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Cox v. Grancolombiana

decided: May 10, 1978.

WALTER COX, PLAINTIFF-APPELLEE,
v.
FLOTA MERCANTE GRANCOLOMBIANA, S. A., DEFENDANT-APPELLANT



Appeal from a judgment of the United States District Court for the Southern District of New York, in the amount of $75,000, entered after a jury trial before Honorable Robert L. Carter, Judge, against defendant Flota Mercante Grancolombiana, S.A., under 33 U.S.C. § 905(b) of the Longshoremen's and Harbor Workers' Compensation Act. Judgment reversed; complaint dismissed.

Lumbard, Moore, and Mulligan, Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

Defendant, Flota Mercante Grancolombiana, S.A. ("Flota"), appeals from a judgment against it and in favor of Walter Cox ("Cox"), entered upon a jury verdict in the amount of $75,000, awarded as a result of injuries sustained by him aboard the Ciudad De Cuenca ("Cuenca").

In 1972 the Congress, hopeful of resolving the problems created by court-made law in the field of personal injuries to longshoremen working aboard ships, loading and unloading cargo, enacted the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq. The purpose of the amendments was to put at rest (as much as they can ever be) the respective rights and liabilities of shipowners, stevedores and the employees of stevedores, engaged by shipowners to handle the cargo loading and unloading operation. As so frequently happens when new statutes appear, and resourceful and imaginative lawyers are available (and they always are), a multitude of cases have been spawned, thus, in this respect, frustrating the intended purpose of the statute.

First, the facts must be stated with some observations believed to be related to the law applicable to them.

Cox, a longshoreman, was employed by Universal Maritime Services ("UMS"), a stevedoring company, which had undertaken by contract to unload cargo from the Cuenca. He was not an employee of the Cuenca.

On March 31, 1975, Cox was working in the hold ("in the very bottom of the ship"). The hatch above him was open, namely, its cover had been removed. While working, he heard a noise and shortly thereafter was struck by a falling hatch cover which caused his injuries. He did not see the falling hatch cover or know the cause of its fall. As Cox put it "I don't know what happened". (50a).

Vincent Maresca was the foreman on the job for UMS. He defined his duties as follows:

"The duty of a foreman is to discharge and load the ships and see that everything is safe for the longshoremen to work. And if there isn't I have to tell my hatch bosses, make sure everything is safe, and then I speak to the mate and I tell the mate the same thing." (58a).

When the stevedore went in at 8:00 A.M. to commence unloading he (Maresca) said:

"I told them [the hatch bosses] to open up the hatches. They get rigged up. I tell them, 'Make sure everything is safe and make sure everything is working right' before they work. And later I tell the mate in charge of the ship, 'Make sure everything is safewise to work'." (62a).

The "opening [of] the hatch is done by the crew. Fixing of the booms is done by the men." (63a). As Maresca looked down into the lower hold, he observed that "just one end was open". (66a). In the morning he had told his hatch bosses, "When they take off the hatch covers make sure the beams are secured and tell the mate to lock them and put the pins in them". (67a). His hatch bosses told him that "they had the locks in place". (68a). However, Maresca, himself, did not consider the lock in itself to be sufficient to hold the beam in place as a safety measure. (69a). He thought that pins were "much better than the locks they got on the beams" (69a), which indicated to him that the beams "should be locked and pinned" because from his experience he knew that on occasion cargo being brought up from the hatch would strike the beams and boards. (70a). The pins and locks belonged to the vessel. He said, "The pins, the seamen have to do that. That isn't our job". (71a). Maresca knew that "the regulations require that no longshoreman is supposed to work until you make sure that these beams are tied down". (80a). Maresca also said that in the afternoon before the accident "I even told my hatch boss, 'Why didn't you put the pins in them?' He says, 'The crew is going to put them in'." (80a). He further testified "I looked and I told the hatch boss again, 'Get the pins in there, get the pins in the beam.' I told the hatch boss again. Then after I told the hatch boss again in the afternoon, the mate, I said, 'Make sure the pins are in'." (84a-85a).

The only other witness was Nicholas Simeone, a hatch boss employed by UMS. Cox was not in his gang. As he described it "there was two gangs that day. One was working in the lower hold and we were in the top deck, in the after end." (90a). Maresca had said to him, "Before you start working make sure the beams are secured", and when he looked he "noticed that the beams were not secured". (92a). The beam was in place and in the slot but "if anything hits it it could fall". (92a). He told a mate several times that the pins were missing and the mate said, "We're going to take care of it". (93a). Simeone did not witness the accident but he saw a beam and hatch covers in the lower hold. On cross-examination he confirmed Maresca's orders saying, "the foreman instructed me to make sure that the beams are secured, you know, see that the beams are secured". (100a). Simeone saw that the beam wasn't secured. "There was no pin in it". (106a).

There was no testimony from any observer as to the cause of the accident, namely, the dislodging and fall of the beam and hatch covers. The closest clue is to be found in Simeone's testimony that "The beam was in place, it was in the slot, but it wasn't - if you just ...


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