decided as amended february 27 1981.: February 17, 1981.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-1588)
Before Gibbons and Rosenn, Circuit Judges, and Weber, District Judge.*fn*
Carmen DiRago, an employee of an independent contractor stevedore company, I.T.O. Corp. ("I.T.O."), brought this action against American Export Lines ("Export"), the owner of the S. S. EXPORT AGENT, pursuant to § 18(a) of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 ("LHWCA"). 33 U.S.C. § 905(b) (1976). He sought damages for injuries sustained while working aboard the EXPORT AGENT discharging rolls of carpet backing. Plaintiff alleged that negligent stowage of the rolls was the proximate cause of his injuries; and after trial to a jury, special interrogatories were returned finding the defendant vessel owner liable and the plaintiff 5% contributorily negligent. The parties thereafter stipulated as to damages and this appeal followed.
Export does not challenge the jury's finding that it was negligent in permitting the improper stowage. Rather, it defends on the ground that the stevedore crew's failure to remove or avoid the danger to DiRago, once it discovered the hazardous condition of the stowage, constitutes a superseding cause of his injuries, thereby relieving Export of any liability. The sole issue presented for review then is whether the trial court erred in refusing to charge the jury on superseding cause. Because we find the instructions of the trial court on proximate cause adequate, and do not believe complete discharge of the shipowner's duty under the facts of this case is warranted by either legislative mandate or judicial decision, we affirm the judgment of the court below.
The facts at trial showed negligence on the part of both the stevedore crew and the vessel owner:
On the accident date, DiRago was working with his gang foreman, William Collins, and his fellow holdman, Stephen Pakech, in the No. 3 lower "tween deck of the S. S. EXPORT AGENT, while it was moored at I.T.O.'s Tioga Terminal in Philadelphia. The cargo of carpet backing was divided into two approximately equal sections, one in the port wing and the other in the starboard wing. The center portion of the hatch was clear of cargo, with the exception of several banded bundles of plywood adjacent to the forward bulkhead of the hatch. The rolls of carpet backing were 13 to 14 feet long, 1 1/2 to 2 feet in diameter, and weighed approximately 1,500 pounds each. The rolls were stowed with their lengths perpendicular to the center line of the vessel, and they were stacked in tiers with each roll tightly abutting the ones next to it. The rolls in the subsequent tiers rested in the recesses formed by the junctions of the rolls below. DiRago claimed at trial and Export does not contest on appeal that the rolls had been improperly stowed in Bangladesh without insertion of chocks to fix the bottommost rolls in place. No representative of Export warned I.T.O. about the absence of chocks.
In order to discharge the cargo, I.T.O. elected to use a forklift machine (or "chisel") which had been fitted with a prong. By inserting the prong into their cores, the machine could remove the rolls from the stow one at a time. Complicating the task of taking the carpet backing out of the wings and into the center of the deck for hoisting was the fact that the forklift machine could not reach the forwardmost rolls because it was blocked by the plywood bundles and by the presence of a stanchion in both the starboard and port wings. DiRago contended that this configuration prevented a complete tier-for-tier discharge on each side (which might have maintained the stability of the remaining stow at all times), with the result that as the aft portions of the stow were brought out of the wings, a pile of unstable rolls remained stacked at the forward end on each side. There was conflicting testimony as to the exact method of discharge DiRago's crew employed under such circumstances. According to Collins, the tier-by-tier method was used for the aft portion and the forward portion was loosened by undermining it. According to DiRago and Pakech, the entire load had to be discharged by undermining since the rolls were fitted so that the top tier was between the coaming of the hold and the side of the vessel. This prevented the use of the usual prong to discharge the top roll because only its bottom half was showing. It was allegedly necessary, therefore, to work out a roll from a lower tier so that the top tier would then fall down into the "V" thus formed a procedure Collins called "dangerous" and denied was used. In any event, testimony was offered by Export to show that neither of the methods testified to by plaintiff's witnesses was the safest possible.
Nonetheless, at this point the crew assumed the cargo to be chocked. Not until Pakech removed the rolls comprising the bottom tier on the port side was it discovered that there were no chocks under any of the rolls. Collins ordered his men to stay out of the area aft of the remaining pile because of the danger that they might collapse. No such problem eventuated on the port side. However, during the course of the discharge of the starboard rolls, at a time when DiRago was inadvertently in the portion of the starboard wing from which rolls had been cleared, the remaining rolls at the forward end suddenly collapsed, striking him. He had just helped guide a draft loaded with several rolls up and out of the hold. Keeping his eyes on the draft and being careful not to stand under it, DiRago had walked backwards into the starboard area.
