Appendix — Derr v. Kawasaki Kisen K.K.

Supreme Court, U.S.

FILED

MAR 9 1988

_ BOSEPH F. SPANHIOL, UR.

IN THE ; papa

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

WILLIAM DERR,

Petitioner,

Vv.

KAWASAKI KISEN K.K.,

Respondent.

THOMAS ROBERTSON,

Petitioner,

V-

TOKAI SHOSEN K.K.,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

APPENDIX TO THE PETITION

FOR WRIT OF CERTIORARI

CHARLES SOVEL

FREEDMAN and LORRY, P. C.

Attorneys for Petitioners

800 Lafayette Building

5th and Chestnut Streets

Philadelphia, PA 19106

(215) 925-8400

TABLE OF CONTENTS

Opinion of the United States Court of

Appeals for the Third Circuit, filed

December 15, 1987 - - «© « « « «© « « «

Judgment of the United States Court

of Appeals for the Third Circuit in

William Derr v. Kawasaki Kisen K. K.

filed December 15, 1987 .......

Judgment of the United States Court

of Appeals for the Third Circuit in

Thomas Robertson v. Tokai Shosen K.K.

filed December 15, 1987 ......

Bench Opinion of the United States

District Court for the Eastern

District of Pennsylvania in William

Derr v. Kawasaki Kisen K. K. dated

December 2, 1986 . ~ *

Judgment of the United States Dis-

trict Court for the Eastern District

of Pennsylvania in William Derr v.

Kawasaki Kisen K. K. dated December

Fs Veet is *& © eee 8 8 ee ees

Memorandum Opinion of the United

States District Court for the Eastern

District of Pennsylvania in Thomas

Robertson v. Tokai Shosen K.K. dated

January 16, 1987 .. a ae a

PAGE

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21a

64a

80a

TABLE OF CONTENTS

Judgment of the United States Dis-

trict Court for the Eastern District

of Pennsylvania in Thomas Robertson

v. Tokai Shosen K.K. dated January 7,

1987 «e+««s 64 =e

Excerpts from Legislative History of

Longshoremen's and Harbor Workers'

Compensation Act Amendments of 1972,

House Report No. 92-1441 .....

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-1772

WILLIAM DERR,

Appellant

Vv.

KAWASAKI KISEN K.K.

On Appeal from the United States District

Court For the Eastern District

of Pennsylvania

(D.C. Civil No. 85-5250)

No. 87-1031

THOMAS ROBERTSON,

Appellant

V.

TOKAI SHOSEN K.K.

On Appeal from the United States District

Court For the Eastern District

of Pennsylvania

(D.C. Civil No. 86-2620)

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Argued September 9, 1987

Before: SLOVITER and STAPLETON,

Circuit Judges, and

FISHER, District Judge*

(Opinion filed December 15, 1987)

Charles Sovel (Argued)

Freedman and Lorry

Philadelphia, PA 19106

Attorney for Appellants

Kevin F. Berry (Argued)

John Cannon, IIl

Rawle & Henderson

Philadelphia, PA 19107

Attorneys for Appellee Kawasaki Kisen K.K-

Carl D. Buchholz, Ill (Argued)

Rawle & Henderson

Philadelphia, PA 19107

Attorney for Appellee Tokai Shosen K.K.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

In 1972, Congress amended the Longshoremen's

and Harbor Workers’ Compensation Act (the Act) to

eliminate any liability of a vessel for injuries to

longshoremen during cargo operations unless caused

* Hon. Clarkson S. Fisher, United States District Court for the

District of New Jersey, sitting by designation.

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by the negligence of the vessel. This case presents, for

the first time in this court since the Supreme Court's

decision in Scindia Steam Navigation Co. v. De Los

Santos, 451 U.S. 156 (1981), the issue of what liability,

if any, a vessel has for injuries to longshoremen caused

by cargo improperly loaded by a foreign stevedore.

I,

Background

Appellants William Derr and Thomas Robertson

were longshoremen injured in separate but similar

accidents in which cargo fell upon them during the

unloading of the respective appellees’ vessels. Derr,

who was discharging packages of lumber, was injured

when a package fell and struck his foot. Robertson was

injured when a coil of steel rod fell from the stow,

striking him on the head and back. In both cases, the

cargo had been loaded by independent stevedores in

foreign ports. Derr and Robertson were employed by

independent stevedores responsible for the discharge

of the cargo. The longshoremen filed suits in federal

court alleging that the shipowners were liable under

section 5(b) of the Act, 33 U.S.C. 8 905(b) (1982 &

Supp. II 1984), on the ground that their injuries were

caused by the vessels’ negligence.

Each case was tried to a jury. The juries heard

testimony suggesting that the ships had encountered

bad weather during passage. In Derr, it was stated that

the cargo had shifted during the voyage, meaning that

considerable movement of cargo had occurred. In

Robertson, there was testimony that there “may have

been some movement but not what we [in the shipping

business] call shifting,” which is more serious. App. at

166-67. The appellants’ expert witness testified that

the cargo would probably not have moved or shifted

had it been properly secured by the foreign

longshoremen.

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Derr testified that he was aware of the shift in the

cargo prior to the accident, and Robertson presented

evidence that the movement of the wire coils was

apparent. Both plaintiffs stated that it was not

unusual to encounter shifted cargo.

The district court in each case granted a directed

verdict for the vessel, holding that under the Supreme

Court's decision in Scindia Steam Navigation Co. v.

De Los Santos, 451 U.S. 156 (1981), the vessel had no

duty to inspect or supervise the handling of cargo, and

no duty to warn of a dangerous cargo condition which

is open and obvious or of which it is unaware. Derr v.

Kawasaki Kisen K.K., No. 85-5250, bench op., App. at

106-09 (E.D. Pa. Dec. 2, 1986); Robertson v. Tokai

Shosen K.K., 655 F. Supp. 152, 154-55 (E.D. Pa.

1987). The cases having been consolidated for

purposes of appeal, Derr and Robertson contend that

the district courts erred as a matter of law.

Il.

The Legislative Scheme and Scindia

Until 1972, a tortured liability triangle was played

out on the wharves and piers of America. A

longshoreman injured in a cargo operation could

receive compensation from the stevedore employer,

and also prevail in an action against the vessel on

either a negligence or breach of the warranty of

seaworthiness theory. To show unseaworthiness, the

longshoreman had only to prove that there was an

unsafe, injurious condition on the vessel; the fact that

the condition was the fault of the stevedore did not

protect the vessel, although the vessel might in turn

recover from the stevedore for breach of warranty to

handle the cargo operation safely. Scindia, 451 U.S. at

164-65.

As Judge Friendly pointed out in Kakavas v. Flota

Oceanica Brasileira, S.A., 789 F.2d 112, 117 (2d Cir.).

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cert. denied, 107 S. Ct. 186 (1986), this liability

scheme produced “an anomalous and intolerable

situation.” A considerable part of the longshoreman's

award ended up in the hands of his lawyer with much

of the remainder going to the stevedore’s insurers in

repayment of the workmen's compensation received.

That compensation was inadequate, and the stevedore,

instead of being exposed only to the workmen's

compensation award, ended up paying the awards

made against the ship as well. The system served

neither deterrence nor compensation very well. H.R.

Rep. No. 1441, 92d Cong., 2d Sess. (1972), reprinted

in 1972 U.S. Code Cong. & Ad. News 4698, 4702-03

(House Report). See generally Note, Shipowners Owe

Longshoremen No Duty to Discover Dangers Arising

Within the Confines of the Cargo Operation, 56 Tul. L.

Rev. 1421, 1422-27 (1982) (hereinafter Tulane Note).

Congress “radically changed this scheme of

things,” Scindia, 451 U.S. at 165, by amending the Act

in 1972 to increase the longshoremen’s workmen's

compensation, see House Report at 4700-01, and by

adding subsection (b) to section 5 of the Act. That

subsection provides, in pertinent part:

In the event of injury to a [longshoreman] caused

by the negligence of a vessel, then such

{longshoreman] .. . 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 (the stevedore] shall not be liable to the

vessel for such damages directly or indirectly and

any agreements or warranties to the contrary shall

be void. . . . 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.

33 U.S.C. 8 905(b).

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The intention of Congress to eliminate the vessel's

liability without fault was express and unambiguous.

Congress believed that it was fairer, and fully

consistent with the goal of promoting safety. for the

vessel's liability

to be predicated on negligence, rather than the

no-fault concept of seaworthiness. . . .

The purpose of the amendments is to place an

employee injured aboard a vessel in the same

position he would be if he were injured in

non-maritime employment ashore, insofar as

bringing a third party damage action is concerned,

and not to endow him with any special maritime

theory of liability or cause of action under whatever

judicial nomenclature it may be called, such as

“unseaworthiness”, “nondelegable duty”, or the

like.

House Report at 4703.

Congress was less clear in defining the vessel's

statutory negligence and its resulting liability. “Such

issues can only be resolved through the application of

accepted principles of tort law and the ordinary process

of litigation--just as they are in cases involving alleged

negligence by land-based third parties.” Id. at 4704.

This was the task the Supreme Court took up in

Scindia.

Scindia involved a longshoreman who was injured

in an unloading operation as the result of a defective

winch that was part of the vessel's equipment being

operated by the stevedore. In its opinion, the Court

defined the line between the responsibilities of the

stevedore and of the vessel. The vessel has a duty with

respect to the general condition of the ship's gear.

equipment, tools, and work space, and a duty to warn

the stevedore of hidden dangers which are or should be

known to the vessel in the exercise of reasonable care.

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and that are not known or obvious to the stevedore. Id.

at 167. Also, if the vessel actively involves itself in the

Cargo operation, or fails to exercise due care in

protecting longshoremen from dangers they might

encounter from equipment under vessel's active

control, it would be negligent. Id. However, with

respect to cargo not loaded by or under the active

supervision of the vessel, the Court explained that the

vessel could rely on the expertise of the stevedore. Id. at

170-71; see, e.g., Kakavas, 789 F.2d at 118 (“The

basic theme of the Scindia opinion is the extensive

reliance that a shipowner may justifiably place on an

independent contractor.”).

The stevedore, in turn, who is in the best position

to avoid accidents during the cargo operation, has a

Statutory duty to provide for the safety of

longshoremen under 33 U.S.C. 8 941 (1982) and

warrants to the vessel that he will perform

competently. Scindia, 451 U.S. at 170-71. On this

basis, the Court stated that “absent 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.” Id. at 172. Against this background, we

consider the alleged negligence of the vessels in this

case.

III.

Discussion

Scindta was, of course, a case in which the

longshoreman's injury resulted from the

maifunctioning of the ship's gear being used in the

Cargo operations. The Court held that there was a

triable issue as to whether the shipowner knew of the

defect or was chargeable with such knowledge.

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Scindia, 451 U.S. at 178. Appellants here argue that

nothing in Scindia supports the distinction made by

the district courts in Derr and Robertson between

unsafe conditions resulting from the manner in which

cargo is stowed and other types of unsafe conditions.

This argument is contrary to the Court's analysis in

Scindia, and we reject it. We read the Court's opinion

in Scindia, giving effect to Congress’ intent ‘to

terminate [the vessel's] automatic, faultless

responsibility for conditions caused by the negligence

or other defaults of the stevedore,” id. at 168, as

limiting the vessel's potential liability for injuries

caused by faulty stowage of cargo to certain narrow

circumstances.

