Appendix — Gigante v. Runship, Ltd.

i jill leat

AUG Sl 1990

No. 90 - JOSE! > a JR,

Sa

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1990

ROBERT GIGANTE,

Petitioner,

v.

RUNSHIP, LTD., and

LAURITZEN REEFERS, A/S,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Charles Sovel, Esq.

Freedman and Lorry, P.C.

800 Lafayette Building

5th and Chestnut Streets

Philadelphia, PA 19106

(215) 925-8400

Attorneys for Petitioner

TABLE OF CONTENTS

Page

Opinion of the United States District Court for the

District of New Jersey dated August 16,1989 . . la

Order of the United States District Court for the District

of New Jersey dated August 16,1989 . . . . . 13a

Judgment Order of the United States Court of Appeals for

the Third Circuit dated May 8, 1990, ene

Judgment of District Court . . . a ie ot,

Order of the United States Court of Appeals for the Third

Circuit dated June 5, 1990, — Petition for

Se ee i. oe a

Legislative History of Section 5(b) of the Longshore and

Harbor Workers' Compensation Act... . . ~~ 18a

Opinion of United States Court of Appeals for the Fifth

Circuit in Woods v. Sammisa Company, Ltd. , 873

F.2d 842 (Sth Cir. 1989) . . . . . wea

Opinion of United States Court of Appeals for the Third

Circuit in Derr v. Kawasaki Kisen, K.K., 835 F.2d

Ss ee er ee a ee

la

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT GIGANTE, Civil Action No. 88-689

Plaintiff,

OPINION

V.

RUNSHIP, LTD. and

LAURITZEN REEFERS, AIS :

and UNITED TRADING

COMPANY, S.A. and

TRANSREEFER,

Defendants.

RODRIGUEZ. District Jud

This matter comes before the court on a motion by defend-

ants Runship Ltd. and Lauritzen Reefers, A/S for summary

judgment pursuant to Fed. R. Civ. P. 56. For the reasons stated

herein, the court will grant the motion.

I.

This action arises out of the injury to plaintiff, Robert Gi-

gante, while unloading a shipment of fruit from the Malayan

Reefer. At the time of the incident the Malayan Reefer was

owned by defendant Runship, Ltd., and operated by defendant

Lauritzen Reefers, A/S.

The fruit, shipped from Chile, was packed in cardboard

boxes and strapped onto wooden pallets. The pallets were loaded

by an independent stevedore in Chile with a certain number of

pallets in the center of each deck pre-slung with nylon cords so

that they could be lifted from the hold by use of the ship's cargo

hook. The area cleared by the removal of the pre-slung units,

referred to as a "key", was made up of 13 units of palletized fruit

2a

and consisted of an area of approximately 13 feet by 13 feet.

After these units were removed from the key, a four-pronged

chandelier spreader was used to begin discharging the remaining

pallets. This particular type of chandelier enabled the long-

shoremen to discharge two pallets at a time.

Plaintiff and a co-worker, standing in the key, positioned the

prongs of the chandelier spreader under two pallets and dis-

charged them without incident. Utilizing the same procedure,

plaintiff and his co-worker positioned the prongs of the chandelier

under two more units. As the cargo was being lifted out of the

hold one of the pallets broke causing several cartons to fall back

into the key, some of which struck and injured plaintiff.

Plaintiff contends that the size of the key was inadequate and

as a result he was unable to position himself in such a manner so

as to be out from under the pallets. Plaintiff also alleges that

defendants knew and actually participated in the creation of this

condition, and were negligent in allowing the dangerous condition

to exist when they knew no action would be taken to remedy it.

Defendants moved for summary judgment claiming that as a

matter of law they owed no duty of care to plaintiff. Defendants

allege that the Longshoremen's and Harbor Workers' Compensa-

tion Act, 33 U.S.C. § 905(b), as amended in 1972, limits a

shipowner's liability to its own negligence, similar to the liability

of a land-based third party in a non-maritime claim. Defendants

claim that under Scindia Steam Nav. Co. v. De Los Santos 451

U.S. 156 (1981) and Derr v. Kawaski Kisen, K.K., 835 F.2d 490

(3rd Cir. 1987), a shipowner (1) has no duty to supervise or

inspect the cargo or the loading or unloading of the stevedores,

(2) has no duty to warn the stevedore of open and obvious dan-

gers, and (3) has a duty to warn of hidden dangers only if the

shipowner has actual knowledge of the danger and the condition

is not open and obvious. Furthermore, defendants assert that

they were not actively involved in the loading or unloading of the

cargo and, even if they could be considered actively involved, the

condition of the stow was open and obvious thereby relieving

them of any duty to the stevedore. They also claim that they had

Kit and NA aaa Bg OR ee

3a

no actual knowledge of a dangerous condition and that there is no

evidence that the size of the key presented an unreasonable risk of

harm.

In response plaintiff claims that under § 905(b) a shipowner

may be held liable for the injury to a longshoremen if the injury

resulted from (1) the shipowner's actual negligence or (2) unsafe

conditions of which the shipowner knew or had reason to know

and of which the shipowner could not reasonably rely on the

stevedore to correct or prevent from causing injury.

Plaintiff alleges that under the test set forth by Justice

Brennan in his concurrence in Scindia, and employed by the

Third Circuit in Griffith vy. Wheeling-Pittsburgh Steel, 657 F.2d

25, 28 (3d Cir. 1981), defendants had a duty to protect the long-

shoremen. Justice Brennan stated that

if the shipowner has actual knowledge that equipment in the

control of the stevedore is in an unsafe condition, and a

reasonable belief that the stevedore will not remedy that

condition, the shipowner has a duty either to halt the steve-

doring operation, to make the stevedore eliminate the unsafe

condition, or to eliminate the unsafe condition itself.

Scindia, 451 U.S. at 179 (Brennan, J. concurring). Plaintiff

claims there is an abundance of evidence regarding defendants’

actual knowledge of the dangerous condition, Le., the inadequate

size of the key, and therefore defendants may be held liable.

II.

_ The entry of summary judgment is appropriate only when

“there is no genuine issue of material fact" and "the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56;

Celotex Corp, v. Catrett, 477 U.S. 317 (1986). “The plain

language of Rule 56(c) mandates the entry of summary judgment,

after adequate time for discovery and upon motion, against a

party who fails to make a showing sufficient to establish the

existence of an element essential to that party's case, and on

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which that party will bear the burden of proof at trial. In such a

case there can be no genuine issue as to a material fact...."

Celotex, 477 U.S. at 322-323. Whether a fact is indeed “materi-

al" is determined by the controlling substantive law. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If a disputed

fact exists and under the controlling substantive law might affect

the outcome of the suit, then entry of summary judgment is

precluded. Id.

III.

Section 5(b) of the Longshoremen's and Harbor Workers’

Compensation Act, as amended in 1972, and as set forth in 33

U.S.C. § 905(b) provides in relevant part:

In the event of injury to a person covered under this chapter

caused by the negligence of a vessel, then such person, or

anyone otherwise entitled to recover damages by reason

thereof, may bring an action against such vessel was a third

party in accordance with the provisions of section 933 of this

title, and the employer shall not be liable to the vessel for

such damages directly or indirectly and any agreements or

warranties to the contrary shall be void. If such person was

employed by the vessel to provide stevedoring services, no

such action shall be permitted if the injury was caused by the

negligence of persons engaged in providing stevedoring

services to the vessel.... The liability of the vessel under

this subsection shali not be based upon the warranty of

seaworthiness or a breach thereof at the time the injury

occurred.

Prior to the 1972 amendment, longshoremen could prevail in

an action against a shipowner on either a negligence or breach of

seaworthiness theory regardless of the fact that the shipowner was

" ee

5a

not responsible for the unsafe condition.' See Scindia, 451 U.S.

at 164-65. However, in discussing the 1972 amendment, the

Third Circuit in Derr pointed out that "(t]he intention of Congress

to eliminate the vessel's liability without fault was express and

unambiguous." 835 F.2d at 492. Congress felt it was unfair to

predicate a vessel's liability on a no-fault theory 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 in-

jured in a non-maritime employment ashore, insofar as bringing a

third party damage action is concerned...." Id. (quoting H.R.

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

U.S. Code Cong. & Ad. News 4698, 4703). Furthermore, “(t]he

vessel was not to be liable ... for acts or omissions of stevedores,

or of the employees of stevedores, for the manner in which the

stevedore performed its work.... Its liability was to be ‘based on

its own negligence’ and could be proved only if it was shown to

have acted or failed to act in a negligent manner...." Scindia,

451 U.S. at 166 n. 13 (citing S. Rep. No. 92-1125, p. 10 (1972)).

IV.

Scindia involved a longshoreman injured by cargo that fell

from a pallet suspended overhead while he was working in the

ship's hold. The ship's winch, operated by another longshore-

man, had been malfunctioning for approximately two days before

the incident. The court held that the district court erred in grant-

ing summary judgment since there was a triable issue as to

whether the shipowner knew of the defective equipment or was

chargeable with such knowledge. Scindia, 451 U.S. at 178.

In Derr the Third Circuit addressed the issue of "what liabili-

1. If it was found that the unsafe condition was brought into play by the steve-

dore or its employees, rather than the shipowner, the shipowner could bring a

claim against the stevedore for breach of express or implied warranty to handle

the cargo in a safe manner. Scindis, 451 U.S. at 165 (citing Ryan Stevedore

Co. v. Pan-Atlantic $.S. Corp., 350 U.S. 124 (1956).

6a

ty, if any, a vessel has for injuries to longshoremen caused by

cargo improperly loaded by a ... stevedore." 835 F.2d at 490.

Derr consolidated separate but similar accidents in which cargo

fell upon longshoremen during the unloading of a vessel. The

court held that “[a] vessel can be deemed negligent towards a

longshoreman injured because of improperly stowed cargo only if

the vessel has breached one of the limited duties referred to in

Scindia, Id. at 497. The court, finding no evidence the defend-

ant breached any of these narrow duties, affirmed the directed

verdict for the owner of the vessel.

The Derr court summarized the duties of a shipowner as

delineated in Scindia as follows:

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,

and that are not known or obvious to the stevedore, Id. 451

U.S. at 167, 101 §.Ct. at 1622. 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 17-71, 101 S.Ct. at 1623-24; see, e.g.,

Kakauas, 789 F.2d at 118 (‘The basic theme of the Scindia

opinion is the extensive reliance that a shipowner may justi-

fiably 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 ... and warrants to

the vessel that [it] will perform competently. Scindia, 451

U.S. at 170-71, 101 §.Ct. at 1623-24.

835 F.2d at 493.

7a

nc lt,

The Derr court then affirmed the distinction made by the

District Court “between unsafe conditions resulting from the

manner in which cargo is stowed and other types of unsafe condi-

tions." Id. The court stated: “We read the [Supreme] Court's

opinion in Scindia . . . as limiting the vessel's potential liability

for injuries caused by faulty stowage of cargo to certain narrow

circumstances." [d.

