APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Adams, Kalodner*fn* and Hunter, Circuit Judges.
This case involves two consolidated appeals. In the first, No. 76-1923, Robert Hurst and Leslie Minus, two longshoremen, brought suits for damages against the Triad Shipping Company under amended section 5(b) of the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C. § 905(b) (Supp. II 1972).*fn1 The District Court for the Eastern District of Pennsylvania entered judgment on a directed verdict against both plaintiffs. On appeal, Hurst and Minus raise two issues crucial to the operation of the legislative compromise embodied in the 1972 amendments to the Longshoremen's Act: (1) the constitutionality of congressional abolition, in section 905(b), of the longshoreman's suit for unseaworthiness, and (2) the standard of care to which shipowners are to be held in longshoremen's negligence actions under section 905(b). Because we hold section 905(b) constitutional and conclude that the court below applied the proper rule concerning the standard of care, we affirm.
Triad argues that if the congressional abolition of the unseaworthiness cause of action in amended section 905(b) is held to be unconstitutional thereby exposing Triad to liability without fault, then the concomitant elimination in the same section of Triad's right of indemnification from the stevedoring company must also be unconstitutional. The district court concluded that both provisions of section 905(b) are constitutional and, therefore, granted summary judgment for Lavino on the indemnity claim. Because we hold today that the abolition of the unseaworthiness remedy is constitutional, Triad's sole argument is obviated. Thus, we affirm the granting of summary judgment.
On May 14, 1973, the S.S. Island Archon, a vessel owned and operated by Triad, was berthed at Girard Point in the Port of Philadelphia, on the navigable water of the United States. The time charterer of the vessel, a Japanese company called Toko Lines, had engaged Lavino Shipping Company, a stevedoring concern, to furnish the necessary manpower and equipment to discharge a cargo of steel coils from the ship. Hurst and Minus were longshoremen employed by Lavino.
At one o'clock in the afternoon of May 14, 1973, Lavino's work crew began discharging steel coils from the Number Five Hatch of the Island Archon. Among the equipment used in the operation was a shore-based crane owned and operated by Lavino. The end of the crane's cable was attached to a block on which there was a large open hook. Suspended from this open hook were two cables approximately thirty feet long referred to as "legs." The legs hung from the open hook by means of "eyes" or loops on the end of each leg. The lower end of one leg was attached to a braided cable. There was a hook on the end of the other leg. In order to discharge the steel coils, which were shaped like doughnuts, the legs were lowered into the hold. The braided cable was pulled through the center of the core of the coils by the longshoremen and was attached to the open hook on the other leg. The cargo was then ready to be hoisted out by the crane. However, the hook from which the thirty-foot legs were suspended was unequipped with a safety catch to prevent the legs from slipping off. The parties stipulated that operation of the crane without the safety catch was unreasonably dangerous.
At three o'clock in the afternoon of May 14, Hurst and Minus began their shift in the Number Five Hatch. The legs were lowered into the hold. Minus and another longshoreman held the braided cable steady, while Hurst fed it to another longshoreman, inside the core of the coil, who was pulling the braid through. This longshoreman signalled for more wire to be lowered down so that he could pull the braided cable completely through the coil and hook it up. Accordingly, the crane operator lowered more wire. Unfortunately, the thirty-foot wire legs rubbed against the side of the coaming or hatch opening, and clamps securing the eyes caught on the side of the hatch opening, causing the eyes to be lifted off the hook. The legs fell into the hatch, injuring Hurst and Minus.
Both men filed damage suits against the shipowner, Triad. Their complaints originally contained counts of unseaworthiness, but the district court struck those counts before trial.
At trial, the plaintiffs presented three items of evidence bearing on the shipowner's alleged negligence. First, they established that the ship's chief officer was in the vicinity of Number Five Hatch during the entire course of the unloading operations, a period of some two and one-half hours. The chief officer, however, in a deposition introduced at the trial, denied observing the unsafe condition of the crane's hook until after the accident.
Second, the plaintiffs introduced testimony that it is the custom in the maritime industry for ship officers to be assigned to observe discharge operations at the various hatches. According to plaintiffs' witness, the officers make sure that the stevedore operates properly, and they have the authority to stop any operations endangering cargo, crew, or others.
Third, plaintiffs introduced expert testimony to the effect that a reasonably prudent chief officer would stop a discharge operation if he observed an unsafe hook such as that used aboard the Island Archon on the day of the accident. Plaintiffs' expert testified about the officer's authority to give such orders:*fn2
The ship's officers have a vessel, and the vessel is like their home, and they can say what happens and does not happen. It is just like you at your home. You can say what you want done and don't want done. It is just that simple.
