*3 subject gas accumulation, ments unless *4 RUSSELL, Before WIDENER and specifically approved certificate, in the HALL, Judges. Circuit the certificate” and [would] void[s] “[Reex- amination of spaces so effected [would be] RUSSELL, Judge: DONALD Circuit mandatory before hot work begin.” [could] a welder plaintiff, employed by The the provision There is also a in such instructions Drydock Shipbuilding Corpora- Norfolk spray painting shall be done in “[n]o (hereinafter Ship- tion referred to as the areas where progress.” hot work is in All injured yard) gas explo- in a fire and was of these instructions include requirements, on the EXXON BANGOR while that sion which, according to the plaintiff, were well undergoing repairs performed by vessel was known arid understood as reasonable safety Shipyard the under a contract with the measures in the trade. owner, the
vessel’s defendant Exxon Trans- About 8:00 a. m. on the day of the acci- portation Company. He sued the shipown- dent the plaintiff began (which welding damages er for under the terms of the work) hot on the outside of the vessel near Longshoremen’s and Harbor Workers’ Com- open hole diameter, about 14 inches in Following pensation jury Act.1 a verdict in through which extended the plate outside shipowner, favor of the defendant the into the leading sea chest into the pump plaintiff appealed. has We affirm. engaged room. Painters were in work on but, the outside at the same time when they
I. approached within about 40 feet of the Shipyard predecessor The place and the plaintiff where working, was they defendant Exxon entered into a contract discontinued their passed work and over to ship repairs BANGOR, to the EXXON point about beyond 40 feet the hole lead- along with certain other vessels. the ing pump Under to the meantime, room. In the contract, the vessel was delivered to the the Shipyard Chemist had at the beginning Shipyard, which assumed full responsibility of work that morning pump certified the for and control of the “detailed manner and room as free gas from and safe for welding. method of doing” repairs the called for A short time later employees Ship- right thereunder. The the shipowner yard began manipulating work the valves was limited to approval of “the results pump in the room. The Shipyard had also Shipyard obtained” in making placed an exhaust fan on the outside of the repairs. Before the accepted by pump vessel was room plastic tubing with down into Shipyard, “gas-freed” it was “sucking room and it was air out of the shipowner. pump verified the fact room.” By early plain- afternoon the “gas-free” the vessel was at time of completed welding tiff had his outside Chemist, delivery by having a Certificated went aboard pump engage room to it, paid by welding selected and to test the vessel there. He observed a machinist seq. et 33 U.S.C. “standing up paid valves on the his around some medical An objection bills. was pump room” and it forward bulkhead immediately by plaintiff’s made counsel to “packing to him as if he was ’em.”2 looked question plaintiff did not an- in the riggers, engaged removal of And plaintiff’s counsel, swer. At the request valves, realized that was a recess during was taken which such coun- gas-free doing “hot” work. The certificate mistrial, sel moved for a contending that it plainly only the room stated related question represented defendant’s an im- at the time conditions in the room it was permissible benefits, reference collateral that, (i. m.) if any e. 7:30 a. work issued thereby prejudicing irreparably plaintiff’s with piping the valves connected was on case. The District Court denied the motion thereafter, the certificate was conducted and recalling jury, instructed spe- them and, work before “hot” was to be void cifically: room, gas in the a new test must permitted “THE gentlemen COURT: Ladies and new carried out and a certificate se- jury, just immediately prior to the however, test, No cured. new made. recess some question was asked of the Shortly plaintiff began after the his weld- concerning witness doctors’ or medical room, ing explosion pump oc- expenses, as paid to whether he had them injured. and he At curred trial or whether or not some source paid had indicated one of two sources for evidence them, his employer. You will disregard gas ignited, in the room which was that completely. part That’s not a of this causing explosion. One source could case. That’s not to be by you. considered *5 the painting been the fumes drawn of Any expenses medical which he has in- fan; by the suction of the exhaust the in curred he is to entitled recover in this through the gas manipu- was other released action, you that decide he is to entitled lation of the valves. So, disregard recover. you’ll any state- evidence, the At the conclusion of the ment or any question any comment the Court submitted cause to the District regard.” made in that A verdict in favor of jury. was returned judgment defendant. the en- While the rule has been recently the From criti- verdict, plaintiff cized,3 ap- present tered on such has is rule that evidence of in assigning the denial of a pealed receipt error by of collateral benefits plain- a for misconduct of defendant’s coun- mistrial tiff in a case is not admissible. during in sel trial and error a number of This was expressly Tipton Socony held v. given by the jury instructions District (1963) 34, 1, Mobile Oil Co. 375 U.S. 84 S.Ct. Court. 4, 11 L.Ed.2d reh. den. 375 U.S. 84 S.Ct. 268; 11 L.Ed.2d and Eichel v. New
II.