A.

No Duty to Inspect and Supervise

Scindia compels the holding that the shipowner

has no duty to supervise or inspect cargo loaded or

unloaded by stevedores and therefore may not be held

liable for injuries arising out the stevedore’s failure to

perform his job properly.’ Scindia recognizes that the

general rule that vessels have no duty to supervise or

inspect cargo operations may not apply where there is

“contract provision, positive law, or custom to the

contrary.” Scindia, 451 U.S. at 172. No evidence was

presented to trigger this exception in the Robertson

trial, but Derr called Captain Bernard Oudijk, an

expert witness, who testified that it was customary in

the maritime industry for vessels to observe the loading

of cargo. The district court apparently rejected this

l. To the extent that Di Rago v. American Export Lines, Inc..

636 F.2d 860 (3d Cir. 1981), predicated liability on a vessel's duty

to inspect or supervise the loading stevedore’s cargo operation. it is

no longer binding precedent in light of the subsequent decision in

Scindia.

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testimony as a matter of law, believing it to be merely

an attempt to restate as a custom the general duty to

inspect cargo rejected in Scindia.

Even if it were true that a vessel customarily

observes the loading of cargo, understandable in light

of its potential liability for certain damage to cargo, see

Tulane Note, supra at 1433, we agree with the district

courts that such observation cannot be used to

reimpose the general duty to supervise the stevedore.

Nor can such observation be vaulted into the type of

active involvement and control that would trigger the

ship's liability. Cf. Gill v. Hango Ship-Owners/AB, 682

F.2d 1070, 1072 n.1 (4th Cir. 1982) (referring to

dangerous “packing of the rolls [of paper) by the

shipowner in a foreign port”); Harris v. Flota Mercante

Grancolombiana, S.A., 730 F.2d 296, 299 n.2 (5th

Cir. 1984) (no evidence that vessei used independent

stevedore to load cargo).

In a similar effort, the appellants urge this court to

revive the duty of supervision by adopting an

excessively narrow reading of Scindia. Appellants

would have it that, while there is no duty to supervise

the work of a stevedore “to discover dangerous

conditions that develop within the confines of the

cargo operations,” Scindia, 451 U.S. at 172 (emphasis

supplied by appellants), the vessel does have a duty to

inspect the cargo before cargo operations begin and

therefore “is charged with knowledge of, conditions

which exist at the start of cargo operations.”

Appellants’ Brief at 31.

It is true that some courts of appeals have read the

law in a manner compatible with appellants’

arguments. The Scindia rejection of a duty to inspect

or supervise cargo operations has been taken to apply

only once the stevedore has commenced work, allowing

the inference of a stricter duty including an obligation

to inspect cargo already loaded before turning the hold

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over to the off-loading stevedore. See, e.g., Stass v.

American Commercial Lines, Inc., 720 F.2d 879, 882

(Sth Cir. 1983); Clark v. Bothelho Shipping Corp., 784

F.2d 1563, 1565 (11th Cir. 1986); Theriot v. Bay

Drilling Corp., 783 F.2d 527, 535 (5th Cir. 1986).

The district court in Robertson thought this

reading would “eviscerate” Scindia and the Act: “while

the vessel would not be required to supervise and

inspect each stevedoring operation. . . it would be held

to such a requirement at each subsequent port which

encountered the condition of the stow. This makes no

sense, and would render the principle of fault-based

liability of the vessel a nullity.” Robertson, 655 F. Supp.

at 155; accord Scindia, 451 U.S. at 168-69

(inconsistent with Act to hold vessel has “continuing

duty to take reasonable steps to discover and correct

dangerous conditions that develop during the loading

or unloading process”). We agree.

Derr and Robertson suggest that although Scindia

signifies that the vessel may not be liable for the

negligence of the American stevedore employer, the

shipowner may be heid liable for unsafe conditions

created by improper stowage ‘by a foreign loading

stevedore. They rely chiefly on the decision in Turner v.

Japan Lines, Ltd., 651 F.2d 1300 (9th Cir. 1981), cert.

denied, 459 U.S. 967 (1982).

The Turner court believed that the safety of

longshoremen was furthered by making the vessel

responsible for cargo loaded by foreign stevedores

because, “[ajs between the vessel and the [American|

stevedore-employer, the vessel is the only one in a

position to ensure the safety of the longshoremen. ™ /d.

at 1304. Because the offloading stevedore has no

control over the foreign stevedore, the vessel can

ensure safety “by choosing a reliable foreign stevedorc.

supervising its work when necessary, and warning the

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offloading stevedore of concealed dangerous conditions

created by the foreign stevedore.” Id.

We cannot accept the Turner analysis. As Scindia

makes clear, the 1972 amendments are grounded in

the belief that stevedores are primarily responsible for

the stowage of cargo. 451 U.S. at 170-72; cf. Ruffino v.

Scindia Steam Navigation Co., 559 F.2d 861, 862 (2d

Cir. 1977) (finding vessel had no duty of care with

respect to foreign-loaded cargo in light of congressional

intention to “relieve shipowners of liability predicated

upon the negligence of stevedoring companies”). As

this court has pointed out before, “creation of a

shipowner's duty to oversee the stevedore’s activity and

insure the safety of the longshoremen would. . . saddle

the shipowner with precisely the sort of nondelegable

duty that Congress sought to eliminate by amending

section 905(b).” Hurst v. Triad Shipping Co., 554 F.2d

1237, 1249-50 n.35 (3d Cir.), quoted with approval in

Scindia, 451 U.S. at 169, cert. denied, 434 U.S. 861

(1977).?

Thus the real issue is not where the cargo was

loaded, but whether a vessel may be held negligent for

failure to inspect or supervise the stowage of cargo. The

scheme carefully drawn by Congress and interpreted in

Scindia does not change because the cargo stowage

was performed by foreign stevedores. See, e.g., Spence

v. Mariehamns R/S, 766 F.2d 1504 (11th Cir. 1985)

(making no distinction between duty of vessel to

inspect foreign and domestically-loaded cargo). It

follows that the district courts did not err in declining

to increase the duty on the vessel with respect to cargo

because it was loaded by foreign stevedores.

2. Turner is also distinguishable from the cases here insofar as

the danger in that case was concealed. In dictum, the decision has

been limited to that situation by the Ninth Circuit Court of Appeals.

See Taylor v. Moram Agencies, 739 F.2d 1384. 1387 (9th Cir.

1984).

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B.

Duty for Ship and Equipment

Before the 1972 amendments and the Scindia

decision, the Supreme Court had recognized that the

vessel owes to the stevedore and longshoreman “the

duty of exercising due care ‘under the circumstances,”

Scindia, 451 U.S. at 166 (quoting Marine Terminals v.

Burnside Shipping Co., 394 U.S. 404, 415 (1969)). In

Scindia, the Court defined the vessel's duty with

respect to the ship and equipment thus:

to exercis|e] ordinary care under the circum-

stances 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, and to

warn | the stevedore of any hazards on the ship or

with respect to its equipment that are known to

the vessel or should be known to it in the exercise

of reasonable care, that would likely be

encountered by the stevedore in the course of his

cargo operations and that are not known by the

stevedore and would not be obvious to or

anticipated by him if reasonably competent in the

performance of his work.

Id. at 167; see also id. at 172; id. at 180 (Powell. J..

concurring).

Thus, we have imposed liability on the ship for

injuries resulting from a defect in the hatch covers,

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

116 (3d Cir. 1979), vacated sub nom. American

Commercial Lines, Inc. v. Griffith, 451 U.S. 965. on

remand, 657 F.2d 25 (1981), cert. denied. 456 U.S.

914 (1982), and from a defective gangway which. albeit

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supplied by the stevedore, became the vessel's

gangway, Sarauw v. Oceanic Navigation Corp., 622

F.2d 1168 (3d Cir. 1980), vacated, 451 U.S. 966, on

remand, 655 F.2d 526 (1981), cert. denied, 456 U.S.

914 (1982).

Appellants do not contend that either of the vessels

in this case was defective, or that their equipment,

gear, or tools suffered from any defect. Appellants have

stressed that the Supreme Court referred to “work

space” when it spoke of the ship's duty extending “to

the condition of the ship's gear, equipment, tools, and

work space to be used in the stevedoring operations.”

Scindia, 451 U.S. at 167. We construe that language to

refer to the physical work space. The Court could not

have intended by this reference to establish a duty by

the ship with respect to cargo that it had expressly

negated in other portions of the opinion. Thus, there

was no basis in either of these cases for the jury to have

found negligence by the ships on the basis of any

defective equipment or gear.

C.

Duty to Intervene

The parameters of the vessel's duty to intervene in

cargo operations were not fully drawn in Scindia. The

only discussion in that opinion related to the

shipowner'’s “duty to act where the danger to

longshoremen arises from the malfunctioning of the

ship's gear being used in the cargo operations.”

Scindia, 451 U.S. at 175. The Court disapproved of the

Ninth Circuit's standard that “if the vessel should

realize that the condition presents an unreasonable

risk of harm, it is liable if it ‘fails to exercise reasonable

care under the circumstances’ to protect the

longshoremen.” Id. at 174. The Supreme Court

characterized this as the “duty to inspect thesis,”

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which it had already rejected. Id. It was also

unprepared to accept the more modest duty imposed in

Evans v. Transportacion Maritime Mexicana, 639

F.2d 848, 856 (2d Cir. 1981), under which “the

shipowner's duty is triggered to take steps, reasonable

in the circumstances, to eliminate or neutralize the

hazard” that the stevedore will not or cannot correct

and that the longshoreman cannot avoid. Id. at 175.

The Scindia Court was prepared only to hold that if it

were proven that the ship knew of the malfunctioning

cargo winch that was part of the ship’s own gear, and

which it might have a duty to repair, there was a basis

for imposition of the negligence liability.

It is unlikely that the narrow duty of a ship to

intervene to make repairs was intended to extend

beyond defective conditions with respect to the ship,

its equipment, and gear. See, e.g., Hodges v. Evisea

Maritime Co., S.A., 801 F.2d 678, 683 (4th Cir. 1986)

(“jury could conclude that the vessel had a duty to

intervene and exercise its control over the No. 3 hold to

eliminate the dangerous conditions of the open hatch

and poor lighting”), cert. denied, 107 S. Ct. 1572

(1987). Since the ship has no duty to inspect the cargo

handling operation or the stowed cargo, Scindia, 451

U.S. at 178; see Taylor v. Moram Agencies, 739 F.2d

1384, 1386-87 (9th Cir. 1984) (“t]he scope of the

shipowner's duty as set forth in Scindia focuses on the

character of the ship and its equipment - not on the

nature of the cargo”), there would ordinarily be no duty

to intervene to remedy dangers created by negligently

loaded cargo.’

3. There was nothing tn either case to suggest that the cargo

presented an exceptional situation. We leave open the issue of a

duty by the ship in such circumstances.

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D.