A. Duty to Supervise or Inspect

The Derr court, compelled by Scindia, found 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 [of] the stevedore's failure to perform [its] job

properly." Id. The court stated that “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).... As Scindia makes clear, the 1972

amendments are grounded in the belief that stevedores are pri-

marily responsible for the stowage of cargo." Id. at 494-95

(citations omitted). Therefore, under Derr there can be no duty

| imposed upon the shipowner to inspect or supervise the work of

the stevedore.

sor ok OR ri palling,

In a similar context, plaintiff argues that the observation of

both the cargo and the size of the key by Captain Pavar in the

Port of Philadelphia and the certification of the stowage by the

Master and Chief Mate in Chile may be considered active in-

volvement and give rise to a duty on the part of the shipowner.

However, the Derr court explicitly negated such an argument.

"Even if it were true that a vessel ... observes the loading of

cargo, ... such observation cannot be used to reimpose the gener-

al duty to supervise the stevedore. Nor can such observation be

. vaulted into the type of active involvement and control that would

trigger a ship's liability." Id. at 494 (citations omitted). There-

fore, any observation by the shipowner does not rise to the level

of active involvement and cannot be used to impose a duty upon

the shipowner to supervise or inspect.

a

B. Duty To Warn

Because the ship has no duty to inspect the cargo stowage

operations, the ship can be held liable only for failure to warn of

improper stowage, if at all, when the ship has both actual knowl-

edge and the danger was not open and obvious.” Id. at 496. The

Derr court agreed with the district court that if the danger was

open and obvious there was no warning which a shipowner could

have provided which would have added to the knowledge of a

competent and experienced stevedore. In the present case the

condition of the stow and the size of the key was open and obvi-

ous and known to the stevedore. Therefore, there can be no duty

to warn placed upon the shipowner.

C. Duty to Intervene in Cargo Operations

The Derr court also employed the Scindia definition of a

shipowner's duty with respect to the ship and its equipment. The

court stated that a shipowner has a duty to

exercis[e] ordinary care under the circumstances to have the

ship and its equipment in such condition that an expert and

experienced stevedore will be able by the exercise of reason-

able 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 obvi-

Ous to or anticipated by him if reasonably competent in the

performance of his work.

Id. at 495 (quoting Scindia, 451 U.S. at 167).

Plaintiff does not contend that the ship in this case was

defective or that there was a defect in any of the ship's equip-

ment, gear, tools or work space, but instead claims it was the

te

9a

condition of the cargo which gave rise to a duty. The Derr court,

however, in discussing the meaning of the term “work space” in

Scindia, stated that the Supreme Court could not have intended

the duty of a shipowner with respect to its physical work space to

establish a duty by the ship with respect to cargo. The court

clearly distinguished between a duty arising from the ship and its

equipment and that arising from the stowage of cargo.

With this in mind, the Third Circuit addressed the “parame-

ters of the vessel's duty to intervene in cargo operations.” Derr,

835 F.2d at 496. The court felt that the Supreme Court in Scin-

dia had not fully addressed this issue. “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.'” Id. (quoting

Scindia, 451 U.S. at 175). The Derr court summarized the

holding in Scindia as follows:

The Scindia court was prepared only to hold that if it were

proven that the ship knew of the malfunctioning cargo winch

' f the ship’ | which it might |

a duty to repair, there was a basis for imposition of the

negligence liability.

Id. (Emphasis added). The court further concluded that

it is unlikely that the narrow duty of a ship to intervene to

make repairs was intended to extend beyond defective condi-

tions with respect to the ship, its equipment, and gear....

Since the ship has no duty to inspect the cargo handling

operation or the stowed cargo, Scindia, 451 U.S. at 178, 101

S.Ct. at 1627; see Taylor vy, Moram Agencies, 739 F.2d

1384, 1386-87 (9th Cir. 1984) (‘[t}he scope of a shipowner's

duty as set forth in Scindig 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

10a

dangers created by negligently loaded cargo.”

835 F.2d at 496.

Plaintiff argues that the proper test to be applied here was

articulated by Justice Brennan in his concurrence in Scindia.

This test requires that “the shipowner [have] actual knowledge

that equipment in the control of the stevedore is in an unsafe

condition, and a reasonable belief that the stevedore will not

remedy that condition....” Scindig, 451 U.S. at 179. (Emphasis

added). Justice White, in delivering the opinion of the Court in

Scindia, stated that the test required the shipowner have actual

knowledge that the defective equipment posed an “unreasonable

risk of harm,” as opposed to an “unsafe condition.”’ Scindia,

however, refers specifically to “equipment” of the ship, and not

cargo. Therefore, this court need not choose which Scindig test

to apply in determining a shipowner's duty for negligently stowed

cargo. The Derr court has explicitly defined the parameters of a

shipowner's duty for negligently stowed cargo. In this respect

Scindig is factually distinguishable from the case at hand and will

be followed only to the extent to which it has been adopted by the

Third Circuit in Derr.

Plaintiff cites the case of Griffith v, Wheeling-Pittsburgh

Steel Corp., 657 F.2d 25 (3rd Cir. 1981) as supporting its con-

tention that the shipowner has a duty based on his actual know!l-

2. The Derr court noted that “[t}here was nothing in cither case to suggest that

the cargo presented an exceptional situation. We leave open the issue of « duty

by the ship in such circumstances.” Derr, 835 F.2d at 4960.3. Similarly, there

is nothing in the present case to suggest the cargo presented the type of excep-

tional situation referred to in Derr.

3. Similarly, the Third Circuit in Griffith v. Wheeling-Pittsburgh Stee], 657

F.2d 25 (1981), akhough explicitly distinguishing Scindig. applied a similar test

requiring that “the vessel knew or should have known that the condition would

pose an unreasonable msk of harm to longshoremen working on board ship

Id. at 27

alain

lla

edge of the dangerous condition and the reasonable belief that the

stevedore will not remedy it. The court in Griffith found a barge

owner to be negligent where, prior to turning control of the barge

over to the stevedore, the owner knew of a defective hatch cover,

and had reason to believe the stevedore might use a negligent

method to remove the covers, but took no steps to intervene.‘

Id. at 28. Griffith, like Scindia, is clearly distinguishable from

this case since it deals solely with the ship and its equipment and

uot with the stowage of cargo.

V.

In the present case the shipowner has no duty to plaintiff for

which he may maintain a cause of action. There was no duty on

the part of defendants to supervise or inspect the cargo, or the

loading or unloading of the stevedore. There was no duty to

warn, even if defendants had actual knowledge as plaintiff claims,

since the condition of the cargo and the size of the key were open

and obvious. Finally, the shipowner had no duty to intervene

because the dangerous condition was related to the negligent

stowage of cargo and not to the ship's equipment or gear.

Therefore, because plaintiff has produced no evidence that

defendants have breached any of the limited duties referred to in

Derr, the motion of the defendants for summary judgment will be

granted.

4. The Court distinguished the case from Scindia because Scindia dealt with

discovery of a dangerous condition which "developed during” the cargo opera-

tions and which had not been brought to the shipowner's attention prior to

commencement of stevedoring operations, whereas Griffith dealt with a defect

in the ship which the owner knew of “prior” to turning control over to the

stevedore. Griffith, 657 F.2d at 27.

i2a

An appropriate order will be entered.

JOSEPH H. RODRIGUEZ

U.S.D.J.

Dated: August 16, 1989

13a

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ROBERT GIGANTE, : Hon. Joseph H. Rodriguez

Plaintiff,

: Civil Action No. 88-689

v.

ORDER

RUNSHIP, LTD. and

LAURITZEN REEFERS, AIS :

and UNITED TRADING

COMPANY, S.A. and

TRANSREEFER,

Defendants.

For the reasons set forth in this court's opinion filed even

date;

IT IS on this 16th day of August, 1989, ORDERED that the

motion for summary judgment of the defendants, Runship, Ltd.

and Lauritzen Reefers, A/S, is hereby GRANTED.

JOSEPH H. RODRIGUEZ

U.S.D.J.

14a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 89-5909

ROBERT GIGANTE,

Appellant _

vs.

RUNSHIP, LTD.

and LAURITZEN REEFERS, A/S

and UNITED TRADING COMPANY S.A.

and TRANSREEFER

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 88-00689)

District Judge: Honorable Joseph H. Rodriguez

Submitted Under Third Circuit Rule 12(6)

April 26, 1990

Before: BECKER, GREENBERG, Circuit Judges

and DUMBAULD, District Judge*

JUDGMENT ORDER

After consideration of all contentions raised by appellant, it

is

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ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed. See Derr v. Kawasaki

Kisen, K.K., 835 F.2d 490 (3rd Cir. 1987)

Costs taxed against appellant.

BY THE COURT,

Circuit Judge

ATTEST:

Clerk

DATED: May 8, 1990

* Honorable Edward Dumbauld, United States District Judge for

the Western District of Pennsylvania, sitting by designation.

16a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 89-5909

ROBERT GIGANTE,

Appellant _

vs.

RUNSHIP, LTD.

and LAURITZEN REEFERS, A/S

and UNITED TRADING COMPANY S.A.

and TRANSREEFER

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 88-00689)

SUR PETITION FOR REHEARING

PRESENT: HIGGINBOTHAM, Chief Judge, and SLOVITER,

BECKER, STAPLETON, MANSMANN, GREENBERG,

HUTCHINSON, SCIRICACIRICA, COWEN, and NYGAARD,

Circuit Judges, and DUMBAULD, District Judge* **

The petition for rehearing filed by appellant in the above

captioned matter having been submitted to the judges who partic-

ipated in the decision of this court and to all the other available

circuit judges of the circuit in regular active service, and no judge

who concurred in the decision having asked for rehearing, except

for Judge Becker who voted for rehearing but only in banc, and a

majority of the circuit judges of the circuit in regular active serv-

17a

ice not having voted for rehearing by the court in banc, the peti-

tion for rehearing is denied.

Judge Becker would grant rehearing so that the court in

bane might reconsider Derr v. Kawasaki Kisen K.K., 835 F.2d

490 (3d Cir. 1987), cert denied, 486 U.S. 1007 (1988).

Judges Scirica and Cowen would grant rehearing by the

court in banc.

BY THE COURT:

Circuit Judge

DATED: June 5, 1990

* Honorable Edward Dumbauld, United States District Judge for the

Western District of Pennsylvania, sitting by designation.

** as to panel rehearing only.

18a

LONGSHOREMEN'S AND HARBOR WORKERS'

COMPENSATION ACT AMENDMENTS OF 1972

HOUSE REPORT NO. 92-1441

(as reported at 1972 U.S. Code Cong. and Adm. News

beginning at page 4698)

x x *

[4701]

Elimination of Unseaworthiness Remedy

One of the most controversial and difficult issues which the

Committee has been required to resolve in connection with this

bill concerns the liability of vessels, as third parties, to pay

damages to long-

[4702]

shoremen who are injured while engaged in

stevedoring operations. The Committee rejected the proposal,

originally advanced by the industry, that vessels should be treated

as joint employers of longshoremen or other persons covered

under this Act working on board such vessels. This would result

in restricting the vessel's liability in all cases to the compensation

and other benefits payable under the Act. The Committee be-

lieves that where a longshoreman or other worker covered under

this Act is injured through the fault of the vessel, the vessel

should be liable for damages as a third party, just as land-based

third parties in non-maritime pursuits are liable for damages

when, through their fault, a worker is injured.