York
(1963)
Central
R. Co.
U.S.
316, 11
S.Ct.
L.Ed.2d 307. Nothing
The first claim of error in the trial
new Federal Rules of
by
plaintiff
ruling
relates to a
Evidence
raised
authorizes
during
departure
rule
by the
from the
so
made
Court
defendant’s
declared. But
plaintiff
neither
in Tipton
to
nor in Eichel
cross-examination
and
was the
grant
failure of the
Court to
a
court called on
consider
District
to
whether such
Counsel
error
point.
may
by
mistrial at that
for the de
an appropriate
cured
in-
struction,
inquired
if the
had not
fendant
which is the issue here.4
Tip-
plaintiff
explicit
J.,
deposi-
curring opinion
Friendly,
dissenting
in his
was more
of
time,
opinion
Lombard, J.)
tion
he
before trial. At
that
testified:
of
“They (the co-workers)
taking
were
out a valve
They
welding
where I
the insert.
were
4. A recent case in which the same situation
shop,
taking
go to
prevailed
the valve out to
that one
(1975)
v.
LaMade Wilson
168 U.S.
valve,
working.”
App.D.C. 108,
I
where was
F.2d
1348. There the trial
court had ruled such evidence admissible. The
Railway
Blake Delaware
Hudson
issue of a
Com-
curative instruction was not raised
pany (2d
(con-
only
admissibility.
F.2d
207-8
was one
issue
instance,
Similarly,
recognize
misuse.
we must
ton,
Court had
District
petitioner’s receipt
into evidence
that
of collateral
ruled that the introduction
social insurance benefits involves a sub-
collateral benefits received
of prejudicial
stantial
likelihood
im-
before the Su-
proper and the issue
pact.”
to the correctness
Court was limited
preme
In Eichel
ruling
admissibility.
that
this,
just
seem to do
And the authorities
to
evi-
rejected
had
such
the District Court
governed by
treat the two situations as
like
found such
Appeals
but the Court of
dence
rules.
ruling
Again,
erroneous.
the issue before
instance,
It seems to be settled in either
merely the admissi-
Supreme
Court was
challenged
whether the
evidence relates to
Tipton, the
bility of that evidence. But in
insurance,
collateral benefits or to
a cau-
Court,
inadmissi-
finding
while
the evidence
tionary
proper
instruction in a
case will
ble,
in a
appeared
recognize
proper
that
cure
error in the introduction of such
instruction could cure
appropriate
case an
rule,
an issue at trial. The
as to when a
in that case was
the error. Thus the Court
cautionary instruction will cure such an er-
“did not
to add that
the Court
careful
appears
ror
to be that “in the absence of
It would
cautionary
a
instruction.”
frame
anything indicating that
the verdict
re-
this statement
proper to deduce from
seem
adversely
turned was
affected
such
“cautionary
if such
Court
remarks,
statements or
or that counsel
a different re-
given,
had been
instruction”
persistent
attempts
made
and studied
well have followed.
sult could
bring
objectionable
matter before the
nearly analogous situation
The most
jury, prompt
striking improper
action in
during
reference
trial to collateral
improper
references
the defendant’s
insurance
is that which arises when
fact
benefits
coupled
from the record
with instructions
protected by liability
defendant
admonishing
jury
disregard
such
improperly injected into
insurance has been
matter,
sufficiently protects
the defend-
Indeed,
Eichel,
the case at
trial.
