Appeal from directed verdict by United States District Court for the Southern District of New York, Charles S. Haight, Jr., J., in negligence action by longshoreman suing shipowner for personal injuries. Reversed and remanded.
Before LUMBARD, MOORE and FEINBERG, Circuit Judges.
Plaintiff Mario Lubrano, a longshoreman, appeals from a judgment in the United States District Court for the Southern District of New York, Charles S. Haight, Jr., J., directing a verdict for defendant shipowner, Royal Netherlands Steamship Company, in this negligence action brought under 33 U.S.C. § 905(b). Examination of the record indicates that the district judge removed from the jury's consideration an issue of fact presented by ambiguous testimony. Since this was error, we must reverse for a new trial.
The facts are in large part undisputed and, with the exception already referred to, are admirably set forth in the trial judge's memorandum opinion granting judgment to defendant. We therefore state the facts briefly, reserving fuller discussion for what we regard as the crucial issue. Plaintiff was injured on December 27, 1972, while loading greasy drums of tallow in the hold of defendant's vessel. Plaintiff was employed by Northeast Stevedoring Company, which was performing stevedoring duties for defendant Royal. While loading a second tier of drums upon the first tier, plaintiff allegedly slipped on the greasy drums and fell. The theory of plaintiff's case was that his fall was caused by the absence of dunnage (pieces of rough lumber or plywood), which was supposed to be supplied by defendant. The insufficiency of dunnage had become apparent during the course of the work and had been called to the attention of Willie Joe Ashley, plaintiff's hatch boss, and Pete Spano, a stevedore foreman and Ashley's immediate superior.Both Ashley and Spano were employed by Northeast Stevedoring Company. They, in turn, called the problem to the attention of a ship's officer, since the dunnage was supplied by the ship.
At this point, although only plaintiff and Ashley testified, the parties disagree as to what the record indicates next occurred. In his written opinion, the judge viewed the evidence as showing that the ship's officer advised Spano and Ashley, in substance,
that those in charge of the vessel were aware of the need for more dunnage; that more dunnage had in fact been sent for; and that the longshoremen should hold off on working in the hold until the additional dunnage arrived.
As will be seen below, plaintiff characterizes this version of the facts as unwarranted.It is undisputed, however, that Spano told Ashley that the men in the hold should not be kept idle, should continue to work and "do the best they can," that Ashley relayed these instructions to plaintiff and his colleagues, and that thereafter plaintiff slipped and fell. On this theory of the facts, the judge directed a verdict for defendant at the end of plaintiff's case. This appeal followed.
Plaintiff sues under the 1972 amendments to the Long-shoremen's and Harbor Workers' Compensation Act, which produced significant changes in the law governing remedies for longshoremen injured on their jobs. The amendments relevant here have been fully discussed in several recent decisions of this court, e.g., Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 839-41 (1977); Landon v. Lief Hoegh and Co., Inc., 521 F.2d 756, 762-63 (1975), cert. denied, 423 U.S. 1053, 46 L. Ed. 2d 642, 46 L. Ed. 2d 343 (1976), and need not be extensively examined again. It is enough for our purpose to recognize, as the parties do, that a longshoreman may still recover for damages caused by the negligence of a shipowner, 33 U.S.C. § 905(b),*fn1 and that "Congress suggested land-based principles of negligence as the standard of care for vessels boarded by dock workers." Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976).
Carrying out that congressional intent, we held in Napoli that the standard for determining the liability of a ship to a longshoreman, who had fallen from unsecured plywood boards on a load of drums, was found in Section 343A of the Restatement of Torts, reproduced in the margin.*fn2 Since there was evidence in that case from which a jury might conclude that the shipowner had "notice of an obviously dangerous condition" and that "the ship should reasonably have anticipated that Napoli would not be able to avoid the danger despite its obviousness," id. at 509, we reversed for a new trial and a proper charge.*fn3 Still more recently, however, we emphasized that under "land-based principles... a shipowner cannot be held liable for a dangerous condition created by an independent stevedore unless he has actual or constructive knowledge that the condition exists." See Ruffino v. Scindia Steam Navigation Co., Ltd., 559 F.2d 861, 862, slip op. 4771, 4774 (July 18, 1977). Accord: Munoz v. Flota Merchante Grancolombiana, S.A., supra; Bess v. Agromar Line, 518 F.2d 738 (4th Cir. 1975).
