UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
February 15, 1978
MARIO LUBRANO, PLAINTIFF-APPELLANT,
ROYAL NETHERLANDS STEAMSHIP COMPANY, DEFENDANT-APPELLEE.
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.
FEINBERG, Circuit Judge:
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 which he made his decision.
Plaintiff, Mario Lubrano, was a longshoreman employed by a stevedoring company, Northeast Stevedoring Company ("Northeast").Northeast had been engaged by the shipowner, Royal Netherlands Steamship Company ("Royal") to load cargo into its ship, the "S.S. CHIRON". Lubrano was Northeast's employee, hence was covered by Northeast's compensation insurance. Northeast was an independent contractor and had complete charge of, and responsibility for, the loading operation.
The cargo being loaded by Lubrano's gang consisted of metal drums containing tallow. The drums were slippery. Some dunnage (wooden boards) was supplied by the shipowner as was its responsibility, but as the work progressed it became apparent to the stevedore that there was insufficient dunnage to cover the first tier of drums. The longshoremen called this deficiency to the attention of their boss, Willie Joe Ashley, who in turn so informed the stevedore's foreman, Spano. Ashley and Spano told one of the ship's officers of the necessity for more dunnage. Ashley was told that additional dunnage had been ordered and that "you had to wait until it arrived". (49a). The "you" is clarified by Ashley's testimony. In answer to the question "Who told you that you had to wait?" he said, "Well, the stevedore says that the ship - that the Dutch had ordered the lumber and it hand't arrived so we had to continue working until it gets there. * * * When I say wait I don't mean that he said that we should stop work. We had to do the best we can until it got there". (50a). To make identification even more certain that it was the stevedore who gave the orders, there ensued the following:
"Q. This was the stevedore who told you that?
Q. Who was the stevedore on that ship that day, which foreman?
A. Pete Spano.
Q. Petey Spano said to you, in about these words, that the ship had ordered the dunnage, you had to wait a while till the dunnage came, but meantime the men should continue working and do the best they could under the circumstances?
Q. Of course, Petey Spano was your boss, is that right?
A. That's right.
Q. So he having said that to you, you did what he told you to do, as best you could, right, you relayed the same instructions to the men in the hold, they had to do the best they could, 'Keep working, do the best you can, those are the orders,' is that right?
A. That's right." (50a-51a)
However, Ashley had previously testified that when he had asked for more dunnage he was told (presumably by a ship's officer): "We [the stevedore] had to do the best we can until we get something we could work with." (42a).
Thereafter Lubrano was injured when he slipped on a greasy drum not covered by dunnage.
I find no basis in the record for the majority's conclusion that the shipowner, through an officer, had interjected itself into supervising the stevedoring operation by giving orders that the stevedore should continue to work on the drums despite absence of dunnage [it was Spano who told Ashley to do the best "they could under the circumstances"].The most that can be said for the words "we had to continue working until it gets there" is that they constituted advice to the stevedore to keep working. However, this was not an order from someone in charge of the loading operation, and it was the stevedore's sole responsibility thereafter to direct its employees how, where and under what circumstances they were to continue to work. Even assuming an officer had said that the work should continue, this statement cannot be regarded as an attempt to take the stevedore's control of the loading operation and of its own employees out of its hands.
The focal point of error in the majority opinion is to be found in its contrary-to-fact assumption, which in turn is contrary to the law, that if there is evidence that a ship's officer "had the men keep working or joined in the stevedore's decision to do so, then there would be a jury question".
The factual error is the assumption that the shipowner retained the power to direct the stevedore's employees after having given the stevedore, as an independent contractor, complete control over the loading operation. The error as a matter of law is in holding that a shipowner, having so relinquished the control to the independent contractor, must stand by to countermand the stevedore's directions lest it be charged with joining in. The law, as evidenced in the 1972 Amendments to the LHWCA and the many cases decided since the Amendments, is to the contrary.