The Committee also rejected the thesis that a vessel should

be liable without regard to its fault for injuries sustained by

employees covered under this Act while working on board the

vessel. Vessels have been held to what amounts to such absolute

liability by decisions of the Supreme Court, commencing with

Seas Shipping Co. v. Sieracki, 328 U.S. 25 (1946) which held

that the traditional seamen's remedy based on the breach of the

19a

vessel's absolute, nondelegable duty to provide a seaworthy

vessel was also available to longshoremen and others who per-

formed work on the vessel which by tradition has been performed

by seamen. Under the Sieracki case, vessels are liable, as third

parties, for injuries suffered by longshoremen as a result of

“unseaworthy" conditions even though the unseaworthiness was

caused, created, or brought into play by the stevedore (or an

employee of the stevedore) rather than the vessel or any member

of its crew. For example, under present law, if a member of a

longshore gang spills grease on the deck of a vessel and a 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 §.S. Corp., 350 U.S. 124

(1956), the vessel may recover the damages for which it is liable

to the injured longshoreman from the stevedore which employed

the longshoreman on the theory that the stevedore has breached

an express or implied warranty of workmanlike performance to

the vessel. The end result is that, despite the provision in the Act

which limits an employer's liability to the compensation and

medical benefits provided in the Act, a stevedore-employer is

indirectly liable for damages to an injured longshoreman who

utilizes the technique of suing the vessel under the unseaworthi-

ness doctrine.

The Committee heard testimony that the number of third-

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

sions has increased substantially in recent years and that much of

the financial resources which could better be utilized to pay

improved compensation benefits were not being spent to defray

litigation costs. Industry witnesses testified that despite the fact

that since 1961 injury frequency rates have decreased in the

industry, and maximum benefits payable under the Act have

remained constant, the cost of compensation insurance for long-

shoremen has increased substantially because of the increased

number of third party cases and legal expenses and higher recov-

eries in such cases. The Committee also heard testimony

20a

[4703]

that in

some cases workers were being encouraged not to file claims for

compensation or to delay their return to work in the hope of

increasing their possible recovery in a third party action. The

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 backlog 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 resulted in forestalling any

improvements in the present Act for over twelve years.

The Committee believes that especially with the vast im-

provement in compensation benefits which the bill would provide,

there is no compelling reason to continue to require vessels to

assume what amounts to absolute liability for injuries which occur

to longshoremen or other workers covered under the Act who are

injured while working on those vessels. In reaching this conclu-

sion, the Committee has noted that the seaworthiness concept was

developed by the courts to protect seamen from the extreme

hazards incident to their employment which frequently requires

long sea voyages and duties of obedience to orders not generally

required of other workers. The rationale which justifies holding

the vessel absolutely liable to seamen if the vessel is unseaworthy

does not apply with equal force to longshoremen and other non-

seamen working on board a vessel while it is in port.

Accordingly, the Committee has concluded that, given the

improvement in compensation benefits which this bill would

provide, it would be fairer to all concerned and fully consistent

with the objective of protecting the health and safety of employ-

ees who work on board vessels for the liability of vessels as third

parties to be predicated on negligence, rather than the no-fault

concept of seaworthiness. This would place vessels in the same

position, insofar as third party liability is concerned, as land-

21a

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 with any special maritime theory of liability or cause

of action under whatever judicial nomenclature it may be called,

such as “unseaworthiness", “non-delegable duty", or the like.

Persons to whom compensation is payable under the Act

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. Waterman 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. Ellerman Lines, 369 U.S. 355, Blassingill v.

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

[4704]

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

other categories of unseaworthiness which have been judicially

established. This listing of cases is not intended to reflect a

judgment as to whether recovery on a particular 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 same care as a land-based

person in providing a safe place to work. Thus, nothing in this

bill is intended to derogate from the vessel's responsibility to take

appropriate corrective action where it knows or should have

known about a dangerous condition.

So, for example, where a longshoreman slips on an oil spill

on a vessel's deck and is injured, the proposed amendments to

Section 5 would still permit an action against the vessel for negli-

gence. To recover he must establish that: 1) the vessel put the

foreign substance on the deck, or knew that it was there, and

willfully or negligently failed to remove it; or 2) the foreign

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

should have been discovered and removed by the vessel in the

exercise of reasonable care by the vessel under the circumstances.

The vessel will not be chargeable with the negligence of the

stevedore or employees of the stevedore.

Under this standard, as adopted by the Committee, there

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

in a particular case. Such issues can only be resolved through the

application of accepted principles of tort law and the ordinary

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

negligence by land-based third parties. The Committee intends

that on the one hand an employee injured on board a vessel shall

be in no less favorable position vis a vis his rights against the

vessel as a third party than is an employee who is injured on

land, and on the other hand, that the vessel shall not be liable as a

third party unless it is proven to have acted or have failed to act

in a negligent manner such as would render a land-based third

party in non-maritime pursuits liable under similar circumstances.

The Committee also believes that the doctrine of the Ryan

case, which permits the vessel to recover the damages for which

it is liable to an injured worker where it can show that the steve-

dore breaches an express or implied warranty of workmanlike

performance is no longer appropriate if the vessel's liability is no

longer to be absolute, as it essentially is under the seaworthiness

doctrine. Since the vessel's liability is to be based on its own

negligence, and the vessel will no longer be liable under the

seaworthiness doctrine for injuries which are really the fault of

the stevedore, there is no longer any necessity for permitting the

vessel to recover the damages for which it is liable to the injured

worker from the stevedore or other employer of the worker.

Furthermore, unless such hold-harmless, indemnity or con-

tribution agreements are prohibited as a matter of public policy,

vessels by their superior economic strength could circumvent and

nullify the provisions of Section 5 of the Act by requiring indem-

nification from a covered employer for employee injuries.

Accordingly, the bill expressly prohibits such recovery,

whether based on an implied or express warranty. It is the

Committee's intention to prohibit such recovery under any theory

including, without limitation, theories based on contract or tort.

[4705]

Under the proposed amendments the vessel may not by

contractual agreement or otherwise require the employer to

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

The Committee has also recognized the need for special

provisions to deal with a case where a longshoreman or ship

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

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

Supreme Court, in Reed v. S.S. Yaka, 373 U.S. 410 (1963) and

Jackson v. Lykes Bros. Steamship Co., 386 U.S. 371 (1967), held

that the unseaworthiness remedy is available to the injured

employee. The Committee 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 inde-

pendent contractor. Accordingly, the bill provides in the case of

a longshoreman who is employed directly by the vessel there will

be no action for damages if the injury was caused by the negli-

gence of persons engaged in performing longshoring services.

Similar provisions are applicable to ship building or repair

employees employed directly by the vessel. The Committee's

intent is that the same principles should apply in determining

liability of the vessel which employs its own longshoremen or

ship builders or repairmen as apply when an independent contrac-

tor employs such persons.

Finally, the Committee does not intend that the negligence

remedy authorized in the bill shall be applied differently in differ-

24a

ent 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 connec-

tion, the Committee intends that the admiralty concept of com-

parative 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 admiralty rule

which precludes the defense of “assumption to risk” in an action

by an injured employee shall also be applicable.

Finally, the Committee wishes to emphasize that nothing in

this bill is intended to relieve any vessels or any other persons

from their obligations and duties under the Occupational Safety

and Health Act of 1970. The Committee recognizes that progress

has been made in reducing injuries in the longshore industry, but

longshoring remains one of the most hazardous types of occupa-

tions. The Committee expects to see further progress in reducing

injuries and stands ready to immediately reexamine the whole

third party suit question if it appears that the changes made in

present law by this bill have affected progress in improving

occupational health and safety.

25a

John WOODS and Beverly Woods, Plaintiffs-Appellees, and

Cooper/T. Smith Stevedores, Intervenor-Appellee, v. SAMMISA

COMPANY, LTD., et al., Defendants. SAMMILINE COMPA-

NY, LTD., and Hightworth Shipping Ltd., Defendants-Third

Party Plaintiffs-Appellants, Cross-Appellees, v. PIONEER

NAVIGATION, LTD., Defendant-Third Party Defendant-Appel-

lee, Cross-Appellant.

No. 88-3113

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CiRCUIT

873 F.2d 842 (May 30, 1989)

Rehearing and Rehearing En Banc Denied June 30, 1989

Before GEE, SMITH and DUHE, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

In this case, our primary task is to determine when, and to

what extent, the defendants in this action--a vessel owner/opera-

tor and a time charterer--are liable for injuries suffered by a

longshoreman while discharging cargo from the vessel. After a

trial on the merits, the jury found, using the principles enunciated

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

101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), that both defendants, as

well as the stevedore, the longshoreman's employer, were re-

sponsible for the longshoreman's injuries. The district court

apportioned liability between the owner/operator and the time

charterer according to the respective percentages of fault assigned

to each by the jury. Both defendants appeal on numerous

grounds. Because we conclude that two out of the three theories

of liability on which the jury was charged should not have been

presented to the jury, we vacate the judgment and remand for a

new trial.

26a

Plaintiff John Woods was a longshoreman employed by Coop-

er/T. Smith Stevedores ("Cooper/T. Smith" or the "stevedore")

in New Orleans. In 1984, he was part of a crew of longshoremen

assigned to discharge a quantity of steel pipe located in the hold

of the M/V SAMMI HERALD. The hold contained two rows,

running fore and aft along its length, of loosely-bundled steel

pipe, stowed pipe-to-pipe with little dunnage. In the forward half

of the hold was steel pipe bound for Houston (the "Houston

pipe"); the aft half contained the pipe which Woods's crew was

directed to discharge (the "New Orleans pipe"). The Houston

pipe was stacked considerably higher than the New Orleans pine.

When the longshoremen looked into the hold before beginning

discharge operations, they immediately noticed that, to varying

degrees, the aft ends of some of the Houston pipe overlapped the

forward ends of the New Orleans pipe. All parties agree that the

overlapping condition of the cargo was created by the stevedore

that loaded the pipe in Brazil. Testimony at trial indicated that,

although the overlapping condition of the cargo was not unprece-

dented, the more common method of stowing steel pipe was to

leave an “alley-way” between the two sets of pipe such that either

set of pipe could be lifted vertically without coming into contact

with the other.

The longshoremen agreed among themselves that it was a "bad

stow," and the crew's superintendent told members of the ship's

crew that the discharge would have to proceed very slowly

because of the cargo's condition. The crew, including Woods,

nonetheless was instructed to discharge the New Orleans pipe,

although it was told to proceed as carefully as necessary, even if

that meant discharging the cargo one pipe at a time.