We turn now to apply these principles to this case. As indicated above, it is undisputed that a ship's officer was notified of the shortage of dunnage, that the ship acknowledged its responsibility to supply dunnage, and that at the time of the accident, it was attempting to do so. The trial judge, however, ruled as a matter of law that the ship "had no reason to anticipate that the longshoremen would not await the additional dunnage..." Appellant argues that on the record before the judge, this conclusion was unwarranted.
The key support for plaintiff came from his hatch boss, Ashley. The latter testified, in substance, that when the men in the work gang noticed that they needed dunnage, he spoke to someone on the ship, whom he identified as an officer. In the course of his testimony, Ashley first apparently quoted the officer as follows: "[They] said we had wait and do the best we can until it [the dunnage] arrive." Then, becoming more specific, Ashley testified that the officer said: "We had to do the best we can until we get something that we could work with." The trial judge then asked the witness, "Who said that?" and Ashley replied: "This was come from the stevedore and the ship.We couldn't keep the 18 men standing by doing nothing until the plywood arrived." Ashley then testified that in the following hour, he saw the same officer walking "back and forth on the ship constantly." It is true that in other parts of his direct testimony, Ashley quoted the ship's officer as stating merely that "they had ordered [the dunnage] and they had to wait for it." And in Ashley's cross-examination, a similar direction to Spano, Ashley's superior, was attributed to the ship's officer. This helps to explain why the trial judge viewed the evidence as supporting defendant rather than plaintiff. Thus, in several places in his opinion, the judge referred to the shipowner's "suggestion" that the men hold off working until the dunnage arrived. This characterization of the officer's statement was the basis of the judge's holding that the ship could not reasonably apprehend that work might continue and an injury occur.
However, as the above analysis of the record indicates, the evidence could have been interpreted differently. Even though the record was sparse and the testimony supporting plaintiff on this issue was ambiguous and unimpressive, it was enough to allow a jury to conclude that the ship's officer approved and joined in the direction that the men keep working, although the dunnage was not there. Had a jury so found, it might also have concluded, as we said in Napoli, "that the ship should reasonably have anticipated that... [plaintiff] would not be able to avoid the danger despite its obviousness." 536 F.2d at 509. It is as true here, as it was in that case, that
... it might be argued that if this was the only place for... [plaintiff] to work and carry out his job, the vessel might reasonably anticipate that he would use it despite its obvious danger, since the only alternatives would be to leave his job or face trouble for delaying the work. Should the jury be persuaded by this argument and find that the shipowner was negligent in not correcting the open and obvious danger but that the plaintiff was contributorily negligent, it would apply the doctrine of comparative negligence to reduce the shipowner's liability proportionately.
We do not know what the true facts are or what more probing examination at a new trial may obtain from the same witnesses or from others, like Spano, who did not testify. If the evidence shows only that a ship's officer told the longshoreman to stop working until the dunnage arrived, thereby fulfilling the ship's duty to the longshoreman, there would be no case for the jury. But if there is again evidence that a ship's officer, after being notified of the open and obvious danger of insufficient dunnage for a slippery cargo, had the men keep working or joined in the stevedore's decision to do so, then there would be a jury question.*fn4
Judgment reversed and case remanded for a new trial.
MOORE, Circuit Judge (Dissenting):
The fallacy of the majority opinion is to be found in the last sentence thereof, namely, "But if there is again evidence that a ship's officer, after being notified of the open and obvious danger of insufficient dunnage for a slippery cargo, had the men keep working or joined in the stevedore's decision to do so, then there would be a jury question." The fallacy is that an order by a ship's officer to a stevedore in whose hands had been placed the exclusive control of the loading operation, and who had exclusive authority to direct its employees as to when and under what conditions they should work with respect to awaiting the arrival of additional dunnage and continuing work in the meantime under conditions known to stevedore and shipowner alike to be dangerous, placed negligence liability on the shipowner rather than on the stevedore whose employee was injured.
Before a trial judge is faulted for an error it is well to consider the facts and the applicable law upon ...