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Barnett v. Howaldt

March 6, 1985

JEFFREY BARNETT, WILLIAM C. PARKER AND LINWOOD JONES, PLAINTIFFS-APPELLANTS
v.
BERNHARD HOWALDT, SEEREEDEREI HOWALDT, BARBER STEAMSHIP LINE, INC., AND JOHN DOE, SAID BEING FICTITIOUS, THE TRUE IDENTITY OF SAID PERSON BEING PRESENTLY UNKNOWN, SEEREEDEREI HOWALDT, D.G., S.S. EDITA, BARBER LINES, INC., JOHN DOE 1 INC. AND JOHN DOE 2 INC., DEFENDANTS-APPELLEES



Appeals from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, granting defendants' motions for summary judgment dismissing longshoremen's suit for damages under Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901, et seq., for personal injuries allegedly resulting from collapse of a loading boom. Affirmed.

Author: Kearse

Before: NEWMAN, KEARSE, and PRATT, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiffs-longshoremen Jeffrey Barnett, William C. Parker, and Linwood Jones appeal from a judgment of the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing their complaint in these consolidated actions to recover damages from defendants shipowner and time charterer for personal injuries allegedly sustained aboard the S.S. EDITA, as a result of a collapse of one of the vessel's cargo booms during the unloading of containers. The court granted defendants' motions for summary judgment dismissing the complaint on the ground that plaintiffs had come forward with no evidence of specific facts that could support a finding that any defendant had been negligent. On appeal, plaintiffs contend principally that there existed triable issues as to whether the shipowner negligently rigged and spotted the booms, thereby contributing to the accident. We find in the record no support for plaintiffs' arguments, and we therefore affirm the judgment of dismissal.

I. BACKGROUND

Most of the events, for purposes of defendants' motions for summary judgment, were undisputed. One the morning of August 25, 1981, the crew of the S.S. EDITA rigged and spotted the ship's booms in preparation for longshoremen to discharge empty containers from the number one hatch, using the ship's winches and booms. "Rigging" includes adjusting the angle of the boom from the horizontal; "spotting" involves the lateral positioning of the head of the boom. As rigged, the vessel's cargo gear had a maximum rated weight-bearing capacity of five tons.

After the EDITA's crew rigged and spotted the booms, Barnett and Jones commenced working as holdmen, and Parker worked as a deckman, as part of the longshoring gang. The gang was discharging the 2.3-ton containers two at a time; thus each load weighed 4.6 tons. On the first lift of the containers, one of the booms collapsed after the containers had been lifted less than five feet. Plaintiffs claim to have been injured when, seeing the boom collapsing, they jumped from the tops of nearby containers to the winch deck.

This action was commenced by Barnett in 1982 pursuant to § 905(b) of the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. (1982) (the "Act"), against shipowners Bernhard Howaldt and Seereederei Howaldt (collectively "Howaldt"), time-charterer Barber Steamship Lines, Inc. ("Barber"), and John Doe. Additional complaints were filed by Parker and Jones, and the three actions were consolidated by the court in 1984. Plaintiffs charged, inter alia, that the boom broke as a result of (1) its defective condition; or (2) the negligent maintenance, repair, design and inspection of the winches and booms which was known to or should have been discovered by defendants; or (3) the equipment's unsuitability and the ship's unsafety.

After more than a year of discovery, Howaldt and Barber moved, on the basis of affidavits, interrogatory answers, and deposition testimony, for summary judgment dismissing the complaint, contending that there was no evidence to support plaintiffs' allegations that the ship's equipment was defective or improperly maintained or otherwise unsuitable. Howaldt's statement pursuant to Rule 3(g) of the Local Rules of the Southern District of New York stated that although there was evidence that the ship's crew rigged the boom in question prior to the commencement of the discharging operation that was to be performed by the longshoremen, no complaints were made to the ship's crew by the longshoremen concerning the method of rigging; that Parker, an experienced winch operator, testified at his deposition that he had seen nothing wrong with the rigging of the booms prior to the accident; that the vessel's captain testified at deposition that the boom was inspected regularly by the chief mate and had passed an independent inspection just four months prior to the accident. Barber's motion for summary judgment likewise asserted that discovery had disclosed no support for plaintiff's assertions of defective, unsuitable, or improperly maintained equipment.

Plaintiffs opposed the summary judgment motions, "bas[ing] said opposition on two factual contentions": (1) that since Howaldt indicated that it made periodic inspections of the ship's gear, it should have ascertained that the winches and booms were in a defective condition; and (2) that Howaldt and Barber used poor judgment in not causing the longshoremen to use shoreside equipment, which had greater lifting capacity, rather than the ship's gear. Plaintiffs did not specify the respect in which they contended the ship's gear was defective or inadequate. At oral argument of the summary judgment motion, plaintiffs advanced the additional theory that the ship's crew had caused the accident by negligently rigging and spotting the boom.

In a Memorandum and Order dated June 5, 1984, the district court rejected all of plaintiffs' theories. It granted judgment for Barber on the grounds (1) that plaintiffs had come forth with no reason why the charterer should have utilized equipment with greater lifting capacity, when the device in question was rated as capable of lifting five tons and the load weighed 4.6 tons; and (2) that a time charterer is not legally responsible for either the condition of the ship's gear or the equipment used by the longshoremen and thus it may not be held liable for rigging error or a latent defect in the booms. The court granted Howaldt's motion on the grounds that (1) plaintiffs had adduced no evidence that the shipowner had inadequately inspected the booms or that the apparatus contained a latent defect that should have been discovered, and (2) even if the booms had been improperly positioned for the first lift, the longshoremen, and not the crew, were responsible for positioning the booms to perform the work at hand.

On appeal, plaintiffs argue principally that there were questions of act as to whether the ship's crew negligently rigged and spotted the booms. We conclude that plaintiffs did not come forward with any facts sufficient to suggest the existence of a genuine issue of material fact as to the crew's negligence in rigging or spotting the booms or as to any defect in the EDITA's equipment, and we therefore affirm the judgment.

II. DISCUSSION

Section 905 (b) of 33 U.S.C. permits a longshoreman to sue the owner of a vessel for damages for injuries caused by the negligence of the vessel. To recover under this section, the longshoreman is required to prove negligence. Since the Act defines "vessel" to include the vessel's "charter [sic] or bare boat charterer," 33 U.S.C. § 902(21), the longshoreman has the same right or recovery for an act or omission of a time charterer as for an act or omission of the shipowner. See Migut v. Hyman-Michaels Co., 571 F.2d 352, 356 (6th Cir. 1978); Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236, 242 n.5 (5th ...


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