Duty to Warn

Because the ship has no duty to inspect cargo

stowage operations, the ship can be held liable for

failure to warn of improper stowage, if at all, when the

ship has both actual knowledge and the danger was

not open and obvious. The district court in Derr found

undisputed evidence that the danger was apparent to

both the vessel and the stevedore, and that there was

no warning that the ship could have given that would

have added to the knowledge of a competent stevedore.*

Indeed, appellant conceded in his brief that even the

lack of dunnage and shorage, alleged to be an

underlying cause of the accident, “was a condition that

could have been discovered by a reasonable inspection

of the hold.” Appellants’ Brief at 46. Consequently, as a

matter of law, there was insufficient evidence upon

which a jury could find liability. See Taylor, 739 F.2d

at 1386-87. We find no error in the court's analysis or

its conclusion.*

The decision of the district court in Robertson was

based squarely on the lack of evidence upon which a

jury could reasonably have made a finding of actual

knowledge, or breach of any duty to know, of the

aileged dangerous condition of the cargo. Appellant

argues that the evidence of the inspection of the cargo

by Cook, an independent cargo surveyor hired by the

4. The district court in Derr did not reach the issue of the

vessel's actual knowledge of improper stowage. The only evidence

even supporting knowledge was the testimony of the ship's master

that "I think there was somebody” assigned to be present to observe

the loading of that cargo. App. at 43. This is insufficient, in any

event, to show actual knowledge of improper stowage.

5. In light of our decision. we need not decide whether the

method of stowage was a proximate cause of the injury.

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vessel to check the cargo for insurance purposes, and

testimony that the Chief Officer observed the condition

of the cargo when the hatch was opened, combined

with the fact that the dangerous condition of the cargo

“would be immediately apparent to anyone looking in

the hold,” would have allowed a jury to find actual

knowledge. Appellant's Brief at 44-45. )

The district court correctly resisted this argument.

It recognized, as we have set forth, that to find

knowledge of dangerous stowage whenever a person

associated with the vessel had reason to examine the

cargo would be to reimpose the duty to supervise the

stevedore. In any event, appellant's argument proves

too much. For if the danger in the cargo was indeed

readily apparent “even on a ‘cursory’ examination,” id.

at 45, then there can be no liability under Scindia.

IV.

Summary

We hold today that there is no general duty on the

part of a vessel to supervise or inspect the work of

stevedores, either during or between cargo operations.

A vessel can be deemed hegligent towards a

longshoreman injured because of improperly stowed ©

cargo only if the vessel has breached one of the limited

duties referred to in Scindia. Appellants produced no

evidence from which a jury could reasonably have

concluded that any of those duties was breached. We

will therefore affirm the judgment entered by the

district courts in Derr and Robertson.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circutt

(A.O. U.S. Courts. G.M.C. Printing, Phila., Pa. 215-568-4264)

16a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 86-1772

DERR, WILLIAM,

Apelllant

vs.

KAWASAKI KISEN K.K.

(D.C. Civ. No. 85-5250)

ON APPEAL

FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: SLOVITER, STAPLETON, Circuit

Judges, and FISHER, District Judge

JUDGMENT

This cause came on to be heard on the

record from the United States District Court

for the Eastern District of Pennsylvania and

was argued by counsel September 9, 1987,

On consideration whereof, it is now

*

The Honorable Clarkson S. Fisher, United

States District Court for the District of

New Jersey, sitting by designation.

17a

ee

here ordered and adjudged by this Court that

the judgment of the said District Court

entered December 43, {986, be, and the same

is hereby affirmed. Costs taxed against the

appellant.

ATTEST:

/S/ M. Elizabeth Perguson

Chief Deputy Clerk

December 15, 1987

18a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-1031

ROBERTSON, THOMAS,

Appellant

vs.

TOKAI SHOSEN K.K.

(D.C. Civ. No. 86-2620)

ON APPEAL

PROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Present: SLOVITER, STAPLETON, Circuit

Judges, and FISHER, District Judge”

JUDGMENT

This cause came on to be heard on the

record from the United States District Court

for the Eastern District of Pennsylvania and

was argued by counsel September 9, 1987,

On consideration whereof, it is now

*

The Honorable Clarkson S. Fisher, United

States District Court for the District of

New Jersey, sitting by designation.

19a

here ordered and adjudged by this Court that

the judgment of the said District Court

entered jANUARY 8, 1987, be, and the same is

hereby affirmed. Costs taxed against the

appellant.

ATTEST:

/S/ M. Elizabeth Ferguson

Chief Deputy Clerk

December 15, 1987

20a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DERR, WILLIAM : CIVIL ACTION

V. -

KAWASAKI KISEN K.K. : NO. 85-5250

Philadelphia, Pa., December 2, 1986

Before HON. LOUIS C. BECHTLE, J.

Bench Opinion

(Reconvened out of the presence of the jury.)

THE COURT: All right.

I have considered the arguments and the

motions made at the close of the plaintiff's

case and at the close of all the evidence

under Rule 50. I have looked at the cases

that have been cited and the Court's notes,

and I believe the motion should be granted.

The plaintiff simply has not made outa

case, Mr. Sovel.

MR. SOVEL: If Your Honor please --

21a

———SwaE

THE COURT: Just let me finish.

MR. SOVEL: Yes, sir.

THE COURT: Then we can argue about it.

I have heard your arguments, and I

think it is time for the Court to express

its views.

The plaintiff's position here is that

he went aboard as a member of the steve-

doring crew, presumably an experienced

stevedoring crew, and removed a relatively

common place cargo of wood, lumber.

There wasn't anything that suggested

there was anything special about it other

than it is general, heavy cargo. It wasn't

explosive or livestock or any radioactive

material or anything more special about it.

He went on the work site presumably

with the proper tools and equipment and

Supervision.

There was nothing wrong with the work

Site itself. It was lighted. It was in-

tact. There was no evidence that there was

any unknown substance or debris about.

He went about his work and presumably

it was done, even from his testimony, in an

efficient and a relatively routine manner.

He saw the cargo had shifted. He saw

that. The stevedore knew it had shifted.

It was apparently visible.

His own testimony, as well as that of

your expert -— and I think this is not a

Surprise -- is that it is not an uncommon

thing to have cargo shifting, especially on

a long voyage. It is encountered presumably

with some regularity.

In the process of removing it, some of

the cargo, for whatever reason, fell, with-

out any reason whatsoever.

I don't think the law of real estate

and the law of buildings apply in a circunm-

stance like this, necessarily. The Scindia

case, among other things -- and I think

Felton is essentially the same thing -- says

that the stevedore takes on the role of an

23a

—

—

expert in the installing and removal and

handling of cargo. He is an expert.

In that context, reasonableness or -

unreasonableness of risk has to be consi-

dered in the light of stevedoring work being

admittedly dangerous, admittedly hazardous,

admittedly with rough edges about it.

The nature of the work is that there is

uncertainty. That's what the stevedore and

the workers for the stevedore accept when

they accept that employment. They accept

the uncertainty of the location. They may

be in the location where they work for only

a few hours, they know very little about it,

but they do know their work and that is why

they are hired to do it.

In this circumstance the stevedore

encountered a usual situation and, as a

consequence of that, presumably Mr. Derr

became injured in his work. But, where is

the negligence? What was the ship supposed

to have done?

24a

Your expert testified that there is

presumably a global custom that a ship's

officer should watch the loading of cargo,

even general cargo like this, lumber. Well,

that seems to me, Mr. Sovel, to be in direct

opposition with the Supreme Court's ruling

that that is not the law.

The Supreme Court has said there is no

duty on the ship, as a general matter, to

inspect or supervise the handling of cargo.

The Supreme Court and the cases follow-

ing Scindia have agreed that there can be

some circumstances, due to either custom or

law or regulation, where that exemption of

the owner, if you will, to inspect and

Supervise the cargo operation doesn't apply,

and I agree with that; but I don't agree

that Captain Oudijk's position that it isa

custom everywhere.

A custom is something that is regularly

and routinely and historically done by rea-

son of the circumstances. That is why it is

25a

a custom. It is just done all the time that

way.

So it seems to me that the Supreme

Court, in excepting out from the duty of the

shipowner the right of the shipowner not to

be present from this notion of a custom or

regulation, had in mind a circumstance where

a custom would otherwise obtain.

I think you mentioned just one sugges-—

tion yesterday about possibly there might be

operations in Alaska or in the Persian Gulf,

in a war zone, obviously over a period of

years in that setting, it might bring into

play some custom because that circumstance

would require a shipowner or a representa-

tive to be present during the cargo loading

or unloading. Or, as I mentioned earlier,

the kind of cargo that could be specially

handled, such as explosives or, because of

the danger involved, that possibly large

pieces of medical equipment might require

some special regulation as to how they are

26a

to be handled and stowed, in what part of

the ship.

But, we don't have that here. We have

lumber here, and it seems to me that this is

a classic example of where the shipowner

does not have to be present. He turns the

ship over to the stevedore, who is compen-

sated for being an expert, and says, "Do the

job. Here is our ship."

Presumably, the stevedore can use the

ship's equipment. Many times they bring on

their own equipment. They decide what they

need.

It just seems that here the complaint

is that the cargo wasn't properly stowed

because of the absence of some procedure in

the stowing process that would prevent the

cargo from shifting. Well, if the plain-

tiff's employer had been told that, they

wouldn't have any more knowledge than they

had when the plaintiff saw that. There

wouldn't be any more knowledge by telling

27a

the plaintiff, "That cargo shifted," because

the plaintiff knew it.

It just seems to me that the quote in

Griffith v. Wheeling Steel, by our Third

Circuit -- keep in mind, that case and

Scindia are both equipment cases. One isa

hatch, and the other is equipment. That is

part of it.

In Griffith, the court did speak to the

question of duty, and it gathered in the

notion of a cargo, and I would just like to

read this. This is on Page 27 of Griffith

v. Wheeling-Pittsburgh Steel, 657 F. 2d 598:

"The vessel owes to the stevedore and

his longshoremen employees the duty of

exercising due care ‘under the circunm-

stances.' This duty extends at least

to exercising ordinary care under the

circumstances to have the ship and its

equipment in such condition that an

expert and experienced stevedore will

be able by the exercise or reasonable

28a

care to carry on its cargo operations

with reasonable safety to persons and

property and to warning the stevedore

of any hazards on the ship or with

respect to its equipment that are known

to the vessel or should be known to it

in the exercise of reasonable care,

that would likely be encountered by the

stevedore in the course of his cargo

operations and that are not known by

the stevedore and would obvious to or

anticipated by him if reasonably compe-

tent in the performance of his work."

Now, that quote obviously tilts toward

the question of the equipment on the ship as

opposed to the cargo itself. But, it goes

on to say:

"The shipowner thus has a duty with

respect to the condition of the ship's

gear, equipment, tools and work space

to be used in the stevedoring opera-

tions; and if he fails at least to warn

29a

the stevedore of hidden danger which

would have been known to him in the

exercise of reasonable care, he has

breached his duty and is liable if his

negligence causes injury to a long-

shoreman."