Despite Congressional intent in enacting the 1972 Amendments to the LHWCA*fn1 thereby (1) to give substantially increased benefits to injured longshoremen and (2) to clarify the legal situation created by the so-called Sieracki-Ryan cases, the holding of the court today takes the law a long step backward toward the strict liability doctrine of yesteryear.
Under Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946), by court-created law, the doctrine of strict liability to seamen was extended to longshoremen upon a theory of unseaworthiness.*fn2 And shipowners were held to be liable for unseaworthy conditions even if the unseaworthiness was caused by the independent stevedore, rather than the vessel or a member of the vessel's crew. Some years later and possibly to ameliorate the result of this situation, it was held in Ryan Stevedoring Co., Inc. v. Pan Atlantic S.S. Corp., 350 U.S. 124, 100 L. Ed. 133, 76 S. Ct. 232 (1956), that the shipowner could recover from the stevedore damages for which it was liable, on the theory that the stevedore had breached its implied warranty of workmanlike performance to the vessel.
The background and the necessity for the 1972 legislation cannot be more concisely or better stated than by Chief Judge Kaufman within the year in Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (2d Cir. 1977), who said:
"In an effort to bring order out of chaos, Congress amended the Longshoremen's and Harbor Workers' Compensation Act (LHWCA) in 1972 to clarify and limit the circumstances under which the employee of a stevedore could recover damages from a shipowner for on-the-job accidents." 553 F.2d at 838.
"... Congress, by its extensive overhaul of the LHWCA in 1972, sought to achieve several goals: adequate, increased and sure compensation for injured longshoremen, elimination of the rubric of liability without fault for shipowners, and encouragement of safety within the industry by placing the duty of care on the party best able to prevent accidents." 553 F.2d at 839.
The 1972 legislation was to remedy "the anomalous situation [which] arose in which the stevedore, whose participation in a workmen's compensation scheme precluded direct actions for negligence by his employees, became liable, nevertheless, in a court of law for the very injury that the compensation system was designed to remedy." 553 F.2d at 839-40.
Placing a high potential liability on either the shipowner or stevedore was not unjustified because the LHWCA then limited longshoremen's compensation to a maximum of $70 per week.*fn3 However, a major concern was that the initial liability was on the wrong party - the shipowner was strictly liable for accidents where it had little or no control over the actual operations. Also, the administrative costs of high legal fees and burdens on the courts created a system that was in dire need of reform in 1972.*fn4 The ultimate decision reached by Congress was not made lightly. Instead, the result reflects a delicate balancing by Congress of the interests of the various parties involved. The longshoremen received increased benefits, the shipowners are liable only if negligent, and the stevedore does not face the Ryan secondary suit.*fn5
In analyzing the basis for the legislation, due consideration must be given to the express aim of Congress to force employers (stevedores) to be more responsive to safety considerations in their work.*fn6 The stevedore has the primary responsibility to avoid accidents. Riddle v. Exxon Transportation Company, 563 F.2d 1103 (4th Cir. 1977); Marant v. Farrell Lines, Inc., 550 F.2d 142, 144 (3rd Cir. 1977); Lucas v. "Brinknes" Schiffahrts Ges., 379 F. Supp. 759, 768-69 (E.D. Pa. 1974); Ramirez v. Toko Kaiun K.K., 385 F. Supp. 644, 653 (N.D. Calif. 1974). The stevedore is in the best position to avoid the costs and causes of accidents, and on its shoulders rests the primary responsibility for the safety of longshoremen. Such responsibility is consistent with the promotion of safe working conditions and economic efficiency. The stevedore is also the party best able to spread the cost of accidents through insurance or through higher charges for work performed.*fn7 See generally, G. Calabresi, The Costs of Accidents (1970).
Congress intended that the LHWCA should be applied uniformly nation-wide, and comparative negligence would apply, while assumption of risk would not apply, to longshoremen.*fn8 Also, Congress intended the application of negligence law to be based on land-based principles.*fn9 The application, by analogy, of land-based principles does not require courts to develop rules of law for interpretation of the LHWCA which are identical to land-based tort law. To the contrary, land-based concepts must be used to fashion rules applicable to maritime situations and reflecting Congressional intent.
