Appeal by defendant shipowner from a judgment of the District Court for the Southern District of New York, Morris E. Lasker, Judge, entered on a jury verdict finding defendant 100% liable under § 905(b) of the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. § 901 et seq., for personal injuries sustained by plaintiff, an employee of a ship repair company, while engaged in freeing a stuck hatch cover aboard defendant's vessel, and awarding total damages in the amount of $2,000,000. Reversed for a new trial.
Before: FEINBERG, Chief Judge, FRIENDLY*fn* and WINTER, Circuit Judges.
This appeal from a judgment entered on a jury verdict in the District Court for the Southern District of New York, Morris E. Lasker, Judge, requires us to apply the principles enunciated by the Supreme Court in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 68 L. Ed. 2d 1, 101 S. Ct. 1614 (1981), to the question of the extent of a shipowner's duty to anticipate and warn of or take steps to prevent a hazardous condition that develops during the course of repair work carried out on board ship by employees of an independent contractor. The jury found defendant Flota Oceanica Brasileira, S.A. ("Flota"), owner of the merchant vessel Frotasul, 100% liable under § 905(b) of the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901 et seq., for personal injuries sustained by plaintiff Nick Kakavas in the course of his performing repair work on board the Frotasul and awarded him compensatory damages in the amount of $2,000,000. Flota's principal contention on appeal is that the district judge erred in charging the jury that Flota had a continuing duty to furnish and maintain a reasonably safe place of work rather than, as Flota had requested, that the primary responsibility for Kakavas' safety rested with his employer, an independent ship repair contractor, and that Flota was entitled to rely on the employer to take the precautions necessary to avoid exposing Kakavas to hazards that might develop in the course of the repair work. Because we agree with Flota that the judge's instructions to the jury did not adequately express the nature and extent of a shipowner's duty in these circumstances and that Flota's counsel sufficiently, albeit clumsily, brought this point to the judge's attention, we reverse and remand for a new trial.
The jury could fairly have found the facts to be as follows: The accident occurred while the Frotasul was docked at Port Houston, Texas. Kakavas was employed at the time as a repairman's helper by Stevens Technical Services ("Stevens"), an independent ship repair company that had been engaged for some seven weeks as general contractor in charge of various repairs on the Frotasul. Chief among Stevens' tasks had been the repair of the vessel's hatches and hatch covers, the latter of which had involved removing the covers, taking them ashore and replacing all the steel that needed to be replaced, and returning them to the ship and reassembling them, as well as removing, greasing, and reassembling the hatch cover wheels.
The hatch where the accident occurred, Hatch No. 4, was equipped with a MacGregor hatch cover; a brief explanation of its construction and operation will be helpful. The cover consists of six steel sections (or "pontoons"), each of which weighs approximately six tons and measures seven feet long from forward to aft and 37-1/2 feet wide from starboard to port. The distance from the deck to the top of the hatch cover is five feet. The pontoons are connected by "pull/push rods," one on the starboard and one on the port side of each pontoon. A steel cable runs over the center of the hatch from a winch positioned on the deck at the forward end, through a pulley at the aft end, and back again to attach to a shackle at the forward edge of the first pontoon. Tension on the cable pulls the cover aft and opens the hatch; if the cable is unthreaded from the pulley and stretched directly between the winch and the shackle, tension on the cable pulls the cover in the opposite direction (forward) and closes the hatch.
As the hatch is being opened, the pontoons fold accordion-style on their sides into a well at the aft-end of the hatch. This is accomplished by a dual system of guide rails and wheels. On the starboard and port sides of each pontoon are two wheels--a "rolling wheel" and a "tipping wheel." The rolling wheel is larger and is located at the bottom aft corner of the pontoon. It rests on the "sliding rail" or "runway," a steel track running along the top of the port and starboard hatch walls. The sliding rail slopes downward to the deck just past the aft end of the hatch; thus, when each pontoon reaches that point, its rolling wheel runs off into the air. This causes the weight of the pontoon to shift to the tilting wheel, which is located near the upper edge of the pontoon and at its center of gravity. The tilting wheel rests on the "guide rail," which begins just short of the aft end of the hatch and is higher and narrower than the sliding rail. As the pontoon continues its motion aft, now resting on the guide rail, its aft end tips downward and its forward end upward and it folds against the other pontoons in the well.
The Frotasul was set to sail at midnight on November 2, 1979. At about 6:00 p.m. the port engineer,*fn1 Carlos Aguas, ordered all the hatches tested for watertightness. This involved opening each hatch, chalking the rubber gaskets around the cover, closing the hatch and tightening down the cover by means by cleats and wedges, spraying the cover with water, and then reopening it to see whether any chalk had been washed away. The ship's crew operated the winch to open and close the covers, applied chalk to the gaskets, and sprayed water on the covers; employees of Stevens reassembled the pontoons and tightened and untightened the cleats.
