pre-1972 substantive Jaw governs his
claims because his exposures to the asbestos dust all oc-
curred before the effective date of the 1972 amendments
to the LHWCA. The defendant argues that the con-
trolling date for determining the applicable law for all
purposes is not the date of last exposure to the asbestos
but the date the asbestosis manifested itself. The district
court held that in cases of occupational diseases with long
latency periods, the applicable law under the LHWCA is
that in effect when the plaintiff is diagnosed as having the
disease. Castorina was diagnosed as having asbestosis in
1979. The district court found, therefore, that the LH-
WCA as amended in 1972 applied to Castorina’s claims.
We agree.
The 1972 amendments to the LHWCA significantly
restricted an injured longshoreman’s potential claims
against vessel! owners. Before the 1972 LHWCA took
effect, an injured longshoreman who performed work cus-
tomarily performed by a seaman had an action against
the vessel owner for damages based on the unseaworthi-
ness of the vessel. Seas Shipping Co. v. Sieracki, 1946,
328 U.S. 85, 66 S. Ct. 872, 90 L.Ed. 1099. A “Sieracki
seaman” could recover damages from the vessel owner
for breach of its warranty of seaworthiness and could re-
A-7
ceive worker’s compensation payments from his employer,
the stevedore, even when the vessel owner was also the
longshoreman’s stevedore-employer. Reed v. The Yaka,
1963, 373 U.S. 410, 83 S. Ct. 1349, 10 L.Ed.2d 448.
In cases in which the unseaworthy condition of the vessel
was caused by an independent stevedore’s breach of its
implied warranty of workmanlike performance to the
vessel, the vessel owner was entitled to seek full indemn-
ity from the stevedore for any payment the shipowner was
obligated to pay to the injured longshoreman. Ryan Steve-
doring Co. v. Pan Atlantic S.S. Corp., 1956, 350 U.S.
124, 76 S. Ct. 232, 100 L.Ed. 133. As a result, an inde-
pendent stevedore was potentially liable to the injured
longshoreman for compensation and to the shipowner for
indemnity, despite the provisions of section 905 of the
Act, which limited an employer’s liability to compensa-
tion payments.
In 1972, Congress amended the Act, replacing this
“patchwork of overlapping statutory and general maritime
remedies” with a “comprehensive remedial scheme be-
tween the covered worker. the vessel and the employer
stevedore”. Castorina v. Lykes Bros Steamship Co., §.D.
Tex. 1984, 578 F. Supp. 1153, 1160-61. “The 1972
amendment increased the rate of compensation; provided
workers covered by the Act with a negligence action
against the vessel, expressly abrogating the warranty of
seaworthiness; and abolished the judicially created in-
demnity cycle between the vessel and the st edore”.’
Id. at 1160 (citations omitted).
2. 33 US.C. §905(b), added to the LHWCA by the 1972
Amendments, provides:
“In the event of injury to a person covered under this chapter
caused by the negligence of a vessel, then such person, or any-
one otherwise entitled to recover damages by reason thereof,
A-8
[1] Under the LHWCA, the date of injury is used to
determine whether pre-1972 or post-1972 law applies to
a longshoreman’s compensation claims and to third party
actions brought under the Act. Before the district court
rendered its opinion in the instant case, no court had de-
fined the relevant “date of injury” in third-party long-
latency occupational disease cases. In cases involving trau-
matic injury, the effects of which are most often felt
within a short period of time, the date of injury for deter-
mining the applicable law under the LHWCA is the date
the trauma actually occurred. See, e.g., Martinez v. Dixie
Carriers, Inc., 5 Cir. 1976, 529 F.2d 457, 460 n. 1; Mc-
Cawley v. Ozeanosun Compania, Maritime, $.A., 5 Cir.
1974, 505 F.2d 26, 28. In cases involving occupational
diseases that do not immediately result in disability or
death, however, it is unclear whether the injury “occurs”
when the worker is exposed to the toxic substance (the
“time of last exposure” theory) or when the disease actu-
ally manifests itself (the “date of manifestation” theory).
See generally Todd Shipyards Corp. v. Black, 9 Cir. 1983,
may bring an action against such vessel as a third party in
accordance with the provisions of section 933 of this title, and
the employer shall not be liable to the vessel for such damages
directly or indirectly and any agreements or warranties to the
contrary shall be void. If such person was employed by the
vessel to provide stevedoring services, no such action shall be
permitted if the injury was -aused by the negligence of persons
engaged in providing stevedoring services to the vessel. If such
person was employed by the vessel to provide ship building or
repair services, no such action shall be permitted if the injury
was caused by the negligence of persons engaged in providing
ship building or repair services to the vessel. The liability of
the vessel under this subsection shall not be based upon the
warranty of seaworthiness or a breach thereof at the time the
injury occurred. The remedy provided in this subsection shall
be exclusive of all other remedies against the vessel except
remedies available under this chapter.”
33 U.S.C. § 905(b) (1982) (emphasis added).
A-9
717 F.2d 1280, 1288-89, cert. denied, ___U.S.____, 104
S. Ct. 1910, 80 L.Ed.2d 459.
In Harrison v. Flota Mercante Grancolombiana, S.A..,
5 Cir. 1978, 577 F.2d 968, the plaintiff longshoreman
contracted pulmonary fibrosis and emphasema from in-
haling a toxic liquid substance that had spilled from a
container during stevedoring operations. Although the
plaintiff's claims were heard after the effective date of the
1972 amendments to the LHWCA, the court held that
pre-amendment law was applicable “because the operative
facts giving rise to this suit occurred prior to the effective
date of the 1972 amendment[s]”. Jd. at 973 n.2. In
Harrison, however, the injury manifested itself shortly
after the plaintiff's exposure to the toxic chemical. This
case is, therefore, more analogous to the Martinez and
McCawley cases in which a traumatic injury resulted in
immediate disability, and is distinguishable from cases
involving occupational diseases with long latency periods.
The cases dealing with long-latency diseases such as
asbestosis and silicosis have generally held that the date
of injury is the date of manifestation of the disease. These
cases, however, have typically dealt with determination of
the date the statute of limitations begins to run or of the
amount of compensation to which the injured worker is
entitled. Several courts have held that the statute of limita-
tions for asbestosis and silicosis cases does not begin to
run until the disease manifests itself. See, e.g., Urie v.
Thompson, 1949, 337 U.S. 163, 69 S. Ct. 1018, 93
L.Ed. 1282, which held that a plaintiff's cause of action
for silicosis did not accrue until the plaintiff either knew
or had reason to know of the disease; see also Borel v.
Fibreboard Paper Products Corp., 5 Cir. 1973, 493 F.2d
A-10
1076, 1102, one of the first cases to recognize a plaintiff's
claims against » manufacturer for asbestosis, which held
that a plaintiff's cause of action for asbestosis did not
accrue until the disease was discovered or in the exercise
of reasonable diligence should have been discovered. More
recently, the Ninth Circuit has held that “for the purposes
of determining the proper rate of compensation, the time
of injury under section 10 of the LHWCA is defined as
the date when the occupational disease manifests itself
through a loss of wage-earning capacity”. Todd Shipyards
Corp. v. Black, 717 F.2d at 1291. The Black court
adopted the “time of manifestation” approach rather than
the “date of last exposure” approach because it best ac-
complished the purpose of the LHWCA to compensate
injured workers for loss of future earnings. Id.
Castorina contends on appeal that Black should be
limited to its facts and should not be extended to preclude
an unseaworthiness remedy for one who was exposed to
a toxic agent before 1972 but whose disease did not mani-
fest itself until after 1972. Application of the date of
manifestation rule in the instant case, Castorina argues,
would result in inequities because a longshoreman suffer-
ing traumatic injury before 1972 would be afforded a sea-
worthiness remedy whereas a longshoreman suffering ex-
posure to toxic materials before 1972 would be afforded
the same remedy only if the disease actually manifested
itself before 1972. Castorina asserts, therefore, that this
court should hold, in accordance with the general rule
that doubts should be resolved in favor of the seaman,
that the relevant date of injury for determination of pro-
cedural and remedial provisions of the LHWCA, such as
the running of the limitations period and the proper com-
pensation rate, is the date of manifestation of the injury,
A-11
whereas the relevant date of injury for determination of
the applicable substantive laws is the last date of exposure.
Lykes counter-argues that in cases of long-latency dis-
eases, the longshoreman’s cause of action does not accrue
until he is disabled by the manifestation of the disease;
therefore, the date of manifestation should be considered
the relevant date of injury for determining the applicable
procedural and substantive law. The defendant further
argues that an injured worker cannot avail himself of the
full range of remedies, including increased compensation
benefits, afforded by the post-1972 LHWCA without ac-
cepting the concomitant restraint on his ability to pursue
other remedies expressly precluded by the amendments.