Woods and his fellow longshoremen began to discharge the

New Orleans pipe using the "break out" method, taking small

quantities of pipe and attempting to maneuver them around the

27a

overlapping Houston pipe and out of the hold. The discharge

proceeded uneventfully for about two hours until disaster struck.

While the crew was discharging a three- or four-pipe bundle of

New Orleans pipe, the forward end of the bundle became

"jammed" in some overlapping Houston pipe, which caused the

aft ends of one or more pieces of the New Orleans pipe to swing

- violently in the direction of Woods and the other longshoremen

standing nearby in the hold. The longshoremen attempted to run

across the uneven surface of the pipe cargo to avoid being struck

by the swinging pipe. Woods was unable to avoid serious injury,

however, when he fell into a gap between several pipes and was

struck by the swinging pipe.

B.

After collecting workers’ compensation and medical benefits

from Cooper/T. Smith, Woods and his wife sued Sammiline

Company, Ltd. ("Sammiline"), the operator of the vessel, and

Hightworth Shipping, Ltd. ("Hightworth"), the vessel's owner

(collectively, the “owner/operator"), for damages under the

Longshore and Harbor Workers’ Compensation Act (LHWCA),

33 U.S.C. § 905(b). Cooper/T. Smith immediately intervened,

seeking reimbursement of its payments made to Woods.

Sammiline and Hightworth denied liability; additionally,

Hightworth filed a third-party complaint against Pioneer Naviga-

tion, Ltd. ("Pioneer"), the time charterer of the vessel, alleging

that if the vessel interests were in any way responsible for

Woods's injuries, Pioneer was the responsible party. Pursuant to

Fed.R.Civ.P. 14(c), Hightworth also tendered Pioneer as a direct

defendant to the plaintiffs. To round out this flurry of procedural

machinations, Pioneer cross-claimed against Hightworth, alleging

that the owner/operator was solely responsible for Woods's in-

juries, and the Woodses then filed an amended complaint naming

Pioneer as a defendant.

After a trial on the merits, the jury returned a verdict in which

it found that the owner/operator, the time charterer, and the

stevedore were ali negligent and that each party's negligence was

ae

28a

a legal cause of Woods's injuries. When asked to apportion

responsibility for Woods's injuries, the jury found the

owner/operator 10% responsible, the time charterer 25% respon-

sible, and the stevedore 65% responsible. Finally, the jury

awarded Woods $ 550,000 for his injuries, and Woods's wife

$150,000 for loss of consortium.

The district court then considered the question of liability

between the owner/operator and time charterer. It denied each

party's claim for indemnity from the other and, because the

stevedore was not a defendant in the action, apportioned the

stevedore's 65% responsibility between the owner/operator

(10/35 of 65%, or 18.57%) and time charterer (25/35 of 65%, or

46.43%) in proportion to the percentage of fault assessed by the

jury against the two defendants.’ Judgment was entered accord-

ingly, with Cooper/T. Smith recovering its past compensation and

medical expenses out of Woods's recovery.

Il.

Both the owner/operator and the time charterer vigorously

contest the jury's findings that they were legally responsible for

Woods's injuries. Because the defendants filed the requisite

motions for directed verdict and judgment notwithstanding the

verdict, we review the jury's findings using the standard enunci-

ated in Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (Sth

Cir. 1969) (en banc). Thus, we review the record to see whether

"there is substantial evidence of such quality and weight that

1. Under the rule of Edmonds v. Compagnie Generale Transatlantique, 443

U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979), the owner/operator and the

time charterer were held responsible for the stevedore's negligence as well as

their own. See Hill v. Texaco, Inc., 674 F.2d 447, 449 (Sth Cir.1982).

2. Under the LHWCA, an injured worker's employer is entitled to reimburse-

ment for its past compensation and medical expenses from the net proceeds of

any recovery by the injured worker from a third party. See Peters v. North

River Ins. Co., 764 F.2d 306, 312 (Sth Cir. 1985).

eee? OU eee SOS ee ee oe,

29a

reasonable and fair-minded [persons] in the exercise of impartial

judgment might reach different conclusions." /d. at 374.

A.

Title 33 U.S.C. § 905(b), provides in pertinent part:

In the event of injury to a person covered under this chapter

caused by the negligence of a vessel, then such person, or

anyone otherwise entitled to recover damages by reason

thereof, may bring an action against such vessel as a third

party in accordance with the provisions of section 933 of this

title, and the employer shail not be liable to the vessel for

such damages directly or indirectly... .

Neither the owner/operator nor the time charterer contends that it

is not amenable to suit under section 905(b);° rather, their first

argument on appeal is simply that they have not breached any

duties owed to Woods.

In Scindia, the Supreme Court clarified the scope of the duties

owed by a vessel to stevedores and longshoremen. Starting from

the general proposition that a “shipowner may rely on the steve-

dore to avoid exposing the longshoremen to unreasonable haz-

ards," 451 U.S. at 170, 101 S.Ct. at 1623, the Court stated that

the vessel nonetheless "owes to the stevedore and his longshore-

men employees the duty of exercising due care ‘under the cir-

cumstances.'" Jd. at 166, 101 S.Ct. at 1622 (quoting Federal

Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404,

415, 89 S.Ct. 1144, 1150, 22 L.Ed.2d 371 (1969)). The Court

3. Title 33 U.S.C. § 902(21) defines “vessel” as including the vessel's “owner,

owner pro hac vice, agent, operator, charter or bare boat charterer, master,

officer, or crew member.” We have previously held that time charterers are

included within the definition and are therefore amenable to suit under § 905(b).

See Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332, 1338 (Sth

Cir. 1987).

:F

30a

identified three aspects of this limited duty, only two of which are

relevant here.‘

First, the Court indicated that the vessel must exercise ordi-

nary care

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... .

Id., 451 U.S. at 167, 101 S.Ct. at 1622. A corollary of this first

Scindia duty, the Court explained, is that the vessel has a duty to

warn the stevedore of any hazardous conditions on the ship or

with respect to its equipment of which the stevedore cannot be

expected to be aware, but of which the vessel has or should have

knowledge. /d. Although the Court did not explicitly so hold, this

duty apparently governs the vessel's conduct before stevedoring

operations have begun.°

The third Scindia duty is somewhat more nebulous and

applies to the vessel's responsibilities once stevedoring operations

are underway. As to this duty, the Court began its discussion by

again postulating that "the- shipowner has no general duty by way

of supervision or inspection to exercise reasonable care to discov-

er dangerous conditions that develop within the confines of the

cargo operations that are assigned to the stevedore." 451 U.S. at

4. In what may be identified as the second Scindia duty, the Court stated that a

vessel may be liable "if it actively involves itself in cargo operations and negli-

gently injures a longshoreman” or if it fails to exercise due care in maintaining

equipment and areas of the ship over which it has “active control” during the

stevedoring operation. 451 U.S. at 167, 101 S.Ct. at 1622. The jury in this case

was not charged on this theory; thus we have no reason to consider it on appeal.

5. See Theriot v. Bay Drilling Corp., 783 F.2d $27, 535 (Sth Cir.1986); Stass

v. American Commercial Lines, Inc., 720 F.2d 879, 882 (Sth Cir. 1983); Pluyer

v. Mitsui O.S.K. Lines, Lid., 664 F.2d 1243, 1246-47 (Sth Cir. 1982).

3la

172, 101 S.Ct. at 1624. The Court reasoned, however, that a

shipowner nonetheless could be liable under section 905(b) if it

had actual knowledge of a dangerous condition present during the

stevedoring operation and actual knowledge that the stevedore

was not acting to correct it:

[I}f [the stevedore's] judgment . . . was so obviously improv-

ident that [the vessel], if it knew of the defect and that [the

stevedore] was continuing to use it, should have realized the

[defect] presented an unreasonable risk of harm to the long-

shoremen, . . . [the vessel] had a duty to intervene [and

correct the defect].

Id. at 175-76, 101 S.Ct. at 1626-27. See also Helaire v. Mobil

Oil Co., 709 F.2d 1031, 1038-39 (Sth Cir. 1983).°

6. The Scindia Court uses the word “vessel” throughout, thereby arguably

suggesting that the opinion applies to all parties within the statutory definition.

We have previously interpreted Scindia, however, as establishing the duties

owed to stevedores and longshoremen only by owner/operators. See Kerr-

McGee, 830 F.2d at 1340 n. 8.

The underlying principle is that each defendant in a § 905(b) action is

liable only for its own negligence, which presupposes the identification of the

specific duties owed by each defendant to the plaintiff. Scindia determines the

duties owed by owner/operators, which have actual dominion and contro! over

the vessei; it does not determine the duties owed by other defendants, such as

time charterers, that are similarly amenable to suit under § 905(b) but whose

relationships to the vessel, and therefore to the plaintiff, differ from that of the

_ owner/operator. We thus must look to the time charterer's relationship with the

vessel--primarily, as defined in the time charter--to discover the duties and

responsibilities against which the time charterer's conduct must be measurec.

See Kerr-McGee id. at 1339.

On appeal, the time charterer nonetheless proceeds to assess its own liabil-

ity primarily in terms of the Scindia duties imposed upon owner/operators.

Except where otherwise noted, therefore, we will assume that the time charter-

er's duties toward the stevedore and its longshoremen employees are co-exten-

sive with the owner/operator's duties under Scindia: hence, we utilize the same

analysis of the Woodses' claims for each defendant.

32a

Initially, the defendants challenge the essence of the

Woodses' action by questioning whether a vessel's duties under

Scindia extend to the vessel's cargo, as distinguished from its

gear and equipment. However, settled case law in this circuit

forecloses the conclusion that a vessel does not, with regard to

the stevedore and longshoremen, bear any responsibility for the

vessel's cargo and its manner of stowage.

The defendants’ argument is predicated upon a close reading of

Scindia, which involved a section 905(b) complaint filed by a

longshoreman whose injury resulted from a defective winch that

was part of the ship's gear being used in cargo operations. The

defendants therefore argue that the Court's statements regarding

an owner/operator's duties must be read as delimiting its respon-

sibilities for the things--i.e., the ship's gear and equipment--over

which it has dominion and actual control.

Thus, according to the defendants, when the Court stated that

"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 opera-

tions that are assigned to the stevedore,” 451 U.S. at 172, 101

S.Ct. at 1624, it meant what it said. This is so, the defendants

contend, because actual cuntrol--the basis for the Scindia du-

ties--over the cargo and cargo operations belongs, not to the

owner/operator, but to the independent stevedore.

At least one court has accepted this argument under remarkably

similar circumstances. In Derr v. Kawasaki Kisen K.K., 835 F.2d

490 (3d Cir. 1987), cert. denied, U.S. , 108 S.Ct. 1733,

100 L.Ed.2d 196 (1988), two longshoremen suffered injuries

while discharging cargo that had moved or shifted during the

voyage after being improperly secured by the loading stevedore.

The court rebuffed their attempt to hold the vessel's owner liable

on the theory that it failed adequately to inspect or supervise the

stowage of the cargo. Absent a contractual provision, positive

law, or custom to the contrary, the court concluded,

33a

Scindia compels the holding that a 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

[sic] the stevedore's failure to perform his job properly.

