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Moore v. M.P. Howlett Inc.

March 24, 1983

MACK MOORE, PLAINTIFF-APPELLANT,
v.
M.P. HOWLETT, INC., DEFENDANT-APPELLEE.



Appeal by plaintiff longshoreman from judgment n.o.v. of the district court, Charles H. Tenney, J., setting aside jury's verdict that defendant shipowner was negligent in maintaining floating crane used in stevedoring operations. Reversed and remanded with instructions to reinstate jury's verdict.

Author: Pratt

Before:

NEWMAN, KEARSE, and PRATT, Circuit Judges.

PRATT, Circuit Judge:

In this third-party action against a shipowner brought under the Longshoremen's & Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. (1976), plaintiff longshoreman appeals from a judgment of the United States District Court for the Southern District of New York granting the shipowner's motion for judgment notwithstanding the verdict and dismissing the complaint. By special verdict the jury had found that the longshoreman was injured as a result of the shipowner's negligence. Concluding that there was insufficient evidence to impose any duty of care on the shipowner, the trial court granted judgment n.o.v. We conclude that there was sufficient evidence to support the verdict, and we reverse and remand with directions to reinstate the judgment entered in plaintiff's favor on the verdict.

Plaintiff-appellant Moore, a longshoreman employed by R. Martorella & Co., a stevedoring company (stevedore), was injured when he slipped on the deck of a floating crane owned by the defendant-appellee M.P. Howlett, Inc. (shipowner). The floating crane, which consisted of a crane mounted on a barge, was used to unload cargo ships. On the day of plaintiff's injury, the crew of the barge-crane and the stevedore were jointly engaged in unloading bulk sugar from the hatches of a ship moored at the Sucrest pier in Brooklyn, New York. Although the barge-crane was owned by the shipowner and operated by the shipowner's employees, it was the stevedore who directed where and how the crane was to be used.

The barge-crane floated between the pier and the cargo ship, and was secured to the pier by four lines, one running from each corner of the barge. Its crew consisted of an operator, who controlled movements of the crane, and a fireman, who maintained the oil-fired steam engine that powered the crane.

Unloading the ship was a fairly simple operation. Longshoremen used bulldozers in the ship's hold to push sugar into a pile under a hatch, through which the crane operator, following a longshoreman's signals, dropped the "claim bucket", picked up a load of sugar, and guided it over to the pier, where the sugar was deposited in a hopper. After a hatch was emptied, the longshoreman moved the barge-crane to a new position from which the crane could reach and empty the next hatch.

To move the barge-crane, four longshoremen came aboard. After the four lines that secured its corners were cast off the pier by other longshoremen, the four on board retrieved the lines, making ready to throw the lines back to the pier for mooring when the barge reached its new position. Longshoremen had two sources of power to move the barge. One was to run a line from the barge to a powered winch mounted on the pier. The other, used when the winch was broken, was to run a line from the barge around a cleat on the pier and then attach the line with a 50-pound hook to the crane's bucket. By lifting the bucket, the crane operator could then tighten the line and move the barge. Since the dock winch was frequently broken, the longshoremen and the crane crew often worked together to move the barge-crane by the second method. When the barge reached its new position, by whichever method, the longshoremen on deck had to quickly re-secure it by heaving the four corner lines back onto the pier where they would be fastened by other longshoremen.

At the time of plaintiff's injury, the entire deck of the barge-crane had been covered for at least three days with ice, water, and grease. The ice came from steam from the crane's boiler which had condensed and frozen on the deck, as well as from an ice storm which three days earlier had deposited one and one-half inches of ice pellets on the deck. The grease was from fuel oil that leaked from the steam engine.

It was the exclusive responsibility of the shipowner's employees to maintain the deck of the barge. Although the barge was equipped with rock salt and shovels to remove the ice, as well as material to absorb the grease, the crane crew would remove the oil and grease "maybe once every six months", and would remove the ice only if they had an "idle day". It is undisputed that they took no steps to remove either ice or grease from the deck at any time before the accident.

Because the dock winch was broken on the day in question, the stevedore attempted to move the barge using the second method. Plaintiff and three other longshoremen were directed to board the barge-crane to handle the four corner lines. When plaintiff came aboard, he recognized that the condition of the deck was slippery and dangerous, but neither he nor any representative of the stevedore asked the crane's crew to remedy the condition. After the mooring lines were cast off, the crane operator tried to move the barge by raising the bucket, but the line snapped. On the second attempt the line snapped again, but this time the 50-pound hook which attached the line to the bucket flew off and fell toward the deck. As plaintiff ran to avoid the falling hook flew off and fell toward the deck. As plaintiff ran to avoid the falling hook, he slipped on the icy, greasy deck, and injured his groin and knee.

Plaintiff brought this action pursuant to § 905(b) of the LHWCA, claiming that he was injured by the shipowner's negligent failure to maintain the deck of the barge in a reasonably safe condition. Since the jury found for plaintiff, we must on this appeal "view the evidence and all inferences most favorably" to him. Samuels v. Health & Hospitals Corp., 591 F.2d 195, 198 (2d Cir. 1979). Under the district court's instructions the jury necessarily found (1) that the shipowner knew of a dangerous condition on the deck of the barge, (2) that the shipowner should have anticipated that the longshoreman "will not discover or realize the danger or will fail to protect himself against it", and (3) that the shipowner failed to exercise reasonable care under the circumstances to prevent injury to the longshoreman. Following the court's instructions on comparative negligence the jury found the shipowner 65% negligent and plaintiff 35% contributorily negligent, and valued the plaintiff's injuries at $34,000. Accordingly, the trial judge directed that judgment be entered for the plaintiff for $22,100.

In granting the shipowner's motion under Fed. R. Civ. P. 50(b) for judgment notwithstanding the verdict, the district court looked to land-based principles of negligence and concluded that under § 343A of the Restatement (Second) of Torts, defendant owed no duty to plaintiff, because there was no basis for the shipowner to anticipate that plaintiff ...


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