The opinion of the court was delivered by: TEITELBAUM
This is an action for damages brought by Thomas W. Griffith pursuant to the Longshoremen's and Harbor Worker's Compensation Act, 33 U.S.C. § 901 et seq. arising out of a May 26, 1973 accident.
Jurisdiction is conferred on this Court by 28 U.S.C. § 1357(3).
On February 11, 1973, Griffith began his employment with the Wheeling-Pittsburgh Company at its Allenport, Pennsylvania plant. Griffith began work in the common labor pool of the construction department. The nature of his work was such that he would report to the pool each morning and thereafter report to whatever assignment was available that day. During this period, all of Griffith's duties were performed on land.
On April 1, 1973, Griffith bid into the hot mill labor pool. As was the case with his work previously, while a member of the hot mill labor pool, Griffith had no permanent duties, but rather was assigned to various jobs on a daily basis.
On the date of the accident, Griffith was assigned to work with the barge crew at the landing to assist in the loading of two barges. The barge on which the accident was to occur, No. 2730, was owned by defendant American Commercial Lines, Inc. (American). Three days earlier, on May 23, it had been delivered to Wheeling and was incorporated into the latter's "coal fleet" to await future use. On May 25, No. 2730 was relocated next to the seawall at the barge landing to take on a load of sheet steel which was destined to move down river to Louisville, Kentucky. A second barge, described as a pipe barge, was positioned next to No. 2730, and it too was to be loaded. The pipe barge was positioned immediately next to the seawall, and No. 2730 was lashed alongside further out on the river.
On the morning of the accident, Griffith and the regular rivermen in the barge crew first loaded pipe into the pipe barge. During the loading of the pipe barge, which was completed before Noon, Griffith worked on the seawall and barge. No. 2730 was then moved into position for loading by a procedure known as "rounding" in which a crane on the seawall pushed the barges away from the wall permitting the current to turn the boats around in the water so that No. 2730 was situated next to the seawall. Griffith's sole assistance during the procedure involved his throwing ropes from one barge to the other.
The crew then turned to the loading of No. 2730. At that time, Joseph Allfree, the crew's foreman, who was employed as river foreman by Wheeling, became aware that the barge covers were difficult to move. The wheels and track mechanism on which the covers ordinarily roll were without lubrication and were rusty and bent. At about 2:00 P.M. Allfree directed the crew to stop loading the barge and to close the covers. Allfree then returned to his office away from the area. The only other experienced riverman on the crew, Joseph Armstrong, then had difficulty closing one of the covers. A cable was attached from the crane on the seawall to the cover to pull it shut; a second cable was attached to an adjacent cover for leverage. Because eyelets on the stuck cover were missing, the hook at the end of the cable was attached to the lip on the underside of the cover. Both Armstrong and plaintiff were standing on top of the stuck cover when tension was applied to the cable. As the stuck cover began to rise they stepped back onto an adjacent cover, but that cover moved backward and the two men fell into the hold and both were injured.
Griffith filed this action against both his employer Wheeling and the vessel owner American alleging negligence on the part of both. Both defendants have denied liability to Griffith and cross-claimed against each other for indemnification or contribution. A non-jury trial was held on October 25, 1977 through October 28, 1977. Considering all the evidence elicited at trial, the following shall constitute findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 52(a).
LAND-BASED STANDARD OF NEGLIGENCE
There is general agreement that the case sub judice should be governed by the applicable land based standard of negligence. Griffith v. Wheeling-Pittsburgh Steel Corporation, 521 F.2d 31, 44 (3d Cir. 1975). Far less consensus is available, however, when discussion turns toward the question of what is the appropriate land based standard.
". . . admiralty courts applying amended section 905(b) generally have turned to the Restatement (Second) of Torts as the national expression of non-maritime tort principles."
Representative of such a history of adherence to the Restatement standard has been the Western District Court of Pennsylvania in general, and this Court in particular. Griffith v. Wheeling-Pittsburgh Steel Corporation, C.A. No. 73-0706 (March 22, 1977); Duncan v. Dravo Corp., 426 F. Supp. 1048 (W.D.P.A. 1977).
An emerging trend, on the other hand, has favored defining the standard of negligence as imposing a duty to exercise reasonable care under all of the circumstances of the case. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 3 L. Ed. 2d 550, 79 S. Ct. 406 (1959); Rowland v. Christian, 69 Cal. 2d 108, 443 P.2d 561, 70 Cal. Rptr. 97 (1968). We take the opportunity afforded by the instant case to reassess ...