Courts have looked to the Restatement (Second) of Torts for guidance in formulating the land-based principles of negligence law. This circuit and other circuits have followed the modern rule of law provided by § 343A of the Restatement.*fn10 However, § 343A must be read in light of the intent of Congress in enacting the 1972 Amendments. The basic rule found in § 343A is that no liability will arise for obvious defects, and is based on notions of assumption of risk.*fn11 The escape clause provided in the last phrase of § 343A(1) is expressly designed to avoid in traditional tort situations the harsh consequences of assumption of risk and contributory negligence. The doctrine of assumption of risk is specifically excluded from LHWCA actions, and comparative negligence, not contributory negligence, is applied. Furthermore, in a land-based tort action, one who is held liable can receive contribution from another concurrent tortfeasor, while the LHWCA precludes contribution from the stevedore tortfeasor. In short, the special characteristics of the LHWCA preclude unthinking adherence to § 343A alone or to a literal reading thereof.
Section 343A also must be read together with § 409 of the Restatement. In fact, § 409 dealing specifically with "Independent Contractors" should be the more applicable section. Section 409 states: "Except as stated in §§ 410-29, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants". Restatement (Second) of Torts, § 409 (1965). Under this section, with certain exceptions, the landowner is not liable per se for the negligent acts of an independent contractor.*fn12 "If §§ 343-43A were applied to create a duty in the shipowner to apprise himself of, to warn the longshoremen of and to protect them [from] dangerous features of the independent contractor's - i.e., the stevedore's - activity then the Restatement sections dealing with employer control of the activity of independent contractors §§ 409-26 would be rendered nugatory with respect to landowners-shipowners." Hurst v. Triad Shipping Co., 554 F.2d 1237, 1249-50 n. 35 (3d Cir. 1977).*fn13
When analyzed, prior cases, in this circuit and others, are consistent with the view that a longshoreman's claim against the shipowner normally should not be permitted when the ship has relinquished control of the operation which led to the injury.See Ruffino v. Scindia Steam Navigation Co., Ltd., 559 F.2d 861 (2d Cir. 1977) and Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837 (2d Cir. 1977).In the present case, appellant argues that the exception of § 414 of the Restatement applies.*fn14 However, there is no proof in the record of the retention of any control by the shipowner or facts from which any inference thereof might be drawn. Appellant contends that at any time the CHIRON's crew could have ordered the work halted, and that Royal breached a duty of reasonable care to ensure that the work was performed properly, but the appellant presented no evidence indicating that the crew of the CHIRON participated in, controlled or even had a right to control the operative functions of loading. The facts establish the contrary.
The stevedore was an expert in loading and unloading operations. Royal could reasonably expect that Northeast, which "was in a far better position than the shipowner to avoid the accident", would use its expert knowledge "to adopt preventive measures and thereby to reduce the likelihood of injury". Italia Societa v. Oregon Stevedoring Co., 376 U.S. 315, 323, 324, 11 L. Ed. 2d 732, 84 S. Ct. 748 (1964). The handling of tallow drums is the type of task that is within the expert competence of the stevedore.*fn15 The court in Slaughter v. S.S. Ronde, 390 F. Supp. 637 (S.D. Ga. 1974), affirmed, 509 F.2d 973 (5th Cir. 1975), noted that
"it has also been held that 'The physical handling of an ordinary bale or bundle is the clearest example of a detail within the special competence and peculiar responsibility of the stevedoring contractor' and that such is 'clearly... not the province or responsibility of the ship'." (Citation omitted) Id. at 645.
The stevedore can stop work, and has the responsibility to stop work, when dangerous conditions arise. The stevedore is also given the primary responsibility to comply with the mandatory requirements of the Safety and Health Regulations for Longshoring, 29 C.F.R. 1918 et seq.*fn16 These regulations require that "[slippery] conditions shall be eliminated as they occur". 29 C.F.R. 1918.91(c). If the shipowner is to be liable only for negligence, it would be manifestly unfair to saddle the shipowner with unfortunate results which occurred after turning the work over to the stevedore. Cf. Baum v. United States, 427 F.2d 215, 219 (5th Cir. 1970) (pre-amendments case where the shipowner was not in control of maintenance operations).