[2] The district court’s finding that post-1972 law
applies in the instant case is in accord with the rationale
behind the 1972 LHWCA amendments as construed by
the circuit courts. As noted by the Black court, “[i]n cases
of occupational diseases with long latency periods, the
trend is clearly toward the application of the time of
manifestation rule”. 717 F.2d at 1290. Further, a worker
who is exposed to asbestos or similar fibers does not
always contract pulmonary disease. The date of injury,
therefore, is most realistically defined as the date that
the disease actually manifests itself. This analysis is in
keeping with Judge Learned Hand’s early decision in
Grain Handling Co. v. Sweeney, 2 Cir., 102 F.2d 464,
cert. denied, 1939, 308 U.S. 570, 60 S. Ct. 83, 84
L.Ed. 478: “The [LHWCA] is not concerned with path-
ology, but with industrial disability; and a disease is no
disease until it manifests itself”.
Further support for this conclusion is found in the
1984 amendments to the LHWCA, Pub. L. No. 98-426,
A-12
98 Stat. 1639 (1984). Section 28(g) of the amendments
provides:
“(g) For the purpose of this section—
(1) in the case of an occupational disease which
does not immediately result in a disability or death,
an injury shall be deemed to arise on the date on
which the employee or claimant becomes aware, or
in the exercise of reasonable diligence or by reason
of medical advice should have been aware of the
disease. . . .
Pub. L. No. 98-426, § 28(g)(1), 98 Stat. 1639, 1655.
This provision does not relate directly to section 905(b)
of the act; however, the legislative history of the amend-
ments demonstrates that Congress expressly rejected the
“time of last exposure” approach to determining the date
of injury and recognized that it is the disability itself, |
not mere exposure to a toxic substance, that should
trigger an injured worker’s rights under the Act. See
H.R. Rep. No. 98-570, Part I, 98th Cong. 2d Sess. 10,
reprinted in 1984 U.S. Code Cong. & Ad. News 2734,
2743: H.C.R. No. 98-1027, 98th Cong. 2nd Sess. 30, re-
printed in 1984 U.S. Code Cong. & Ad. News 2771, 2779-
2780. Although no such language appears in the 1972
amendments, it is clear that Congress has now adopted the
“date of manifestation” approach to determining the date
of injury under the Act found applicable by the district
court in the instant case.
The district court’s holding that Lykes did not owe
Castorina a warranty of seaworthiness because Castorina’s
injury did not occur until after the 1972 amendments to
the LHWCA is, therefore, consistent with the majority
of judicial authority and with the most current exposition
of congressional intent. We affirm that holding.
lit.
[3] Having determined that the LHWCA as amended
applies to Castorina’s claims and that Lykes owed no
warranty of seaworthiness to Castorina under the Act as
amended, we must now decide whether Lykes is liable
to Castorina under section 905(b) of the Act. Section
905(b) expressly provides that a longshoreman whose
injury is caused by the negligence of a vessel may bring
a third-party action for damages against the owner of the
vessel. 33 U.S.C. § 905(b) (1982). “[S]uch a separate
action is authorized against the vessel even when there
is no independent stevedore and the longshoreman is em-
ployed directly by the vessel owner.” Jones & Laughlin
Steel Corporation v. Pfeifer, 1983, 462 U.S. 523, ___,
103 S. Ct. 2541, 2547, 76 L.Ed.2d 768, 779. See also
Smith v. M/V Captain Fred, 5 Cir. 1977, 546 F.2d 119.
Under section 905(b), however, “a vessel owner acting
as its own stevedore is liable only for negligence in its
‘owner’ capacity, not for negligence in its ‘stevedore’
capacity”. Pfeifer, 462 U.S. at n. 6, 103 S. Ct. at
2547 n. 6, 76 L.Ed.2d at 779 n. 6.
Section 905(b) eliminated a longshoreman’s seaworthi-
ness remedy against a vessel and replaced it with a
negligence standard; however, it did not specify the par-
ticular acts or omissions of a vessel that would constitute
negligence. The courts, therefore, were left to grapple
with the question of the duty owed by the vessel owner
to a longshoreman. In Scindia Steam Navigation Co. v.
De Los Santos, 1981, 451 U.S. 156, 101 S. Ct. 1614,
68 L.Ed.2d 1, the Supreme Court set forth the basic
principles governing a vessel owner’s duty to a longshore-
man employed by an independent stevedore. Before turn-
3. See note 2 and accompanying text.
A-14
ing the ship over to the stevedore, the shipowner must
“exercis[e] ordinary care under the circumstances to have
the ship and its equipment in such condition that an expert
and experienced stevedore will be able by the exercise
of reasonable care to carry on its cargo operations with
reasonable safety to persons and property”. Jd. 451 USS.
at 167, 101 S. Ct. at 1622. The vessel owner must warn
the stevedore of any hazards with respect to the ship or
its equipment of which the shipowner is aware or should
by the exercise of reasonable care be aware which would
not be obvious to or anticipated by a reasonably com-
petent stevedore. /d.
Once the shipowner turns the vessel over to the steve-
dore and cargo operations begin, the shipowner may rely
on the stevedore to discharge his duties in a workmanlike
manner, avoiding exposing the longshoremen to unreason-
able hazards, without supervision by the ship. 7d. at 170,
101 S. Ct. at 1624. “[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 reasonable care to discover dangerous conditions
that develop within the confines of the cargo operations
that are assigned to the stevedore”. 7d. at 172, 101 S. Ct.
at 1624. The Scindia court recognized, however, that the
shipowner may have a duty to intervene in cargo opera-
tions when it becomes aware of a dangerous condition
and the stevedore’s continued operations are so “obviously
improvident” as to “present an unreasonable risk of harm
to the longshoreman”. Jd. at 175-76, 101 S. Ct. at 1626-
af.
[4] The Fifth Circuit recently has clarified the precise
nature of the shipowner’s duty to intervene in cargo
operations conducted by an independent stevedore:
A-15
“Once loading operations have begun, the vessel
owner can be held liable for injuries to employees
of the stevedore resulting from open and obvious
dangers only in the event of actual knowledge of
the danger and actual knowledge that he cannot
rely on the stevedore to remedy the situation. He is
not held to a duty to discover the condition or to
anticipate its danger.”
Helaire v. Mobil Oil Company, 5 Cir. 1983, 709 F.2d
1031, 1038-39 (emphasis in the original). A shipowner
employing an independent contractor to perform steve-
doring operations may be held liable to a longshoreman
injured during the stevedoring operations, therefore, only
when the shipowner has actual knowledge both of the
dangerous condition and of the stevedore’s unreasonable
conduct in dealing with the dangerous condition. Jd. See
also Duplantis v. Zigler Shipy..-ds, Inc., 5 Cir. 1982,
692 F.2d 372, 374; Hill v. Texaco, Inc., 5 Cir. 1982,
674 F.2d 447, 451.
This appeal, however, presents a question heretofore
undecided by this court: what duty does a shipowner
who conducts its own stevedoring operations have—as
shipowner—-to protect a longshoreman from unreasonably
dangerous cargo operations? We can find no reason to
impose on a shipowner a greater duty of care toward
longshoremen because the shipowner conducts its own
stevedoring operations. In adopting the 1972 amendments
to the LHWCA, Congress recognized the need for special
provisions to deal with cases in which a longshoreman
was employed directly by the vessel. The legislative history
of the amendments clearly expresses Congress’s intent
that an injured longshoreman’s remedy be the same
whether he is employed directly by the vessel or by an
independent stevedore:
A-16
“{T]he 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 performing
longshoring services. . . . The Committee’s intent
is that the same principles should apply in determin-
ing liability of the vessel which employs its own
longshoremen . . . as apply when an independent
contractor employs such persons.”
H.R.Rep. No. 92-1441, 92d Cong., 2d Sess. 118, re-
printed in 1972 U.S.Code Cong. & Ad.News. 4688, 4795.
As discussed in Section I of this opinion,* Congress also
specifically abolished the judicially-imposed warranty of
seaworthiness owed a longshoreman by the vessel and
eliminated any indemnity action by a shipowner against
a negligent stevedore, so that a stevedore’s exclusive lia-
bility under the Act is for compensation payments to the
longshoreman.°
[5] This scheme of compensation requires us to sepa-
rate the negligence of the shipowner and that of the steve-
dore, even when the shipowner performs its own stevedoring
activities. A shipowner’s duty is to provide the stevedore a
safe ship and to correct any unreasonably dangerous situa-
tion that arises during cargo operations, if the owner is
aware of the danger and knows that the stevedore has failed
adequately to protect against the danger. Scindia, 451 U.S.
at 167-70, 175-76, 101 S. Ct. at 1622-23, 1626-27; Hel-
aire, 709 F.2d at 1038-39. Only if the shipowner breaches
this duty can he be held liable in tort under section 905
4. See text accompanying note 2.
5. Section 905(a) of the Act provides that “the liability of an
employer prescribed in section 904 of this title [liability for com-
pensation] shall be exclusive and in place of all other liability of
such employer to the employee... .” 33 U.S.C. § 905(a) (1982).