Whether,
right.”6
ant’s
under the circum-
recognized that the two sit-
Supreme Court
the particular
stances of
case the error has
justified
similar
uations were similar
been
a cautionary
cured
instruction is
*6
Thus, it said:
treatment.
normally “a matter
the proper
exercise
long
recognized
court,”7
that evi-
of the
“It has
been
sound discretion
trial
is in-
showing
“only
that
the defendant
in the event of a manifest abuse
dence
judicial
a substantial
likelihood of
discretion should the appellate
sured creates
255,
Management Company,
at 317.
olina Timber
5.
III. disapprov- ing instruction, such an the Circuit Court in grounds appeal The other opinion its say said: “To that responsibility jury to with the District instruc do Court’s joint concurrent or plainly inconsistent tions. The first of these is directed at the with the intention place of the Act to pri- primary Court’s instruction that re “[t]he mary responsibility on the stevedore.”10 sponsibility for the This Court had earlier engaged making and the other men reached the same repairs on the EXXON BANGOR rested Dynamic conclusion Anuszewski Mari- “ * * * 530, 125; Co., p. clear, however, 8. 58 Am.Jur. Neda Const. It is that Con- (1976) Ga.App. gress primary duty Inc. v. Jenkins pro- decided that 732, 736, see, also, Buckingham place S.E.2d Third vide a safe to work is on the steve- Community (1941) v. Anderson 178 Va. dore.” S.E.2d 437: (3d In Brown v. Ivarans Reden A/S “ judgment ought (U.S. appeal pending), ‘A not to be reversed for *7 the admission of evidence or for a statement the said: Court “ * * * However, of counsel which the court express language afterwards directs in jury disregard, to unless there is a mani- legislative reports the statute and the accom- probability fest that the evidence or state- panying amply the 1972 Amendments dem- prejudicial par- ment has been to the adverse policy major onstrate that for reasons of ty. fixing A different rule would result in an responsibility proper for the and safe conduct handicap upon prius intolerable the nisi of the work was to be borne the steve- ” [Quoting Washington courts.’ from and dore.” Adm’r, Railway Old Dominion v. Ward’s 119 10. While Gilmore and in Black The Law of 334, 140, Va. 89 S.E. 142.] Admiralty, (2d 1975) support 453-55 Ed. would See, instance, 9. for Ramirez v. Toko Kaiun view, plaintiff’s it is alone in that construction 644, 653; (N.D.Cal.1974) F.Supp. K.K. 385 Lu- Thompson, Duty of the Amendments. Owned (E.D.Pa. v. cas “Brinknes" Schiffahrts Ges. by Shipowner Amendments, etc., Under 1972 6 1974) 759, F.Supp. 379 Commerce, 643, Journal of Maritime Law case, In the first the Court said: (1975). 648-52 primary responsibility “The for reports sup- Both the final Senate and House longshoreman of a lies with the stevedorin port They the conclusion reached in Farrell. gcompany.” state: Lucas, In the Court said: ordinary exercise of care of which are 1976) F.2d (4th Cir. Corp., Panama ners plaintiff plain- unknown to the or to 1098, 97 S.Ct. 757, denied 429 U.S. cert. employer.” tiffs 545, Agromar v. 1116, and Bess 51 L.Ed.2d In both 1975) F.2d 738.11 (4th Line Cir. The plaintiff would fault this instruction cases, held, keeping with the in these we of improperly imputing plaintiff- purpose, legislative manifest employee “negligence employer.” of his re to and did were intended Amendments challenging the instruction on this basis non-delegable duty of a shipowner lieve the ground. is on untenable The declared place to work and a safe to furnish objection assumes that the instruction relat- action, third-party liability in a its contributory (in ed to a defense of admiral- ship repairer or the stevedore which ty comparative) negligence assumption or independent con generally as an “viewed (a of risk defense not available to the vessel tractor,” governed by “land-based” Amendments).12 under the 1972 plain- and not “maritime negligence principles tiff, however, misconceives purport or There was accord negligence concepts.” instruction, intent of the which was not instruction. no error in the ingly directed at a defense of contributory negli- risk;