At trial, DiRago argued on the basis of the facts above that his injuries were caused by the defendant's failure to inspect that the cargo was properly secured by chocks; that the shipowner knew or had reason to know that this created an unreasonable risk of harm to the longshoremen, including plaintiff; and that the shipowner did not take reasonable steps to prevent such harm from occurring. In this way, the plaintiff satisfied the three-part test for § 905(b) recovery set forth in Griffith v. Wheeling-Pittsburgh Steel Corp., 610 F.2d 116 (3d Cir. 1979), appeal docketed, No. 79-813, 48 U.S.L.W. 3374 (S. Ct. Dec. 4, 1979) (hereinafter Griffith ), in which this court recognized that § 905(b) 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.*fn1 The vessel owner in Griffith had argued that a vessel should not be held liable if it has delivered the ship in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he would expect to encounter, will be able to load or unload the vessel safely by exercising ordinary care under the circumstances. In rejecting this argument, the court relied on the clear implication by the Supreme Court in Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S. Ct. 2753, 61 L. Ed. 2d 521 (1979), that injured longshoremen could recover in full against a negligent shipowner, even where the stevedore was concurrently negligent.
Thus to avoid the impact of Griffith and Edmonds, Export is forced, in effect, to argue that this is not a case of concurrent negligence. Instead, it contends the failure of the stevedore company to prevent harm from the unchocked stowage constitutes a superseding cause and thereby relieves the shipowner of all responsibility. Export relies principally on § 452 of the Restatement (Second) of Torts, which this court has indicated is an appropriate guide in actions by longshoremen against shipowners. Brown v. Ivarans Rederi A/S, 545 F.2d 854, 863 (3d Cir. 1976), cert. denied, 430 U.S. 969, 97 S. Ct. 1652, 52 L. Ed. 2d 361 (1977). However, until now, this court has never been called upon to address precisely when and how § 452 applies.
That provision reads in full:
§ 452. Third Person's Failure to Prevent Harm
(1) Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened by the actor's negligent conduct is not a superseding cause of such harm.
(2) Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor's negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.
The text and accompanying comments leave no doubt that subsection (1) states the general rule and that subsection (2), on which Export relies, is decidedly the exception. To that extent, § 452 adheres to the usual notion that connected acts of negligence result in concurrent liability and that the law recognizes the possibility of more than one proximate cause for a given injury. Thus, § 452 is, in fact, more properly viewed as a basis on which the vessel is held liable despite the negligence of the stevedore, rather than as an escape clause for the defendant shipowner.
Export, however, argues that this case comes within the ambit of subsection (2). Unfortunately, the Restatement gives little assistance in defining the standards for measuring when responsibility has shifted to a third person. See Blackburn v. Prudential Lines, Inc., 454 F. Supp. 1302, 1308 (E.D.Pa.1978). At first glance, the burden on one seeking to invoke § 452(2) would seem to be a heavy one. Comment (e) suggests that the subsection is applicable only to "exceptional" cases and adds, significantly, that "where the personal safety of third persons is threatened it is probably true that normally any duty to exercise reasonable care for their protection cannot be shifted."*fn2
Appellant Export advances two reasons for nonetheless treating this as an "exceptional" case in which the duty to prevent harm had fully shifted to the stevedore. First, it argues that Congressional policy, as reflected in the 1972 Amendments to the LHWCA, contemplates that stevedores will be solely responsible for accidents occurring after they have assumed control of the ship and begun unloading. Secondly, it is Export's contention that the negligence of the stevedores in this case rose to the level of gross or "exceptional" recklessness and thus constitutes a superseding cause.
The reliance on Congressional intent is not persuasive. The House Report on the 1972 Amendments makes it clear that in abolishing the vessel owners' non-delegable duty, the drafters did not intend that full responsibility was thereby delegated to stevedores. H.R.Rep.92-1441, 92d Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. & Ad.News 4698, 4704 (hereinafter "House Report"). The imposition of a duty on stevedores did not relieve owners of their duty to exercise reasonable care with regard to the condition of the ship:
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.
Under this standard, as adopted by the Committee, there will, of course, be disputes as to whether the vessel was negligent in a particular case. Such issues can only be resolved through the application of accepted principles of tort law and the ordinary process of litigation just as they are in cases involving alleged negligence by land-based third parties.
House Report at 4704 (emphasis added). Such discussion hardly supports the view that Congress meant courts to treat cases involving longshoremen's injuries as "exceptional." What is exceptional about the Congressional scheme under the 1972 Amendments is that only the vessel owner and not the stevedore can be a party to the longshoreman's suit. But the Supreme Court in Edmonds v. Compagnie Generale Transatlantique, supra, refused to infer from this that a shipowner could only be held liable only where its negligence was the sole cause. Indeed it indicated that a vessel owner's principal defense against liability, like that of most tort defendants, is to show the absence of proximate cause. 443 U.S. at 265 n.15.
Export places much reliance on the applicability of OSHA's Safety and Health Regulations for Longshoring, which impose on the stevedore who breaks down cargo the duty to take precautions, "when necessary to prevent the remaining cargo from falling." 29 C.F.R. § 1918.83(b) (1979). However, the regulation does not by its terms preclude a finding that shipowner negligence also contributed to an accident by creating a latent danger. Indeed, to interpret the OSHA regulations as establishing ...