A-17
(b) of the LHWCA. The shipowner is otherwise entitled
to rely on the stevedore adequately to perform cargo op-
erations and is under no obligation to discover that the
stevedore is acting improvidently. Scindia, 451 U.S. at
170, 101 S. Ct. at 1623. The longshoreman has no tort
remedy against a negligent employer; the employee’s sole
remedy against the employer is compensation. 33 U.S.C.
§§ 904, 905(a).
[6] This specific separation of duties and remedies, de-
tailed in the Act, does not change simply because the
shipowner directly employs its own stevedoring person-
nel. In this situation, the stevedore’s knowledge of danger-
ous conditions that may have arisen during the cargo op-
erations should not be imputed to the shipowner, nor
should the shipowner be deemed to know that the steve-
dore’s actions in dealing with such dangers are obviously
improvident. To impute this knowledge to a shipowner-
employer would be to hold it liable in tort for damages
arising from its negligence as stevedore, and effectively
to eliminate the exclusivity provisions of sections 905(a)
& (b). This result is contrary to the language and purpose
of the Act as amended. We therefore hold that the duty
owed by a shipowner to a longshoreman under section
905(b) is that established by Scindia and its progeny;
this duty is neither heightened nor diminished when the
longshoreman is employed directly by the vessel.
[7] With these principles in mind, we now turn to
Castorina’s specific allegations of negligence against
Lykes. Castorina contends on this appeal that Lykes
negligently breached its duty of reasonable care toward
Castorina in several respects. First, Castorina contends
that Lykes was negligent as shipowner in its method and
manner of stowing the asbestos cargo that was delivered
A-18
to its stevedoring arm for offloading. Second, Castorina
contends that Lykes is liable to Castorina because of the
negligently conducted offloading operations carried out
by its stevedoring arm. Third, Castorina contends that
Lykes was negligent per se in failing to provide respi-
rators to the longshoremen working the asbestos cargo
and in allowing the longshoremen to work without respi-
rators.
Castorina asserts that Lykes was negligent in stowing
the asbestos cargo in the holds of its ships in loose-weave
burlap bags which allowed the asbestos fibers to escape
into the air. This practice, Castorina contends, was un-
reasonably dangerous because Lykes knew or in the
exercise of ordinary care should have known that ex-
posure to large amounts of asbestos dust could cause
asbestosis and other lung diseases. The district court
found that no evidence was presented at trial to support
Castorina’s allegation that Lykes knew or should have
known between 1965 and 1972 of the danger that ex-
posure to asbestos presented to longshoremen. The court
concluded, therefore, that Lykes was not negligent; it
had exercised ordinary care to make the vessel safe for
stevedoring operations.
The district court’s findings cannot be set aside unless
clearly erroneous.* Cheek v. Williams-McWilliams Co.,
—
6. This rule applies both to the court’s finding that Lykes did
not know nor should it have known of the dangers of asbestos and
to its finding that Lykes was not negligent in its stowage or handling
of the asbestos cargo, provided that the court employed the correct
legal standards as to Lykes’s duty of care. Although it did not engage
in an extended analysis of a shipowner’s duty toward a longshoreman
when the shipowner also acts as a stevedore, the court correctly
applied the law as set forth in Scindia and the cases of this circuit.
See Castorina, 578 F.Supp. at 1161. Accordingly, we are bound by
the clearly erroneous standard.
A-19
Inc., 5 Cir. 1983, 697 F.2d 649, 652. Castorina argues
that the evidence presented at trial, including the expert
testimony of Dr. Hobson, a certified industrial hygienist.
safety professional, and licensed engineer, established
that Lykes should have known by 1965 that exposure to
raw asbestos fibers created an unreasonable risk of harm
to the longshoremen. Dr. Hobson testified that the disease
of asbestosis was well recognized among research scientists
by 1955. His testimony established that by 1935, pub-
lished studies warned of the dangers to factory workers
of continued exposure to high concentrations of asbestos
dust. The first study dealing with shipyard workers, who
had continued exposure to lower levels of asbestos dust,
was published in 1946. This study reported a low inci-
dence of asbestosis among the shipyard workers. Not
until 1965 was a study published which warned of serious
dangers to shipyard workers continuously exposed to
lower levels of asbestos dust. The United States govern-
ment promulgated no standards for the maximum allow-
able levels of exposure to asbestos dust until 1970-1971.
Nor were there any restrictions or cautionary warnings
concerning the carriage of asbestos listed in the Gulf and
East Coast South African trade tariffs, United States
Coast Guard regulations, or Department of Transporta-
tion regulations.
In reviewing this evidence, the district court noted
that the reports and studies referred to by Dr. Hobson
were not widely circulated and dealt only with workers
continuously exposed to asbestos dust. None of the reports
or studies examined by Dr. Hobson dealt with intermittent
exposures to bagged raw asbestos—exposures such as
those to which Castorina was subjected. The court con-
cluded that the evidence was insufficient to show that
A-20
Lykes should have known in the years 1965 through 1972
of the dangers of asbestos exposure such as that suffered
by Mr. Castorina. Upon a review of this record, we can-
- not say that we are left with the definite and firm con-
viction that a mistake has been committed. United States
v. U.S. Gypsum Co., 1948, 333 U.S. 364, 395, 68 S. Ct.
525, 542, 92 L.Ed. 746. Accordingly, we uphold the
district court’s finding that Lykes did not know and
should not have known of the dangers of asbestos from
1965 to 1972.
Because Lykes did not know that exposure to asbestos
dust created a hazard to longshoremen, it cannot be
found liable for stowing the cargo in a manner that
allowed the asbestos fibers to escape. “The shipowner’s
liability for damages arising from a dangerous stow is
limited to situations where the shipowner knew or should
have known of the dangerous condition.” Harris v. Flota
Mercante Grancolombiana, S.A., 5 Cir. 1984, 730 F.2d
296, 299 (citation omitted). The district court correctly
held, therefore, that Lykes was not negligent in its stowage
of the asbestos cargo.
Similarly, Lykes cannot be held liable for permitting
stevedoring operations to be conducted in a manner that
allowed asbestos fibers to escape into the air. Once steve-
doring operations had begun, Lykes was liable for any
open and obviously dangerous conditions only if Lykes
had knowledge of the danger and that the stevedore would -
not take adequate precautions to eliminate the danger.
Helaire, 709 F.2d at 1038-39; see p. 1032. Because —
Lykes was not aware that the asbestos posed a danger
to the longshoremen engaged in offloading the cargo,
it cannot be held liable for failing to protect against these
unknown dangers.
A-21
Nor can Lykes be found negligent for failing to pro-
vide respirators to the longshoremen working with the
asbestos cargo. Title 29, section 1504.102(c)(1) of the
Code of Federal Regulations, as amended in 1965, pro-
vides: “For protection against pneumoconiosis’ producing
dusts, a respirator equipped with the type of filter pro-
vided for such purpose shall be used.” 29 C.F.R. § 1504.-
102(c)(1) (1965). Castorina contends that this regula-
tion applies to Lykes as the shipowner; that Lykes vio-
lated this regulation; and that the violation proximately
caused injury to Castorina, one of the intended benefici-
aries of the regulation, Castorina concludes that this con-
stituted negligence per se for which Lykes must be held
liable in its capacity as shipowner.
This argument fails for several reasons. First, the regu-
lation to which Castorina cites imposes a duty to provide
respirators not on Lykes as shipowner but on Lykes as
stevedore. Section 1504.2 of the regulations imposes the
responsibility for compliance with the regulations on all
“employers”. An “employer” is defined as “an employer
any of whose employees are employed, in whole or in
part, in longshoring operations”. Id. § 1504.3(c). Sec-
tion 1504.2(b) provides that “[i]t is not the intent of
[these] regulations . . . to place additional responsibilities
or duties on owners, operators, agents or masters of ves-
sels unless such persons are acting as employers, nor is
it the intent of these regulations to relieve such owners,
operators, agents or masters from responsibilities or duties
placed upon them by law, regulation or custom.” The
regulations themselves were promulgated by the Depart-
7. Webster defines “pneumoconiosis” as a “‘[d]isease of the lungs
caused by the habitual inhaling of minute mineral or metallic particles,
as of coal dust in anthracosis, quartz dust in silicosis, etc”. Webster's
New International Dictionary 1899 (2d Ed. 1958).
A-22
ment of Labor under the authority granted it by the
LHWCA as amended in 1958, and are designed to re-
quire employers to take all reasonable steps to prevent
injury to its employees. These regulations should not
be viewed, therefore, as placing an additional duty on
Lykes as shipowner; rather, they apply to Lykes only
in its capacity as an employer.”
Nor is Lykes liable as shipowner for failing to step
in and halt stevedoring operations when it became aware
that the longshoremen unloading the raw asbestos were
not wearing respirators or other protective equipment.