gence assumption or of of it was a IV. duty statement of the of a vessel in favor of the employees independent of an contrac- The District Court instructed the tor, such as a ship repairer, stevedore or jury as follows: respect “open with and obvious” defects duty Applying law, on the vessel. shipowner “The has the to exer- land-based as invitee, Restatement, such declared in the shipowner reasonable care an cise here, duty “owes no [independent] Riddle who has come contrac- as Plaintiff ship permission employees (such with the tor’s as the plaintiff aboard this case) any except respect owner to do work warn of concealed or hid- den dangers dangers or hidden of which the known to him or ought latent or, shipowner him,”13 knows or should know have been known to to state purpose of the amendments is to “The A somewhat broader definition of the ves injured place employee aboard a vessel in pre-1972 negligence sel’s was stated in a * * * position case, same of land- approval post-1972 [as cited with case * * * K.K., and not to endow him with supra (385 based] of Ramirez v. Toko Kaiun theory special maritime F.Supp. 646) Hugev Dampskisaktieselska v. judicial of action under whatever no- (C.D.Cal.1959) cause F.Supp. bet International called, may 610-11, aff’d, it be such as ‘unsea- (9 Cir.), menclature 601 at 274 F.2d cert. worthiness’, ‘nondelegable duty’, denied, or the like.” 363 U.S. 80 S.Ct. 4 L.Ed.2d Cong., H.R.Rep.No.92-1441, 92nd 2d Sess. (1960): Admin.News, Cong. p. (1972) 2 U.S.Code & surrounding “The fact, circumstances 92-1125, Cong., Report No. 92d Senate just recited, and that prompt of law the hold- Sess., (1972). 2d that, ing express provision absent to the con- Farrell same effect are: Marant v. 11. To the trary, shipowner stevedoring owes to the Inc., 144; Gay supra, 550 F.2d at stevedoring contractor under the contract Transport Trading, Ltd. & Cir. Ocean implied-in-fact obligations: (1) to exercise or- 1233, 1238; Brown v. Ivarans Reden dinary care place under the circumstances 860; A/S, Napoli supra, 545 F.2d at v. [Trans- ship stevedoring on which the work is to Carriers, (2d pacific Hellenic Lines etc.] done, equipment appliances 1976) 536 F.2d 506-7. ship, aboard expert in such condition that an *8 experienced stevedoring contractor, and S.Rep. See at 12: 12. dangers mindful of the reasonably he should intends that the admiral- Committee “[T]he expect encounter, arising to from the hazards precludes ty which the defense of ‘as- rule ship’s otherwise, of the service or will be able by injured sumption an of risk’ in an action ordinary the exercise of care under the 905(b) applicable” employee in § shall also be discharge cargo, circumstances to load or the actions. be, may as the case in a workmanlike man- H.Rep., language see 4705. in the like For ner safety persons and with reasonable to property; (2) 1A, Admiralty, give and stevedoring and 114. to the § Benedict on 13. warning contractor reasonable of the exist-
lili has, he the it under tradi- commentator has specifically, more described as “a smaller carefully but more view, duty respect with to condi- reasoned tional no number” of which, cases applying they as are open “which and understood tions of the vessel 343 and 343A of § the § Second Restate- reasonably any to careful comprehensible ment, that shipowner “insist the might there the is under tradi- man.”14 Because be liable nevertheless in such circumstances resting the vessel for duty tional rule no on if he should have despite realized that such “comprehen- “open and obvious” conditions knowledge or obviousness would man,” there any sible to reasonable is no not protected.”16 be Perhaps the clearest reason, For this the in- liability therefor. expression of this latter view was set forth struction, here, substantially given as has in the recent case of Napoli Hellenic approved many been cases.15 (536 supra 509). F.2d at As stated in years, In recent considerable confusion case, that obligation vessel for propriety for the con- has arisen about injuries invitees, to longshoreman such as a of the rule of application tinued traditional ship or repair employee, respect with to immunity complete and absolute from lia- open and obvious conditions of danger on shipowner or to an bility by a landowner injuries vessel exists “only for resulting invitee for and obvious” conditions of “open from dangers obvious it which