this report states that the reason payments to Rother were stopped was that "claimant returned to work on 3/21/76."
58. Rother filed a Form LS-203 (Employee's Claim for Compensation), signed and dated May 18, 1976, with the DOL, transmitted by letter of Donald B. McCoy, Esquire, dated May 19, 1976; this claim was received on May 21, 1976.
59. On June 16, 1976, Deputy Commissioner, Donald Frederick, administering the Longshoremen's and Harbor Worker's Compensation Act, sent to plaintiff's employer a notice enclosing a copy of the Claim for Compensation filed by Rother dated May 18, 1976.
60. On July 9, 1976 Rother's employer filed with the DOL a "Notice to the Deputy Commissioner that Right to Compensation is Controverted," stating the objection that "claimant's disability was only from 1/28/76 to 3/21/76;" this was received by the DOL on July 13, 1976.
61. Rother's employer also filed with the DOL an "Answer of Employer or Insurance Carrier to Employee's Claim for Compensation," received by the DOL on July 13, 1976; it had attached to it Form BEC-208 reporting the voluntary payment of $ 1,683.89 as disability compensation between January 28, 1976 and March 20, 1976.
62. Rother commenced this lawsuit on August 11, 1977, at which time there had been no assignment to the employer of Rother's right to compensation.
63. No award of compensation has been made to Rother under the Longshoremen's and Harbor Workers' Compensation Act.
64. Rother has not accepted compensation under an award in a compensation order filed by the Deputy Commissioner or the Board.
65. Rother was born on July 28, 1925.
66. Rother has been continuously employed with USS since February, 1953.
67. A person of plaintiff's age has a life expectancy of nineteen years according to the Life Expectancy Tables; United States Department of Health, Education and Welfare-Bureau of Vital Statistics.
68. Rother, had this accident not occurred, expected to work to the age of sixty-five.
69. Prior to September 5, 1975, Rother had no medical problems, disabilities or injuries to his left arm or hand.
70. Prior to September 5, 1975, Rother had equal strength in his left and right hands and arms.
71. As a result of this accident, Rother suffered a minor tear to the biceps tendon in the lower left arm.
72. After several weeks of treatment at the USS infirmary, Rother was examined by Dr. Bernard J. Amster.
73. Dr. Amster initially diagnosed Rother's condition as a severe sprain and had an EMG nerve conduction study conducted at Delaware Valley Hospital.
74. The results of the EMG study at Delaware Valley Hospital showed that Rother had an entrapment of the ulnar nerve at the level of the elbow at the site of the injury.
75. At some point in time, subsequent to March, 1976, Rother's torn biceps tendon healed.
76. On January 24, 1978, Rother was complaining of pain with swelling in the left elbow, front of the elbow, and along the ulnar area of the left elbow into the left forearm. There was a locking sensation on twisting the elbow, numbness of the fingers of the left hand, and a sense of weakness involving the left hand and left arm.
77. As a result of this injury, Rother has a physical difference in the appearance of his left elbow and wrist; there is also thickening in the area of the left biceps tendon near the proximal ulna.
78. As a result of this injury, there has been a grinding sensation in upper portion of forearm during twisting motion.
79. Rother developed a condition of post-traumatic left medial humeral epicondylitis.
80. Rother's limitations on the use of his left arm, while slight, are permanent in nature.
81. Rother lost no time from work from September 5, 1975 until January 28, 1976.
82. Rother was out of work from January 28, 1976 to March 20, 1976 during which time his left arm was immobilized.
83. Since March 21, 1976, Rother has not lost any time from employment as a result of this accident.
84. Since March 18, 1976, Rother has received no medical treatment and has seen no physicians other than for purposes of litigation.
85. Rother is right-handed; there is no atrophy in his left arm and his gripping power in his left hand is normal in relation to his right hand.
