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DUNCAN v. DRAVO CORP.

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


February 9, 1977

HARRY DUNCAN, Plaintiff,
v.
DRAVO CORPORATION, Defendant

The opinion of the court was delivered by: SNYDER

SNYDER, J.

 Defendant Dravo Corporation has moved the Court to alter or amend its order of partial summary judgment of December 14, 1976, which dismissed all claims against Defendant except a negligence action against it as vessel owner. *fn1" The Court held that this action was available under § 905(b) of the Longshoremen's and Harbor Workers' Compensation Act *fn2" even though Dravo Corporation was not only the owner of the barge on which Plaintiff was working but also the direct employer of the injured longshoreman. Defendant now contends that under the facts of this case this negligence claim must also be dismissed.

 I

 The Defendant first argues that because the Court had determined that the barge on which Plaintiff was injured was not in navigation, § 905(b) does not permit an action against the Defendant as owner of the barge. This contention is based on the theory that § 905(b) must be limited by Sieracki seaman's principles and thus requires a brief review of the history of these principles and the exclusive remedy provision of the Longshoremen's Act.

 Prior to 1972, the Longshoremen's Act provided that "[the] liability of an employer prescribed in [the Act] shall be exclusive and in place of all other liability of such employer to the employee . . . ." 33 U.S.C. § 905 (1970). The Supreme Court held that, despite this exclusive remedy provision, a longshoreman injured while working on a vessel could sue the vessel for damages. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1956). The Court held that this vessel liability could be based on a non-delegable duty to provide a safe place to work, owed to longshoremen by extension of the vessel's warranty of seaworthiness. *fn3" Nor was action against the vessel precluded by the Longshoremen's Act even if the vessel was the longshoreman's employer, the vessel-employer in effect being treated as two separate entities for purposes of § 905. *fn4" Jackson v. Lykes Bros. S.S. Co., 386 U.S. 731, 18 L. Ed. 2d 488, 87 S. Ct. 1419 (1967); Reed v. The Yaka, 373 U.S. 410, 10 L. Ed. 2d 448, 83 S. Ct. 1349 (1963). In Ryan Stevedoring Co., Inc. v. Pan Atlantic S.S. Corp., 350 U.S. 124, 76 S. Ct. 232, 100 L. Ed. 133 (1956), the court virtually eviscerated the exclusive remedy provision of the Longshoremans' Act when it permitted the vessel to recover indemnity from the employer.

 The Supreme Court, however, did not extend the warranty of seaworthiness to all longshoremen. Unseaworthiness had evolved as an essentially open-ended no-fault liability separate from negligence principles because of the peculiar hazards endured by seamen, and was extended to longshoremen who incur similar risks. The Court therefore determined that no warranty of seaworthiness would extend to longshoremen working on a vessel withdrawn from navigation. Roper v. United States, 368 U.S. 20, 7 L. Ed. 2d 1, 82 S. Ct. 5 (1961); West v. United States, 361 U.S. 118, 4 L. Ed. 2d 161, 80 S. Ct. 189 (1959).

 Because this unseaworthiness remedy would not have been available to longshoremen repairing a vessel not in navigation, the Defendant asserts that a negligence action under amended § 905(a) & (b) is likewise unavailable. We believe that § 905(b) and the judicial precedent which survived Congressional revision of the Act provide otherwise.

 In the 1972 amendment of § 905, Congress revitalized the exclusive remedy provision by eliminating the vessel's right to recover indemnity from the employer and eliminating unseaworthiness as a basis for recovery from the vessel. But in so doing, Congress chose not to completely negate the scheme of vessel liability established by judicial precedent. It did not preclude all suits against the vessel for damages, even though unseaworthiness would no longer afford a no-fault basis for recovery. Section 905(b) expressly provides that a negligence action against the vessel is not excluded by § 905(a), reflecting a Congressional determination that although longshoremen do not incur the peculiar hazards of seamen which give rise to the extensive remedy of unseaworthiness, permitting a fault-based remedy in negligence would encourage vessel safety without detracting from the policies underlying § 905(a). *fn5"