should rea- The danger on the land or vessel. Second sonably anticipate longshoremen that Restatement has taken note of this and has (or shipyard employee) would be unable to qualified somewhat the traditional rule of And, avoid.” contrary traditional complete immunity by adding 343 and § view, principle, seems, this it would apply to a number con- 343A. While of authorities any dangerous obvious condition which shipowner tinue to not liable in find a might during performance arise without third-party inquiry action further work of independent contractor. How- causing or danger injury ever, condition rule, even under the modern a vessel obvious, open and there what one is not “open liable for and danger- obvious” danger free, narily turning latent or ence of hidden which at least after over a rea- usually sonably ship, remedied is not delegate fully has not been and prob- safe reasonably expected by longshoreman be encountered lem of to the steve- expert experienced stevedoring Robertson, and com- Negligence dore.” Actions performance pany stevedoring in the Longshoremen Against Shipowners Under ship, shipowner work aboard ally if the actu- Longshore- the 1972 Amendments or, ordinary knows exercise Compensation men’s and Harbor Workers’ circumstances, Jour, care under the should know Act, of Maritime and Law Commerce danger, of such and of the existence ger the dan- 447 at 473. shipowner is one which the should rea- Cummings (E.D.La.1976) 15. v. “Sidarma” Soc. sonably expect stevedoring contractor to F.Supp. 872-73; Fedison v. Vessel performance of the steve- encounter in doring Wislica, (382 7); supra F.Supp. at Hite v. Mari- [Citing contract. cases.]” Corporation (E.D.Tex.1974) time Overseas 14. Ibid. 112. F.Supp. principle The same was stated Fedison v. (E.D.La.1974) F.Supp. 4 Vessel Wislica at Robertson, Negligence by Long- Actions 7: Against Shipowners shoremen Under the 1972 “ * * * It is law black-letter Longshoremen’s Amendments to the and Har- premise owner of a owes no warn an Jour, Act, Compensation bor Workers’ danger which is invitee of a defect or known Maritime Law Commerce 456-57. to him or is as well known See, also, Note, Duty by Shipowner Owed un- owner, invitee as to or which obvious Longshoremen’s der 1972 Amendments to Act or which should observed invitee in is That of Based Land Premises Owner to Busi- ordinary the exercise care.” Jour, Invitee, ness Law Maritime and Com- A critic rule has stated: Note, (1975); Negligence merce 643 Standards doctrines, from the land- “The borrowed Longshore- Under the 1972 Amendments to the apparent congressional impri- based law with Act, Compensation men’s and Harbor Workers’ matur, proved detrimental to most etc., Note, (1976); 21 Vill.L.Rev. 244 employee are the actions this context Injured Longshoreman Shipowner vs. The Af- ‘open danger’ idea and the con- obvious 1972, etc., (1977). ter 28 Hast. L.J. 771 shipowner comitant notion that the is ordi- *9 conditions, or existing whether at time not. has recently ous Such been the clear relinquished by is control of the vessel holding in four well-reasoned decisions. arising vessel or afterwards with the (3d Hurst v. Shipping 1977) Triad Co. Cir. vessel, danger knowledge of the if the is 1237; 554 F.2d Munoz v. Flota Merchante shipyard such that the stevedore or would Grancolombiana, (2d 1977) S.A. Cir. to correct the condition in the expected 837; F.2d v. Gay Transport Ocean & Trad- discharging responsibility its for course ing, 1233; Ltd. and safety longshoreman shipyard or Teofilovich v. d’Amico Mediterranean/Pa- this, worker. For illustrations of see An- (C.D.Cal.1976) cific Line F.Supp. Dynamic Corp., supra v. Mariners uszewski Hurst, longshoremen injured were (540 757); F.2d Frasca Prudential-Grace as a result of safety a defective catch on a (D.Md.1975) F.Supp. Inc. ibid, being crane hook by used 1101; stevedore. It Robertson, by and cases cited at was claimed that an officer of explains 472-3. Robertson these decisions the vessel thus: present was at the time and that it was a maritime custom for a vessel philosophy
“The consistent
of these de-
to have
ordinary
present
cisions is that
situation
an officer to observe
inspect
shipowners
position
are in no
to learn of
stevedoring operation
proceeded.
