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March 19, 1980


The opinion of the court was delivered by: LORD, III

Plaintiff, William McCarthy, a longshoreman, brought this action to recover damages from defendant vessel owner, Silver Bulk Shipping, Ltd., for personal injuries sustained allegedly as the result of defendant's negligence. The action was brought pursuant to the Longshoreman's and Harbor Workers' Compensation Act, § 5(b) as amended, 33 U.S.C. § 905(b), with jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332.

On January 6, 1977, plaintiff, employed as a longshoreman by Amstar Corporation, was performing his duties in the No. 1 hold discharging a cargo of raw sugar from the M/V Silvertweed, a vessel owned and operated by defendant, when he was struck on the head by a 400 lb. hulk of frozen sugar. After a four-day trial (June 5 through June 8, 1979) a jury found defendant's negligence had proximately caused plaintiff's injuries and awarded plaintiff $ 111,318.50 in damages. Defendant has filed post-trial motions pursuant to Rule 50 of the Federal Rules of Civil Procedure for judgment notwithstanding the verdict, or in the alternative for a new trial.

 In 1972 Congress amended the Longshoremen's and Harbor Workers' Compensation Act of 1927 (LHWCA), 33 U.S.C. §§ 901-50, fundamentally altering the relationships among vessel owners, stevedores (employers) and longshoremen. *fn1" Pursuant to the changes, a vessel owner would no longer be strictly liable for a longshoreman's injuries on the basis of unseaworthiness or nondelegable duty, or for a stevedore's negligence on a respondeat superior theory. Concomitantly, an owner no longer would have a cause of action against a stevedore for indemnification. Instead, an owner would be liable to an injured longshoreman only for its own negligence that proximately caused the injury. Rich v. U.S. Lines, 596 F.2d 541, 545 (3d Cir. 1979). In addition, an employer's (stevedore's) only liability would be under a workers' compensation claim. For the restrictions on his actions against owners and stevedores, the longshoreman received increased compensation benefits and coverage under the Act. In short, under the Act as amended, a longshoreman can bring suit only against a vessel owner and only for the owner's negligence. Although Congress did not define the standard of care by which to measure a vessel owner's liability, the House Report on the amendment made clear that vessels owe some duty of care to longshoremen:

Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, 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.

 H.R.Rep.No.1441, 92 Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Admin.News, pp. 4698, 4704 (hereinafter "House Report").

 In a number of post-amendment cases, the Third Circuit has begun to define the extent of an owner's liability. *fn2" In accordance with the Congressional purpose to have a uniform federal law applied to § 905(b) cases *fn3" , the Third Circuit has ruled that the court should look to the Restatement (Second) of Torts for guidance, but only when the sections in question "are clearly consistent with the purposes and policies of the Act." Rich, supra, 596 F.2d at 547; Hurst, supra, 554 F.2d at 1249 n.35. *fn4"

 Central to Congressional policy and purpose is the recognition that the Act places primary responsible for safe working conditions on the stevedore. Brown, supra, 545 F.2d at 860; Rich, supra, 596 F.2d at 548. Although the Third Circuit reversed and remanded in Marant on this basis, supra, 550 F.2d at 144, the Court of Appeals has consistently recognized that although owner and employer are not concurrently or jointly responsible for the safety of longshoremen, they can be concurrently liable for injuries they have proximately caused. That is, a vessel owner can be found liable for its negligence notwithstanding the negligence of the stevedore. Griffith II, supra, 610 F.2d at 124-25. Indeed, as the Supreme Court has observed in its most recent opinion on the 1972 amendments, "a longshoreman who is injured by the concurrent negligence of the stevedore and the ship may recover for the entire amount of his injuries from the ship." Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 266, 99 S. Ct. 2753, 2760, 61 L. Ed. 2d 521 (1979).

 In its most recent opinion in a § 905(b) case, the Third Circuit has held that "(the section) imposes on vessel owners the same duty to exercise "reasonable care under the circumstances of each case' that would be applicable to a land based business." Griffith II, supra, 610 F.2d at 125. Thus it held that a vessel could be found negligent on a showing:

(1) that the vessel knew of or by the exercise of reasonable care could have discovered the condition on board ship that led to the injury; (2) that the vessel knew or should have known that the condition would pose an unreasonable risk of harm to longshoremen working on board ship; and (3) that the vessel failed to exercise reasonable care to protect the longshoremen against that danger.

 Id. at 126. This standard must be analyzed in the context of defendant's post-trial motions. *fn5"

 A. Motion for Judgment Notwithstanding the Verdict

 The standard for a motion for judgment notwithstanding the verdict *fn6" is whether plaintiff has adduced sufficient evidence to create an issue of fact for the jury. The court does not weigh the evidence or pass on the credibility of witnesses. In application, the motion is granted sparingly, since it deprives a party of a jury's determination of the facts. Jeanes v. Milner, 428 F.2d 598, 601 (8th Cir. 1970).

 Defendant bases its motion for judgment notwithstanding the verdict on four general points:

 1. That the evidence offered was not sufficient to establish a cause of action under the applicable law;

 2. That defendant was relieved of liability under § 452(2) of the Restatement (Second) of Torts;

 3. That the evidence was not sufficient to show that defendant's negligence caused plaintiff's injuries;

 4. That the jury's findings as to loss of earnings "are against the clear weight of the evidence." Shipowners' Brief in Support of its Post-trial motions at 12.

 1. Cause of Action under § 905(b)

 Plaintiff's case in brief is that defendant negligently maintained the hatch covers of the vessel so that sea water leaked into Hold No. 1 and in combination with freezing temperatures caused some of the sugar to freeze, thereby creating the dangerous condition that caused plaintiff's injuries. *fn7" There was undisputed evidence that the cargo of sugar in Nos. 1 and 6 holds was "damaged by reason of wetting," that chemical tests showed a saline reaction (presence of seawater), that the source of the entry into No. 1 hold was through the hatch cover, that heavy rust on the raised lips of the hatch coamings prevented the cover from providing a water tight seal. American Marine Services, Inc. Survey Report, Transcript (T) 1-18 through 22. In addition there was undisputed testimony that it would take years to build up the pattern of rust on the coaming lip, T 1-47, and that the vessel's crew was responsible for maintaining the hatch closing system. T 1-48.

 That defendant was negligent in failing to maintain the hatch covers in a reasonably safe condition was not disputed at trial, and I so charged the jury. T 3-58 through 59; see also T 2-55 through 56 (during argument on defendant's motion for directed verdict, defendant conceded negligence with regard to the hatch covers); Shipowner's Brief at 2.

 That a vessel owes a duty of care for reasonable maintenance of the ship is equally clear. The Third Circuit in Hurst held that the vessel's "responsibility relates to the condition of the ship itself, not the activities of the stevedore." Supra, 554 F.2d at 1250 n.35. In Rich the court held that plaintiff is required to show that the vessel owner normally assumes responsibility for the maintenance and care of the items in question. Supra, 596 F.2d at 553. *fn8"

 By asserting that plaintiff failed to produce sufficient evidence to establish a cause of action under the applicable law, defendant in effect is claiming that no duty of care was owed. In support of this proposition defendant claims, as did the vessel owner in Griffith II, that plaintiff has failed to adduce sufficient evidence as to the second prong ...

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