Appeal from a judgment of the United States District Court for the Southern District of New York, following a jury trial before Judge Constance Baker Motley, and from the denial of defendant's motion for a new trial, remittitur or judgment notwithstanding the verdict. Affirmed.
Before Oakes and Newman, Circuit Judges, and Haight, District Judge.*fn*
Hellenic Lines Ltd. ("Hellenic") appeals from a plaintiff's verdict following a jury trial in the United States District Court for the Southern District of New York, Constance Baker Motley, Judge, in an action brought under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950 (1976). The significant questions on the appeal concern Hellenic's liability, within the statutory scheme, as both shipowner and stevedore; and whether the calculation of lost future wages should be made on the basis of gross wages, or net wages after deduction for income taxes. We affirm.
On May 6, 1980, plaintiff Pasquale Fanetti was working as a longshoreman on board the M/V HELLENIC SPLENDOR, then berthed at Brooklyn, N. Y. Fanetti was part of a work gang, supervised by hatch boss Allesandro DeLiso, and engaged in loading containers at the No. 2 hatch. Fanetti operated a winch which swung one of the vessel's booms inshore and offshore.
Hellenic owned the HELLENIC SPLENDOR. It also acted as stevedore, procuring longshoremen labor directly from the union hiring hall in Brooklyn in accordance with the needs of Hellenic's vessels. The longshoremen thus hired were paid by Hellenic Lines Ltd. salary checks. This arrangement contrasts with the retention by a shipowner of an independent stevedoring contractor. Hellenic's commercial practice of assuming the dual roles of shipowner and stevedore has previously come to the attention of this Court. Napoli v. (TransPacific Carriers Corp.,) 536 F.2d 505 (2nd Cir. 1976).
Fanetti was injured at about 2:55 p.m. on May 6, as he was proceeding toward his place of work at the winch controls. The controls for the boom being used were located on a raised deck extending from the No. 2 hatch forward. Two ladders, one on the inshore side of the vessel and the other on the offshore side, gave access to the raised deck; the winch controls themselves were 10 feet forward of the hatch. Thus to get to the winch controls from a position on the deck aft of the hatch, one had to go up either of the two ladders, and then walk 10 feet to the controls. Fanetti, returning from a "blow" (rest period from work), climbed the offshore ladder and headed across the raised deck toward the winch controls. When he was about four feet away from the ladder, he slipped and fell, suffering the injuries complained of.
Fanetti alleged, and the jury was entitled to find, that the passageway he was required to transverse across the raised deck to get to his work site was obstructed by lashing gear, including greased and oily turnbuckles, chains and wires, and that the deck itself was oily and greasy. These hazards were generated by the actions of the vessel's crew. After the longshoremen finished loading the containers, the crew was responsible for lashing them securely in place. In preparation for that work crew members brought lashing equipment onto the raised deck and dumped it on the walkways. That equipment consisted of metal turnbuckles 21/2-3 feet long, wires the thickness of a finger 20-25 feet long, and chains. These artifacts were greased and oiled to prevent rusting. When laid down upon the deck, they rendered portions of the deck oily and greasy. When the longshoremen commenced work at the No. 2 hatch at 8:00 a.m. there were a few turnbuckles on the deck, but throughout the day the crew brought more lashing equipment and placed it on the raised deck, so that by the time of the accident in mid-afternoon the area from the ladders to the controls was so obstructed that one had to walk over the equipment to get to the controls. While so engaged, Fanetti slipped and fell.
Fanetti and his hatch boss DeLiso both testified that they complained to "seamen" or "crewman" about the obstructions, to no avail. There was no evidence that the condition was called to the attention of a ship's officer.
The jury, after hearing this evidence and medical testimony, returned a verdict in Fanetti's favor for $511,190. Hellenic moved for judgment n.o.v., remittitur or a new trial, all of which the District Judge denied. This appeal followed.
We do not understand Hellenic to dispute on the appeal that the vessel's crew, in the performance of work unrelated to the longshoremen's loading of cargo, created a condition on deck dangerous to the longshoremen who had to work there. Rather, Hellenic taxes the trial court with error in its jury charge by failing to distinguish between shipowner and stevedore safety responsibilities. That distinction, or as alternatively phrased, "(t)he dichotomy between shipowner and stevedoring functions" (Hellenic brief at 3), is said to apply with full force and effect even though Hellenic, opting not to hire an independent contractor, instead acted as its own stevedore. In the light of that distinction, the argument continues, Judge Motley's charge on the subject of Hellenic's duty to plaintiff qua shipowner*fn1 was inadequate. Hellenic views itself as entitled to a charge based on the standards promulgated by this Court for the situation in which a shipowner hires an independent contracting stevedore. Evans v. Transportation Maritime Mexicana SS. "CAMPECHE", 639 F.2d 848 (2d Cir. 1981), is cited as a recent, salutary example. Evans, following earlier cases decided by this Court, held that "a vessel is not liable for injuries resulting from known or obvious dangers unless the shipowner should anticipate the harm despite the obviousness of the danger," 639 F.2d at 855; the "sine qua non of a ship's liability for an obviously dangerous condition arising during the process of loading or unloading is reasonable anticipation that the longshoreman will not be able to avoid it." Id. at 856, quoting Giglio v. Farrell Lines, Inc., 613 F.2d 429, 432-33 (2d Cir. 1980). "If a charge were given to the jury along the guidelines of the Evans case," Hellenic argues in its brief, "the verdict may have been for the shipowner rather than the plaintiff."
In particular, Hellenic argues that Judge Motley should have informed the jury that the stevedore bears the primary responsibility to correct dangerous conditions, and that the shipowner will often rely on the stevedore to do so. The charge is criticized for failing to discuss "the unique degree of anticipation to which the shipowner is entitled, based on its functional relationship with its stevedore," brief at 8. In that regard, Hellenic complains that the judge did not inform the jury that the "stevedore" was responsible for insuring compliance with relevant safety and health regulations for longshoring.*fn2
Even if the requested charge had been given, the exoneration of Hellenic on the evidence in this case is unlikely. Crew negligence created the hazard, just as in Doca v. Marina Mercante Nicaraguense, S.A., 634 F.2d 30 (2d Cir. 1980), where a longshoreman fell on deck as the result "of a general obstruction of the walking area by various types of refuse." Id. at 33. The shipowner in Doca hired an independent stevedoring contractor. The district court, trying the case without a jury, assessed 90% liability against the ...