The plaintiff's witnesses testified at trial that the dusty
conditions in the holds of the vessels carrying asbestos
were open and obvious to the longshoremen and to the
stevedoring crew when they commenced the offloading
operations. At that point, Lykes as vessel owner was
entitled to rely on Lykes as stevedore to conduct the
offloading operations properly. Lykes knew of the dusty
conditions and knew that the men were not wearing
8. Castorina asserts that Lykes should be held liable for viola-
tion of the safety regulations under this circuit’s decision in Manning
v. M/V Sea Road, 5 Cir. 1969, 417 F.2d 603. In Manning, a case
decided before the 1972 amendments to the LHWCA were enacted,
a longshoreman sued the vessel owner, who was also the plaintiff’s
stevedore-employer, for injuries suffered as a result of the unsea-
worthiness of the vessel. The plaintiff was injured when he stepped
on a rotted manhole cover which collapsed, causing the plaintiff to
fall into the hold of the vessel. The regulation in question provided
that the stevedore must halt operations when manhole openings were
unsecured. The court held that the regulation was binding on the
vessel in the sense that it was binding on any employer of longshoring
employees. The court then found that violation of the regulation
made the vessel unseaworthy and that this unseaworthiness was a
proximate cause of the injury; therefore, the court held the vessel
liable to the plaintiff. The violation itself did not subject the ship-
owner to liability under a theory of negligence per se; the shipowner
was held liable for the unseawu:thiness of the vessel, not for violation
of the regulation.
A-23
respirators.” Lykes did not know, however, that this
condition was unreasonably hazardous. As shipowner, it
had no statutory duty to provide respirators. Moreover,
it was entitled to rely on its stevedoring arm to perform
the cargo operations properly and had no duty to inter-
vene in the cargo operations which it did not know to
be improper. In no case, therefore, can Lykes be held
negligent, because it did not know nor should it have
known that exposure to asbestos created a hazard to
the plaintiff. We therefore affirm the district court’s hold-
ing that Lykes was not negligent in any manner under
section 905(b).
IV.
The district court correctly found for the defendant.
Lykes, and properly dismissed Castorina’s claims. Because
Castorina’s asbestosis did not manifest itself until 1979,
the LHWCA as amended in 1972 is applicable to this
suit. Under that Act as amended, a longshoreman has no
unseaworthiness action against the vessel owner. AI-
though a longshoreman may file suit for damages against
a negligent shipowner under section 905(b) of the Act,
he cannot recover in tort for any injury caused by the steve-
doring crew. In cases such as the one before us, in which
9. The district court found that Lykes did provide respirators to
the longshoremen. Castorina, 578 F.Supp. at 1161. We find no evi-
dence in the record to support this finding. The evidence on the
record before us compels us to find that the longshoremen working
the asbestos cargoes were not provided with and did not wear masks
or respirators when unloading asbestos. The district court’s finding to
the contrary is clearly erroneous. As demonstrated by our analysis
above, however, this constitutes harmless error; Lykes was not bound
by the regulation in its capacity as shipowner and was not negligent
in failing to stop operations and to require the men to wear respirators
because Lykes was under no duty to discover the dangers that
asbestos exposure presented to longshoremen.
A-24
the injured worker is employed directly by the vessel
owner, the worker may recover in tort from the vessel
owner only for negligence of the vesse! as vessel owner.
Because Lykes neither knew nor should have known of
the dangers of asbestos exposure, we find that its method
of stowing the cargo was not negligent. Nor was Lykes,
as shipowner, negligent in allowing Lykes, as stevedore,
to conduct the cargo operations as it did. Accordingly.
we AFFIRM the judgment of the district court.
A-25
APPENDIX B
Guiseppe CASTORINA, Plaintiff,
v.
LYKES BROS STEAMSHIP CO., INC.,
Defendant.
Civ. A. No. G-80-267.
United States District Court.
S.D. Texas,
Galveston Division
January 12, 1984.
Longshoreman who contracted asbestosis, allegedly as
a result to exposure to asbestos while unloading vessels,
brought cause of action pursuant to Longshoremen’s and
Harbor Workers’ Compensation Act and general maritime
law against vessel owner to recover for injuries. The Dis-
trict Court, Hugh Gibson, J., held that: (1) where vessel
owner did not and could not have known of dangers of
asbestos packed in burlaps bags during time of exposure
to longshoreman involved in unloading cargo, and vessel
owner had complied with federal regulations pertaining to
carriage of asbestos, vessel owner was not negligent in any
manner under Longshoremen’s and Harbor Workers’
Compensation Act, and (2) where longshoreman’s injury,
the contraction of asbestosis, was caused by dangerous
nature of asbestos cargo, which had been shipped in full
accordance with Coast Guard regulations, longshoreman
could not recover from vessel owner even if longshore-
man could have asserted claim for unseaworthiness.
Order accordingly.
A-26
Stephen M. Vaughan, Mandell & Wright, Houston,
Tex., for plaintiff.
James R. Watkins, Royston, Rayzor, Vickery & Wil-
liams, Galveston, Tex., for defendant Lykes Brothers
Steamship Co., Inc.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
HUGH GIBSON, District Judge.
Plaintiff brought this cause of action pursuant to 33
U.S.C. § 905(b) and the general maritime law to recover
for injuries sustained as a result of exposure to asbestos.
All defendants and third parties in this case, other than
Lykes Bros. Steamship Co., Inc. (hereinafter “Lykes”),
settled or have been dismissed for lack of evidence that
plaintiff handled asbestos on the named vessel or for the
named stevedore. Lykes’ third party actions against Eg-
nep, (Pty), Ltd., General Mining, and Cape Asbestos
have been severed from this action. A default judgment
has also been entered as against Cape Continent Shipping
Co. for failure to answer. This case was tried to the Court
without a jury March 21-25, 1983. The Court, after con-
sidering the evidence and legal issues presented, makes the
following findings of fact and conclusions of law.
FINDINGS OF FACT
1. Guiseppe Castorina is a 63-year-old longshoreman
who has worked on the Galveston docks from 1955 to
the present through ILA local +307, and, in earlier years,
ILA local +1576. From 1965 to 1972 plaintiff worked
on numerous vessels, including those owned by Lykes, dis-
charging raw asbestos packaged in burlap bags.
A-27
2. At all times materia! hereto, defendant Lykes was
and is a Louisiana corporation, with its main office and
principal place of business in New Orleans, Louisiana.
Defendant was the owner and operator of the vessels
MARGARET LYKES, STELLA LYKES, JAMES Mc-
KAY, LETICIA LYKES, SUE LYKES, WILLIAM
LYKES, KENNETH McKAY, RUTH LYKES, GIBBES
LYKES, AIMIE LYKES, and CHARLOTTE LYKES.
3. From 1965 to 1972 Lykes transported asbestos in
burlap bags from South Africa to the Port of Galveston in
the above named vessels, among others. Lykes provided
the stevedoring services to these vessels through its own
in-house stevedoring division.
4. According to plaintiff's testimony, he worked c%
numerous vessels discharging asbestos but could only
specifically remember working on Lykes ships. In match-
ing the records of the Galveston Wharves indicating the
dates of Lykes vessels discharging asbestos, with plaintiff's
work records indicating the dates plaintiff worked and for
what employer, the Court adduces that the following are
the dates of plaintiff's possible exposure:
Date Vessel
3/14-18/65 MARGARET LYKES
3/22-23/66 STELLA LYKES
5/15/66 JAMES McKAY
6/27/66 LETITIA LYKES
12/ 8/67 SUE LYKES
1/12/68 WILLIAM LYKES
1/31-2/ 1/68 KENNETH McKAY
5/ 7- 8/68 STELLA LYKES
7/ 4/68 CHARLES LYKES
11/13-14/68 RUTH LYKES
9/23/69 GIBBES LYKES
A-28
Date , Vessel
12/ 7/70 WILLIAM LYKES
9/25/71 AIMEE LYKES
3/24/72 AIMEE LYKES
5S/ 5/72 CHARLOTTE LYKES
5. Plaintiff and other longshoreman testifed that the
manner of stowage of the asbestos in loose-weave burlap
bags in the holds of these vessels was such that, when
the longshoremen would open a hatch to go into the hold,
they would find raw asbestos loose in the holds, and
would occasionally find torn bags of asbestos. In the
course of offloading, the bags would be tossed around,
would fall out of the slings or nets used to discharge them,
would be torn by cargo hooks, and would otherwise be
struck or jostled in such a way as to cause asbestos dust
to escape from the burlap bags into the atmosphere.
The dust became so pervasive that at times it would
cause clouds of asbestos in the holds of the vessels. The
sun would show the particles in the atmosphere as it
streamed in through the hatchway. The asbestos would
cling to the bodies and clothing of the longshoremen to
such an extent that they would occasionally have to wipe
their mouths, expectorate, or take a drink of water to
clear their mouths and throats of the asbestos. Some long-
shoremen would wet a handkerchief and tie it around their
mouths to help filter out some of the asbestos.