The crew reached Hatch No. 4. at about 9:30 p.m., started the winch motor, and began opening the hatch cover for testing. After only one or two pontoons had folded into the well, the cover ground to a halt: the push-pull rods on each side of the pontoon next in line to fold into the well had jammed against the inside edge of the sliding rail, preventing the cover from opening any further. Port engineer Aguas was called to the scene and, after surveying the situation, concluded that the sliding rail, which Stevens had manufactured and installed, was too wide at the point where the push/pull rods had jammed. The decision was made to free the cover by burning away on each side of the hatch a six-inch piece of the sliding rail.*fn2 Apart from a consensus that the Stevens employees would perform the burning operation, there is no evidence that anyone present discussed the method by which the repairs would be carried out. Aguas left at once, and neither he nor any member of the crew was at the hatch when the repairs got underway or while they were being performed.
The work began on the port side. A Stevens welder using a portable acetylene torch knelt on top of the pontoon directly forward of the stuck pontoon, which had come to rest in a tilted position, and leaned over the edge to cut the sliding rail. Kakavas stood beside him holding a light. After freeing the port side, the two men moved to the starboard side and repeated the process. As soon as the starboard side was freed, the hatch cover began to move. Although the testimony of Kakavas and other witnesses was in conflict as to just how far the cover moved, the evidence adduced at trial was more than sufficient for the jury to credit Kakavas' version of what happened next: the pontoon on which he and the welder were standing jerked aft, causing him to lurch forward and to the side and his right leg to slip down over the edge of the pontoon onto the hot metal of the freshly cut sliding rail, where it was wedged in place by the rolling wheel of the next pontoon. Kakavas' cries and the commotion on deck brought Aguas and the crew running, but they could not move the hatch cover without first rerigging the winch cable to pull the cover forward. As soon as this was done, Kakavas' leg was freed and he was taken to a hospital. Medical testimony established that his right had been rendered virtually useless by the accident, that he would suffer continual pain, and that he was permanently disabled from physical work. Medical expenses amounted to $40,000, and lost wages prior to trial and for the 17 years of Kakavas' future work life amounted to approximately $525,000. No effort was made at trial by Kakavas to quantify damages for pain and suffering or by Flota to adjust for income tax or to discount to present value.
Kakavas' theory at trial and on this appeal is that the accident occurred because tension on the winch cable caused the hatch cover to move as soon as the stuck pontoon was freed; that the cable was taut because the ship's crew had left the hatch after the cover had jammed without releasing the winch; that Aguas and the crew knew or should have known that leaving tension on the cable created a non-obvious hazard that would be unavoidable by the Stevens employees repairing the hatch cover; and that Flota, through the failure of Aguas and the crew to take steps to correct this hazard, is liable in negligence for Kakavas' injuries.
Kakavas called an expert, Immo Nordstrom, an "independent ship surveyor" with experience in designing and repairing hatch covers, who testified that in his opinion it was not good and safe practice for Aguas to have left the hatch area while the repair work was going on because "he's the one who really knows how the winch operates." Nordstrom also testified that there were three possible places where the men could have stood to perform the repairs: on top of the pontoon, as they did; on the deck next to the pontoon, leaning over the guide rail; and on a wooden staging built up from the deck next to the hatch and extending over the guide rail. As to the first, Nordstrom said that it would have been safe to work from on top of the pontoon only if the hatch cover had been completely closed--in other words, only if all tension had been removed from the winch cable. As to the second, he said that the men would have been no better off standing on the deck, since in that position the sudden movement of the hatch cover would have severed their arms. He concluded that the third method--working from a staging--would have been the safest course for the men to follow under the circumstances. He testified that stagings are often built to perform such repairs, that ship repairmen are quite familiar with them, and that it would have taken at least one hour to build one here.
At the close of Kakavas' case, Flota moved for a directed verdict. Flota's theory below and on this appeal is that, even if the hatch cover moved due to tension on the winch cable and even if that tension existed because the crew had failed to release the winch, a taut winch cable on a stuck hatch cover is not in and of itself a hazardous condition, but became so here only when Kakavas and the welder chose to stand on top of the cover; that their decision to free the cover from that position was unilateral and neither was nor could have been anticipated by Aguas and the crew; that Flota was under no duty to supervise the repairs and was entitled to rely on Kakavas' employer choosing a method for carrying them out that would best protect Kakavas and his fellow workers; and that Kakavas' injuries were the result of his own and his employer's negligence in failing to check on the condition of the winch cable before initiating repairs from on top of the hatch cover.
The district judge denied Flota's motion for a directed verdict. Flota's only witness was Aguas, who not only did not testify as an expert but said that he had never seen a stuck hatch cover prior to the incident in question. He testified that no one from Stevens had inquired as to the winch cable or had asked him to operate the winch, despite the fact that he and the crew had been available to do so at any time before and during the repairs. He also testified that he had not discussed with ...