as it
arising
unsafe conditions or methods
dur-
longshoremen
contended that
the ves-
ing the stevedore’s operations; when
sel,
circumstances,
under those
should have
shipowners
dangers,
do learn of such
or-
dangerous
observed the
condition and
dinarily
employees
the stevedore and his
stopped the
safety
work until the
catch was
equal
greater awareness,
an
will have
operative.
made
It was
admitted
danger
open
so that the
can be said to be
vessel that one of its officers
present
obvious;
and that
throughout
the stevedoring operations but
stevedoring
operations
and other such
the officer testified he had not observed
primary
usually
responsi-
the sole
that the crane hook did not have a workable
Ibid.,
bility
p.
of the stevedore.”
safety catch. The District Court directed a
But whether the statement of the Dis- verdict for the vessel in
905(b)
negli-
§
challenged
trict
Court
instruction
gence
brought by
action
the longshoremen.
qualifying
was erroneous for not
the ves-
appeal,
On
the plaintiffs,
among other
immunity
“open
sel’s
and obvious” dan-
claims, contended that under
318 of the
§
gers in line with the modern rule is irrele-
(1965),17
Restatement
Second
the vessel
vant in this case and its use
the District
owed them the
“to see that the steve-
would,
erroneous,
Court
be at most harm-
endanger
dore did not
by using
them
plaintiff’s
less error. This is so because
unsafe hook on the stevedore’s crane” and
injuries
solely
negligence
resulted
from the
that, since it should have known about the
Shipyard
and,
of the
employees;
and its
activity
stevedore,
unsafe
the vessel
irrespective
language
343 and
§
should “have
ship’s
exercised the
ultimate
Restatement,
343A of the Second
a vessel
§
authority and ordered the unsafe method of
unquestionably exempt
under both the
work halted.”18 The Court
found §
letter and the intent of the 1972 Amend-
343 and
343A “inapposite,”19 because,
§
§
injuries
ments
from
result-
as construed
plaintiffs, those sections
ing
from the
would result
holding directly
in a
so,
contrary
employees.
irrespec-
and its
And this is
positive
resulting
tive of whether the
declaration and
condition
intent of
plaintiff’s injuries
“open
905(b)
and obvious”
that the vessel was not to be
§
liable
Court,
ruling,
17. Before the District
had
19. For a similar
based on a most com-
prehensive
matter,
relied also on
343 and
343A of the Restate-
§
discussion of the
see Teofi-
Line,
ment. 554 F.2d
n. 35.
lovich v. d’Amico Mediterranean/Pacific
supra (415 F.Supp.
735-9).
at
18.