The reference in Scindia in these cases

to the cargo feature -- there has to be

intertwined with that notion, and I think it

is stronger in the cargo cases, that there

is a stronger control of the stevedore in

the cargo cases than in the cases involving

the ship and equipment. Because, I think

the courts recognize in these cases that the

ship pulls in, the stevedore doesn't know

anything about the ship, possibly. He goes

onto the ship. Maybe he is there for a few

hours and he then leaves. And so, when it

comes to the winches and the cables and the

ladders and hatches and the like, there is

some duty of the ship to know of the condi-

tion of these things and to warn if the ship

believes the stevedore will not know.

But, when it comes to cargo and its

appearance as it is seen by the stevedore

and what to do about it, it seems to me

that, in the absence of something that would

be latent, the shipowner has no duty to tell

the stevedore not only when the stevedore

can see it, as we have in this case, but

where he would be expected to see it.

So this seems to be a stronger case of

the stevedore occupying the role of the

expert with full knowledge, encountering the

project, known and expected in the industry

to be dangerous, known and expected in the

industry to be capable of causing injury,

and that is exactly what happened.

No one quarrels with Mr. Derr's injury

and no one quarrels with the notion that he

did suffer from discomfort and pain. Nobody

is challenging that.

But, aside from the custom feature,

even if there was no custom, the fact that

41a

this was known and encountered seems to me

to be aclear circumstance where there is no

liability on the shipowner.

Even if the shipowner could be said to

be negligent, if we would accept Captain

Oudijk's position that there was such a

custom, which I don't accept because I don't

think it is a special circumstance, he

didn't isolate this as a special circum-

stance, and I think the Supreme Court means,

when they say in Scindia, ""As a general

matter,' the vessel owner was entitled to

assume that the stevedore would discover

patent defects and avoid the risk presented."

In this circumstance there wasn't any-

thing special about this, so it could be

expected that the stevedore would and, in-

deed, did discover this patent defect, that

is, the shifting of the cargo. It was visi-

bly seen.

So, I think the suggestion to the Court

that the court's finding in Felton, Finding

32a

No. 2 in Felton v. Compagnie Maritime

Zairose, C.M.Z., Civil Action 84-5347,

Eastern District of Pennsylvania, July 17,

1985 -- there, the Court found in holding

that the defendant was not negligent with

respect to the accident that occurred to the

plaintiff on December 28, 1982, the Court's

Conclusion No. 2, which was advanced by the

plaintiff in the present case before the

Court, was: "The ship's duty extends to the

storage of cargo as well as to the ship and

its equipment."

Well, that is certainly true, but not

in isolation; it should be read in con-

nection with the preceding Conclusion No. l,

which is a reference to the Scindia decision

and other conclusions, as well. me

So there is no question there is a duty

on the ship with regard to cargo. There is

a duty, not to have complete supervision and

inspection, but there is a duty in respect

to cargo to give notice to a stevedore ofa

33a

defect that the stevedore would not likely

expect to encounter in the exercise of his

expertise.

If you had some special circumstance

involving a special cargo of some sort that

had certain properties to it that would

cause injury and it wouldn't be known -- for

example, lifting out large containers that

might contain chemicals or something that

could explode if moved in a wrong way, and

they weren't labeled as such -- if the ship-

owner knew that, he would have the duty to

tell the stevedore that. -

There are many, many other examples

about on the two grounds, then, I simply

don't think that Captain Oudijk's testimony

concerning the custom is the same custom

that the court spoke of in Scindia.

The Supreme Court, in my view, in the

Scindia circumstance, obviously meant that

as a general proposition, the giving over of

the ship for loading or unloading by the

34a

stevedore was tantamount to turning the

entire task over to an expert in loading and

unloading, and in the absence of some custom

that would be suggested by the circumstance,

which is what Captain Oudijk's position

apparently is -- that, if the ship is being

loaded or unloaded, the officer should be

there. The Supreme Court says that is just

not so.

So, for those reasons I simply do not

think that the plaintiff has established, on

the question of liability, sufficient evi-

dence under the law that a reasonably well-

balanced jury, properly instructed, could

find in his favor.

I am not critical. You have given me

all the evidence you have, Mr. Sovel, and I

think Mr. Derr is an honest person, but that

is where it leaves us.

MR. SOVEL: If Your Honor please, num-

ber one, if I recall your remarks correctly,

you indicate that one of the bases was that

35a

the working with a shifted cargo is a custo-

mary or usual thing.

THE COURT: It is not unusual.

MR. SOVEL: Not unusual.

However, I would point out to you that

it does not necessarily follow from that

that it is a safe thing or that reasonable

care of the shipowner is to present a steve-

dore with a shifted cargo.

I believe that what Your Honor has done

in this situation has indirectly introduced

back the defense of the assumption of risk.

You are saying that the longshoremen are

deemed to assume the risk of this dangerous

condition because it is not that unusual to

be presented with cargo that has shifted.

While I do not have a copy of the

Scindia decision in front of me, I would

direct Your Honor to what I believe is Foot-—

note 6 to that opinion in the Scindia opin-

ion, which specifically notes that the de-

fense of assumption of risk is not abolished

36a

and that the longshoreman's knowing accep-

tance of a dangerous condition is not a

defense to the shipowner, and that, there-

fore, to whatever extent Your Honor is say-

ing that the longshoreman is assuming the

risk of this condition because it was not

unusual, I would submit that Your Honor is

in error.

THE COURT: I did not say he assumed

the risk. There is no notion of assumption

of risk.

I am saying the stevedore's work con-

templates that it may be unsafe.

O.K.?

It may be, even though usual and un-

safe, it doesn't automatically make the

Shipowner liable.

MR. SOVEL: But it also does not re-

lieve the shipowner from liability.

If the condition is unsafe, then the

longshoreman -— I am not talking about the

stevedore, I am talking about the plaintiff,

37a

the longshoreman -- does not assume the risk

of that unsafe condition.

The issue .& whether it is unsafe.

But, if it is unsafe, then it can not be

Said that he is assuming that risk.

And there is specific attention given

to that in what I believe is Footnote 6.

THE COURT: I am looking at that. It

must be another one.

MR. SOVEL: But there is a reference to

assumption of risk.

THE COURT: Do you want to look at it?

MR. SOVEL: If I may.

(A book was given to Mr. Sovel.)

THE COURT: You don't have to take the

time now, but whatever your preference is.

MR. SOVEL: Pardon me. It was Footnote

22.

THE COURT: All right.

MR. SOVEL: It refers to the fact that

the defense of assumption of risk is

unavailable.

38a

THE COURT: Let me read it:

"We agree with the Court of Appeals

that the shipowner may not defend on

the ground that Santos should have

refused to continue working in face of

an obviously dangerous winch which his

employer, Seattle, was continuing to

use. The District Court erred in

ruling otherwise, since the defense of

assumption of risk is unavailable."

I agree with that.

MR. SOVEL: I would submit that your

interpretation of the facts, in which you

are saying, Your Honor, that working with

cargo that has shifted is something that the

stevedore takes on, if that shifting creates

a dangerous condition, the longshoreman does

not assume the risk of that dangerous

condition.

THE COURT: I didn't say that, and I

don't want you to suggest that I said that.

The outcome is obviously the same, that

‘

39a

the plaintiff can not recover. The ultimate

outcome is the same.

The question is: Where is the duty?

That is the real question.

MR. SOVEL: I want to come to that. I

just want to say, in setting this whole

picture before Your Honor, the fact that

cargo may come in shifted, and the long-

shoremen may frequently have to work under

cargo that has shifted does not mean that

sreeentinn them with shifted cargo is safe.

It may be unsafe, and they may just work

under unsafe conditions under various cir-

cumstances, and that would be a question for

the jury to determine.

In other words, what is usually done

doesn't necessarily make ‘t safe.

THE COURT: Well, the issue isn't

whether it is safe or not.

MR. SOVEL: That is a factual question

for the jury to determine, whether this

cargo presented in this shifted condition

40a

was safe. That is one of the factual

questions that this jury should determine.

Secondly, Your Honor, with respect to

the testimony of Captain Oudijk, first of

all, I wish to call to Your Honor's

attention -- and I think it is important

here -- on Page 12 of Captain Miuchi's

deposition I asked him:

"Question: Was anybody from the ship's

crew assigned to be present to observe

the loading of that cargo in the No. l

hold in the Philippines? "Answer: I

think there was somebody.

"Question: Do you know if any shoring

or supporting wood was used?

"Answer: I think it was used."

Now, the purpose of the testimony here

was to prove, I think, an element of my

case, the plaintiff's case, in this situa-

tion. It is to prove that the shipowner

either knew or should have known that no

shoring was used in this cargo, because

4ia

negligence is a concept that ultimately

depends upon knowledge of the shipowner of

the unsafe condition.

I actually believe that the testimony

of the master, himself, that someone was

assigned to be there to observe it is suf-

ficient to establish that knowledge, or

reason to know what was done in the loading

and whether shoring was used or not.

Captain Oudijk's testimony was merely

in that area. It was in confirmation of

that element that there is a custom and

practice to make such inspections to dis-

cover the conditions.

Because, the basic duty of the ship-

Owner, and my reason for coming to citing

the Felton case, was when they turned the

Ship over to the stevedore, they had a duty

with respect to the ship's equipment. And

Felton stands for the principle, and cargo,

and that's all it has to do with, the extent

to which and the manner in which it was

42a

stowed -- to present the cargo to the steve-

dore in such a manner that it can be dis-

charged by a competent stevedore using

normal stevedoring methods, that he can do

it safely, using customary and reasonable

stevedore methods.

Therefore, the element of my case is to

prove that the cargo wasn't in safe condi-

cea that the shipowner had reason to know

or knew about it. Those are some of the

elements of my case.

Proof of the knowledge of the condition

of the stowage in the foreign port is to

show that they have men to know that shoring

was not used and, because it was not used,

the cargo shifted and created an unsafe

condition.

Then the fact that the condition is

open and obvious. If I interpreted Your

Honor's remarks correctly -- and I believe I

did -- that the second element of what Your

Honor was talking about is that: Well, the

43a

stevedore knew about this condition.

But, Santos is clear, and Griffith is

clear, that the fact that a condition is

open and obvious is not always a defense to

the shipowner, because it goes to the ques-

tion of, if the shipowner makes its

inspection or knows of the existence of an

unsafe condition and that condition exists

there, if the stevedore doesn't know about

it, then the shipowner has a duty to tell

them. That is the easy part of Santos and,

frankly, that is the part that Your Honor

quoted.

If the condition is open and obvious,

then the stevedor? is given warning of it

without an actual verbal warning being given.

But, is the fact that they have told

the shipowner about it in and of itself

sufficient to relieve the shipowner from

liability? And the answer to that is, it

depends upon the facts of the case, whether

there were circumstances there that the

44a

shipowner had a right to rely on the steve-

dore to take whatever appropriate action

would be necessary to correct that unsafe

condition and, therefore, it is, in essence,

saying, well, the shipowner is negligent but

we hired you as the stevedore, and you

should be able, exercising reasonable steve-

doring methods, to handle this cargo and to

correct this condition.

The cases hold -- and I will get to

them in a minute, but I think the point is

that not every condition that confronts a

stevedore can be corrected by the stevedore.

