The opinion of the court was delivered by: DUFFY
The plaintiff, Jack A. Doca, sues the defendants Marina Mercante Nicaraguense, S.A. (hereinafter referred to as "Marina") and Pittston Stevedoring Corporation (hereinafter referred to as "Pittston") for personal injuries sustained by him on the M/V Costa Rica on July 23, 1975. Plaintiff Fannie C. Doca, Jack Doca's wife, sues both defendants for loss of consortium and Marina and Pittston have cross-claimed against each other. This case was originally brought as a diversity action and a jury impanelled, but at the close of the plaintiffs' case, upon motion of defendant Marina, the jury was discharged and the matter transferred to the admiralty jurisdiction of the court.
Jack Doca was employed as a longshoreman until a serious accident at work in 1950 left him temporarily paralyzed. Doca remained hospitalized after that accident for nearly two years, finally overcoming his paralysis and returning home. Shortly after being released from the hospital, Doca fathered his first child and in 1957 a second child was born to the Docas.
In 1962 Jack Doca obtained employment with Hamilton Terminal Company as a cargo checker, work considerably less strenuous than his previous position as a longshoreman. Although a checker's job does not normally require him to leave the docks, Doca was sent aboard the M/V Costa Rica at about 2:00 p.m. on the afternoon of July 23, 1975 to determine if a particular load of cargo belonged on the ship. At the time, cargo from the dock was being loaded into the ship's # 1, # 2 and # 4 hatches by Pittston employees.
Doca boarded the Costa Rica at the gangway between the ship's # 2 and # 3 hatches and proceeded to hatch # 2. After being told by the hatch boss that the cargo did not belong in hatch # 2, Doca went along the offshore side of hatch # 3 toward the ship's # 4 hatch. As Doca approached hatch # 4 he found the passageway between the hatch coaming and the ship's outer railing blocked with refuse from the stevedoring operations. According to Doca, pipe, planks of wood and various piles of garbage laid along the ship's outer railing with dunnage paper covering the rest of the deck up to the hatch coaming.
Doca's testimony as to the condition of the passageway was supported by photographs of the area and the testimony of eyewitnesses Edward Kozak, ship foreman for Pittston, and George Stafford, gangway man on the Costa Rica on the day of the accident. Kozak and Stafford, whom I found to be highly credible witnesses, also testified that the debris had been in the passageway when they reported to work on the morning of the 23rd. Although Kozak stated that he had informed both the ship's duty officer and Pittston's supervisor of the debris at about 9:30 that morning, he and Stafford agreed that no cleaning of the passageway was undertaken prior to Doca's arrival.
The accident of which Doca complains occurred as he attempted to cross through the obstructed passageway. According to his testimony at trial, Doca started to walk where it appeared that only dunnage paper covered the deck. As he did so, he stepped on an object underneath the paper, causing his ankle to give way and him to fall and strike his head against the hatch coaming.
Stafford, who was an eyewitness to the accident, quickly ran to Doca and found him lying on the deck in a dazed condition. Stafford, along with a number of Pittston employees who also came to Doca's aid, cleared the paper away from around Doca and found his foot resting on the deck next to a turnbuckle which held the pipe against the ship's outer railing. After being shown the turnbuckle, the apparent object on which he had stepped, Doca was assisted off the ship to receive medical attention.
LIABILITY OF THE SHIPOWNER
This action is brought pursuant to the Longshoreman's and Harbor Workers' Compensation Act, (hereinafter referred to as "LHWCA"), as amended. 33 U.S.C. 901, Et seq. It is generally accepted that the 1972 amendments to the Act were intended to establish land based principles of negligence as the standard of care for vessels boarded by dock workers. See, e.g., Napoli v. Transpacific Carriers Corp., 536 F.2d 505 (2d Cir. 1976). Accordingly, it has been held that, analagous to the responsibilities of a landowner, a shipowner owes to business invitees, such as Doca, the duty to provide a reasonably safe place to work and consequently must exercise reasonable care to correct non-obvious unsafe conditions of which he has actual or constructive notice. Canizzo v. Farrell Lines, Inc., 579 F.2d 682 (2d Cir. 1978); see Restatement (Second) of Torts § 343. Liability has been imposed even with respect to open and obvious hazards of which the shipowner has knowledge where the hazard was of such character as to be unavoidably dangerous. Napoli, supra ; see Restatement (Second) of Torts § 343A.
The decisions in this Circuit, however, have been markedly inconsistent with respect to the shipowner's responsibility for unsafe conditions in areas of the ship taken over by stevedoring operations. One line of cases holds that the concept of a shipowner's non-delegable duty to provide a safe place to work, akin to the seaworthiness doctrine, was abolished by the 1972 LHWCA Amendments and that the shipowner need not supervise the stevedore's operations and may rely upon the stevedore to eliminate hazards of which it has notice. See Napoli, supra; Cox v. Flota Mercante Grancolombiana, 577 F.2d 798 (2d Cir. 1978); Canizzo, supra, dissenting opinion of J. Friendly; Lubrano v. Royal Netherlands S.S. Company, 572 F.2d 364 (2d Cir. 1978), dissenting opinion of J. Moore. Opposed to these are decisions suggesting that a shipowner's failure to correct an unsafe condition of which it has knowledge is negligent regardless of whether the condition was in a workplace under the stevedore's primary control. Lopez v. A/S D/S Svendborg, 581 F.2d 319 (2d Cir. 1978); Canizzo, supra. Fortunately, I need not in this case attempt to resolve the uncertainties in Circuit law since I believe that Marina was negligent under either formulation of the shipowner's standard of care.
As stated above, there was credible testimony that the ship's crew had been notified of the debris around hatch # 4. While the crew may not have had actual knowledge of the turnbuckle that lay underneath the scrap dunnage paper, they are certainly chargeable with such knowledge given that the passageway had been obstructed for at least a day prior to Doca's accident.
Since Marina must be regarded as having been aware of the concealed turnbuckle, its failure to eliminate the hazard was negligent, even under the most generous interpretation of the law, unless it was entitled to assume that Pittston would remove the debris. Not surprisingly, Marina argues that such an assumption on its part was fully justified. In support of its position, Marina points to the testimony of Pittston's foreman Kozak, which I found to be credible, that Pittston had actual notice of the dangerous condition and that at least some Pittston employees were working on the top of the deck around hatch # 4. Marina contends that these facts make plain that Pittston had a legal duty to remove the debris, in accordance with Occupational Safety and Health Administration (hereinafter referred to as "OSHA") regulations requiring stevedores to keep working areas "reasonably clear of lines, bridles, dunnage and all other loose tripping or stumbling hazards." 29 C.F.R. 1918.91(a).
Marina's presentation of the facts and applicable law is crucially incomplete, however, for it disregards the evidence of an agreement between Pittston and Marina concerning removal of refuse produced by stevedoring operations. Kozak's testimony, which was supported by past bills from Pittston to Marina, was that Pittston would not remove stevedoring debris unless separately paid for the service, and that otherwise the job fell to the ship's crew. Since there was no evidence at trial that Pittston had contracted to clean on the day Doca was injured, Marina was itself ...