Id. at 493.’ As in Derr, the essence of the Woodses' claim is

that the defendants failed to exercise proper control over the

stowage and discharge of the pipe cargo; the defendants thus urge

us to follow Derr's lead and hold that a vessel cannot be held

liable for injuries resulting from the negligence of an independent

stevedore.

Our court, however, has already visited this question and

reached the opposite result. In Lemon v. Bank Lines, Ltd., 656

F.2d 110 (Sth Cir. Sept. 1981), decided shortly after Scindia, a

longshoreman injured during discharge operations sued the

vessel owner under section 905(b), alleging that the owner was

legally responsible for the negligent manner in which the cargo

had been stowed and that such negligence was the cause of his

injuries. An independent stevedore had loaded the cargo, and the

plaintiff sought to hold the owner liable because the chief mate

had actual knowledge that the stevedore was utilizing improper

loading techniques. /d. at 116.

Although we noted the language in Scindia to the effect that

the shipowner has no duty to supervise cargo operations or in-

spect the cargo, we. extended Scindia's imposition of a duty on

the shipowner to correct, as to all dangerous conditions including

7. In reaching its holding, the Derr court went so far as to assume explicitly

that the shipowner had actual knowledge of the fact that the cargo was improper-

ly secured. That fact, the court concluded, could not suffice to create liability:

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, .. . we agree with the district courts that such observation

cannot be used to be vaulted into the type of active involvement and con-

trol that would trigger the ship's liability.

835 F.2d at 494 (citations omitted).

34a

those relating to cargo, equipment-related and other defects of

which it has actual knowledge and which it actually knows the

stevedore does not intend to correct. That duty extends to condi-

tions that arise before or during stevedoring operations. In so

holding in Lemon, we assumed that the shipowner has at least the

power to control the actions of independent stevedores: We stated

that this duty “furnishes an incentive to the shipowner to correct

those dangerous conditions he recognizes in addition to those he

actually creates." Jd. at 115.

Without questioning our assumption that such power

exists in theory and practice, we have continued to follow our

holding in Lemon. See Harris v. Flota Mercante Grancolombi-

ana, §.A., 730 F.2d 296, 299 (Sth Cir. 1984). Because we are

bound by this court's prior decisions unless and until they are

reconsidered en banc, we must decline to accept the defendants’

argument that an owner/operator owes no duties to a st¢vedore

and longshoreman with respect to cargo operations that are solely

within the stevedore's control.*

8. Even if we were able to accept the defendants’ argument as to

owner/operators, it is by no means clear that the same conclusion would obtain

for time charterers. Again, the theory underlying the argument is that the

owner/operator does not have practical dominion and control over cargo opera-

tions, the responsibility for which Scindia places in the hands of independent

stevedores. At least in this case, however, practical dominion and control over

the stevedores’ actions may exist in the time charterer, which hired both the

preparer of the cargo plan for the vessel and the loading and unloading steve-

dores. Presumably, it could have directed the stevedores' actions in accordance

with its wishes, notwithstanding the fact that the stevedores legally may have

been independent contractors.

The status of the relationship between the time charterer and the steve-

dores thus suggests that it is not unreasonable to place upon the time charterer

some duty to exercise reasonable care in its actions with respect to the cargo and

its stowage. Thus, even if the time charterer does not have a duty of supervision

and inspection, it nonetheless may have a duty to correct hazardous cargo condi-

tions of which it has actual knowledge, for the simple reason that it has the

35a

Cc.

The Woodses claim that the owner/operator and the time

charterer breached both of the above duties in three ways. Firstly,

they contend that the two defendants, in violation of the first

Scindia duty, were negligent in failing to ensure that the loading

stevedore in Brazil stowed the pipe cargo in such a manner that it

could be discharged in New Orleans with reasonable safety.

Secondly, and also under the first Scindia duty, they contend that

the defendants failed to warn Woods and his fellow longshoremen

of the “hidden danger” presented by the gaps in the pipe cargo

allegedly caused by the lack of dunnage and the loose stow. Their

third theory of liability is that, because the pipe cargo as stowed

could not be discharged with reasonable safety, the defendants,

pursuant to the third Scindia duty, should have stopped the steve-

dore from proceeding to discharge the New Orleans pipe without

first discharging the overlapping Houston pipe.

The district court charged the jury on all three theories of

liability. Although it submitted the case to the jury on special

interrogatories, the relevant interrogatory as to each defendant

asked only whether that defendant was “negligent,” to which

the jury could answer “yes" if it found that defendant liable under

any one or more of the three theories. In most cases, “[wJhere

two [or more] claims have been submitted to the jury in a single

interrogatory, a new trial may be required if one of the claims

was submitted erroneously,” unless we are “'reasonably certain

that the jury was not significantly influenced by issues erroneous-

ly submitted to it.'" Braun v. Flynt, 731 F.2d 1205, 1206 (Sth

Cir.), cert. denied, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d

189 (1984) (quoting E./. duPont de Nemours & Co. v. Berkley &

Co., 620 F.2d 1247, 1258 n. 8 (8th Cir. 1980)). Thus, if we find

..- Continued...

practical ability to correct such conditions. Because we follow this court's

precedent in holding that Scindia extends to conditions wholly within the cargo

and its method of stowage, however, our discussion is restricted to pointing out

the limitations of the defendants’ argument and of the Derr court's reasoning.

that the defendants were entitled to a directed verdict on any one

of the three theories of liability, we must remand the case for a

new trial unless we are “reasonably certain” that the jury's ver-

dict was not based upon the erroneously-submitted theory or

theories.

As noted, supra, it is the law in this circuit that, under the

first Scindia duty, a vessel interest has an obligation to exercise

due care to ensure that the vessel's cargo is loaded such that it

can be discharged with reasonable safety.’ The defendants may

be found liable “for damages arising from a dangerous stow [in]

situations where the [defendants] knew or should have known of

the dangerous condition.” Harris, 730 F.2d at 299 (citing Lemon,

656 F.2d at 116). In this case, neither defendant denies actual

knowledge of the overlapping condition of the cargo; rather, they

contend that the evidence does not establish either that the over-

9. See Harris, 730 F.2d at 299 (analyzing « shipowner's actions regarding

the stowage of cargo under the first Scindia duty); Lemon, 656 F.2d at 112, 116

(finding evidence sufficient to support a jury verdict that the shipowner had

“breached a (Scindia| duty owed to longshoremen to exercise reasonable care in

providing a reasonably safe work place” because the shipowner “was negligent

in the method and manner of slowing the cargo"). Although we noted in Harris

that “[i]f an independent contractor performs the loading operations, and the

shipowner reasonably has no knowledge of a dangerous condition thereby creat-

ed, the owner may escape liability,” 730 F.2d at 299 n. 2, the cases cited for

this proposition limit the scope of this exception to independent contractors

“over whom [the shipowner] retained no control.” Moser v. Texas Trailer

Corp., 94 F.2d 96, 98 (Sth Cir. 1982). As we note infra, both the owner/opers-

tor and the time charterer had, in both theory and practice, authority to contro!

the actions of the loading stevedore in Brazil The owner/operstor's claum that «

exercised actual control over cargo operations only insofar as they affected the

scaworthiness and safety of the vessel may be « correct empirical statement, but

it does not mean that it is relieved of the duties imposed upon it by, ¢.¢., Scin-

a

lapping concition created an unreasonable risk of harm to the

longshoremen or that they can be charged with knowledge of

such a risk if it did exist. We disagree.

In Harris, a longshoreman sued a vessel owner after being

injured while unloading sacks of coffee from the vessel. The

sacks were not “tied,” a procedure in which the sacks are stacked

to provide greater stability, nor were they separated by dunnage,

which are wood platforms placed every five sacks high. Accord-

ing to testimony from the injured worker and his fellow long-

shoreman, the stow was “dangerous” in that the coffee was

“very, very poorly stored.” Additional testimony indicated that it

was customary in the industry for the ship to decide whether to

use dunnage, that the use of dunnage involved added expense,

and that the owners of the vessel never used dunnage.

We reversed the district court's grant of a directed verdict

for the vessel owner. Although our attention was focused primari-

ly upon whether the obviousness of the danger presented by the

stow relieved the vessel owner of liability, our conclusion regard-

ing the legal sufficiency of the evidence described above is unmis-

takable:

The evidence presented by Harris would have been sufficient

to support jury findings that Grancolombiana was negligent

in providing an unreasonably dangerous place to work and

that Harris's injuries were caused by this dangerous condi-

tion. The case should not have been taken from the

Id. at 300.

Our holding in Harris guides our determination of the de-

fendants’ sufficiency-of-the-evidence argument on this point. As

in Harris, there was ample testimony in this case to support a

jury finding that the overlapping condition of the cargo meant that

the New Orleans pipe could not be discharged with reasonable

safety. Testimony at trial indicated that an overlapping stow was

unusual, that it increased the risk of damage to the cargo and

38a

injury to the longshoremen, and that those risks could have been

avoided by either stowing the Houston pipe without having it

overlap the New Orleans pipe-—as was contemplated by the cargo

plan prepared for the time charterer—or unloading the overlapping

Houston pipe before unloading the New Orleans pipe."° In sum,

there is ample evidence from which a jury could conclude that the

defendants therefore did not exercise reasonable care in providing

the longshoremen with a reasonably safe place in which to work.

The defendants offer two arguments against this conclusion.

Firstly, they assert that, although there was evidence that the

overlapping condition of the cargo meant that the discharge

would have to proceed “slowly,” there was no evidence that the

condition of the cargo presented an unreasonable risk of harm to

the longshoremen. Secondly, they contend that there was no

evidence that the defendants, through their employees, had any

knowledge that the stow presented an unreasonable risk of harm.

The defendants’ first argument is plainly foreclosed by

Harris. There, evidence that a stow was “dangerous” and*"very,

very poor{]” was held to be sufficient to support a jury finding of —

negligence; we did not require that the record contain testimony,

almost of a talismanic quality, that the stow be “unreasonably”

dangerous or that the cargo could not be discharged with “reason-

able” safety. We similarly refuse to do so here.

10 We acknowledge that unloading the Houston pipe first would have involved

considerable expense to the time charterer, but that fact does not change our

conclusion There us some evidence that the time charterer onginally intended to

have the ship dock im Houston and discharge the Houston pipe before goiwg to

New Orleans, but that, while the ship was at sea, the charterer instructed the

vessel to proceed first to New Orleans. Had the vessel gone to Houston first as

planned, there would be no question but that the stow would have been reasona-

ble, but once the decision was made to discharge the New Orleans pipe first, the

defendants were under a duty to reevaluate the condition of the stow and deter-

mine what steps. if any, needed to be undertaken to ensure a reasonably safe

discharge

39a

Whether a stowage method is reasonable depends upon a

myriad of factors, including the absolute and relative danger

which it presents vis-a-vis other stowage methods, and the feasi-

bility of such other methods. In essence, the question is how a

reasonable vessel interest exercising due care would allow the

cargo to be stowed, and what it would conclude about its stowage

methods. The evidence in this case is sufficient for a reasonable

jury to conclude that a reasonable vessel interest would not permit

the cargo to be stowed in this manner because of the danger to

property and life which the stow would present.