At the close of plaintiffs' evidence, the district court considered Triad's motion for a directed verdict. Plaintiffs argued that a jury question was presented on the question of the chief officer's knowledge and that a jury could reasonably infer from the evidence that the chief officer had noted the absence of a safety catch. The court below disagreed, holding that no evidence had been introduced to controvert the chief officer's unequivocal denial of knowledge. Nor, said the court, was there anything about the officer's deposition that might have led the jury to disbelieve his denial. Finally, the court ruled that no evidence had been introduced to demonstrate that the unsafe condition of the hook was so conspicuous that the chief officer simply could not have avoided noticing it.
The only remaining question on the directed verdict motion, then, was whether the standard of care in negligence actions under section 905(b) required that the shipowner should have known about the unsafe conditions created by the stevedore and protected the longshoremen therefrom. The court held that on the facts of the case there was no such duty, granted the defendant's motion, and entered judgment for defendant in both cases. Following the court's denial of their motion for rehearing, both Hurst and Minus appealed.
Appellants contend that the district court erred in striking the unseaworthiness claims from their complaints. They argue that the 1972 amendment of section 905(b), which eliminated the longshoreman's action based on unseaworthiness, is unconstitutional. Because we hold the abolition of unseaworthiness actions a proper exercise of congressional power, we conclude that the court below did not err in striking those counts from appellants' complaints.
The rise and fall of the longshoreman's claim based on the warranty of seaworthiness has been exhaustively chronicled elsewhere.*fn3 Some familiarity with the warranty's history, however, is necessary for an understanding of the 1972 amendments to the Longshoremen's Act, particularly section 905(b).
The Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C. §§ 901-50 (1970), was designed as a workmen's compensation statute for longshoremen and other harbor workers. Like any workmen's compensation statute, it represented a compromise: the longshoremen gave up the prospect of huge awards from sympathetic juries, but gained the certainty of recovery without proof of their employer's fault; the employers forfeited the chance to escape liability in court, but gained assurance of much lower, administratively determined awards. 33 U.S.C. §§ 904-05 (1970). Like most workmen's compensation statutes, too, the Longshoremen's Act permitted employees to bring negligence actions against third parties who had tortiously injured them. 33 U.S.C. § 933.*fn4
The 1927 Act, though, was not destined to operate as smoothly as the usual workmen's compensation statute. Professors Gilmore and Black put it thus:*fn5
When [the Act] was drafted no thought, presumably, was given to the fact that maritime workers regularly work on premises (i.e., ships) owned by third parties (shipowners) which are temporarily relinquished to the employers (master stevedores) for the carrying out of, say, loading or unloading operations. Thus, the situation of employment-related injuries attributable to the acts of third parties (not employers), exceptional in the context of shore-based industrial employment, is the order of the day in maritime employment. Nevertheless, [the Act] routinely followed the state compensation acts in preserving the injured employee's right to sue third parties (as distinct from his employer) outside the framework of the compensation system.
Few third-party actions were brought by longshoremen until the 1940's. Then came two developments which began to erode the administrative scheme established by the 1927 Act. First, the Supreme Court, in Mahnich v. Southern S.S. Co., 321 U.S. 96, 88 L. Ed. 561, 64 S. Ct. 455 (1944), expanded the seaman's claim against the shipowner based on the warranty of seaworthiness*fn6 into a broad species of liability without fault. Second, the Court held in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90 L. Ed. 1099, 66 S. Ct. 872 (1946), that this broad-gauge remedy was available to longshoremen as well as seamen.
Predictably, longshoremen began routinely to bring unseaworthiness claims against the shipowner after suffering injuries in the course of operations aboard a vessel. In Alaska S.S. Co. v. Petterson, 347 U.S. 396, 98 L. Ed. 798, 74 S. Ct. 601 (1954), "the Supreme Court held that the shipowner's no-fault liability extended to conditions of unseaworthiness for which a third party (e.g., a master stevedore) to whom he had relinquished control of the ship was responsible."*fn7 Unseaworthiness actions usually resulted in large recoveries that greatly burdened the maritime industry.*fn8
In Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 100 L. Ed. 133, 76 S. Ct. 232 (1956), the Supreme Court recognized the unfairness of shifting the entire burden of the stevedore's negligence onto the shipowner. The Ryan Court held, therefore, that shipowners found liable for a stevedore's negligence under the unseaworthiness doctrine could seek indemnity from the stevedore on a contractual theory:*fn9 the stevedore had implicitly warranted to perform its contract in a workmanlike manner, and this warranty entailed an agreement to ...