If it can't be corrected, merely tel-

ling him about it and saying, "Now, you know

about this dangerous condition," does not

relieve the shipowner for that --

THE COURT: Well, saying it doesn't

make it so. Someone must get up on this

stand and say, "We are confronted with this

cargo circumstance. The entire Hold No. 3

was upsidedown. We couldn't get that mater-

45a

ial out of there. We asked the shipowner

for a plan. He wouldn't give it to us.

We don't have that here.

MR. SOVEL: In fact, when they make the

argument that something is open and obvious,

they are also bringing in their expert to

say what the longshoremen should have done

to correct that condition. What is it that

we could have done differently or should

have done to remedy this condition? That is

one of the questions of fact that the jury

has to determine.

Now, that is why I brought in Mr.

McGowan to testify, "Well, he should have

used a poker or he should have put a chock

under it."

THE COURT: I am just considering the

plaintiff's case, not the defense case.

MR. SOVEL: But within that framework I

don't initially negate a defense.

While I may have the burden of proof on

an issue, there is the defense that the

46a

condition is open and obvious, and with its

being open and obvious, you should have done

it differently.

And then I might come back and rebut

their claim as to how I should have done it

differently.

But, until I know what they are con-

tending that my people should have done

differently, I have my basic issue that it

is an unsafe condition.

Here we have men working on a cargo

that has shifted. The fact that they are

given warning of it, in and of itself,

doesn't make their working on it wrong --

THE COURT: The shipowner would have a

duty to intervene if he anticipated that the

condition would be in some way negligently

acted upon by the stevedore, and there is no

evidence of that here.

MR. SOVEL: No, the shipowner would

have a duty to intervene if he knew that the

stevedore wasn't doing something to correct

47a

the condition.

THE COURT: No, I don't agree with

that. -

MR. SOVEL: It comes back to what the

McCarthy case was all about, Your Honor. If

a condition exists and it is an unsafe con-

dition and there is nothing that the steve-

dore can do about it, then the fact that the

stevedore knows about it or the longshoremen

know about it, doesn't relieve the shipowner

from liability. That is precise point that

was resolved in McCarthy.

There was a specific request there for

the jury to find, could this have been cor-

rected by reasonable stevedoring methods?

The jury found, no, that it could not be

corrected by reasonable stevedoring methods.

And the cases such as Moore v. M. P.

Howlett, Inc., 704 F. 2d 39 and 4 -- I could

read it to Your Honor. It is just a brief

part. It is from the Second Circuit in

1983:

48a

case.

"Me shipowner is not relieved of lia-

bility as a matter of law simply be-

cause it relied on the stevedore to

correct the condition," --

Citing the Scindia case and the Evans

-- "or because it relied on the steve-

dore's judgment to proceed with the

work in spite of the condition," —-

Citing Lopez v. A. F. Spindler.

Then I am quoting:

"In some circumstances the question of

whether the owner's actions were negli-

gent or not is for the jury to decide,"

Citing Evans and Napoli, also Second

Circuit cases.

Further on in Moore:

"We disagree with the District's

Judge's evaluation of the evidence.

His determination was premised on its

finding that since neither plaintiff

49a

nor the stevedore anticipated harm from

the obvious hazard, it was unreasonable

to hold the shipowner liable for fail-

ing to anticipate that harm. The fact

that neither plaintiff nor the steve-

dore took any precautions in the face

of this hazard does not relieve the

defendant of responsibility, for it is

fundamental that there may be more than

one proximate cause of an injury.

Thus, the jury could have found that

the stevedore, shipowner, and plaintiff

all unreasonably believed that the

longshoreman could perform his duties

on the barge without injury."

And they held the case could properly

go to a jury.

By the way, I am reading from a trial

brief that I use in other cases but I can

hand it up to Your Honor.

THE COURT: Do you have an additional

50a

MR. SOVEL: It is a copy --

THE COURT: I don't want to take your

only copy.

MR. SOVEL: No, I have plenty of these

copies at home, so to speak.

THE COURT: All right.

MR. SOVEL: But the point is this, Your

Honor, and the open and obvious defects is

always a question of fact for the jury be-

cause it is a question as to, one, whether

the shipowner knew that the stevedore would

be taking the appropriate corrective action,

whether it should have anticipated -- if

there was nothing that the stevedore could

do to correct the condition, then it can be

inferred from that that the shipowner knows

they would not be able to take any cor-

rective action.

THE COURT: But we don't have that in

this case.

MR. SOVEL: What we have in this case

are two bundles of lumber in unstable condi-

tion that nobody can do anything about ex-

cept get that wire under there and get it

out, and that's what the men were trying to

do.

But, the fact that the condition could

not be remedied by any stevedoring method

that is suggested -- and that would be more

for the jury to determine -- does not re-

lieve the shipowner from negligence in

causing or allowing that condition to exist

in the first instance.

The open and obvious defense is an

approach to relieving a defendant from lia-

bility for its original negligence. And if

you analyze the law carefully, whether it is

the state law or maritime law, you are deal-

ing with a condition that comes into exis-

tence by reason of the defendant's

negligence. The defendant is trying to be

excused of that negligence on the ground

that the condition was open and obvious.

Well, the only basis for excusing the

52a

defendant for its original negligence on the

basis that a condition was open and obvious

is that the person who was given that warn-

ing of that unsafe condition could do some-

thing to remedy it. Because, the fact that

it is open and obvious is meaningless.

It is just like a person speeding down

the street honking his horn and saying, "Get

out of my way. You knew I was coming." It

is open and obvious that you were coming,

but it doesn't excuse your speeding.

So, the Scindia case and the Griffith

case are clear in saying that, while the

initial duty of a shipowner is to warn, it

is not the exclusive duty, because the

warning in a given situation may not be

enough to enable the longshoremen to avoid

confronting the danger and, if they can not

avoid confronting the danger, all the warn-

ing in the world and all the open and ob-

vious conditions in the world do not excuse

the shipowner from causing the negligence to

53a

come into existence.

THE COURT: If the owner knew that the

stevedoring company would employ negligent

methods, that is when the court said that's

when the owner must step in and say, "Waita

minute, don't you hurt that longshoreman.

This is a dangerous condition and we know

what you are going to do and, if you do it,

you will hurt hin."

MR. SOVEL: It doesn't say negligent

methods.

THE COURT: Weil, whatever --

MR. SOVEL: No, because what it is, if

the type of condition is such that it can

not avoid confronting it, then the shipowner

can not say that, "We were relying on the

stevedore to correct it."

THE COURT: But there is no evidence

here that the shipowner knew or anticipated

that the stevedore would function in a way

other than as an expert stevedore would.

If they don't have to stand there, how

54a

are they supposed to learn that?

MR. SOVEL: Your Honor, with all due

respect, I think Your Honor is really start-

ing at the wrong starting point.

First of all, what is it that the

stevedore should have done differently?

THE COURT: No, let's start at the real

starting point. Describe the duty of the

Sshipowner.

MR. SOVEL: The duty was to present

them with a cargo that was safe for dis-

charge, which means not shifted and not in

an unstable condition; that the condition

itself arose from the fact that the cargo

had shifted; that it shifted because it

wasn't shored; and that they should have

known that it wasn't shored and that the

reasonable expectation from that was that it

might shift.

In other words, it is analogous to

McCarthy, although obviously there are dif-

ferences. In McCarthy, there was no proof

55a

that the shipowner knew that the frozen

block of sugar was in the hold. What the

shipowner knew was that they were negligent

in maintaining the hatches. This allowed

the water to leak into the hatch, and the

combination of that with the weather condi-

tions created the frozen block of sugar that

fell.

The negligence was going back to the

time that they allowed the leaky condition

to exist in the hatch.

THE COURT: Plus -- I know you have

read the case -— plus knowledge by the owner

that the stevedore would employ improper

methods.

MR. SOVEL: No. And I tried the case.

I know the case.

THE COURT: I just read it. I don't

care whether you tried it, but --

MR. SOVEL: The evidence was that the

stevedore did nothing cause there wasn't

anything that the stevedore could do.

56a

THE COURT: All right.

MR. SOVEL: That was the whole point of

it. The frozen block of sugar existed on

the top of the hatch. There was no way they

could remove it, so they worked with it.

The question was, was that a condition

that could be remedied by a reasonable

stevedore?

That went to the jury and it was open

and obvious, they knew it was there, and the

Court said that that was not a defense under

those circumstances.

Now, here you are dealing with a situa-

tion -— in other words, it is a question of

timing. They have a duty to see that their

cargo was loaded in such a manner --—

THE COURT: We are talking about

Griffith, right?

MR. SOVEL: No, McCarthy.

THE COURT: I'm talking about Griffith.

Let me read what the Court of Appeals

said in Griffith:

"Here,"

Meaning in Griffith.

-- "by contrast, the District Court

found that prior to turning control of

the barge over to the stevedore,

American Commercial Lines, Inc.," --

The owner.

-- "knew or should have known of the

defect, and had reason to believe that

Wheeling-Pittsburgh," —-

The stevedore.

-- "might use a negligent method to

remove stuck hatch covers, but took no

steps to prevent harm to the injured

longshoreman. Thus, Scindia is clearly

distinguishable from this case," -—-

Meaning Griffith.

All I'm saying is that the condition,

coupled with knowledge by the owner that the

stevedore will function in, as they say, a

negligent manner, could reinstate, if you

will, the duty of the owner to do something

58a

that under Scindia the owner is excused from

if the stevedore takes over the loading and

unloading operations.

That's how I see it.

MR. SOVEL: But, Your Honor, I don't

quarrel with what you are saying, but I

think Your Honor is not going far enough.

You are looking at it in too narrow a

universe.

You may have a condition, an unsafe

condition, which in combination with negli-

gence by the stevedore produces an injury.

That is Griffith.

THE COURT: No, i¢ ie not.

MR. SOVEL: It is knowledge plus negli-

gence and knowledge of the negligence.

THE COURT: Known by the owner or evi-

dence that it was anticipated.

MR. SOVEL: Let me take it a little

slower and more step by step.

In Griffith you have an unsafe condi-

tion of the hatch cover. It was a stuck

59a

hatch cover known by the shipowner.

THE COURT: All right.

MR. SOVEL: All right.

Negligent, theoretically, in supplying

a known defective hatch cover.

THE COURT: And known by the stevedore,

too.

MR. SOVEL: I haven't gotten there yet.

THE COURT: All right.

MR. SOVEL: You have with that the fact

that the stevedore knows it is negligent.

THE COURT: All right.

MR. SOVEL: Then you have the fact

coupled with that that the stevedore was

negligent in using it.

Then you have the issue as to whether

the shipowner knew that the stevedore was

negligent and under those circumstances they

hold that, if the shipowner knows that the

stevedore is negligent in not correcting its

unsafe condition, liability can swing back

to the shipowner.

60a

THE COURT: Exactly. And the long-

shoreman is protected by the circumstance

because the stevedore won't do it, and the

owner can't stand by and watch this happen.

MR. SOVEL: Exactly.

Now may I take you through McCarthy in

the same way?

THE COURT: Go ahead.

MR. SOVEL: Unsafe condition created by

the negligence of the shipowner: the leaky

hatches. That's McCarthy.

It creates an unsafe condition in which

natural conditions resulted as a proximate

cause for creation of a frozen block of

Sugar in the roof, the ceiling of the ship

hold.

THE COURT: Right.