The defendants’ second argument is similarly without merit.

They do not and cannot deny that they were aware of the over-

lapping condition of the cargo; the record establishes beyond

doubt that the owner/operator knew in Brazil that the cargo was

being stowed in an overlapping fashion and that the overlap

continued to exist when discharge operations began in New

Orteans."' Of Lemon, 656 F.2d at 116. Their contention is only

that they did not have actual knowledge of the danger which this

condition presented such that liability may attach under Scindia.

But the defendants misread Scindia. Under the first Scindia

duty, there is no requirement that the vessel have actual knowl-

edge of the danger presented before liability will attach. Rather,

that duty speaks only in terms of a failure to exercise due care

(although we measure its duty with regard to, not the ordinary

stevedore, but an "expert and experienced" stevedore exercising

“reasonable care"). The law of negligence has never required that

a tortfeasor actually be aware of the risks which its actions create

11. To the extent that the time charterer can be charged with at least part of the

responsibility for the manner in which the pipe cargo was loaded in Brazil, see

infra Part 11.B, its liability can be justified along the same lines as for the

owner/operator. See Kerr-McGee, 830 F.2d at 1341 ("Certainly the time-char-

terer has some responsibilities. It designates the cargo that the chartered vessel

will carry, and if, for example, it carelessly chooses an unsafe combination of

cargo to share the same hold, it could be liable for resulting damages. The time-

charterer directs where and when the vessel will travel... .").

40a

before it may be held liable,'* and Scindia does not add such a

requirement in this context. See Harris, 730 F.2d at 299 (defend-

| ants may be liable under the first duty "[in} situations where the

| [defendants] knew or should have known of the dangerous condi-

tion") (emphasis added). All that is required is that the injury that

| results from the failure to exercise due care be reasonably fore-

seeable--and in this case a reasonable owner/operator and time

charterer would have perceived the dangers presented by the

overlapping condition of the cargo.

2.

The defendants also contend that the evidence is insufficient

to support a finding of liability on the theory that the gap in the

pipe cargo into which Woods fell was a “hidden danger" such

that the defendants were obligated to warn Woods of its exist-

ence. We agree that this theory of liability should not have been

submitted to the jury.

*.

An owner/operator is charged with the duty of warning the

stevedore and longshoremen about

.

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 li! ly be encountered

by the stevedore in the course of his cargo operations and

that are not known to the stevedore and would not be obvi-

Ous to or anticipated by him if reasonably competent in the

performance of his work.

| Scindia, 451 U.S. at 167, 101 S.Ct: at 1622. The undisputed

testimony in this case is that the existence of gaps in loosely-

stowed pipe is a common phenomenon and, even if not discov-

ered or created until discharge operations began, was open and

12. See W. Keeton, Prosser Keeton on the Law of Torts § 31 at 169 (Sth ed.

1984).

4la

obvious to Woods, his fellow longshoremen, and anybody who

looked into the hold.

The “failure” of the defendants to inform Woods of such an

obvious condition cannot serve as a basis for liability. See Morris

v. Compagnie Maritime des Chargeurs Reunis, S.A., 832 F.2d

67, 69-71 (Sth Cir.1987), cert. denied, U.S. , 108 S.Ct.

1576, 99 L.Ed.2d 891 (1988).'° The "hidden danger" theory of

liability thus should not have been submitted.

3.

Finally, the defendants claim that the evidence was insuffi-

cient to support a jury finding that they breached the third Scindia

duty, which requires a shipowner to intervene in stevedoring

operations if it has (1) actual knowledge of a dangerous condition

that develops during the course of those operations and (2) actual

knowledge that the stevedore has failed to remedy it. See Helaire,

709 F.2d at 1038-39. Although we have serious doubts as to

13. Morris indicates that even an “open and obvious” hazard may nonetheless

serve as a basis for liability if the stevedore has no alternative to exposing

himself to the danger other than leaving his job or facing criticism for delaying

work. See 832 F.2d at 70. This theory--that the vessel cannot defeat liability by

asserting that the stevedore has exposed himself to an open and obvious hazard

created by the vessel, unless the evidence shows that the stevedore decided to

forego reasonable alternatives to exposing himself to the hazardous

_ condition--runs throughout our discussions of a vessel's duties under Scindia.

See Teply v. Mobil Oil Corp., 859 F.2d 375, 378 (Sth Cir. 1988); Stass v.

American Commercial Lines, Inc., 720 F.2d 879, 882 (Sth Cir.1983). In such

circumstances, however, liability is more properly based, not upon the hidden

danger” theory, but upon the theory, described supra, that the defendant has

failed to exercise due care to provide the stevedore with a reasonably safe

workplace. The danger is no longer “hidden” in any sense of the word, but may

nonetheless serve as a basis for liability if the vesse! has a responsibility to

prevent its creation or correct it neste See Lemon, 656 F.2d at 116;

Teply, 859 F.2d at 378; Spence v. R/S, 766 F.2d 1504, 1507 (Lith

Cir. 1985).

42a

whether the third Scindia duty is even applicable to this case, '*

14. In Harris, we distinguished the two relevant Scindia duties along the

following lines:

Scindia was primarily concerned with a dangerous condition that develops

within the confines of cargo operations after the stevedore takes control.

The Court noted that a stevedore then becomes primarily responsible for

the safety of the longshoreman and ‘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 cargo operations

that are assigned to the stevedore.’ . . . The Court reasoned that liability

would fall on the shipowner only if he knew of the later-developed danger

and also knew that the stevedore was not taking steps to cure it.

Scindia also described the more general aspects of a shipowner's duty to

longshoremen. Thus, the shipowner must exercise care to deliver to the

stevedore a safe ship with respect to ‘the ship's gear, equipment, tools,

and work space to be used in the stevedoring operations.’

730 F.2d at 298-99 (quoting Scindia, 451 U.S. at 167, 172, 101 S.Ct. at 1622,

1624) (citations omitted, emphasis in original). Accordingly, we explicitly stated

in Harris that a shipowner's actions regarding the improper stowage of cargo—a

condition that comes into existence before the discharging stevedore assumes

control of cargo operations—are not to be judged by reference to the third Scin-

dia duty:

The jury in Lemon found that the shipowner breached a duty to exercise

reasonable care in failing to provide a reasonably safe place to work... .

We were not concerned in Lemon, nor are we concerned here, with

dangerous conditions that develop only after control of the ship has been

given to the stevedore.

Id., at 299.

Under the law of this circuit, therefore, the jury should not have been charged

on the third Scindia duty. Because the defendants, preferring to concede that the

third duty applied and to argue that the evidence was insufficient to support a

finding that it had been breached, did not raise this issue in their motions for

directed verdict and j.n.o.v., we cannot find error on this ground. See

Fed.R.Civ.P. 50(a) (“A motion for directed verdict shall state the specific

grounds therefor."); Dismmitt Agri Industries, Inc. v. CPC Int'l Inc., 679 F.2d

516, 521 (Sth Cir. 1982), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76

L.Ed.2d 344 (1983); Sulmeyer v. Coca Cola Co., $15 F.2d 835, 846 (Sth Cir.

1975), cert. denied, 424 U.S. 934, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976);

House of Koscot Dev. Corp. v. American Line Cosmetics, Inc., 468 F.2d 64,

43a

= FF

the defendants do not challenge the jury's finding on this ground;

rather, they contend that there was no evidence to support a jury

finding that they had actual knowledge of the hazard created by

the overlapping condition of the cargo. We agree.

In instructing the jury on the third Scindia duty, the district

court stated that the defendants could be found to have been

negligent only if, inter alia, they "had actual knowledge that the

condition would pose an unreasonable risk of harm to the long-

shoremen working on board the ship." Neither party objected to

this instruction.

A review of the record convinces us that no reasonable jury

could find that the defendants had actual knowledge that the

overlapping condition of the cargo posed an unreasonable risk of

harm to Woods and his fellow longshoremen.'> There is ample

evidence that the defendants were aware of the overlapping condi-

tion of the cargo; conversely, there is no evidence that the de-

fendants were actually aware that an "unreasonable risk of harm"

was thereby created. The only evidence that might possibly

support such a conclusion is testimony that the foreman of

Woods's crew told one of the ship's officers that the pipe would

have to be discharged "slowly" because of the overlap; standing

by itself, that statement falls well short of putting the vessel inter-

.--Continued...

67-68 (Sth Cir. 1972).

15. It is important to contrast this requirement under the third Scindia duty

with the requirements of the first Scindia duty. Under the first duty, all that is

required is that the shipowner “knew or should have known,” see Harris, 730

F.2d at 299, of the dangerous condition; actual knowledge of the condition or

the resulting hazard is not required. Under the third Scindia duty, however,

such actual knowledge of the hazard is required. Thus, it is entirely possible to

conclude that the defendants breached the first Scindia duty»on the theory that

they should have known that the overlapping condition was unreasonably haz-

ardous while also concluding that no breach of the third Scindia duty occurred

because the defendants lacked actual knowledge.

44a

ests on notice that the overlap created an unreasonable risk of

harm to the longshoremen. In short, the Woodses failed to pierce

the defendants’ claims of blissful ignorance of the danger present-

ed by the stow; no reasonable jury could therefore have found, in

accordance with its instructions, that the defendants breached the

third Scindia duty. —

D.

“Having thus found that the district court erred in submitting

two of the Woodses' three theories of liability to the jury, we

have little choice but to vacate the judgment and remand for a

new trial. Although the "hidden danger" theory played only a

minor role at trial, the issue of the defendants’ liability under the

third Scindia.duty was strenuously litigated by both sides, and

occupies a major portion of the court's instructions to the jury.

Moreover, because both the elements of the third Scindia duty

and the actions to which it applies are different from those

encompassed by the first duty, we cannot feel confident that the

jury's finding of liability was based solely upon the first duty, or

that a jury that found a breach of the third duty would necessarily

find a breach of the first. Because we do not feel "reasonably

certain" that the jury's verdict was not influenced by the errone-

Ously-submitted second and third theories of liability, we remand

for a new trial.

If.

In addition to their sufficiency arguments, the defendants

have raised everal other issues on appeal. As to certain of these

issues--relating to jury instructions and the division of liability

between the defendants--it is likely that the district court will have

to confront them again on remand. Lest the court's rulings on

these issues be the subject of appeal after the new trial, and there-

fore grounds for reversal and yet another new trial, we address

these issues now to provide guidance for the district court in its

future conduct of the case.

45a

A.

The defendants contend that the district court erred by

denying their request that the jury be instructed that a vessel

owner

may reasonably rely on a stevedore's judgment that a

condition, though dangerous, is safe enough for the

longshoremen to work without injury. Thus, even if the

plaintiff could establish that the vessel owner had knowl-

edge [of the dangerous condition], the vessel owner still

would be entitled to rely on the stevedore's judgment that

the condition presented, though dangerous, was safe

enough for the longshoremen to work.