When the asbestos bags were set down on the wharf,
three of the four corners of the net would be disconnected
from the crane, and the fourth corner raised in such a way
as to dump the bags onto the wharf. This process, as well
as the process of stacking the bags onto pallets, caused
asbestos to escape into the atmosphere where the men
were working.
A-29
After the asbestos was discharged, a longshore gang
would go aboard the vessel to clean out the holds. Some-
times the loose asbestos to be cleaned out of the hold
would be several inches deep. These longshoremen swept
the asbestos from the sides and floors of the holds, putting
it into barrels, which in turn were removed from the
vessels. This process likewise stirred up the asbestos.
At trial plaintiff testified that he worked all of the
above-described cargos on one or more occasions. The
Court finds that plaintiff was exposed to and did inhale
large amounts of asbestos while working on Lykes vessels.
Plaintiff, other longshoremen and Lykes employees
testified that respirators were supplied to the longshore
gangs. The longshoremen did not use the respirators be-
cause they interferred with vision and were hot and bulky
to wear. Most testified that cloth or paper masks would
have been more useful.
6. The medical testimony at trial showed that as a
result of plaintiff's exposure and inhalation of asbestos
dust, he now suffers from asbestosis.
Plaintiff's medical history reflects that he was a two-to-
three-pack-a-day smoker for 26 years. In approximately
1969 plaintiff quit smoking. In the spring of 1975, plain-
tiff was treated by Dr. H. B. Kelso, Jr., for wheezing in
the left side of his chest. X-rays taken in St. Mary’s Hos-
pital in Galveston on April 18, 1975, showed an area of
dense infiltrate in the anterior aspect of the right middle
lobe and repeated chest x-rays showed persistence of this
abnormality. While in the hospital, plaintiff had chest dis-
comfort, especially when lying flat. On October 19, 1976,
plaintiff was treated for increased shortness of breath on
exertion and told Dr. Kelso that “the shortness of breath
A-30
has reached the point where it is interfering with my
work.” On October 22, 1976, the chest x-ray film revealed
a “rather marked degree of pleural thickening at both
bases” of his lungs, and Dr. Kelso recommended to plain-
tiff that he be admitted to the hospital for further workup
which plaintiff refused.
Medical testimony presented at trial showed that the
conditions found by Dr. Kelso were manifestations of
asbestosis. In 1979, plaintiff was diagnosed by Dr. F. J.
Zaunbrecher as suffering from asbestosis. This lawsuit
was filed in 1980.
7. Between 1965 and 1972, Lykes carried the cargoes
of asbestos from South Africa to Galveston, Texas, as a
common carrier, pursuant to the terms and conditions of
its membership in the South & East African Conference.
Under the terms and provisions of the tariff set by the
Conference for its northbound freight traffic, its members
were required to accept cargo in South Africa packaged
in conformity with the rules and regulations of the United
States Coast Guard and the Department of Transporta-
tion, providing that such cargo was not listed as danger-
ous or hazardous.
As a common carrier, Lykes was regulated by the Ship-
ping Act, 46 U.S.C. § 801, et seg. Common carriers are
required to file tariffs with the Federal Maritime Com-
mission and are only allowed to enter into shipping con-
ference agreements approved by the Federal Maritime
Commission. 46 U.S.C. §§ 814 and 817. Common Car-
riers are subject to monetary penalties for discriminatory
shipping practices. 46 U.S.C. $ 815. A common carrier
may not refuse to carry the goods of a qualified shipper.
A-31
8. Between 1965 and 1972, asbestos was routinelv and
regularly shipped from South Africa to the United States
in burlap sacks. Asbestos in burlap sacks was not listed
as dangerous or hazardous cargo by the tariff, the United
States Coast Guard, or the Department of Transportation.
The evidence adduced at trial showed that Lykes carried
asbestos cargos in conformity with all shipping regula-
tions.
9. Plaintiff's industrial hygienist testified that in 1965
it was known that exposure to asbestos could cause as-
bestosis, mesothelioma and other related lung disorders.
The reports, journals and texts he referred to dealt with
workers continuously exposed to asbestos when bags were
being poured into hoppers, when asbestos was being
woven into fabric or manufactured into products, and
when asbestos insulation was being installed into ships.
These articles appeared in scientific and medical journals.
None of these reports were widely circulated nor did they
appear in any journal or test which carriers would have
consulted for guidance as to the safety of individuals
handling cargo. None of these articles addressed the
handling of bagged raw asbestos or intermittent exposure.
No evidence was adduced at trial that Lykes officers knew
or should have known of the danger of asbestos from
1965 to 1972.
CONCLUSIONS OF LAW
1. This action is within the Court’s admiralty and mari-
time jurisdiction pursuant to 28 U.S.C. § 1331.
2. Plaintiff has brought this cause of action for re-
covery under two theories: negligence and breach of the
warranty of seaworthiness. Defendant urges that defend-
A-32
ant was not negligent in its operations; that plaintiffs
claim is barred by laches; that post-1972 LHWCA is ap-
plicable; and that the causative defect resulting in plain-
tiffs injury was an unknown defect in cargo and not a
defect in the packaging, stowing, or unloading of cargo.
[1,2] 3. In applying the doctrine of laches to asbestos
cases the analogous two-year limitation period begins to
run at the time plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, his injury.
Fusco v. Johns-Manville Products Corp., 643 F.2d 1181,
1183 (Sth Cir. 1981). See Eagle-Picher Industries v.
Liberty Mutual Ins. Co., 682 F.2d 12, 25 (lst Cir.
1982); Clutter v. Johns-Manville Sales Corp., 646 F.2d
1151 (6th Cir. 1981); See also Urie v. Thompson, 337
U.S. 163, 69 S. Ct. 1018, 93 L.Ed. 1282 (1949) (stat-
ute of limitations for silicosis does not begin to run
until the disease manifests itself). Generally, the date of
discovery coincides with the date of diagnosis. Fusco,
supra. Under federal law, “[A] cause of action does not
arise until the plaintiff can first successfully maintain
Suit on that cause of action.” Bellamy y. United States,
448 F.Supp. 790, 793 (S.D. Tex. 1978). Logically,
plaintiff could not successfully maintain a suit prior to
the date of diagnosis. While diagnosis of the disease
need not be “medically confirmed,” it is necessary that
plaintiff be apprised by some trained individual that he
has, or may within reascnable probability have, asbestosis.
See Fusco, supra, where the court found that plaintiff re-
ceived sufficient notice when he was informed by an in-
dustrial safety engineer that his examination and diag-
nosis indicated that he had asbestosis. See aiso Wilson v.
Johns-Manville Sales Corp., 684 F.2d 111, 113-17 (D.C.
Cir. 1982) where the court found that diagnosis of mild
A-33
asbestosis in 1973 did not trigger running of statute of
limitation on separate, distinct, later-manifested mesothe-
lioma, engendered by the same asbestos exposure.
Plaintiff in this case consulted a physician for pulmon-
ary dysfunction in 1975 and 1976, but was not diag-
nosed as having asbestosis until 1979. On all occasions
plaintiff's symptoms were consistent with asbestosis. In
1976 plaintiff's doctor did urge him to submit to further
testing which might have led to a diagnosis of asbestosis,
but plaintiff refused to be hospitalized.
[3, 4] The Court concludes that plaintiff was not ap
prised of his condition until 1979 and filed this action
within the analogous two-year period of limitation. In
considering the equitable issues of laches, the Court
further conciudes that if plaintiff should have in the ex-
ercise of reasonable diligence, discovered his injury in
1976, the defendant was not prejudiced by the time of
the filing of this suit.
4. During the pendency of this case the Court denied
third-party defendant Gulf Stevedoring’s motion for dis-
missal, citing Harrison v. Flota Mercante Grancolombi-
ana, 577 F.2d 968, 793 n. 2 (Sth Cir. 1976). In their
motion, Gulf urged that this cause of action arose after
1972 and § 905(b) of LHWCA barred cross-plaintiff
from seeking indemnity from the longshoreman’s em-
ployer. See Hess v. Upper Mississippi Towing Corp.,
559 F.2d 1030, 1032 (Sth Cir. 1977) for discussion of
the effect of the 1972 amendments of the LHWCA. The
Court, in its order dated July 30, 1982, ruled that in this
case, like Harrison, “the operative facts occurred prior
to 1972, and hence, pre-amendment law applies, and
third-party plaintiff may seek indemnity from third party
defendant.”
EE
A-34
In Harrison, the plaintiff, a longshoreman, was ex-
posed to liquid chemical isobutyl acrylate when it spilled
in the hold. Plaintiff's injury was traumatic in nature as
opposed to one arising from an occupational disease.
Harrison immediately experienced burning eyes, sore
throat, skin irritation, a headache, but he continued to
work for five to six weeks during which time his con-
dition worsened. He became seriously ill and was totally
disabled.
