The opinion of the court was delivered by: LUONGO
Plaintiff was injured on July 8, 1974, while working as a longshoreman on the M/S Concordia Tarek, which was moored at Girard Point in Philadelphia. On May 28, 1976, plaintiff instituted this tort action against the shipowner under the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act of 1927, 33 U.S.C. § 905(b) (Supp. V 1975). Jurisdiction is based solely on diversity of citizenship. The case was tried before a jury in November of 1977, and, at the close of plaintiff's case, defendant moved for a directed verdict. See generally Fed.R.Civ.P. 50(a). I reserved decision on that motion until the close of all the evidence, at which time I granted the motion and discharged the jury. Plaintiff then made a timely motion for a new trial, asserting that I erred in directing a verdict for defendant. See generally Fed.R.Civ.P. 59(a). After considering carefully the points raised by plaintiff in support of his motion, I conclude, for the reasons set out in this opinion, that the motion must be denied.
In 1972, Congress completely overhauled the Longshoremen's and Harbor Workers' Compensation Act of 1927 (LHWCA). See Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972, Pub.L.No.92-576, 86 Stat. 1263. By so doing, Congress "sought to achieve several goals: adequate, increased and sure compensation for injured longshoremen, elimination of the rubric of liability without fault for shipowners, and encouragement of safety within the industry by placing the duty of care on the party best able to prevent accidents." Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 839 (2d Cir. 1977) (Kaufman, J.).
Under the 1972 amendments, an injured longshoreman may no longer recover from the vessel for breach of an implied warranty of seaworthiness, as he formerly could under Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099 (1946). E. g., Samuels v. Empresa Lineas Maritimas Argentinas, 573 F.2d 884, 888 (5th Cir. 1978); Briley v. Charente S.S. Co., Ltd., 572 F.2d 498, 499 (5th Cir. 1978) (per curiam); Davison v. Pacific Inland Navigation Co., 569 F.2d 507, 511-12 (9th Cir. 1978). However, Congress did preserve the longshoreman's negligence action against the vessel. 33 U.S.C. § 905(b) (Supp. V 1975). Unfortunately, the statute fails to specify the standard of care to which the vessel may be held, and, as a result, "the legal waters surrounding the question of the proper standard have swirled turgidly with confusion and controversy." Davis v. Inca Compania Naviera S.A., 440 F. Supp. 448, 451 (W.D.Wash.1977) (footnotes omitted). Although plaintiff here has proffered several different legal theories, I conclude that the evidence adduced at trial was insufficient to support a verdict for plaintiff under any of the potentially applicable standards of care, and that it was therefore proper to direct a verdict for defendant.
In essence, this motion for a new trial raises only one issue, I. e., whether plaintiff presented enough evidence to withstand defendant's motion for a directed verdict. In considering the instant motion, I shall of course view the evidence in the light most favorable to plaintiff, as I am required to do on a motion for a directed verdict. See Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978); Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969).
The evidence presented at trial may be summarized as follows. On the day of the accident, plaintiff was employed as a longshoreman on the Philadelphia waterfront. His employer was the Independent Pier Company, a stevedoring concern. On the day in question, plaintiff was a holdman with a hatch gang that was assigned to load sections of fifteen-inch diameter metal pipe, each about fifty feet long and weighing about half a ton, into the lower hold of the ship's number 3 hatch. As plaintiff boarded the ship at eight o'clock that morning, he noticed that it was listing to the inshore side. N.T. 18-19. The extent of this list was approximately five to eight degrees. N.T. 85, 106.
When the longshoremen opened the number 3 hatch, they saw that thirty tons of five-inch pipe, stacked two tiers high, was already stowed in the offshore side of the lower hold. They decided that, in order to help correct the ship's list, they would stack up the thirty-foot sections of pipe into the wing, and then load the longer and heavier sections of pipe on the offshore side of the hold, alongside and inboard the thirty-foot sections. The longshoremen lowered a forklift into the lower hold, intending to use it to stack up the shorter pipe that was already stowed there, but an unidentified ship's mate instructed the hatch gang's foreman that the longer pipe was to be stowed on the inshore side of the hold. Edward McKenna, the foreman, argued with the mate, contending that it would be more logical to stow the pipe on the offshore side rather than on the inshore side, because the ship was already listing to the inshore side. The ship's mate insisted that the pipe be stowed on the inshore side, however, and McKenna instructed his men to do so.
It is undisputed that the ship's mate had the authority to direct where in the vessel particular cargo was to be stowed, and, in particular, to direct that the pipe taken on at Philadelphia be stowed on the inshore, rather than the offshore, side of the lower hold. N.T. 75, 143. It is also undisputed that the longshoremen exercised complete control of the loading operation, apart from the mate's direction that the pipe be stowed on the inshore side of the ship.
In light of the uncertainty surrounding the applicable standard of care in longshoremen's negligence actions under section 905(b), plaintiff has sought in his written submissions to bring the facts of this case within eight distinct theories of liability. Six of these theories are set out in various sections of the Restatement (Second) of Torts; the others are the unseaworthiness theory mentioned earlier and the Gallardo theory, derived from Gallardo v. Westfal-Larsen & Co. A/S, 435 F. Supp. 484 (N.D.Cal.1977).
