APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 73-2615).
Van Dusen, Biggs and Aldisert, Circuit Judges. Van Dusen, Circuit Judge, concurs.
The central dispositive issue on this appeal is the question of the relative responsibility of stevedore and shipowner for longshoreman safety under the 1972 Amendments to the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 901 et seq. Marant, a longshoreman injured in unloading a cargo, brought this negligence action against Farrell Lines, the shipowner. The trial court charged the jury that stevedore and shipowner had concurrent responsibility for longshoring safety and the jury, by special verdict, found the stevedore and shipowner equally at fault in causing the injury. Damages were stipulated and judgment for the full amount was entered against Farrell. Farrell appealed. We reverse.
Marant was employed as a longshoreman by the Lavino Shipping Company, an independent stevedoring contractor hired by Farrell Lines to discharge a cocoa bean cargo from its vessel, the S.S. African Moon, in Philadelphia. The beans had been loaded in Africa by African longshoremen under the supervision of the vessel's officers and, although the testimony was disputed, witnesses for the plaintiff testified that the cargo had been improperly stowed "bag on bag" (each layer of bags running in the same direction as the layer beneath it) instead of in the safer "lock stow" (each layer of bags running perpendicular to the layer beneath it). Marant was injured when a tier of bags collapsed and hit him. A witness testified that the collapsing tier was about 15 feet high, that it stood behind another tier 12 feet high, and that Marant was standing 6 or 7 feet from the tier that fell on him. The central issue at trial was the method adopted in stowing the bags.
The jury returned a liability verdict against Farrell. By special interrogatories it determined that Marant was not contributorily negligent, that Lavino and Farrell were both negligent, and that each had contributed 50 percent to the happening of the accident. Damages were stipulated as $20,000 and the district court entered judgment in favor of Marant and against Farrell in that amount. Farrell's motion for judgment notwithstanding the verdict or for a new trial was denied.
Farrell raises the following points on appeal:
(1) Under the 1972 Amendments to the LHWCA, the stevedore has the primary responsibility for longshoremen's safety and the vessel's duty is only to disclose latent defects of which it has knowledge. Under this law and the factual circumstances, the district court erroneously failed to direct a verdict for Farrell. In addition, it incorrectly charged the jury as to Farrell's duty under the law and compounded that error by repeating the original confusing charge verbatim when asked by the jury for clarification of the relative duties of vessel and stevedore.
(2) Under the 1972 Amendments to the LHWCA, a vessel cannot be held liable where the stevedore contributed to a longshoreman's injury.
(3) The jury verdict was clearly against the weight of the evidence.
(4) Where the jury found that Farrell's negligence contributed 50 percent to the happening of the accident, Farrell should be assessed only 50 percent, or $10,000, of the stipulated damages of $20,000.
As a preliminary matter, we will deny Farrell's request for a directed verdict in its favor. We cannot say, as a matter of law, that the record is "critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969).
Farrell has challenged specifically that portion of the trial court's charge which informed the jury that "the responsibility for the safety of the longshoreman lies concurrently or jointly with the longshoreman's employer, and with the shipowner." (546a-547a) Farrell asserts that this is an inaccurate statement of the relative responsibilities imposed by the 1972 Amendments to the LHWCA and that the trial court should have charged, as Farrell requested (405a), that the primary responsibility for longshoremen's safety was on the stevedore. A recent decision of this court, not available to the district court at the trial of this case, substantiates Farrell's position. Accordingly, on the basis of Brown v. Rederi, 545 F.2d 854 (3d Cir., 1976), we will order a new trial.
As Judge Van Dusen has recently observed, speaking for this court, "express language in the statute and the legislative reports accompanying the 1972 Amendments amply demonstrate that for reasons of policy the major responsibility for the proper and safe conduct of the work was to be borne by the stevedore." Brown v. Rederi, 545 F.2d at 860. This was an important aspect of the legislative plan, intended to focus responsibility for longshoremen's safety on those best able to improve it, the stevedores. To say that responsibility is concurrent or joint is plainly inconsistent with the intention of the Act to place primary responsibility on the stevedore.
The principle of concurrent or joint responsibility was stated as the first substantive legal precept in the charge. It was reiterated later when the court told the jury that it was their job to decide if the stevedore was "solely or concurrently" responsible (548a), and it was, at least by implication, reinforced when the court charged that "the duty to provide a reasonably safe place to work can rest upon more than one party, and it includes the owner of the vessel." (549a) After being sent out to deliberate, the jury returned to ask the court, inter alia : "Is it the ship's responsibility to provide a safe and reasonable place for the men to work in the hold as per your charge?" (569a-570a) The court answered by repeating verbatim the portion of its charge beginning:
You have for your determination the claim that the owner of the vessel or its agents were negligent toward plaintiff, a longshoreman. The shipowner, for its part, ...