 Nor did Congress negate the judicial precedent permitting suit against the vessel even when the vessel is also the employer. To the contrary, Congress intended to afford all longshoremen, regardless of whether employed directly by the vessel or by an independent contractor, identical remedies for injuries suffered. *fn6" The only limitation imposed in § 905(b) on a negligence action against a vessel-employer is that the longshoreman cannot sue for the negligence of those providing longshoring services. This limitation is entirely consistent with Court precedent of treating the vessel-employer as separate entities for purposes of § 905. The vessel-employer will not be held responsible for damages, other than compensatory benefits due under the Act, for breaches of duties arising out of the employer-employee relationship, but it will be subject to liability for damages caused by negligence in the capacity of vessel owner. Whether the vessel owed the longshoreman a duty and was at fault will be determined by traditional negligence principles, as if the longshoreman were a business invitee of a land-based property owner. *fn7" Anuszewski v. Dynamic Mariners Corp. Panama, 391 F. Supp. 1143 (D. Md. 1975); Ramirez v. Toko Kaiun K.K., 385 F. Supp. 644 (N.D. Calif. 1974).

 This brief history reveals that to hold that a § 905(b) negligence action is precluded when the vessel is not in navigation would compel an unwarranted and overly restrictive reading of the statute. The "ghosts" of Sieracki and The Yaka, supra, have clearly survived the 1972 amendments insofar as they permit a longshoreman to sue the vessel for damages whether the longshoreman be employed by the vessel or not. Even before the 1972 amendments, the Supreme Court had not concluded in Roper, supra, and West, supra, that in negligence analysis a vessel not in navigation did not owe a longshoreman a duty of reasonable care, or that the longshoreman was precluded from recovering damages from the vessel for its negligence. In both Roper and West, in fact, after determining that unseaworthiness would not avail a remedy, the Court noted that no negligence was proved. Congress has now specifically provided that a negligence remedy is available and that Courts must engage in traditional negligence analysis to determine if a duty was owed and breached, and we see no reason to limit that action to situations in which the longshoreman could have recovered for unseaworthiness.

 Contrary to Defendant's implication, such a reading of § 905(b) does not eviscerate § 905(a). Under this interpretation, no employer would be liable, either directly or through indemnity to the vessel, for damages other than compensation due under the Act for negligence arising out of the employer-employee relationship. The amendments therefore adequately insulate employers from unforeseen damages and they are thus encouraged to cooperate in providing more extensive compensatory benefits under the terms of the Longshoremen's Act. Vessels, too, are not treated unfairly under this interpretation. They will not be saddled with open-ended no-fault liability. As stated in Senate Report on P.L. 92-576:

 

"Since the vessel's liability is to be based on its own negligence, and the vessel will no longer be liable under the unseaworthiness doctrine for injuries which are really the fault of the stevedore, there is no longer any necessity for permitting the vessel to recover the damages for which it is liable to the injured worker from the stevedore or other employer of the worker."

 Quoted in the concurring opinion of Judge Van Dusen in Marant v. Farrell Lines, Inc., 550 F.2d 142 (3d Cir. 1977) (1977).

 II

 Defendant further argues that § 905(b) does not permit the Plaintiff to sue Dravo Corporation as owner of the tugboat which allegedly bumped the barge on which he was working causing his fall because, although the tug was in navigation, it was not the vessel "in connection with which" he was injured. He refers to § 902(21) of the Act which defines "vessel" as that vessel "upon which or in connection with which [the longshoreman] suffers injury . . . and said vessel's owner . . . ." Consequently, when § 905(b) permits an action against the vessel, it permits only an action against the vessel on which the longshoreman was working -- here, the barge -- even if the Defendant also owned the other vessel alleged to be negligent.

 We need not here determine the meaning of the phrase "in connection with", for even if it is as limited as Defendant suggests, the Plaintiff has alleged facts sufficient to raise a question for the jury. As owner of the barge, Defendant knew that repairs were being conducted in an area where it operates other vessels. The jury may well find that Dravo owed a duty as owner of the barge to refrain from operating other vessels in such manner as to create an unreasonable risk of harm to the repairmen on the barge.

 Accordingly, Defendant's motion to alter or amend our previous order is denied. An appropriate order will be entered.

 Daniel J. Snyder, Jr. / United States District Judge

 ORDER

 AND NOW, to wit, this 9th day of February, 1977, after due consideration of arguments of counsel and for the reasons stated in the attached opinion, IT IS ORDERED that Defendant's motion to alter or amend the court's order of partial summary judgment be, and is hereby denied.

 IT IS FURTHER ORDERED that defendant be granted 20 days from the date of this order to file an answer to Plaintiff's amended complaint.

 Daniel J. Snyder, Jr. / United States District Judge


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