This court in Napoli v. Hellenic Lines, 536 F.2d 505 (2d Cir. 1976), addressed the problem of an obvious and dangerous condition, and, using the standard of § 343A, found the shipowner liable.However, Napoli is distinguishable on at least two important grounds.*fn17 First, the defect in Napoli was present when the stevedore began its duties. Here, the defect was not present when the longshoremen began work, but arose as the work progressed. Appellant argues that the danger was present when the work began because the failure to provide sufficient dunnage created a defect before loading began. However, no evidence in the record indicates that Royal created the danger by failing to provide dunnage. Merely turning over the CHIRON without sufficient dunnage (a fact only developed during the stevedore's loading), did not create an open and obvious danger. The ship had some dunnage available when the work began, and Northeast did not even request more dunnage until after the work had well progressed. In spite of the request for more dunnage, the stevedore ordered the work to continue. The delay in providing dunnage resulted only in the slippery conditions continuing after they were initially created by the stevedore. The shipowner had no duty to supervise the stevedore to determine if conditions were safe for the longshoremen to continue work until that equipment should arrive.
Second, the shipowner in Napoli was acting as its own stevedore. The majority opinion glosses over this fact in a footnote, but the distinction is critically important. Because the shipowner acted as its own stevedore, Napoli did not involve consideration of § 409 which provides the standard of care for delegation of responsibility to the independent contractor, the stevedore.
One of the major premises behind the holding in Napoli is that when the shipowner acts as its own stevedore, the longshoremen cannot stop work when a dangerous condition arises which is the fault of the shipowner/stevedore.*fn18 If they did stop work, the longshoremen might face dismissal. Napoli, supra at 509. When an independent contractor is the stevedore, the longshoremen can stop work without fear of losing their jobs. If a condition is found to be unsafe for the longshoremen, the stevedore can remedy the difficulty at the expense of the shipowner, and if the operations are delayed, the shipowner must normally pay for standby time. See Ramirez v. Toko Kaiun K.K., 385 F. Supp. 644 (N.D. Cal. 1974), Hugev v. Dampskisaktieselskabet International, 170 F. Supp. 601 (S.D. Calif. 1959), affirmed, 274 F.2d 875 (9th Cir. 1960).
In Munoz, this court cited the Fifth Circuit case of Gay v. Ocean Transport in distinguishing Napoli:
"* * * We therefore prefer [to Napoli] the guidance afforded by Gay v. Ocean Transport & Trading, 546 F.2d 1233 (5th Cir. 1977) where, in two related cases, the Fifth Circuit refused to hold a shipowner liable for injuries sustained by longshoremen as a direct result of their employers' negligence in failing properly to ventilate the hold and omitting adequately to secure pallets on the ship's deck. The Court recognized, as we do, that it would be inimical to the intent of Congress to charge the shipowner with the stevedore's wrong." (citations omitted) 553 F.2d at 841.
In Munoz the defect was latent, but in Guerra v. Bulk Transport Corp., the companion case to Gay, a longshoreman was injured when wooden pallets, stacked near a boom by the longshoremen, were struck by the boom and fell injuring plaintiff. The Fifth Circuit upheld the district court's determination that the shipowner was not negligent. The court stated:
"Even though the crew of the vessel was aware of the dangerous condition presented by the stack of pallets, it was the stevedore who created the hazard in the first place and it was the stevedore that failed to tie the pallets down and then carelessly knocked one into the hold. This was not the type of danger that must be faced notwithstanding knowledge." Id. at 1242.