At the outset, it appears that three of the eight theories are in fact unavailable to plaintiff, and I will briefly address these three before considering whether the evidence adduced at trial warranted submitting this case to the jury under any of plaintiff's other theories of liability. First, as I noted earlier, an injured longshoreman may no longer recover from the vessel for breach of an implied warranty of seaworthiness. See cases cited Supra ; H.R.Rep.No.92-1441, 92d Cong., 2d Sess. -- - -- (1972), Reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 4698, 4701-05; S.Rep.No.92-1125, 92d Cong., 2d Sess. 8-12 (1972). Second, although there is law in other circuits to the contrary, the Third Circuit has intimated that the duties imposed on possessors of land by sections 342 and 343 of the Restatement (Second) of Torts are not to be imposed on vessels. See Hurst v. Triad Shipping Co., 554 F.2d 1237, 1249-50 n. 35 (3d Cir.), Cert. denied, 434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977); Brown v. Ivarans Rederi A/S, 545 F.2d 854, 863-64 n. 10 (3d Cir. 1976), Cert. denied, 430 U.S. 969, 97 S. Ct. 1652, 52 L. Ed. 2d 361 (1977). Accord, Canizzo v. Farrell Lines, Inc., 579 F.2d 682 at 687-688 (2d Cir. 1978) (Friendly, J., dissenting in part), cert. denied, 439 U.S. 929, 99 S. Ct. 316, L. Ed. 2d 322 (1978).
Contra, e.g., Brown v. Mitsubishi Shintaku Ginko, 550 F.2d 331 (5th Cir. 1977) (Wisdom, J.); Gay v. Ocean Transp. & Trading Co., 546 F.2d 1233 (5th Cir. 1977). Third, the Gallardo analysis, while not unpersuasive, diverges in important respects from the Third Circuit's analysis of the vessel's duties under section 905(b). These considerations led Chief Judge Lord to reject the Gallardo analysis in a recent opinion, and I am entirely in agreement with his conclusion. See Blackburn v. Prudential Lines, Inc., 454 F. Supp. 1302 at 1303-1306 (E.D.Pa.1978). Accordingly, I turn to plaintiff's five remaining theories of liability.
In considering whether defendant could properly have been found liable here, I start from the general proposition that the stevedore is an independent contractor possessed of special expertise in the loading and unloading of cargo. Congress, in enacting the 1972 amendments to the LHWCA, chose to place primary responsibility for the longshoremen's safety on the stevedore, "the party best able to prevent accidents." Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 839 (2d Cir. 1977); See, e.g., Marant v. Farrell Lines, Inc., 550 F.2d 142, 144 (3d Cir. 1977); Brown v. Ivarans Rederi A/S, 545 F.2d 854, 860 (3d Cir. 1976), Cert. denied, 430 U.S. 969, 97 S. Ct. 1652, 52 L. Ed. 2d 361 (1977). See generally 33 U.S.C. § 941(a) (1970). Thus, the vessel will ordinarily be justified in assuming that the stevedore and its employes, I. e., the longshoremen, can safely perform the required loading or unloading operations, even under conditions that would be dangerous to those not experienced in the calling. At least this is so where, as here, no latent or concealed dangerous conditions exist aboard ship. In short, an injured longshoreman seeking to impose liability on the vessel under section 905(b) must show that the vessel was negligent in relying upon the stevedore's expertise and in assuming that the work could be safely done by the stevedore. This in turn requires a showing that (1) the conditions aboard ship created an unreasonable risk of harm, even for a longshoreman working under the guidance of an expert stevedore, and (2) the vessel, although not possessed of the stevedore's expertise, knew or should have known of this unreasonable risk of harm. Cf. Davison v. Pacific Inland Navigation Co., 569 F.2d 507, 513-14 (9th Cir. 1978) (no evidence that defendant knew or should have known that cargo could not be safely discharged from barge due to its design; judgment against defendant reversed). See generally Restatement (Second) of Torts § 289 (1965).
RESTATEMENT (SECOND) § 410
Plaintiff relies initially on section 410 of the Restatement (Second), which provides:
"The employer of an independent contractor is subject to the same liability for physical harm caused by an act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself."
Hurst v. Triad Shipping Co., 554 F.2d 1237, 1248-53 (3d Cir.), Cert. denied, 434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977), suggests that this rule is part of the federal common law that governs an injured longshoreman's negligence action against the vessel. Section 410, of course, carves out an exception to the general rule that an employer is not liable for the negligence of an independent contractor he employs. See Restatement (Second) of Torts § 409 (1965). This section deals with an employer's liability for negligently directing an independent contractor to do work that "is dangerous in itself, or dangerous because of the manner in which it is directed to be done." Restatement (Second) of Torts § 410, Comment a (1965).
Plaintiff suggests that the jury here might have found that the task assigned to plaintiff's hatch gang the loading of additional cargo on the inshore side of the ship was unreasonably dangerous in view of the ship's inshore list, and that defendant was therefore negligent in directing the longshoremen, who were employees of an independent contractor (the stevedore), to proceed in that manner. I believe, however, that such a jury determination would not be supportable on the evidence that was presented here.
In light of my earlier general observations, the proper inquiry under section 410 is two-fold: (1) Did the mate's instruction give rise to an unreasonable risk of harm to the longshoremen, notwithstanding that they were working under the direction of an expert stevedore? (2) If so, did defendant know, or should it have known, of this unreasonable risk of harm?