The defendants contend that the requested instruction correctly

states the law in this circuit as set forth in Helaire v. Mobil Oil

Co., 709 F.2d 1031, 1039 n. 12 (Sth Cir. 1983). We disagree.

Just as the trial court is obligated to instruct the jury on the

_ law underlying the plaintiff's theory of recovery, it must do so as

to defensive theories as well. See Pierce v. Ramsey Winch Co.,

753 F.2d 416, 425 (Sth Cir.1985). The defendant's proffered

instruction, however, must be legally correct and supported by

the evidence; moreover, the court may refuse to give such in-

struction if the instructions that it does give cover the theory in

substance, as it is the court and not the parties that has control

over the language and form of the instructions. See id. at 425 n.

10.

In this case, we agree with the district court's conclusion that

the requested instruction "misstate[s the law] so badly that it's

almost scary." Helaire stands for the eminently sensible proposi-

tion that, in determining whether an owner/operator or time

charterer has fulfilled its section 905(b) duties, the jury may

consider the reasonableness of the stevedore's judgment in deter-

mining whether the vessel interests have acted reasonably:

46a

The opinion in Scindia recognized that the owner's actual

knowledge of a dangerous condition which later injured a

longshoreman might not in itself make him negligent. It

might well be ‘reasonable’ for the owner to rely on the

stevedore's judgment that the condition, though dangerous,

was safe enough.

709 F.2d at 1039 n. 12 (citing Scindia, 451 U.S. at 175, 101

S.Ct. at 1626). Scindia makes it plain, however, that there are

circumstances in which a stevedore's judgment will be so

"improvident” that the owner/operator, if it has the requisite

actual knowledge of the situation, is required to overrule the

stevedore's judgment and take steps to correct a hazard. Similar-

ly, it is the acknowledged rule in this circuit that a stevedore's

decision to proceed in the face of an open and obvious hazard

will not automatically immunize a defendant from section 905(b)

liability. '°

The requested instruction, by advising the jury that the

defendants “would be entitled to rely” upon the stevedore's

judgment, does not acknowledge these exceptions. The district

court, which properly instructed the jury that "[a]s a general

matter, the ship owner/operator and the charterers may rely on

the stevedore to avoid exposing longshoremen to unreasonable

hazards," correctly rejected the request to charge the jury on the

defendants’ view of the law.

B. .

The time charterer also challenges the district court's refusal

16. See, e.g., Barrios v. Pelham Marine, Inc.,.796 F.2d 128, 132 (Sth

Cir. 1986) ("Although in some circumstances ‘[i}t might well be “reasonable” for

the [ship] owner to rely on the stevedore's judgment that the condition, though

dangerous, was safe enough,’ Helaire, 709 F.2d at 1039 n. 12, it was not

reasonable in this case for [the ship owner] io rely on [the stevedore's} judgment

that the condition was adequately safe.").

47a

to instruct the jury (1) that the time charterer could be at fault

only to the extent that it exercised actual supervision or control

over the loading operations in Brazil, (2) that the party that

prepared the stowage plan and the loading stevedores were inde-

pendent contractors, and (3) that the time charterer bore no duty

to supervise the actions of the independent contractors and was

not responsible for their negligent acts unless the jury found that

the time charterer "directly" controlled and supervised their

actions. We find no error in the court's decision not so to charge

the jury.

Again, we review the court's decision under the standards of

review set forth in Pierce. The first requested instruction plainly

misstates the Woodses' theories of liability against the time char-

terer by completely ignoring the theory that the time charterer's

responsibilities included taking corrective actions--in the form of

instructing or authorizing the stevedore to unload the overlapping

Houston pipe before it discharged the New Orleans pipe--once the

pipe cargo was improperly stowed in Brazil. The requested in-

struction is thus incorrect when it states that the time charterer

could be at fault “only to the extent that it exercised actual super-

vision or control over the loading operations.”

The court's refusal to give the time charterer's second and

third requested instructions was also proper. A party is entitled to

have the jury charged on a defensive theory only if the theory is

supported by the evidence. See Pierce, 753 F.2d at 425. Al-

though we have consistently held that "a principal . . . who hires

independent contractors over which he exercises no operational

control has no duty to discover and remedy hazards created by its

independent contractors,” Wallace v. Oceaneering Int'I, 727 F.2d

427, 437 (Sth Cir. 1984), the record in this case reveals that the

time charterer did exercise-substantial control over the actions of

its representatives in Brazil.

There was substantial communication between Borda Livre

(the time charterer's alleged “independent contractor” in Brazil

who prepared the cargo plan, inspected the cargo, and mediated

between the time charterer's representatives, the loading steve-

48a

dores, and the time charterer) and the time charterer itself.

These communications included instructions from the time char-

terer that Borda Livre arrange certain cargoes in a certain manner

to facilitate discharge. Thus, even if Borda Livre and the loading

stevedores are considered independent contractors, the evidence

establishes that the time charterer had the theoretical and practical

ability to control their actions and actively did so on at least one

occasion. The district court did not err by refusing to give the

requested instructions.

‘TV.

After the jury rendered its answers to interrogatories on the

issues of liability and damages, the district court proceeded to

consider each defendant's claim that it was entitled to indemnity

from the other defendant; the court also considered the allocation

of responsibility for the percentage of fault ascribed to the steve-

dore, Cooper/T. Smith. The district court denied both the

owner/operator’s and the time charterer's claims for ‘indemnity

and allocated the stevedore's percentage of fault between the two

defendants according to their own respective percentages of fault.

The court was correct in so doing.

A.

In essence, the quarrel between the two defendants with

regard to the in demnity issue is over who should be held re-

sponsible for the failure of the loading stevedore in Brazil to stow

the pipe cargo so that it could be unloaded with reason able safe-

ty. The time charterer argues that the terms of the charter party

require a conclusion that at all times the owner/operator retained

Operational control over cargo operations, thus contractually

precluding any imposition of liability upon the time charterer.

Although we agree with the time charterer's interpretation of the

charter party, we also agree with the district court that, going

beyond the terms of the charter party, the time charterer did

exercise some degree of operational control over cargo operations

and thus can be held responsible for its own negligence.

49a

The charter of the vessel was on a New York Produce Ex-

change (Governmeat Form) Time Charter, a commonly-used

document in the industry. Clause 8 of the time charter provides in

pertinent part as follows:

The Captain (although appointed by the Owners) shall be

under the orders and directions of the Charterers as regards

employment and agency, and Charterers are to load, stow,

and trim, and discharge the cargo at their expense under the

supervision of the Captain... .

The time charterer, relying upon our opinion in D/S Ove Skou v.

Hebert, 365 F.2d 341 (Sth Cir.1966), cert. denied, 400 U.S. 902,

91 S.Ct. 139, 27 L.Ed.2d 139 (1970), contends that this contrac-

tual provision leaves operational control over cargo operations in

the owner/operator, thus making it solely responsible for any

injuries resulting from «he manner in which the cargo was

stowed.

In Ove Skou, a shipowner held liable for a longshoreman's

injuries resulting from the loading stevedore's negligence in

securing a hatch sought indemnity from the time charterer under

the theory that, by an extension of Ryan Stevedoring Co. v. Pan-

Atl. §.S. Corp., 350 U.S. 124, 76 $.Ct. 232, 100 L.Ed. 133

(1956), the time charterer impliedly warranted that the loading

stevedore would perform its job in a workmanlike manner. See

365 F.2d at 351. We rejected the shipowner's argument, holding

that no such warranty existed.

Essential to our holding was the conclusion that the provision

from the charter party quoted above does not shift operational

control over cargo operations, and therefore responsibility for the

actions of independent stevedores, from the shipowner to the

time charterer:

(C}lause [8], specifying that the captain shall be under the

orders of the Charterers ‘as regards employment and agency’

and that ‘charterers are to load, stow, and trim the cargo’

does not give to Time Charterer any operational control over

50a

these activities. Rather, these charter party provisions are

essentially a specification of the party--owner or

charterer--upon whom the ultimate financial cost rests for

any one or more of the activities.

. . . In the absence of circumstances which would give rise

to a liability for actions taken by an independent

contractor--none of which are present here--Time Charterer

had no responsibility to Shipowner or to third persons in-

cluding longshoremen for acts of omission or commission by

the stevedores.

Id. (footnote omitted).'’ Thus, considering solely the issue of

the contractual allocation of responsibility between the parties,

Ove Skou compels the conclusion that, absent evidence to the

contrary, the time charterer bears no responsibility to the

owner/operator or third parties for the negligent acts of the load-

ing stevedore. '*

17. See also Mallard v. Aluminum Co. of Canada, 634 F.2d 236, 242 n. 5

(Sth Cir. Jan. 1981), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85

(1981). There, we reasoned as follows:

[Ove Skou] . . . holds that. . . clause [8] makes a charterer responsible

for the costs of cargo handling, but in and of itself does not transfer opera-

tional responsibility from the owner. . . . In light of Skou, this circuit

seems reluctant to find any shift of operational responsibility for personal

injuries to the time charterer absent clear language to that effect.

18. The owner/operator's attempts to distinguish Ove Skou or otherwise to

convince us that the case has not survived the ravages of time are to no avail.

The force of Ove Skou's reasoning--that the contractual language “in and of

itself,” Mallard, id., does not shift any operational control from the shipowner

to the time charterer—has not been vitiated by the fact that the shipowner can no

longer seek indemnity from the negligent stevedore, by the fact that the case

may have been based upon an unseaworthiness rather than a negligence stand-

ard, or by the fact that the accident in that case arguably involved the ship's

gear rather than its cargo. The Ove Skou court's interpretation of the contractual

language did not turn upon--indeed, did not even mention—these facts; rather, it

Sla

Unfortunately for the time charterer in this case, however,

there is evidence that, notwithstanding the contractual allocation

of operational control over, and attendant responsibility for,

cargo operations, it did have some degree of operational control

over the loading operation. As noted above, there were extensive

communications between the time charterer and its representa-

tives in Brazil regarding the cargo and the manner in which it was

...-Continued...

looked solely to the language of the contract. None of the numerous changes in

the law since the time of that decision convinces us that our reasoning is no

longer valid. Despite the fact that other circuits have seen fit to reject Ove Skou

and hold tha’ the charter party does shift operational control over cargo opera-

tions to the time charterer, see Turner v. Japan Lines, Lid., 651 F.2d 1300,

1305-6 (9th Cir. 1981), cert. denied, 459 U.S. 967, 103 S.Ct. 294, 74 L.Ed.2d

278 (1982); Fernandez v. Chios Shipping Co., Lid., 542 F.2d 145, 151-53 (2d

Cir. 1976), both the holding and reasoning of Ove Skou are alive and well in

this circuit, and with good reason.