At trial in 1976, Harrison asserted an unseaworthiness
claim against the vessel. The court found the plaintiff's
action and the vessel owner’s cross action for indemnity
from the stevedore were proper because the operative
facts giving rise to the suit occurred prior to the effective
date of the 1972 amendments. 33 U.S.C. § 905.
[5] Defendant distinguishes the case at bar from Har-
rison in that the damages arising from this plaintiff's ex-
posure to asbestos did not arise until after the 1972
amendments. Under the LHWCA, the date of injury is
used to determine whether pre- or post-1972 amendment
law applies for both compensation claims and third party
actions.’ See Director, Office of Worker's Compensation
Programs, Department of Labor v. Hernandez, 588 F.2d
1. Pre-amendment longshoremen within the Act, and post-amend-
ment longshoremen not covered by the Act, are governed by the
general maritime law. They are seamen pro hac vice entitled to the
warranty of seaworthiness. Seas Shipping Co. v. Sieracki, 328 US.
85, 99, 66 S. Ct. 872, 879, 90 L.Ed. 1099 (1946); see Aparicio v.
Swan Lake, 643 F.2d 1109, 1113-15 (Sth Cir. 1981). Post-1972
amendment third-party causes of action against vessels by covered
workers arise out of, are authorized, and limited by the Act. Jd.
As part of the 1972 amendments to the LHWCA, Congress enacted
section 905(b), “providing a person covered by the Act with a
negligence action against the vessel, expressly abrogating the ‘war-
ranty’ of seaworthiness and specifically prohibiting the vessel’s at-
tempts to seek indemnity from the stevedore employer.” /d.
A-35
173 (Sth Cir. 1979). The defendant urges that the “date
of injury” in asbestosis cases should be the date of mani-
festation as opposed to the date of last exposure.
[6] No method has yet been prescribed for computing
the date of injury in third party long-latency occupational
disease cases. The Fifth Circuit has not rendered any
opinion indicating whether the date of injury for compen-
sation claims or third-party actions in asbestos cases is
the date of last exposure or the date of manifestation of
the disease. Fixing the date of injury at the time of the
operative facts, under Harrison, seems to indicate the
date of last exposure is applicable. However, the factual
basis and legal argument which support Harrison, a trau-
matic injury case, are distinguishable from occupational
disease cases. The circumstances of the date of injury
in the asbestosis cases and in other occupational disease
cases are inherently different from those in traumatic in-
jury cases.
The Deputy Commissioners in this district at the order
of the Assistant Director of Longshore and Harbor
Workers’ Compensation,? is currently applying in as-
2. A LHWCA circular dated June 7, 1983, from Neil A. Monte
to al! regional administrators, assistant regional administrators, as-
sistant deputy commissioners and national office staff states in perti-
nent part:
On May 23, 1983, the U.S. Court of Appeals for the Ninth
Circuit issued its long awaited decision in Todd Shipyards v.
Gerald Black and Director, OWCP.
The Court clearly rejected the Board’s rationale in Dunn v.
Todd Shipyards, 13 BRBS 647. The Dunn decision is described
as “ill considered and contrary to the express purpose of the
LHWCA .. .”
In addition, the Court advised that the time of manifestation
theory is far more likely to insure that injured workers will be
fairly compensated for their future earning capacity. The Court
eee
A-36
bestosis cases the date of manifestation theory, as stated
in Todd Shipyards v. Black, 717 F.2d 1280 (9th Cir.
1983).° The Ninth Circuit, in Todd Shipyards Corp. v.
Black, held that, “compensation under the Act must be
computed based on the date [that the] injury manifested.”
Id. at 1289. The BRB in the Ninth Circuit had, prior to
unn vy. 7 odd Shipyards Corp., 13 Ben. Rev. Bd. Serv.
647 (1981). applied the date of manifestation theory.
The Benefits Review Board (BRB) reversed itself in
Dunn and adopted the last date of exposure rule. Dunn
was cited by the BRB in applying the last date of ex-
posure rule in the administrative hearing of Todd Ship-
yards Corp. v. Black, supra. On review of the BRB
decision in Todd Shipyards v. Black, the Ninth Circuit
Court of Appeals held that the last date of injury in
asbestos cases was “completely contrary to the express
purposes of the LHWCA.” Id.*
thus rejected the date of last exposure theory for determining
average weekly wages.
The Director, OWCP is in agreement with the decision and the
decision is to be applied by all Deputy Commissioners.
Vv
tion of mixed questions of law and fact, particularly where the under-
standing of the problem is enhanced by the agency’s exnert under-
standing of the industry, “‘this deference to an administrative agency’s
decisions on questions of law is not conclusive.” Coca-Cola v. Atchison,
Topeka & Santa Fe Ry. Co., 608 F.2d 213 (Sth Cir. 1979). Ac-
cordingly, the Court does not find the agency’s interpretation binding
but does give it significant consideration.
3. While deference is given an administrative agency’s interpreta-
4. See also Perkins, Longshoremen’s and Harbor Workers’ Com-
pensation Act Amendments of 1983, H.R. Rep. No. 575, 98th Cong.,
Ist Sess. (1983) which notes that the Committee on Education and
Labor “specifically rejects the Benefits Review Board decision in
Dunn v. Todd Shipyard. Id. at 12. The Committee proposes to adopt
the date of manifestation rule for occupational disease cases with
long latency periods. Jd. at 10-12. Two dates of “manifestation” are
proposed and applicability would depend upon whether the worker
A-37
Black worked for Todd Shipyards as a welder from
1942 to 1945. During his employment he was exposed
to large doses of asbestos. In 1977 Black underwent
surgery to remove the upper lobe of his right lung be-
cause of a squamous cell carcinoma. While recovering
from surgery Black was examined and diagnesed as
having asbestosis.
The appellate court in Black examined the common
sense meaning of “injury” and the usage of “injury” in
Section 910 of the Act. Quoting Grain Handling Co. v.
Sweeney, 102 F.2d 464, 466 (2d Cir.), cert. denied,
308 U.S. 570, 60 S. Ct. 83, 84 L.Ed. 478 (1939), the
court held, “a disease is no disease until it manifests
itself.” Jd. An average person would not consider himself
injured because he was exposed to a potentially dangerous
substance but rather would consider himself injured when
the substance cause a dysfunction. Most urban dwellers
are exposed to the various substances which cause oc-
- cupational diseases. Many of these exposures cause no
discernible harm. In asbestosis and silicosis cases 20 or
more years may elapse before a harmful exposure results
in any manifestation of disease.
[7] In discussing both compensation law and general
tort law, the Ninth Circuit concluded that “[i]n cases
of occupational diseases with long latency periods, the
trend is clearly toward the application of the time of
manifestation rule.” /d. at 1290, citing Wilson v. Johns-
Manville Sales Corp., supra. This Court concurs in that
conclusion and adopts the time of manifestation as the
was currently employed or retired. The date of injury for those who
are employed is defined as the date which the occupational disease
manifests itself through loss of wage earning capacity. Retired persons
would become disabled at the date of impairment of functional
capacity. Jd. at 11.
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“date of injury” for purposes of LHWCA third-party
asbestosis actions.
[8, 9] 5. The last date of exposure is, however,
plausible as the date of injury under equitable theories.
First, seamen are the wards of the court in admiralty,
and great deference is afforded to them in protecting and
liberally construing their rights. Seas Shipping Co. v.
Sieracki, supra at 91-92 n. 9, 66 S. Ct. at 875-876 n. 9;
The State of Maryland, 85 F.2d 944, 945 (4th Cir. 1936).
Asbestos has a latency period of 10 to 20 years. Plaintuf
in this instance was exposed, as evidenced by his work
history and the circumstances of his medical condition,
prior to 1972. Plaintiff, as a seaman pro hac vice under
pre--72 amendment law, was entitled to the warranty of
seaworthiness. Seas Shipping v. Sieracki, supra.
The Fifth Circuit considered an analogous situation
when it examined the anomalies between the general
maritime remedies and statutory seamen’s remedies.
Smith v. Ithaca Corp., 612 F.2d 215 (1980). Smith,
a seaman, suffered a heart attack as a result of benzine
exposure. Forty-one of the 161 days Smith was aboard
the S/S V.A. FOGG, the vessel carried benzine cargo.
The evidence showed that benzine fumes permeated the
crew’s quarters and that Smith’s exposure to the fumes
aggravated his pre-existing heart condition. Smith was
exposed to the fumes in port, in state territorial waters,
and at sea. He died shoreside two days after he was
discharged from the vessel.
Smith’s widow initiated suit in the Death on the High
Seas Act, 46 U.S.C. § 761-768, the Jones Act, 46 U.S.C.