MR. SOVEL: The longshoremen in the

hold see it there. They know about it.

They can't remove it. It was frozen solid.

They couldn't remove it. They worked there.

Later on, because the ship is rising in

61a

the water and the sun is beating on the side

of the ship, it finally comes loose and

falls and hits the longshoreman. Open and

obvious condition. Nothing --

THE COURT: It is beyond the steve-

dore's expertise, right? He can't do it.

His tools and skill and ability will not

allow him to address that.

MR. SOVEL: They tried to bang it loose

and they couldn't.

The shipowner remained negligent.

Now, that is this situation. The issue

in McCarthy was whether the stevedore could

have done something about it. That was a

factual issue.

Here, you have a condition that results

from the initial negligence of the ship-

owner. In this case we have a condition

that results from the initial negligence of

the shipowner in permitting the cargo to be

stowed without shoring.

I point out to you that you have the

62a

testimony of their master that it should

have been shored and the testimony of their

master that they had somebody there

observing it.

THE COURT: That is cutting it a little

thin.

MR. SOVEL: It's thin, but I submit it

is a jury question.

THE COURT: No, he wasn't there. It

nas to be based on hearsay. He wasn't

there. He said he wasn't present, right?

MR. SOVEL: No. He was asked, "Do you

know if it was supplied?"

He says, "I don't know."

He was asked, "Should it have been?"

And he said, "It should have been."

That is very specific:

"Question: Was anybody from the ship's

crew assigned to be present to observe

the loading of the cargo in the No. l

hold in the Philippines?

"Answer: I think there was somebody.

64a

"Question: Do you know if any shoring

or supporting wood was used to hold it

in place when it was loaded in the

Philippines?

"Answer: I think it was used.

"Question: But do you know it?

"Answer: No, I don't know because I

didn't see it.

"Question: Should it have been shored

in place at the time it was loaded in

the Philippines?

"Answer: Should have been."

Now, that's the master's testimony.

TH COURT: All right.

I think there are a lot of problems

with that as an expert opinion and the like,

but let's assume that is so.

MR. SOVEL: I think it is sufficient to

establish knowledge by the shipowner that,

the shoring should have been used,

because he admits it should have been used,

and that they should have somebody there to

64a

observe the operation.

THE COURT: Knowledge by a person, at

least, that in that person's view it should

have been used. Let's assume that would be

qualified that he had knowledge and he said,

"In my opinion, that lumber in the No. l

hold," the particular area where the plain-

tiff worked, "should have been shored and,

when it got to Philadelphia, there was none

there."

All right.

MR. SOVEL: There was no shoring in the

entire hold, not just in the one particular

point, but in the entire hold, and this

allowed the cargo to shift.

THE COURT: The entire hold is going to

hurt your case because that means all over

the operation, and the stevedore sees it

nowhere. It would be a better case for the

plaintiff if it were only in this place.

MR. SOVEL: I disagree with Your Honor,

but I don't want to argue with you, because

65a

I think it is better the other way.

It is better for me the other way be-

cause, if there was none there, you can

infer from the observation. If it was not

just in one specific point, that would be a

different type of observation made at the

loading point. But, whatever it may be, we

are assuming knowledge the condition is

unsafe.

They are saying the ship comes in, the

lumber is there, it is seen that the area is

somewhat unstable and tottering, but the man

are going to work it. They decide to work

it.

What do they do at that point to remedy

that unsafe condition? Nothing can be done

at that point.

It is the same thing as McCarthy.

THE COURT: Let me just ask you one

thing: Where is the evidence of that in

this case, that nothing could be done by the

stevedore, that the Holt Company said that

in that situation nothing could be done?

MR. SOVEL: Your Honor, I don't know

how one proves nothing.

THE COURT: You bring Holt down and he

will say, "We couldn't do it."

MR. SOVEL: You know what they suggest

could have been done -— and that's exactly

the way McCarthy went, and that's exactly

the way the testimony here was -- you don't

know what to rebut. That's where the open

and obvious defense comes in.

I may have the burden of proof, but I

don't have the burden of going forth with

the evidence on that point. I can't, be-

cause I can't expect to anticipate and bring

in somebody to go down a whole list of

things that don't exist and say, "They can't

be done."

You wait until Mr. McGowan gets on the

stand and he testifies as to what should

have been done, and then I argue to the

jury, "Do you believe that could be done?

67a

Could it have been done? Is it reasonable?"

Or if I think it is evidence, I bring it in.

It is my burden of proof but their

burden of going forward.

That's exactly the way the McCarthy

case was tried: I bring in my evidence of

the frozen block of sugar. They say it is

open and obvious. They then bring in their

evidence as to what the men should have

done. I argue against it. The jury de-

cides, is this a condition that could have

been corrected by a reasonable stevedore?

THE COURT: I am not sure that the

condition on the ship is not the same as the

cargo circumstance, anyhow.

MR. SOVEL: In fact, it was the condi-

tion of the cargo, because, in fact, it was

the sugar that was the cargo froze.

On that point, Your Honor, the question

as to whether this is a cargo that was in

such condition that it could be discharged

by a stevedore using customary stevedoring

68a

methods was reasonable safety is an issue

for the jury to determine.

There is evidence here-from which this

Court find or the jury could conclude that

the defendant has knowledge of the condi-

tions which led to the creation of that

condition. That is, an absence of shoring.

That is precisely what the McCarthy

case was all about.

Then, that's when I come back to the

point and say, "Well, they always handle

cargo that has been shifted."

Well, there are different degrees of

shifting. There are different degrees of

problems. They don't accept the risk of it

if it is unsafe.

THE COURT: All right.

Let me hear from Mr. Berry.

MR. BERRY: Your Honor, I would quarrel

with a great deal of what has been said by

Mr. Sovel, but let me recast the argument as

I see it.

69a

a

First, the issue in this case is not

whether the cargo was unsafe. The question

is whether the cargo created unreasonable

risk of harm to longshoremen. Those are the

terms used by Griffith and Scindia.

I would suggest to you that one of the

reasons that there was no evidence in this

case by the company that there is nothing

that could have been done is because nothing

needed to be done because it -was not an

unreasonable risk of harm to longshoremen.

Plaintiff has to prove that the shifted

cargo created an unreasonable risk of harm

to experienced longshoremen doing their job.

That is not a question of open and obvious,

it is not a question of assumption of risk.

It is a simple element of proof inthis case

under Scindia and Griffith.

He must prove it was an unreasonable

risk of harm to longshoremen experienced in

their work.

I ask the Court: What evidence came

70a

SS —

from that witness stand that said that this

cargo created an unreasonable risk of harm

to longshoremen? There was none.

What the jury is going to be asked to

decide in this case -- and this is something

I came across last night when I was trying

to prepare my closing argument: Jurors are

here to decide facts, not legal issues.

There are no facts to decide in this

case.

Mr. Derr went on board a ship, was

faced with a shifted cargo, cargo that he

and plaintiff's expert both admitted he had

run across before, and they went about their

usual job of discharging it, and at some

point a bundle fell. Nobody knows why it

- fell.

Those are the facts in this case. I

don't think there is any dispute that they

are the facts in this case.

What legal issues have to be decided by

the Court are, one, what duty does the ves-

Tia

sel owner have with respect to the stow?

The first comment counsel made was that the

vessel owner was present during loading.

I draw the Court's attention to both

the Rich and the Hurst cases, both Third

Circuit decisions, which state that the fact

that a vessel owner was present or that he

was supervising cargo operations is not

enough.

The amount of control necessary to

affix liability to the vessel owner for the

kind of stow in this case is operative de-

tails. He must have control of the opera-

tive details of the stow.

There is no evidence that this vessel

had anything other than one captain saying,

"TI think there may have been somebody pre-

sent at the loading, watching the loading."

So, there was no duty at the loading port to

make sure that this stow had shoring.

Now, the ship comes to the United

States. There is some shifting in the stow.

72a

Plaintiff's comment about open and obvious,

assuming some preexisting negligence --

although, that may or may not be true -- the

point is that it doesn't presume vessel

owner's preexisting negligence. In this

case it may have been the loading stevedore.

But the point is that the vessel comes to

the United States with shifted stow. Does

that create an unreasonable risk of harm?

I will go back to that argument. The

answer is no, there is absolutely no evi-

dence that that created an unreasonable risk

of harm to experienced longshoremen.

There is no testimony that the custom

in the loading ports was any different any-

where else. That is, foreign stevedores

loaded the vessel. There is no evidence

that foreign stevedores did not load the

vessel, no evidence that the vessel had any

control of the operative details of stowage.

Finally, as the Court pointed out

earlier, there is no evidence that the

73a

actions of the longshoremen in dealing with

shifted stow were, as Scindia puts it,

obviously improvident. As Griffith puts it,

there was no anticipation of the shipowner

that the actions of the stevedore were going

to be negligent.

The only evidence that this Court heard

was that there was shifted cargo, something

that they approach routinely in their job,

or at least not infrequently, and that a

bundle fell for reasons that only the Lord

knows at this point because there was no

evidence to say why it fell. And I would

repeat my argument that that is just simply

too sparse evidence to go to a jury.

Thank you.

MR. SOVEL: Your Honor, may I make a

couple comments?

THE COURT: Yes, if it is new or dif-

ferent.

MR. SOVEL: Yes, Your Honor.

First of all, Hurst and Rich, referred

74a

to by Mr. Berry, are cases that preceded

Scindia. But more important -- and it goes

to what I think is really the fundamental

issue that is involved here -- they involved

the extent to which the shipowner had a duty

to intervene in the actions of the import

stevedore, the plaintiff's employer. If you

go back to Mr. Berry's comments, the real

issue in this kind of case is where a ship-

Owner goes to another port, the loading port

in this case. To what extent can the ship-—-

Owner escape responsibility for the

condition of its cargo or the hold of its

vessel by saying this was the negligence of

the stevedore?

The responsibility for the negligence

of the unloading stevedore in the discharge

situation is somewhat different than the

nature of the shipowner's responsibility for

the action of the plaintiff's employer, who

has separate duties to the plaintiff.

After all, if you carried Mr. Berry's

75a

comments to the logical conclusion, the

Shipowner in the foreign port could totally

ignore what the foreign stevedore does, no

matter how dangerous a condition he would

create, and say, "Well, we were relying on

the foreign stevedore and we have no duty to

intervene in what he dow."

I would submit to Your Honor, and I

think it is inherent in Felton and in many

other cases, as well, that while there may

be or may not be -- and it really hasn't

been resolved in any clear authority,

whether the shipowner has a duty of

continuing to monitor the work of the load-

ing stevedore. He at least has the respon-

sibility to know what is happening with

respect to the conduct of that loading

stevedore and, in fact, does know how the

cargo is being loaded, because we know, for

instance, that if that stevedore were to

load the cargo in such a manner as to upset

the stability of the vessel, the shipowner

76a

would not be permitted to say, well, he

didn't inspect to see that he had put the

stuff where it should be, instead of putting

all the steel on one side and all the

feathers on the other side.

That is really the origin of the duty

of the shipowners to observe what is

happening. It is not necessarily to observe

all the details but, when they observe the

cargo being loaded, to be sure that it is

going to arrive in a good condition and that

it will be done in a manner which will allow

the unloading stevedore to work with reason-

able conditions.

