The opinion of the court was delivered by: LORD, III
A longshoreman brings this action against the owner of a vessel pursuant to § 5(b) of the Longshoremen's and Harbor Workers' Compensation Act of 1927, as amended in 1972 ("LHWCA"), 33 U.S.C. § 905(b), alleging that he was injured as a result of defendant's negligence while he was in the employ of a stevedoring company aboard defendant's vessel. Defendant has moved for summary judgment, relying on the deposition testimony of plaintiff and the legal standard of care owed to long-shoremen by vessels under § 5(b) that was announced in Hurst v. Triad Shipping Co., 554 F.2d 1237 (3d Cir.), cert. denied, 434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977). Defendant's argument is based on the premise that the plaintiff stated he slipped on oil and water which were not present at the time the stevedore commenced operation. On that premise, the motion raises questions concerning the scope of a shipowner's liability in this circuit for injuries sustained to a longshoreman during stevedoring operations.
I. APPLICABLE STANDARD OF CARE UNDER LHWCA § 5(b)
Section 5(b) of the LHWCA provides in pertinent part:
It is settled in the Third Circuit that this provision precludes the imposition of liability on vessels based on doctrines of nondelegable duty or on any absolute duty of care. Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 40 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S. Ct. 785, 46 L. Ed. 2d 643 (1976).
The Third Circuit has not yet defined precisely or completely the standard by which a vessel's conduct will be judged under § 5(b). It has, however, dealt in Hurst v. Triad Shipping Co. and in Brown v. Ivarans Rederi A/S, 545 F.2d 854 (3d Cir. 1976), cert. denied, 430 U.S. 969, 52 L. Ed. 2d 361, 97 S. Ct. 1652 (1977), with aspects of that standard to be applied when an injured employee of a stevedore seeks to impose liability on a vessel owner. The pervading principle in those cases is that common law negligence doctrines developed in admiralty provide the basis for recovery against vessels unless those doctrines are inconsistent with the congressional policies behind § 5(b). Brown v. Ivarans Rederi A/S, 545 F.2d at 863. Paramount among those policies is a vessel's non-liability for injuries caused by unsafe methods of operation by stevedores or longshoremen, except under exceptional circumstances. Hurst v. Triad Shipping Co., 554 F.2d at 1250-51.
In Hurst, the court found inapplicable to § 5(b) cases the rules affixing liability on an employer (i.e., the vessel) for the negligence of an independent contractor (i.e., the stevedore) contained in §§ 416 through 429 of the Restatement (Second) of Torts (1965), with the exception that there could be liability where the vessel maintains control over the operative details of the work done by independent contractors and fails to exercise reasonable care in that control. 554 F.2d at 1251-52, quoting § 414 of the Restatement. Holding the vessel liable for the negligence of an independent contractor in the absence of such control, the court concluded, would impose a nondelegable duty on the vessel, contrary to the congressional intent behind the 1972 amendments to the LHWCA. The Third Circuit's discussion of this point in Hurst discloses a strict view of the inapplicability to § 5(b) of doctrines of nondelegable duty. Accordingly, the statement in the House Report on the LHWCA amendments that "nothing in this bill is intended to derogate from the vessel's responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition" was construed narrowly as applying only to the condition of the ship and cargo itself and not as extending to supervision of the stevedore's activities. 554 F.2d at 1250 n.35, quoting H.R. Rep. No. 1441, 92d Cong., 2d Sess. (1972), reprinted in 3 U.S. Code Cong. & Ad. News at 4704 (1972). Cf. Slaughter v. S.S. Ronde, 390 F. Supp. 637, 644 (S.D. Ga. 1974), aff'd per curiam, 509 F.2d 973 (5th Cir. 1975) (interpreting broadly the responsibility to take corrective action).
Similarly, the Third Circuit has suggested in both Brown and Hurst that the doctrines defining the scope of landowners' liability for dangerous conditions on the land which are known or discoverable by invitees, codified in §§ 343 and 343A of the Restatement, are inapplicable to § 5(b) cases for two reasons: first, Congress specifically rejected the doctrine of assumption of risk in the 1972 amendments to this legislation, 545 F.2d at 863-64 n.10; and second, these sections might be read to create a duty on the vessel to become apprised of and warn longshoremen of dangerous features of the conduct of stevedores, 554 F.2d at 1249-50, n.35.
We conclude from the discussions in Brown and in Hurst that a vessel which has not retained control over the details of a stevedore's work cannot be held liable for injuries occurring after control has passed to the stevedore which result solely from the activities of the stevedore.
A vessel's liability is not so narrow when the injury is proximately caused by dangerous conditions of the ship or cargo. The Restatement sections to be applied in this context, Judge Van Dusen observed in Brown, are §§ 281-83, 302A, 305 and 452. 545 F.2d at 863, cited in 554 F.2d at 1250 n.35. The first three of these provisions define the standards for negligence, §§ 281-83, and the balance deal with tests of negligence where a third party's conduct (in this context, the stevedore's) is involved. Section 302A provides that conduct may be negligent where it creates a foreseeable and unreasonable risk of harm through the negligence of another person; § 305 permits negligence to be based on an actor's prevention of another from taking action necessary for the other's aid or protection; and § 452 concerns the circumstances under which a third party's failure to act is a superseding cause, relieving the original actor of any liability. We infer from the cases that these provisions establish the rules of law controlling a vessel's liability for injuries caused by conditions of the ship or cargo and that they apply regardless of whether the injury or negligent act occurs before or after control passes to the stevedore. This limited duty and potential liability define the extent of the vessel's responsibility to take corrective action as the Third Circuit has construed it in Hurst. 554 F.2d at 1250 n.35.
It is undisputed that plaintiff was injured after the defendant surrendered to the stevedore control of that part of the vessel where plaintiff was injured. Consequently, plaintiff could hold defendant liable in either of two ways: (1) by demonstrating that defendant was negligent in failing to correct a dangerous condition of the vessel or the cargo not created by the stevedore -- e.g., oil and/or grease on the deck -- and that this condition caused the injury;
or (2) by establishing that defendant retained control over the operative details of stevedoring operations at the time of the accident and failed to exercise reasonable care in that control.
We are unable, based on our reading of the Third Circuit cases, to agree with plaintiff that we can and should adopt the § 5(b) standard of care proposed by Judge Orrick in Gallardo v. Westfal-Larsen & Co. A/S, 435 F. Supp. 484 (N.D. Cal. 1977). That formulation is:
"Before the commencement of stevedoring operations, the owner of a vessel in navigable waters has a duty to take reasonable remedial action with respect to all unreasonably dangerous conditions of which it has actual or constructive knowledge. After the commencement of stevedoring operations, the owner of a vessel in navigable waters has a duty to take reasonable remedial action with respect to all unreasonably dangerous conditions of which it has actual knowledge."
Id. at 490. Judge Orrick's standard proceeds from an analysis which, while both thorough and scholarly, diverges from that of the Third Circuit in his relatively narrow interpretation of "nondelegable" duties for which there can be no liability under the LHWCA, id. at 497. Essentially, his formulation premises a vessel's duty to take remedial actions after control passes to the stevedore on the vessel owner's actual knowledge of conditions. On the other hand, the Third Circuit has limited the shipowner's duty to remedying specific "conditions" -- that is, those relating to the ship or cargo and not including the effects of the stevedoring operation. Accord, Frasca v. Prudential-Grace Lines, Inc., 394 F. Supp. 1092 (D.Md. 1975).
Unlike Judge Orrick's, this approach does not appear to deem relevant the actual knowledge of the vessel owner: a vessel owner's knowledge of the ship's or cargo's condition might be a factor in ...