86. Rother spent $ 614 in medical expenses related to his biceps tendon tear and unrelated to litigation.
87. Rother lost $ 3,376 in wages between January 28, 1976 and March 20, 1976; if reduced by 28% on account of taxes, Rother has a wage loss of $ 2,431.
88. Rother has suffered a loss in future earning capacity as a result of this accident, calculated at $ 2,000 per year until his retirement at the age of sixty-five.
A. Liability-Standard of Care
Rother, an employee of USS, was injured while he sought to connect an oil discharge hose from Barge # 37, a vessel owned by defendant Interstate, to the intake valve of a land based oil storage facility owned by USS. He brought this action against vessel owner Interstate pursuant to the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 905(b).
Scindia Steam Navigation Co. v. Santos, 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed. 2d 1 (1981), governs the standard of care applicable to Interstate.
In Scindia, a longshoreman, working in the vessel's hold, was hit by sacks of wheat which allegedly fell due to a defective winch. Affirming the Second Circuit's reversal of a summary judgment for the vessel owner, the Court held that "there are circumstances in which the shipowner has a duty to act where the danger to longshoremen arises from the malfunctioning of the ship's gear being used in the cargo operations." Scindia, supra at 175, 101 S. Ct. at 1626. While the vessel owner has no duty to inspect the stevedore-employer's cargo handling operation, it may be liable for such a malfunction if there were actual or constructive knowledge of a condition so clearly unsafe that the vessel owner should have stopped the loading operation until the condition was made safe. Scindia, supra at 175-78, 101 S. Ct. at 1626-27. In Griffith v. Wheeling-Pittsburgh Steel Corp., 657 F.2d 25, 26 (3d Cir. 1981), cert. denied, 456 U.S. 914, 102 S. Ct. 1767, 72 L. Ed. 2d 173 (1982), on remand from the Supreme Court for further consideration in light of Scindia, the Court of Appeals reaffirmed that "reasonable knowledge" is the standard of care according to which vessel owners' actions are to be scrutinized.
At a minimum, we think that the standard of reasonable care under the circumstances would permit a finding of negligence upon a showing: (1) that the vessel knew of or by the exercise of reasonable care could have discovered the condition on board the 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.
Griffith, supra at 26, (quoting Griffith v. Wheeling-Pittsburgh Steel Corp., 610 F.2d 116, 125-26 (3d Cir. 1979)); accord, McCarthy v. Silver Line, Ltd., 661 F.2d 298 (3d Cir. 1981) (per curiam).
In this case, the "condition" which led to Rother's injury was the position of the barge itself. The vessel owner knew from experience that the USS discharge facility provided difficult access to the oil intake valve. Given the weight of the hose, the vessel owner knew or should have known that extended movement of the hose over the dock rail posed an unreasonable risk of harm to Rother. With that knowledge, it was unreasonable for the vessel to discharge the tugboats without ascertaining if the hose would have direct access to the valve through the break in the rail and to fail to recall the tugs when it became apparent that there was not such access. Cf. Sarauw v. Oceanic Navigation Corp., 655 F.2d 526 (3d Cir. 1981) (vessel owner had duty to exercise reasonable care with respect to a gangway even though gangway was supplied by stevedore and used solely by the injured longshoreman).
Rother was also negligent in attempting to handle that hose by himself in view of the location of the barge and the placement of the hose. This will reduce the amount of damages to which he is entitled by one-third (331/3%). However, as the defense of assumption of risk is unavailable in this kind of case, Interstate cannot defend on the ground that Rother continued to work in the face of the obviously dangerous situation caused in part by an ill-designed discharge facility which his employer was continuing to use. Scindia, supra at 176 n.22, 101 S. Ct. at 1626 n.22.
B. The Section 33(b) Defense
Interstate contends that Rother is not the real party in interest in this case because he brought suit more than six months after he accepted voluntary compensation payments from his employer.
Section 33(b) of the LHWCA, 33 U.S.C. § 933(b) provides:
Compensation for injuries where third persons are liable