When you are dealing with cargo cases,

the time to be negligent or not be negligent

is when the cargo is loaded, because you

can't correct it later on.

THE COURT: All right.

Those are arguments and I think they

are all embodied in these cases we have.

MR. SOVEL: So I think that, when you

TTa

have a situation where you have evidence

that the shipowner knows or should know that

shoring was not used and that, as a result

the failure to use shoring an unsafe condi-

tion developed in the hold, that because of

the shifting of the cargo which then

confronted the u.scharging stevedores, and

there wasn't anything they could do tc un-

shift it at that point, that is the heart

and soul of the McCarthy case and it is

sufficient to go to the jury.

THE COURT: All right.

Well, I disagree.

Motion granted.

Thank you.

I will discharge the jury.

MR. SOVEL: Your Honor, may I, because

I want to be clear on the record here,

because we have had such a broad discussion

here, is it your finding that there is no

evidence that the shipowner knew that there

was an unsafe condition? Is that the basis

78a

rena

of your holding?

THE COURT: No, I gave my holding. I

will rest on what I said.

You can ask Mr. Kieslich for a copy.

MR. SOVEL: I'm not asking that.

THE COURT: I don't want to restate it.

Then you will say, "You said this here and

you said that there, but you didn't use that

term here."

I have made my ruling. I have heard

your arguments and I have given the cases

that I think apply, and I have given what I

think are the grounds for it. I don't want

to remember verbatim what I said and I don't

want to repeat it and perhaps use a word

that is different.

79a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DERR, WILLIAM : CIVIL ACTION

V.

KAWASAKI KISEN K.K. : NO. 85-5250

CIVIL JUDGMENT

Before Bechtle, J.

AND NOW, this 2nd day of December,

1986,in accordance with this Court's ruling

in open Court on defendant's motion for a

directed verdict under Rule 50,

IT IS ORDERED that Judgment be and the

same is hereby entered in favor of the

defendant, Kawasaki Kisen K.K. and against

the plaintiff, William Derr.

BY THE COURT:

ATTEST:

Deputy Clerk

Entered: 12-43-86

Clerk of Court

80a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS ROBERTSON ; CIVIL ACTION

Vv.

TOKAI SHOSEN K.K. : NO. 86-2620

MEMORANDUM

Newcomer, Jd. January 16, 1986.

I have before me defendant's motion for

a directed verdict pursuant to Federal Rule

of Civil Procedure 50(a). I have considered

the arguments of counsel carefully, the

submissions of counsel, and I have also

reviewed the statute and the cases, and I

conclude that the motion should be granted.'

The central questions are (1) whether

the vessel's responsibilities regarding

stowed cargo differ from the responsibili-

ties regarding the ship itself, its equip-

ment and work space; and (2) if the vessel's

1. This Memorandum and Opinion was origi-

nally delivered from the bench on

January 7, 1987.

Bia

responsibilities do differ, how so?

The factual evidence in the case is

fairly simple. On May 17, 1983, the plain-

tiff was employed as a longshoreman by the

Delaware Operating Company, an independent

stevedoring contractor. Delaware Operating

Company had been hired by the defendant to

discharge cargo from the M/V Georgia Rainbow

in the Port of Philadelphia. Plaintiff was

a member of the longshore gang that was

assigned to discharge cargo of steel pro-

ducts, including steel wire coils, from the

No. 1 hatch.

Plaintiff was injured shortly after he

entered the hold at 8:00 o'clock a.m. He

was down among the coils, either preparing

to start work or having just begun, when one

of the coils fell from the top of the stow,

striking him in the neck and back, and in-

juring him. The plaintiff contends that the

steel coil was improperly stowed and was

unstable and that it was either not lashed

82a

at all, or it was improperly lashed. Asa

result, the plaintiff claims that the ves-

sel's owner was negligent in causing or

permitting the steel wire coils to be impro-

perly stowed and in failing to warn the

plaintiff of the unsafe condition of the

stow before the plaintiff entered the hold.

While the plaintiff presented evidence that

the vessel did a cursory visual inspection

of the cargo before the commencement of

discharge operations, there is no evidence

that defendant had actual knowledge of any

unreasonable hazard presented by the cargo.

Plaintiff brought this lawsuit under

section 5(b) of the Longshoremen's and Har-

bor Workers' Compensation Act, 33 U.S.C.

Section 905(b). The statute provides in

part as follows:

In the event of injury to a person

covered under this chapter caused by

the negligence of the vessel, then such

person, or anyone elise otherwise

entitled to recover damages by reason

thereof, may bring an action against

the vessel.

83a

Now, the Act also precludes tort

recoveries by longshoremen against the

stevedoring company but provides that the

stevedore pay workers compensation. As the

Supreme Court pointed out in the leading

case in this area, Scindia Steam Navigation

Company v- De Los Santos, 451 U.S. 156, at

165, and especially in note 13, the statute

abrogated the historical right of a long-

shoreman to recover against the vessel for

injuries without regard to the fault of the

vessel, and substituted the requirement that

recovery could be had against the vessel

only if the vessel was at fault. In ex-

change, the workers compensation available

from the stevedore to the longshoreman was

greatly enhanced. Courts are therefore

required to construe the duty of the vessel

in a manner consistent with the fault-—based

principles contained in the Act.

The Scindia case discusses the duty

owed by the vessel to the stevedores and

84a

longshoremen. It is important to keep in

mind while reading that case, and also the

Third Circuit case of Griffith v. Wheeling

Pittsburgh Steel, 657 F.2d 25 (3d Cir.

1981), that both of those cases involve

aspects of the ship's equipment and not the

cargo on board. The Scindia case states the

general rule as follows:

The vessel owes to the stevedore and

his longshoremen employees the duty of

exercising due care under the circum-

stances. This duty extends at least to

exercising ordinary care under the

circumstances to have the ship and its

equipment in such condition that an

expert and experienced stevedore will

be able by the exercise of reasonable

care to carry on its cargo operations

with reasonable safety to persons and

property, and to warning the stevedore

of any hazards on the ship or with

respect to its equipment that are known

to the vessel or should be known to it

in the exercise of reasonable care,

that would likely be encountered by the

stevedore in the course of his cargo

operations and that are not known by

the stevedore and would not be obvious

to or anticipated by him if reasonably

competent in the performance of his

work. The shipowner thus has a duty

with respect to the condition of the

Ship's gear, equipment, tools and work

space to be used in the stevedoring

operations; and if he fails at least to

warn the stevedore of hidden danger

85a

which would have been known to him in

the exercise of reasonable care, he has

breached his duty and is liable if his

negligence causes injury to the long-

shoreman. Petitioner concedes as much.

It is also accepted that the vessel may

be liable if it actively involves it-

self in the cargo operations and negli-

gently injuries a longshoreman or if it

fails to exercise due care to avoid

exposing longshoremen to harm from

hazards they may encounter in areas, or

from equipment, under the active con-

trol of the vessel during the stevedor-

ing operation.

In short, and somewhat roughly, the

vessel has a duty to make the ship itself

and the equipment reasonably safe for an

expert stevedore, and it has a duty to warn

- regarding other hazards on the ship.

Those aspects of the ship to which the

duty of the vessel attaches -- the ship

itself, equipment, gear, tools and work

space -- all are generally under the direct

control of the vessel. Therefore, failure

to take reasonable precautions by the vessel

with respect to those items can fairly be

said to constitute negligence by the vessel.

Cargo is different. While the vessel

86a

a eam ema

has operational control over itself and its

equipment and deck, it does not have the.

Same level of actual operational control

over the stowage of cargo. Rather, vessels

hire stevedores -- experts in the stowage

and handling of cargo -- precisely because

of their expertise. As Scindia clearly

points out, the law recognizes the steve-

dore's expertise in this field, and 33

U.S.C. Section 941 requires the stevedore-

employer to provide a safe workplace for

longshoremen, even within the holds of

ships. Indeed, Scindia goes farther and

holds that in most circumstances the vessel

can rely on the stevedore's expertise. The

vessel is thus not required to inspect or

Supervise the stevedore's operation. The

Scindia court recognized that to hold other-

wise could revert to the principle of lia-

bility without fault which was rejected in

Section 5(b) of the Act. 451 U.S. at 169-

70.

87a

Now, if one may not find the vessel

liable for wrongs of the off-loading steve-

dore under the Act, then one can no more

find the vessel liable for wrongs of the on-

loading stevedore -- assuming for the moment

that such wrongs were committed. On the

other hand, if the vessel has actual kKnow-

ledge of an unreasonable hazard in stowage

or otherwise, it has a duty to inform the

stevedore, especially if the hazard is la-

tent. And if the vessel observes the steve-

dore or its longshoremen acting in a clearly

improvident manner regarding a hazard known

by the vessel to present an unreasonable

risk of harm, the vessel has a duty to

intervene. Scindia, 451 U.S. at 175-76.

But these principles do not apply in this

case. Where, as here, the vessel relied on

the loading stevedore in Japan, and there is

no evidence that the vessel knew or had any

reason to know of a hazard allegedly pre-

sented by the means of stowage by the

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Japanese stevedore, the vessel simply did

not breach any duty of reasonable care. The

vessel itself was not negligent.

If I were to adopt the position ably

advocated by plaintiff's counsel, I would

eviscerate Scindia and the Act. Otherwise,

while the vessel would not be required to

Supervise and inspect each stevedoring oper-

ation, Scindia, it would be held to such a

requirement at each subsequent port which

encountered the condition of the stow. This

makes no sense, and would render the princi-

ple of fault-—based liability of the vessel a

nullity.

The cases from the Fourth, Fifth and

Ninth Circuits which treat cargo in the same

manner as ship's equipment are not true to

the principles enunciated in Scindia and

mandated in the statute. Statements such as

those contained in Turner v. Japan

Lines Inc., 651 F.2d 1300, 1304 (9th Cir.

1981) demonstrate pursuit of the laudable

89a

goal of fairness, but at the expense of the

law as Congress enacted it. The courses

charted by those courts may or may not lead

to a greater equity, but I believe they are

simply not the law. I therefore enter the

following order.

ORDER

AND NOW, this 16th day of January,

1987, it is hereby Ordered that defendant's

motion for a directed verdict pursuant to

Federal Rule of Civil Procedure 50(b) is

GRANTED. Judgment is entered in favor of

the defendant and against the plaintiff.

AND IT IS SO ORDERED.

90a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

THOMAS ROBERTSON : CIVIL ACTION

V-

TOKAI SHOSEN K.K. : NO. 86-2620

CIVIL JUDGMENT

Before Hon. Clarence C. Newcomer,

AND NOW, this 7th day of January, 1987,

in accordance with the Court granting

defendant's motion for directed verdict,

IT IS ORDERED that Judgment be and the

Same is hereby entered in favor of the

defendant, Tokai Shosen K.K. and against the

plaintiff, Thomas Robertson.

