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August 30, 1978

Joseph PASTORELLO, Plaintiff,

The opinion of the court was delivered by: NICKERSON


Plaintiff, a longshoreman, brought this action against the defendant shipowner, alleging that he was injured on the vessel Archimedes as a result of defendant's negligence. The jury found defendant negligent, and plaintiff contributorily negligent to the extent of 50% Of the cause of the injury. Judgment for $ 31,500 was entered for plaintiff.

Defendant has moved for a directed verdict or, alternatively, for an order setting aside so much of the verdict as found defendant's negligence was 50% Responsible for plaintiff's damages and entering judgment for defendant notwithstanding the verdict.

 Plaintiff, employed by Northeast Stevedoring Co., injured his wrist while helping to stow No. 2 "tween deck of the Archimedes. He claims that he slipped and fell on a steel deck where there was sand mixed with small pebbles. There was evidence from which the jury could have found that some longshoremen complained to the hatch boss about the condition, and he in turn asked a ship's officer to have it removed.

 Defendant's motion draws into question the appropriate criteria for determining whether the vessel's "negligence" caused the injury. Defendant urges that it is not liable because control of the vessel was relinquished to the stevedoring company, which was responsible to correct any unsafe condition and on which defendant was entitled to rely. Defendant also contends that the jury could not properly find from the evidence that defendant should reasonably have foreseen the injury.

 Since the various panels of the Second Circuit are not in complete harmony as to the circumstances in which a ship may be found liable in negligence to a longshoreman (compare Cox v. Flota Mercante Grancolombiana, S. A., 577 F.2d 798 (2d Cir. 1978) with Lopez v. A/S D/S Svendborg, 581 F.2d 319 (2d Cir. 1978) and Canizzo v. Farrell Lines, Inc., 579 F.2d 682 (2d Cir. 1978)), it is perhaps appropriate for this court to set forth its understanding of the applicable law.

 The 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act (the "Act") made changes in the remedies an injured longshoreman might pursue. The amendment under which this action is brought, 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 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 shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter."

 Under this section a longshoreman may bring "an action" against the vessel for an injury "caused" by the vessel's "negligence", but "no such action" is permitted if the injury was "caused" by the "negligence" of the stevedore's employees. Read literally, the language presupposes only one "cause" for an injury, the vessel's negligence or that of the stevedore. But such a reading would be fatuous. Causation is a web, not a chain, United States v. Morris, 451 F. Supp. 361 (E.D.N.Y.1978), and for any specific event there are myriad causes of greater or lesser immediacy and significance.

 Plainly the acts or omissions of both the vessel and the stevedore can contribute to an occurrence in which injury occurs. The task of the court is to determine what Congress intended where both have been negligent and to translate that intention into understandable rules.

 The 1972 amendments were passed in the light of conditions largely shaped by two Supreme Court decisions. In 1946 the Court decided Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946), holding that the shipowner's absolute obligation of seaworthiness extended to longshoremen doing the ship's work but employed by an independent stevedore. Shipowners thereupon became liable without fault for injuries to longshoremen caused by unseaworthy conditions, including conditions created by the stevedore's employees. Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944).

 In 1956 the Supreme Court held in Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956), that a shipowner held liable to a longshoreman for unseaworthiness caused by the stevedore's employees could recover over against the stevedore, on the theory that it had breached its implied warranty of workmanlike service to the vessel. The Court rejected the argument that the Act precluded a claim over. Thus the stevedore, though under the Act it could not have been sued directly by the longshoreman, became liable to indemnify the shipowner.

 Congress concluded in 1972 that amendments to the Act were long overdue. Report of the House Education and Labor Committee, H.R.Rep.No.92-1441, 92nd Cong., 2d Sess., 1972 U.S.Cong. & Admin.News, p. 4698 (herein "House Report"). The maximum benefit of $ 70 a week was deemed far too low in the light of the average longshoreman's weekly wage over $ 200 in some ports. The employers were willing to increase the benefits but sought in return to escape the consequences of the Seas Shipping Co. and Ryan Stevedoring Co., Inc. decisions.

 The Congressional Committee rejected a proposal by the industry that vessels be treated as joint employers with the stevedores and that the vessel's liability be restricted to compensation under the Act. The Committee believed that where a longshoreman "is injured through the fault of the vessel", it should be liable for damages "just as land-based third parties in non-maritime ...

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