In applying § 343A, cases have found the shipowner not liable for obviously dangerous conditions, whether existing before control is relinquished to the stevedore or arising later with the knowledge of the shipowner, if the danger is such that the stevedore would be expected to correct the condition in discharging its responsibility to the longshoremen and the condition is one where the shipowner could defer to the competence of the stevedore. See Riddle v. Exxon Transportation Company, supra; Anuszewski v. Dynamic Mariners Corp., Panama, 540 F.2d 757 (4th Cir. 1976); Frasca v. Prudential-Grace Lines, Inc., 394 F. Supp. 1092 (D.Md. 1975).One commentator has explained these decisions:
"The consistent philosophy of these decisions is that in the ordinary situation shipowners are in no position to learn of unsafe conditions or methods arising during the stevedore's operations; when shipowners do learn of such dangers, ordinarily the stevedore and his employees will have an equal or greater awareness, so that the danger can be said to be open and obvious; and that the safety of stevedoring and other such operations is the primary and usually the sole responsibility of the stevedore." Robertson, "Negligence Actions by Longshoremen Against Shipowners Under the 1972 Amendments to the Longshoremen's and Workers' Compensation Act", 7 Jour. of Mar. Law and Comm. 447, 473 (1976).
Here, the plaintiff and the other longshoremen did discover and realize the danger, as did their supervisors. The entire loading operation, having been put under the sole control of the stevedore, the shipowner was under no duty to countermand the stevedore's order nor even had a right to do so. Furthermore, "the stevedore's employees were in a far better position to abate the danger than any of the members of the ship's crew". Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331, 334 (5th Cir. 1977).
The stevedoring operation having been entrusted solely to the stevedore, it had the responsibility - not the ship - of observing the conditions of the loading as it progressed. It was Ashley [stevedore's employee] who saw that "grease is everyplace" and that because of the grease "the men couldn't hold the drums sufficiently to really store them, it was unsafe". (42a). It was Ashley who said "the stevedore says that the ship - that the Dutch had ordered the lumber and it hadn't arrived so we had to continue working until it get there". (50a)
When, as here, the work was in the control of an independent stevedore, the condition arose as a result of the stevedore and longshoremen themselves, the shipowner had taken steps to provide the requested dunnage, and the stevedore ordered the loading operation to proceed, the district court committed no error in removing the case from the jury and directing a verdict. Holding the shipowner liable on a "should anticipate" basis would allow the burden of safety to be shifted from the stevedore to the shipowner - a result not intended by Congress. The shipowner had no reason to anticipate, even taking the evidence most favorable to the plaintiff, that neither the stevedore nor the longshoremen themselves, would take sufficient measures to protect the longshoremen from slippery conditions, which they knew existed and which were a normal component of this type of loading operation.
A careful reading of the record discloses no fact upon which negligence by the shipowner, even by inference, could be based. The proof is clear, as found by the trial court, that
"[there] is no evidence whatsoever that those in charge of the vessel were pressuring the longshoremen to continue work without interruption, so that, for example, the vessel might sail with the tide or in accordance with a prearranged schedule. The decision to continue work, in the face of a known hazard, and despite the knowledge that the requested additional dunnage was on the way, was made by the stevedoring supervisors; and that decision was neither requested nor participated in by the defendant or its officers." (79a)
When the longshoremen discovered that the loading operation required more dunnage, the shipowner set about to obtain it. As the trial court found,
"[defendant] had no reason to anticipate that the longshoremen would not await the additional dunnage, which would have enabled them to avoid the hazard; and there is no evidence that defendant's efforts to obtain more dunnage, in order to correct the danger, were less than they could have been in the circumstances." (footnote omitted) (81a).
Upon the facts presented in plaintiff's case, the trial court's conclusion is inescapable that "[a] jury could not find for plaintiff on this state of the record without departing from the guiding principles of the statute." (footnote omitted) (81a).
For these reasons, I believe that the decision of the majority is contrary to the statute, the clearly-expressed intent of the Congress, the many decisions from the Third, Fourth, Fifth and Ninth Circuits, as well as the carefully considered decision of this court in Munoz: "To hold otherwise, in our view risks return to the concept of liability without fault for shipowners, which Congress so emphatically and recently rejected". 553 F.2d at 841. In summary, in my opinion, the majority reached "a result [which] would judicially revive the longshoremen's remedy for unseaworthiness, the very remedy that Congress repudiated through the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act."*fn19
Therefore, I would affirm.