§ 688, and the general maritime law. The district court
awarded plaintiff damages for loss of society. Non-
pecuniary damages are not recoverable under the Jones
Saar ini sy it ar accra
A-39
Act or DOHSA, but are recoverable under the general
maritime law. The Fifth Circuit held that
when a seaman dies of an indivisible injury which
is caused in part by unseaworthiness and inflicted
over a period during which the vessel which he is
a member of the crew cruised coastal waters and
the high seas, the seaman’s survivors may recover
damages for loss of society under the general mari-
time law in addition to any damages recoverable
under the Jones Act of DOHSA.
Id. at 226. See Hlodan v. Ohio Barge Lines, Inc., 611
F.2d 71 (Sth Cir. 1980). The Fifth Circuit accorded
the plaintiff the full benefit of the anomalies between
the remedies where recoverability was shown under each.
The remedies arising under the post-’72 amendment
LHWCA differ substantially from the panoply of seamen’s
remedies. The post--72 LHWCA is a complete statutory
remedial scheme, wholly unlike the patchwork of over-
lapping statutory and general maritime remedies availed
to the seaman. The 1972 amendment increased the rate
of compensation; provided workers covered by the Act
with a negligence action against the vessel, expressly
abrogating the warranty of seaworthiness; and abolished
the judicially created indemnity cycle between the vessel
and the stevedore. Aparicio v. Swan Lake, 643 F.2d 1109,
1113-15 (Sth Cir. 1981). As such, the post-’72 statute
comprises a comprehensive remedial scheme between the
covered worker, the vessel and the employer stevedore.
No remnants of the general maritime Sieracki seaman’s
status remain for workers covered by the LHWG@A Act.
[10] In applying the statutory scheme of the Act,
the court should be constrained to follow the black letter
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law of the statute enforcing the intent of Congress as
codified. The Fifth Circuit specifically held in Aparicio
that “the statute itself must be our polestar” in construing
the remedies and limitation of the LHWCA. 643 F.2d at
1116. The Court therefore concludes that plaintiff's equi-
table arguments are without merit. Accordingly, the Court
having found that plaintiff's effective date of injury was
the date of manifestation diagnosis, concludes that plain-
tiff's action is governed and limited by 33 U.S.C. § 905
(b).
fll, 12] 6. Under post-1972 LHWCA law, a vessel
owner owed a duty to the longshoremen to exercise ordi-
nary care, prior to the commencement of cargo opera-
tions, to make that portion of the vessel to be used by
the stevedore reasonably safe for the operations of a
competent, expert stevedore performing in a reasonably
safe manner, and to warn the stevedore of any latent
dangers which the vessel interest was or should have
been aware of. Scindia Steamship Navigation Co. v. De
Los Santos, 451 U.S. 156, 157, 101 S. Ct. 1614, 1616,
68 L.Ed.2d 1 (1981). The vessel owner has no duty
to inspect or supervise stevedoring operations, Id. 167-
170, 101 S. Ct. at 1622-1623, and only has a duty to
intervene if he has knowledge of a dangerous condition
and of the stevedore’s unreasonable conduct in continuing
operations. Duplantis v. Zigler Shipyards, 692 F.2d 372
(5th Cir. 1982); Pluyer v. Mitsui O.S.K. Lines, 664
F.2d 1243 (Sth Cir. 1982).
[13] The Court having previously found the defendant
did not and should not have known of the dangers of
asbestos packed in burlap bags during the time of plain-
tiff’s exposure, and that defendant complied with federal
regulations pertaining to the carriage of asbestos, con-
A-41
cludes that defendant was not negligent in any manner
under section 905(b).
7. The Court further concludes that even if plaintiff
could assert a claim for unseaworthiness, the evidence
presented at trial is insufficient to support a finding of
liability.
[14-17] The warranty of seaworthiness is not an un-
conditional warranty of safety but is a warranty of fitness
for duty. Smith v. American Mail Line, 525 F.2d 1148
(9th Cir. 1975). This warranty extends to the fitness
of the ship appurtenances. The OSCEOLA, 189 US.
158, 23 S. Ct. 483, 47 L.Ed. 760 (1903), crew, Smith
v. American Mail Line, supra, method of cargo stowage.
Ryan v. Pacific Coast Shipping Co., 509 F.2d 1054 (9th
Cir. 1975), and cargo containers, Gutierrez v. Waterman
S.S. Corp., 373 U.S. 206, 212-13, 83 S. Ct. 1185, 1189-
90, 10 L.Ed.2d 297 (1963), but not to the cargo itself,
Smith v. American Mail Line, supra at 1150; see Morales
v. City of Galveston, 370 U.S. 165, 82 S. Ct. 1226,
8 L.Ed.2d 412 (1962); Bell v. Nihonkai Kisen K.K.
Tokyo, 204 F.Supp. 230 (D.C. Or. 1962). To constitute
an unseaworthy condition, the defect must be in the ship’s
hull or gear or stowage. Grillea v. United States, 232
F.2d 919, 922 (2d Cir. 1956). Since cargo has never
been considered an integral part of a vessel, an inherent
vice, defect, or the dangerous nature of cargo will not
render a vessel unseaworthy. Bell v. Nihonkai Kisen K.K.
Tokyo, supra at 233.
The issue presented here is whether asbestos cargo
packaged in burlap bags, if presumed “defective,” is
defective because of its packaging or because of the in-
herent nature and properties of asbestos. The question
is complicated by the finding that at the time of plaintiff's
A-42
exposure, defendants did not know of the danger to
longshoremen exposed to asbestos in the manner and
with the frequency that plaintiff was exposed. Assuming
that packaging asbestos in triple plastic wraps cures the
problem of exposure, the question of whether the package
or the cargo was “defective” during the period of plain-
tiffs exposure remains unresolved, as knowledge of the
danger is required to afford protection.
A fine distinction is drawn between cargo and packag-
ing. In Bell v. Nihonkai Kisen K.K. Tokyo, supra, a log,
with a preexisting latent defect, broke in two while being
lifted by ship’s tackle. A piece of the log fell into the
hold striking the plaintiff, a longshoreman. The Court
‘ound that the injury was caused by a defect in cargo
and refused to extend the warranty of seaworthiness.
In Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,
369 U.S. 355, 82 S. Ct. 780, 7 L.Ed.2d 798 (1962),
where a longshoreman was injured when the steel bands
around a bundle of burlap broke, the bundles of burlap
were discharged by placing a hook under two of the four
steel bands. When the load was lifted, the remaining two
bands broke and the bundle hit the plaintiff.’
The Bell court distinguished its holding from Ellerman
by pointing out that the stevedore in Ellerman used the
bands instead of a sling to discharge the cargo. The bands
therefore became ship’s tackle, an appurtenance of the
vessel. Id. at 233-34. The log in Bell was simply cargo
and the vessel does not warrant that cargo will be safe
to handle. Jd. at 233.
[18] A vessel owner need not have any type of knowl-
edge of a packaging defect to be liable for unseaworthi-
5. The issue of unseaworthiness was not involved in the appeal
to the Supreme Court.
A-43
ness. Gutierrez v. Waterman, supra at 213, 83 S. Ct.
at 1189, Simpson Timber v. Parks, 390 F.2d 353 (9th
Cir. 1968); Reddick v. McAllister Lighterage Line, Inc.,
258 F.2d 297, 299 (2d Cir. 1958). In Simpson Timber
v. Parks, a longshoreman was injured when he stepped
through the packaging on a bundle of doors. The Second
Circuit upheld the jury finding that the vessel was un-
seaworthy despite the fact that the shipowner neither
knew nor, in the exercise of reasonable care, could have
known of the dangerous condition and the fact that the
dangerous condition was created solely by the manu-
facturer’s wrongdoing. /d. at 355.
The holding in Parks is distinguishable from Bell, in
that Bell deals with the inherent safety of the cargo and
Parks deals with the manner in which cargo has been
stowed and thereafter utilized in such a manner as to
imperil the safety of the seamen. Only in the latter in-
stance does the warranty of seaworthiness come into
full bloom. Bell, supra at 233. The package in Parks,
like the unstable truck chassis in Rich v. Ellerman &
Bucknall S.S. Co., 278 F.2d 704 (2d Cir. 1960), the
crate in Reddick, supra, and the hatch cover in Grillea,
supra, had become “as much a part of the *tweendeck
for continued prosecution of the work as though it had
been permanently fixed in place.” See Id. at 923; Bell,
supra at 232-33.°
6. See also Gutierrez v. Waterman, supra, where vessel accepted
torn bags of beans. When discharged, the bean sacks broke and beans
were scattered on the pier. Plaintiff slipped and fell injuring himself.
The Supreme court upheld ihe finding of unseaworthiness, stating
“[A] ship that leaks is unseaworthy; so is a cargo container that
leaks. When the shipowner accepts cargo in a faulty container or
allows the container to become faulty, he assumes the responsibility
for injury that this may cause to seamen or their substitutes on or
about the ship.” Jd. 373 U.S. at 213-14, 83 S. Ct. at 1189-90.