BY THE COURT:

ATTEST: /S/ Thomas Garrity

Deputy Clerk

FILED

Jan O7 1987

MICHAEL E. KUNZ, Clerk

Glia

Excerpts from Legislative History of

LONGSHOREMEN'S AND HARBOR WORKERS'

COMPENSATION ACT AMENDMENTS OF 1972

Reproduced from

HOUSE REPORT NO. 92-1441

as set forth in 1972 U.S.Cong. & Adm. News

Vol. 3, pages 4701 - 4705

ELIMINATION OF UNSEAWORTHINESS REMEDY

One of the most controversial and dif-

ficult issues which the Committee has been

required to resolve in connection with this

bill concerns the liability of vessels, as

third parties, to pay damages to longshore-

men who are injured while engaged in steve-

doring operations. The Committee rejected

the proposal, Originally advanced by the

industry, that vessels should be treated as

joint employers of longshoremen or other

persons covered under this Act working on

board such vessels. This would result in

restricting the vessel's liability in all

92a

cases to the compensation and other benefits

payable under the Act. The Committee be-

lieves that where a longshoreman or other

worker covered under this Act is injured

through the fault of the vessel, the vessel

should be liable for damages as a third

party, just as land-based third parties in

non—maritime pursuits are liable for damages

when, through their fault, a worker is in-

jured.

The Committee also rejected the thesis

that a vessel should be liable without re-

gard to its fault for injuries sustained by

employers covered under this Act while work-

ing on board the vessel. Vessels have been

held to what amounts to such absolute lia-

bility by decisions of the Supreme Court,

commencing with Seas Shipping Co. v Sieracki

328 U.S. 25 (1946) which held that the tra-

ditional seamen's remedy based on the breach

of the vessel's absolute, nondelegable duty

to provide a seaworthy vessel was also

93a

available to longshoremen and others who

performed work on the vessel which by tradi-

tion has been performed by seamen. Under

the Sieracki case, vessels are liable, as

third parties, for injuries suffered by

longshoremen as a result of “unseaworthy"

conditions even though the unseaworthiness

was caused, created, or brought into play by

the stevedore (or an employee of the steve-

dore) rather than the vessel or any member

of its crew. For example, under present

law, if a member of a longshore gang spills

grease on the deck of a vessel and a long-

shoreman slips and falls on the grease a few

moments later, the vessel is liable to pay

damages for the resulting injuries, even

though no member of the crew was responsible

for creating the unseaworthy condition or

was even aware of it. Furthermore, in the

example given above, under the Supreme

Court's decision in Ryan Stevedoring Co. v

Pan Atlantic S8.S. Corp., 350 U.S. 124

94a

(1956), the vessel may recover the damages

for which it is liable to the injured long-

shoreman from the stevedore which employed

the longshoreman on the theory that the

stevedore has breached an express or implied

warranty of workmanlike performance to the

vessel. The end result is that, despite the

provision in the Act which limits an en-

ployer's liability to the compensation and

medical benefits provided in the Act, a

stevedore-employer is indirectly liable for

damages to an injured longshoreman who uti-

lizes the technique of suing the vessel

under the unseaworthiness doctrine.

The Committee heard testimony that the

number of third-party actions brought under

the Sieracki and Ryan line of decisions has

increased substantially in recent years and

that much of the financial resources which

could better be utilized to pay improved

compensation benefits were now being spent

to defray litigation costs. Industry

witnesses testified that despite the fact

that since 1961 injury frequency rates have

decreased in the industry, and maximum bene-

fits payable under the Act have remained

constant, the cost of compensation insurance

for longshoremen has increased substantially

because of higher recoveries in such cases.

The Committee also heard testimony that in

some cases workers were being encouraged not

to file claims for compensation or to delay

their return to work in the hope of in-.

creasing their possible recovery in a third

party action. The Committee's attention was

also called to the decision in 1966 of the

United States district court in Philadelphia

concerning the impact of third party claims

involving injured longshoremen on the back-

log of personal injury cases in that court.

The Committee also has taken note of

the inescapable fact that the controversy

over third party claims by longshoremen has

had political ramifications which have re-

96a

oes

sulted in forestalling any improvements in

the present Act for over twelve years.

The Committee believes that especially

with the vast improvement in compensation

benefits which the bill would provide, there

is no compelling reason to continue to re-

quire vessels to assume what amounts to

absolute liability for injuries which occur

to longshoremen or other workers covered

under the Act who are covered under the Act

who are injured while working on those ves-

sels. In reaching this conclusion, the

Committee has noted that the seaworthiness

concept was developed by the courts to pro-

tect seamen from the extreme hazards inci-

dent to their employment which frequently

requires long sea voyages and duties of

obedience to orders not generally required

of other workers. The rationale which jus-

tifies holding the vessel absolutely liable

to seamen if the vessel is unseaworthy does

not apply with equal force to longshoremen

97a

and other non-seamen working on board a

vessel while it is in port.

Accordingly, the Committee has con-

cluded that, given the improvement in com-

pensation benefits which this bill would

provide, it would be fairer to all concerned

and fully consistent with the objective of

protecting the health and safety of employ-

ees who work on board vessels for the lia-

bility of vessels as third parties to be

predicated on negligence, rather than the

no-fault concept of seaworthiness. This

would place vessels in the same position,

insofar as third party liability is con-

cerned, as land-based third parties in non-

maritime pursuits.

- The purpose of the amendments is to

place an employee injured aboard a vessel in

the same position he would be if he were

injured in non-maritime employment ashore,

insofar as bringing a third party damage

action is concerned, and not to endow him

98a

with any special maritime theory of liabil-

ity or cause of action under whatever judic-

ial nomenclature it may be called, such as

"“unseaworthiness", "non-delegable duty", or

the like.

Persons to whom compensation is payable

under the Act retain the right to recover

damages for negligence against the vessel,

but under these amendments they cannot bring

a damage action under the judicially-—enacted

doctrine of unseaworthiness. Thus a vessel

shall not be liable in damages for acts or

omissions of stevedores or employees of

stevedores subject to this Act. Crumedy v.

The J. H. Fisser, 358 U.S. 423, Albanese v.

Matts, 382 U.S. 283, Skibinski v. Water-

man SS Corp., 330 F.2d 539; for the manner

or method in which stevedores or employees

of stevedores subject to this Act perform

their work, A. N. G. Stevedores v. Eller-

man Lines, 369 U.S. 355, Blassingill v.-

Waterman SS Corp., 336 F.2d 367; for gear or

99a

equipment of stevedores or employees of

stevedores subject to this Act whether used

aboard ship, or ashore, Alaska SS Co. v.

Peterson, 347 U.S. 396, Italia Societa v.

Oregon Stevedoring Co., 376 U.S. 315, or for

other categories of unseaworthiness which

have been judicially established. This

listing of cases is not intended to reflect

a judgment as to whether recovery on a par-

ticular factual setting could have been

predicated on the vessel's negligence.

Permitting actions against the vessel

based on negligence will meet the objective

of encouraging safety because the vessel

will still be required to exercise the: sane

care as a land-based person in providing a

safe place to work. Thus, nothing in this

bill is intended to derogate from the ves-

sel's responsibility to take appropriate

corrective action where it knows or should

have known about a dangerous condition.

So, for example, where a longshoreman

100a

slips on an oil spill on a vessel's deck and

is injured, the proposed amendments to Sec-

tion 5 would still permit an action against

the vessel for negligence. To recover he

must establish that: 1) the vessel put the

foreign substance on the deck, or knew it

was there, and willfully or negligently

failed to remove it; or 2) the foreign sub-

stance had been on the deck for such a

period of time that it should have been

discovered and removed by the vessel in the

exercise of reasonable care by the vessel

under the circumstances. The vessel will

not be chargeable with the negligence of the

stevedore or employees of the stevedore.

Under this standard, as adopted by the

Committee, there will, of course, be dis-

putes as to whether the vessel was negligent

in a particular case. Such issues can only

be resolved through the application of ac-—

cepted principles of tort law and the ordi-

nary process of litigation -- just as they

101a

are in cases involving alleged negligence by

land-based third parties. The Committee

intends that on the one hand an employee

injured on board a vessel shall be in no

less favorable position vis a vis his rights

against the vessel as a third party than is

an employee who is injured on land, and on

the other hand, that the vessel shall not be

liable as a third party unless it is proven

to have acted or have failed to act in a

negligent manner such as would render a

land-based third party in non-maritime pur-

suits liable under similar circumstances.

The Committee also believes that the

doctrine of the Ryan case, which permits the

vessel to recover the damages for which it

is liable to an injured worker where it can

show that the stevedore breaches an express

or implied warranty of workmanlike perfor-

mance is no longer appropriate if the ves-

sel's liability is no longer to be absolute,

as it essentially is under the seaworthiness

102a

doctrine. Since the vessel's liability is

to be based on its own negligence, and the

vessel will no longer be liable under the

seaworthiness doctrine for injuries which

are really the fault of the stevedore, there

is no longer any necessity for permitting

the vessel to recover the damages for which

it is liable to the injured worker from the

stevedore or other employer of the worker.

Furthermore, unless such hold-harmless,

indemnity or contribution agreements are

prohibited as a matter of public policy,

vessels by their superior economic strength

could circumvent and nullify the provisions

of Section 5 of the Act by requiring indem-

nification from a covered employer for en-

ployee injuries.

Accordingly, the bill expressly prohi-

bits such recovery, whether based on an

implied or express warranty. It is the

Committee's intention to prohibit such re-

covery under any theory including, without

103a

limitation, theories based on contract or

tort.

Under the proposed amendments the ves-

sel may not be contractual agreement or

otherwise require the employer to indemnify

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

The Committee has also recognized the

need for special provisions to deal with a

case where a longshoreman or ship builder or

repairman is employed directly by the ves-

sel. In such case, notwithstanding the fact

that the vessel is the employer, the Supreme

Court, in Reed v. S.S. Yaka, 373 U.S. 410

(1963) and Jackson v. Lykes Bros. Steamship

Co., 386 U.S. 371 (1967), held that the

unseaworthiness remedy is available to the

injured employee. The Committee believes

that the rights of an injured longshoreman

or ship builder or repairman should not

depend on whether he was employed directly

by the vessel or by an independent con-

tractor. Accordingly, the bill provides in

104a

a i

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. Similar

provisions are applicable to ship building

or repair employees employed directly by the

vessel. The Committee's intent is that the

same principles should apply in determining

liability of the vessel which employs its

own longshoremen or ship builders or repair-

men as apply when an independent contractor

employs such persons.

Finally, the Committee does not intend

that the negligence remedy authorized in the

bill shall be applied differently in dif-

ferent ports depending on the law of the

State in which the port may be located. The

Committee intends that legal questions which

may arise in actions brought under these

provisions of the law shall be determined as

a matter of Federal law. In that con-

105a

nection, the Committee intends that the

admiralty concept of comparative negligence,

rather than the common law rule as to con-

tributory negligence, shall apply in cases

where the injured employee's own negligence

may have contributed to causing the injury.

Also, the Committee intends that the admir-

alty rule which precludes the defense of

"assumption of risk" in an action by an

injured employee shail also be applicable.

Finally, the Committee wishes to empha-

size 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 long-

shore industry, but longshoring remains one

of the most hazardous types of occupations.

The Committee expects to see further pro-

gress in reducing injuries and stands ready

to immediately reexamine the whole third

106a

party suit question if it appears that the

changes made in present law by this bill

have affected progress in improving occupa—

tional health and safety.

107a