Appeal from a judgment entered in the United States District Court for the Southern District of New York, Morris E. Lasker, Judge, dismissing, after trial, a complaint brought under the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq. Affirmed.
Before Oakes and Meskill, Circuit Judges, and Sifton, District Judge.*fn*
Salvatore Giglio and his wife Carmela appeal from a judgment entered in the United States District Court for the Southern District of New York after a three-day bench trial before Morris E. Lasker, Judge, dismissing their complaint in an action brought under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901 Et seq. We affirm.
Salvatore Giglio ("appellant"), a longshoreman employed by Universal Maritime Service Corporation ("stevedore"), was injured on May 30, 1974 while unloading cargo from the AFRICAN NEPTUNE, a ship owned and operated by appellee Farrell Lines Incorporated. At the time of the accident, appellant's gang was unloading steel drums, containing sheep pelts packed in brine, from a locker located on the main deck of the ship. A few men were working inside the locker and three or four men, including Giglio, were working in the area just outside the doorway to the locker. The unloading was accomplished in the following manner. The drums, each weighing several hundred pounds, were rolled one at a time over the raised lip of the locker doorway onto a wooden pallet positioned on the deck. When anywhere from three to six drums had been placed on a given pallet the number of drums on each pallet depending on the number of drums designated for a particular consignee the longshoremen on the deck attached a bridle to the pallet and the pallet was then lifted from the deck by the ship's winch.
Judge Lasker found that after the gang had been at work on this particular locker for about an hour, Giglio, as he reached for a bridle, slipped on the deck, lost his balance, and fell backwards onto the ship's spreader.*fn1 In the district court Giglio claimed that two factors precipitated his fall and that both were attributable to the negligence of the ship. First, he argued, the proximity of the spreader to the locker rendered the available work space cramped. Second, he argued, the condition of the deck rendered the work area slippery. Each factor, according to Giglio, contributed to the unreasonably unsafe condition which led to his fall.
It was undisputed that the work area outside the locker was quite small. On one side of the doorway to the locker stood the spreader. On the other side of the doorway there was a hatch coaming. The deck area between the spreader and the coaming was little more than six feet wide. Because the rectangular wooden pallets, which measured four feet by six feet, were placed on the deck so that one of the six foot sides faced the locker opening, the longshoremen responsible for attaching the bridles to the pallets had very little room in which to maneuver.
As to the condition of the deck, the district court found that the area of the deck on which the accident occurred was indeed covered with a slippery coating consisting of graphite and brine. Just prior to unloading the locker containing the drums of sheep pelts, Giglio and the other members of his gang had been discharging bags of graphite from another locker also located on the main deck. Appellant's witnesses testified, and Judge Lasker found, that a small amount of graphite powder had escaped from the bags and had been scattered over the deck. Judge Lasker also found that, subsequently, as the sheep pelts were unloaded, "either because of leaks from the drums or because of a possible distillation of some kind upon the drums, there was liquid shed from, or exuded from, or actually coming out of the drums in such an amount as when combined with the graphite, to render the area slippery." He further found "that Mr. Giglio, insofar as human beings can divine these things, would probably not have slipped if that material had not been there."
However, Judge Lasker found no negligence on the part of the ship in regard to either the size of the work area or the condition of the deck. As to the former, Judge Lasker found that it would have been possible for the men to work safely in the space available if the deck had not become slippery. He found, in the alternative, that had the work area not been sufficiently large to permit the longshoremen to work safely, it would have been the responsibility of the stevedore to obtain permission from the ship to move the spreader to another location.
The court determined that the ship had also "met its responsibilities" in regard to "the slipperiness of the deck." In Judge Lasker's view, the ship "had every right to believe that (the longshoremen) were capable of curing the situation and that they would cure the situation." Concluding that appellant had "failed to establish the negligence of the ship," Judge Lasker ordered that judgment be entered dismissing the complaint.*fn2
On appeal, Giglio makes a broadbased attack on both the findings of fact and the conclusions of law of the district court. The most serious charge leveled against the decision below is that the district court applied an erroneous view of the law governing a ship's liability for damages flowing from injuries suffered by a longshoreman engaged in loading or unloading its cargo. Appellant contends that the district judge was misled by the confused state of the law in this Circuit. In my view, however, the appropriate legal standard to be applied in this particular case is easily perceived, and when the facts found below are judged according to that standard, it is clear that we must affirm the dismissal of appellant's complaint.
The 1972 amendments to the LHWCA effected a major change in the legal and economic relationships among injured longshoremen, their stevedores, and the vessels on which they work. The state of the law prior to the 1972 amendments and the concerns that prompted Congress to redefine the rights and obligations of these parties have been fully described and analyzed by this Court on a number of occasions.*fn3 Little can be added to what has been written. For the purposes of this case it is sufficient merely to reiterate that the 1972 revisions were intended "to make the vessel liable for its own negligence, relieving it of liability only for the negligence of those engaged in providing stevedoring services." Napoli v. Hellenic Lines, 536 F.2d 505, 507 (2d Cir. 1976). In abolishing the doctrine of unseaworthiness under the LHWCA, Congress made clear its intent that the courts discard such concepts as no-fault liability and the non-delegable duty to provide a safe workplace and substitute traditional, land-based principles of negligence. Cf. Zielinski v. Companhia De Navegacao Maritima, etc., 460 F. Supp. 1179, 1182 (S.D.N.Y.1978) ("The shipowner is not an insurer of safety; his duty is to provide the longshoreman with a reasonably safe place to work . . . not an accident-free ship," Citing Napoli, supra.) However, refinement of the precise duty of care owed by a vessel to the longshoremen handling its cargo has been left largely to the courts. Napoli, supra, 536 F.2d at 507.
In the leading case of Napoli v. Hellenic Lines, supra, this Court held that the imposition on vessels of the standard of care embodied in § 343A of the Restatement of Torts 2d would be consistent with the purposes of the amended LHWCA. This section provides in part:
A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
This standard, which has been consistently adhered to by this Court,*fn4 was explicitly applied by Judge Lasker to the evidence presented at trial.
I cannot characterize as erroneous Judge Lasker's determination that in this case the ship met the Napoli standard of due care. Regarding the size of the work area, it is conceded that the location of the ship's spreader gave the men stationed outside the locker very little working room. However, it was undisputed that the day before the accident Giglio's own gang had attached the spreader to the particular frame on which it stood at the time of the accident. Furthermore, the evidence indicated that there were several other areas on the ship suitable for storage of the spreader and that the move to another location could have been accomplished by a couple of men within seven to ten minutes. According to the testimony of various witnesses, the longshoremen could have moved the spreader in order to give themselves more room; one longshoreman even testified that the stevedore's hatch boss had ordered the gang to do so in the past.
The only evidence introduced that would tend to support the inference that the ship bore any responsibility for the placement of the spreader testimony by one of appellant's witnesses that permission to move the spreader had been sought from and denied by a member of the ship's crew was apparently either not credited by the district court or not found to be persuasive. In any case, the district court found that the limited size of the work area, by itself, presented no hazard to the longshoremen. Appellant simply failed to carry his burden of demonstrating, as required for the imposition of liability under Napoli, that the ship ...