A-44
[19] A vessel owner does have a duty, however, to
warn a stevedore or take reasonable precautions against
known or reasonably foreseeable defects in cargo. See
Morales v. Galveston, 370 U.S. 165, 171, 82 S. Ct. 1226,
1230, 8 L.Ed.2d 412 (1962). This duty does not extend
the warranty of seaworthiness to cargo. Smith v. American
Mail Lines, supra at 1150. A vessel owner could be
shown to be liable under an ordinary standard of negli-
gence for failure to warn of such a known defect. See
Jones v. Laughlin Steel, ____U.S.___, 103 S. Ct. 2541,
76 L.Ed.2d 768 (1983) where the Supreme court, citing
Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-50,
80 S. Ct. 926, 932-33, 4 L.Ed.2d 941 (1960) indicates
the availability of a negligence remedy for an injured
longshoreman against the vessel owner under pre-1978
amendment law, “even if the [unseaworthy] condition
was not attributable to negligence by the owner.” 103
S. Ct. 2547 n. 7 action under the general maritime law.
In Harrison v. Flota Mercante Grancolombiana, 577
F.2d 968 (Sth Cir. 1978), the court in applying pre-
1972 amendment law found the vessel unseaworthy when
barrels of liquid chemical isobutyl acrylate (IBA) cargo
with defective warning labels were ruptured while being
loaded. When the load was lifted, the winch siipped. Two
barrels fell and hit a third, rupturing all three. Plaintiff
assisted cleaning up the IBA that spilled in the hold. As
a result of his exposure to the fumes and the liquid, plain-
tiff over a period of time became totally disabled and now
suffers from diffuse pulmonary fibrosis and emphysema.
The dangers of exposure to IBA were generally known at
the time of the accident. The label on the barrels did not
have an adequate warning of the dangers of IBA. The
a
ou.
oe
package was therefore defective. The vessel was rendered
unseaworthy because of the packaging defect.‘
The case at bar is most analogous to Morales v. City of
Galveston, supra. In that case grain was being loaded in
bulk.* The last shot of grain was improperly fumigated
and Morales, a longshoreman, was injured by fumes when
the grain was released into the bin. Evidence adduced at
trial showed that the grain was copiously tested by the
elevator, under government authority, when the grain was
received and disbursed. These tests failed to detect the
remaining noxious chemicals.
The vessel was found to be seaworthy as “the cause of
injury was not any defect in the ship but the fact that the
last shot of grain which was being loaded was contamin-
ated.” Morales v. City of Galveston, 291 F.2d 97, 98
(Sth Cir. 1961). Although the plaintiff argued that the
vessel was unseaworthy for failure to equip the cargo
7. Although the vessel was unseaworthy, the district court assessed
liability solely against the defendant manufacturer because it found
that neither the vessel nor the stevedore was actively negligent and
that the active negligence of the manufacturer was the cause of plain-
tiff’s injury. The court of appeals held that the finding of the trial
court that the stevedore was not actively negligent was clearly
erroneous and remanded the case for further findings.
See Martinez v. Dixie Carriers, Inc., 529 F.2d 457 (Sth Cir. 1976).
Martinez was injured by benzine fumes while attempting to strip the
tanks of a barge. During trial the court indicated that the barge
was unseaworthy “because of the negligent manner in which the
stripping was conducted and because of the failure to provide ade-
quate warning of the nature of cargo.” Jd. at 467. The Fifth Circuit
noted that, “[W]Je do not regard DuPont’s alleged failure to warn as
a source of the barge’s unseaworthiness.” /d. See also Gutierrez v.
Waterman, supra.
8. As noted by the Supreme Court in Gutierrez v. Waterman,
“Morales, of course, did not involve the unseaworthiness of cargo
containers, but rather that of the ship’s hold.” Jd. 373 U.S. at 213
n. 4, 83 S. Ct. at 1190 n. 4.
A-46
spaces with forced ventilation, the Supreme Court upheld
the seaworthiness and pointed out that the injury was
solely caused by “the isolated and completely unforesee-
able introduction of a noxious agent from without.” 370
U.S. at 171, 82 S. Ct. at 1230.° The dissenting justices
disputed the unforeseeability of the accident as three or
four similar accidents occurred in Galveston between
1949 and 1953. Jd. at 171-72, 82 S. Ct. at 1230-31.
[20] In the case at bar, plaintiff's injury was caused
by the dangerous nature of the asbestos cargo. Asbestos
cargo, like grain, corn, flour and other commodities, was
shipped in burlap sacks, in full accordance with the Coast
Guard regulations. But for its unknown properties, this
method of packaging was wholly adequate. Plaintiff’s in-
jury did not arise from his slipping and falling in loose
asbestos, as in Gutierrez v. Waterman S.S. Co., supra, and
Hagans v. Ellerman & Bucknall S.S. Co., 318 F.2d 563
(3rd Cir. 1963);'° or from the method of stowing and
unloading the cargo, as in Hroncich v. American Presi-
9. The district court reasoned that,
. . While the Grelmarion’s cargo spaces were not equipped
with forced ventilation systems, I find that only very rarely is
this the case on grain vessels, and that it is not necessary or
customary. .. .
The finding heretofore has been made that the noxious gases
and fumes were introduced into the bin with the last ‘shot’
of grain, and resulted from a fumigant that had been improperly
applied, and that had adhered to the grain an unusually long
period of time. Under these circumstances, I find that the ad-
mission thereof into the bin of the vessel did not cause the
Grelmarium to become unseaworthy, the vessel and all its ap-
purtenances being entirely adequate and suitable in every respect.
181 F.Supp. 202 at 206, 207.
10. Hagans slipped on sand that spilled from broken bags of
cargo.
A-47
dent Lines, 334 F.2d 282 (3rd Cir. 1964);"* or from the
lack of adequate warning of a known danger, as in Mar-
tinez v. Dixie Carriers, supra; but from irhaling fibers
that, at the time, were not known to be toxic.
The danger emanated solely from the unknown prop-
erties of the cargo itself and not from any defect within
the hull, appurtenances, or crew of the vessels. The Lykes
Brothers ships that plaintiff worked aboard were sea:
worthy. The danger, as in Morales, was an unforeseeable
noxious agent introduced from without.
8. Accordingly, the Court finds for the defendant and
against the plaintiff.
9. If any of the foregoing findings of fact constitute
conclusions of law, they are adopted as such. If any of
the foregoing conclusions of law constitute findings of
fact, they are adopted as such.
11. Hroncich was injured while unloading bales of rubber. The
longshoremen were separating the rubber bales that were stuck to-
gether when a vertical column of the stacked bales fell. One of the
bales that fell bounced and struck plaintiff.
A-48
APPENDIX C
Statutes and Regulations
Section 5 (b), 29 U.S.C. § 905 (b) (1978):
In the event of injury to a person covered under this
chapter caused by the negligence of a vessel, then such
person, or anyone otherwise entitled to recover damages
by reason thereof, may bring an action against such
vessel as a third party in accordance with the provisions
of section 933 of this title, and the employer shall not
be liable to the vessel for such damages directly or in-
directly and any agreements or warranties to the con-
trary shall be void. “Tf such person was employed by the
vessel to provide stevedoring services, no such action
shall be permitted if the injury was caused by the negli-
gence of persons engaged in providing stevedoring ser-
vices to the vessel. If such person was employed to pro-
vide shipbuilding, repairing, or breaking services and such
person’s employer was the owner, owner pro hac vice,
agent, operator, or charterer of the vessel, no such action
shall be permitted, in whole or in part or directly or in-
directly, against the injured person’s employer (in any
capacity, including as the vessel’s owner, owner pro hac
vice. agent, operator, or charterer) or against the em-
ployees of the employer. The liability of the vessel under
this subsection shall not be based upon the warranty of
seaworthiness or a breach thereof at the time the injury
occurred. The remedy provided in this subsection shall
be exclusive of all other remedies against the vessel ex-
cept remedies available under this chapter.
Section 10 (i), 33 U.S.C. § 910 (i) (Supp. 1985):
For purposes of this section with respect to a claim
for compensation for death or disability due to an oc-
cupational disease which does not immediately result in
death or disability, the time of injury shall be deemed
A-49
to be date in which the employee or claimant becomes
aware, or in the exercise of reasonable diligence or by
reason of medical advance should have been aware, of the
relationship between the employment, the disease, and
the death or disability.
29 C.F.R. § 1504.2 (1965):
(a) The responsibility for compliance with the regu-
lations of this part is placed upon “employers” as de-
fined in Section 1504.3(c).
(b) It is not the intent of the regulations of this part
to place additional responsibilities or duties on owners,
operators, agents or masters of vessels unless such per-
sons are acting as employers, nor is it the intent of these
regulations to relieve such owners, operators, agents or
masters of vessels from responsibilities or duties now
placed upon them by law, regulation or custom.
29 C.F.R. 1504.102 (c)(1) (1965):
For protection against pneumoconiosis producing dusts
a respirator equipped with the type of filter provided for
such purpose shall be used.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.