The owner/operator also argues that the rule of Ove Skou has been altered

by some of our later opinions and that the owner/operator should be entitled to

indemnity from the time charterer because the ship's master is, by contract, the

time charterer's agent during cargo operations. The cases to which the

owner/operator refers us hold that clause 8 may be read as providing that the

captain's decisions regarding the “safety of the cargo, as opposed to cargo-relat-

ed decisions going to the seaworthiness and safety of the vessel, are made on

behalf of the time charterer, with the charterer therefore assuming responsibility

for them. See Nitram, Inc. v. Cretan Life, 599 F.2d 1359, 1366 (Sth Cir. 1979);

Horn v. Cia de Navegacion Fruco, S.A., 404 F.2d 422, 433 (Sth Cir. 1968),

cert. denied, 394 U.S. 943, 89 S.Ct. 1272, 22 L.Ed. 2d 477 (1969).

Both of these cases, however, involved questions regarding responsibility

for damage to the cargo rather than for injuries to persons covered by the |

LHWCA, and neither case cites Ove Skou. It is entirely possible to reconcile the

two lines of cases by stating that, although clause 8 leaves complete operational

control over cargo operations in the shipowner, the time charterer nonetheless

has assumed responsibility for some portion of the shipowner's decision--but

only that specified by contract. In any event, to the extent that the two sets of

cases are arguably inconsistent, Ove Skou, being the earlier decision, is control-

ling in this case. See United States v. Edelman, 873 F.2d 791 (Sth Cir. May 15,

1989) (per curiam).

52a

to be loaded. The time charterer's instructions regarding the

cargo, and its decision to go to New Orleans first instead of

Houston, despite the fact that the cargo was loaded with a differ-

ent itinerary in mind, indicate that the time charterer did not just

pay the bills for cargo operations that took place beyond its

control.

Although clause 8 in the charter party may preclude visiting

liability upon the time charterer for the owner/operator's negli-

gence, it does not preclude holding the time charterer liable for

its own negligent acts or for the negligent acts of parties in Brazil

over whom it exercised control. In deed, this is precisely the case

contemplated in Ove Skou, in which we stated that there may be

“circumstances which would give rise to a liability for actions

taken by an independent contractor.” 365 F.2d at 351. See also

Kerr-McGee Corp. v. Ma-Ju Marine Servs., Inc., 830 F.2d 1332,

1342 (Sth Cir.1987). Because the jury found the time charterer

itself to be negligent, it is not entitled to indemnity from the

owner/operator.

Nor is the owner/operator entitled to indemnity from the

time charterer. As noted above, clause 8 does not make the ship's

master or other members of its crew the time charterer's agents

with respect to all of their decisions, regarding the cargo, made

during cargo operations. Each party exercised some control over

cargo operations and could have acted to ensure that the cargo

was loaded in such a manner that cargo operations would proceed

with reasonable safety. Each such party therefore was charged

with a duty to third parties regarding the manner in which the

cargo was stowed. Because they have not, by contract, shifted

their responsibility for the manner in which those duties were

exercised, neither party is entitled to indemnity from the other.

Each defendant contends that the other defendant should be

solely responsible for Cooper/T. Smith's negligence. The time

charterer argues that the owner/operator should be solely liable

because only it was in a position to prevent Cooper/T. Smith

53a

from performing its functions negligently. Conversely, the

owner/operator contends that the time charterer should be respon-

sible because it was the party that hired Cooper/T. Smith.

Notwithstanding the defendants’ competing arguments, we

find no error in the court's pro rata allocation of the stevedore's

fault between the two defendants. Both parties were found to be

liable in this case, not only because they were responsible for the

events that led to the cargo's reaching New Orleans in the condi-

tion it did, but because they failed to take corrective action once

the cargo arrived there. Neither party disputes its power, had it

chosen to exercise the same, to direct Cooper/T. Smith's actions

in unloading the cargo. Both parties, through their actions and

their failures to act, set the stage for the accident, even if that

event required the negligence of another party to appear on the

scene before it could occur. Allocation of the fault between them

on a pro rata basis is thus entirely reasonable.

ve

Because the jury should not have been charged on two of the

Woodses’ three theories of liability, we VACATE the judgment

of the district court and REMAND for a new trial.

54a

William Derr, Appellant v. Kawasaki Kisen K.K.;

Thomas Robertson, Appellant v. Tokai Shosen K.K.

Nos. 86-1772, 87-1031

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

835 F.2d 490 (Dec. 15, 1987)

Before: SLOVITER and STAPLETON, Circuit Judges, and

FISHER, District Judge *

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

District of New Jersey, sitting by designation.

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 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 long-

shoremen 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 in-

jured 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

55a

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. § 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.

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 han-

dling of cargo, and no duty to warn of a dangerous cargo condi-

tion 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.

56a

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 opera-

tion 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.), cert. denied, 107

S. Ct. 186 (1986), this liability scheme produced “an anomalous

and intolerable situation." A considerable part of the longshore-

man'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 deter-

rence 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,

Skipowners 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:

57a

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 accord-

ance 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. § 905).

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 in-

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

were injured in non-maritime employment ashore, insofar as

bringing a third party damage action is concerned, 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 negli-

gence 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." /d. at 4704. This

was the task the Supreme Court took up in Scindia.

58a

Scindia involved a longshoreman who was injured in an unload-

ing 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 re-

spect 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 exer-

cise of reasonable care, 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 equip-

ment under vessei's active control, it would be negligent. Jd.

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. /d 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. § 941

(1982) and warrants to the vessel that he will perform competent-

ly. 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 super-

vision 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.” Jd. at 172.

Against this background, we consider the alleged negligence of

the vessels in this case.

Ill.

Discussion

Scindia was, of course, a case in which the longshoreman's

injury resulted from the malfunctioning of the ship's gear being

59a

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. Scindia, 451 U.S. at 178.

Appellants here argue that nothing in Scindia supports the distinc-

tion 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 responsibili-

ty 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 steve-

dore’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 maritime

industry for vessels to observe the loading of cargo. The district

court apparently rejected this testimony as a matter of law, believ-

ing it to be merely an attempt to restate as a custom the general

1. To the extent that Di Rago v. American Export Lines, Inc., 636 F.2d 860 (34

Cir. 1981), predicated liability on @ 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.

60a

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, supta 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. Of Gill v.

Hango Ship-~Owners/AB, 682 F.2d 1070, 1072 a.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, $.A., 730 F.2d 296, 299 n.2 Gth Cir. 1984)

(no evidence that vessel 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 ho duty to

supervise the work of a stevedore “to discover dangerous condi-

tions 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 opera-

tions begin and therefore “is charged with knowledge of, condi-

tions 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

tion 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 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 $27, 535 Gtk Cir. 1986).

The district court in Robertson thought this reading would

6la

“eviscerate” Scindia and the Act: “while the vessel would not be

required to supervise and inspect each stevedoring operation

» aD I IIIa aeica eeieeinin opepeh aoieammana perk

which encountered the condition of the stow. This makes no

sense, and would render the principle of fault-based liability of

the vessel a fullity.” 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.

the vessel may not be liable for the negligence of the American

stevedore employer, the shipowner may be held liable for unsafe

conditions created by improper stowage by a foreign loading

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

Lines, Lad., 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, “[a}Js 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

foreigh stevedore, supervising its work when necessary, and

warning the offloading stevedore of concealed dangerous condi-

tions created by the foreign stevedore." /d.

We cannet accept the Tierner 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; of. Ruffino v. Scindia Steam Navigation Co., 559 F.2d

861, 862 (2d Cir. 1977) (finding vessel had ho duty of care with

respect to foreigh-loaded cargo in light of congressional intention

to “relieve shipowners of liability predicated upon the negligence

of unvedulag euntainn”) As this court has pointed out before,

“creation of a shipowner's duty to oversee the stevedore's activity

62a

and insure the safety of the longshoremen Would . . . saddle the

shipowner with precisely the sort of nondelegadle duty that

nd Shatne Ob Soe Rast section 905(b)." Hurst

v. Triad Shipping Co., 554 F.24 1237, 1249-50 8.35 (34 Cir.),

quoted with approval tn Scindia, 451 US. at 169, cert. denied,

434 U.S. 861 (1977).?

Thus the real issue is Hot Where the cargo was loaded, but

whether a vessel may be held negligent for failure to inspect or

Cangpes et bemteah ts ieee Goer tat captas mmnnn

Congress and interpreted in does not change because the

cargo sto was performed by stevedores. See, e.g

Spence v. s RA, 766 F. 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.

B.

Duty for Ship and Equipment

Before the 1972 amendments and the Scindia decision, the

Supreme Court has recognized that the vessel owes to the steve-

dore 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 exercise] 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

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 situa-

ton by the Ninth Circuit Court of Appeals. See Taylor v. Moram Agencies, 739

F.2d 1384, 1387 (9th Cir. 1984).

63a

reasonable care to carry On its cargo operations with reason-

able safety to persons and property, and to warn(] the steve-

dore Of any hazards on the ship or With to its equip-

ment that are known to the vessel or should be known to it in

the exercise Of reasonable care, that would likely be encoun-

tered by the stevedore in the course of his cargo ne a re

and that are not known by the stevedore and not be

a nee

the performance of his work.

Td. at 167; see also id. at 172; id. at 180 (Powell, J., concurring).

Thus, adden in haskanen, Gamivs Hieden Pas

ing froth @ Gefect in the hatch covers, Griffith v. Wheeling-Pitts-

burgh Steel Corp., 610 F.24 116 (34 Cir. 1979), vacated sub

nom. American Commercial Lines, ‘Inc. v. Griffith, 451 U.S. 965,

oh remand, 657 F.2d 25 (1981), cert. denied, 456 U.S. 914

(1982), and froth @ defective gangway Which, albeit supplied by

the stevedore, became the vessel's gangway, Sarauw v. Oceanic

Navigation Corp., 622 F.2d 1168 (3d Cir. 1980), vacared, 451

U.S. 966, on remand, 655 F.2d 526 (1981), cert. denied, 456

U.S. $14 (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 thet 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 . The Court could not have intended by

nin veleeunas lish @ duty by the ship with respect to cargo

that it had expressly negated in other portions of the opinion.

Thus, dhese ee no beads in abhor of tatee canes fat the Ney

have foutd hegligence by the ships on the basis of any defective

equipment or gear.

64a

..

Duty to Intervene

The parameters of the vessel's duty to intervene in cargo opera-

tions 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.” /d. at

174. The Supreme Court characterized this as the "duty to inspect

thesis," which it had already rejected. Jd. It was also unprepared

to accept the more modest duty imposed in Evans v. Transporta-

tion 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. /d. 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 repair 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 §. 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 shipown-

er'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

nena ea aa

would ordinarily be no duty to intervene to remedy dangers

created by negligently loaded cargo.’

D.

Duty to Warn

Because the ship has no duty to inspect cargo stowage opera-

tions, 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 knowl-

edge 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 reason-

3. There was nothing in 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.

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” as-

signed 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 storage.

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

was a proximate cause of the injury.

66a

ably have made a finding of actual knowledge, or breach of any

duty to know, of the alleged 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 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 recog-

nized, 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

negligent 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.