1113 negligence of the for the stevedore.20 It an independent contractor to whom the declared: performance of the duty is entrusted. appropriate
“We believe that the (Second) sec- Restatement Torts, 2, of Topic 409, Introductory tion of the Restatement is section (1965). Note at 394 Clearly, applies independent sections 416 through contractors 429 incorporate pre comports cisely congressional concept with intent: of nondelegable duty which, as we above, observed Congress 410-429, Except as stated in the §§ sought to eliminate in the relations be employer independent of an contractor shipowner tween Brown, and stevedore. physical is not liable for harm caused to 858-61; supra, 545 accord, F.2d at Teofi by an act or another omission of lovich v. d'Amico Mediterranean/Pacific contractor or his servants. Line, F.Supp. 732 (C.D.Cal.1976). Accord, Prosser, W. The Law of Torts Therefore, exceptions to the rule of (4th 1971). ed. We think that this § section 409 contained in sections 416 general expresses congres- rule well through 429 apply cannot to the case sub practical concern for the operation sional judice.”21 Longshoremen’s shipowners of Act: damages ‘shall not be liable in for acts or Hurst, also, the Court found that the omissions or employees of stevedores of right inspect the work of the stevedore Therefore, . stevedores . unless authority ultimate to halt the work recognized exceptions, one of the 410- §§ if not done according to agreement did 29, general rule that employer not represent such control of the work of duty applies, contractor has no our the stevedore as to create a basis for the application of 409 means that Triad § vessel’s liability. It further said that be held liable for the cannot stevedore’s “creation of a shipowner’s duty to oversee operation unsafe method of in this case. the stevedore’s activity and insure the exceptions “The stated in sections 416 safety of the longshoremen would, as in through 429 Restatement 318, the case of see notes supra 31-32 text, and accompanying upon any personal negli- ship-
do not rest
saddle the
owner with
gence
precisely
the sort
employer. They are rules
of non-dele-
gable duty that Congress sought
liability, making
of vicarious
the em-
to elimi-
nate
amending
905(b).
section
ployer liable for
Every
shipowner has
contractor,
authority
independent
irrespective
oversee
stevedoring operations.
whether
If
employer
himself has been
that authori-
more,
ty, without
suffices to
They
charge
at fault.
arise in situations in
shipowner
which,
with
policy,
responsibility
for reasons
a
the em-
for de-
tecting unsafe
ployer
permitted
operations
is not
methods of
to shift
warning the longshoremen
them,
responsibility
proper
for the
conduct
about
then shipowners will
be back in
work to
contractor. The liabili-
their
pre-1972 position.”22
ty
is
imposed
closely analogous to that
of a master for the negligence of his
proceeded
It
to distinguish our own case of
servant.
Finnlines,
Butler v.
O/Y
Ltd.
1976)
commonly
The statement
made in such
1205,
cert.
897,
denied 429 U.S.
cases
the employer
is
is under a
S.Ct.
50 L.Ed.2d
and Croshaw v.
duty which he is not free
delegate
to Koninklijke Nedlloyd,
Rijswijk (D.Or.
B. V.
‘non-delegable
the contractor.
Such
F.Supp.
because in those
duty’ requires
person
upon whom it
cases “the shipowner’s participation in the
imposed to answer for it
clear,
that care is
operations
direct,
significant
and of
anyone, even
though
proportions.”
exercised
he be
It noted in particular that in
provision
pp.
is a
20. There
similar
with reference
21.
Butler the particular directed ed.”24 personally protest, man’s *11 injury.” in stowage that resulted of form As the indicates, statement in Munoz stevedore, Munoz, in the course of In case, Gay, two-part which was a presented in such work, cargo a had “stowed its in one of those cases a situation almost latent, dangerous create a as to manner identical with that involved here. The in- employees of its upon which one jured condition longshoreman was operating pro- a not finding shipowner In injured.” pane was forklift in an unventilated reefer com- Court, liable, distinguishing Napo- after partment. A blower had been brought li, said: by aboard purpose stevedore for the of “ * * * removing the carbon prefer guid- monoxide that would We therefore during accumulate in the reefer Gay Transport v. Ocean work. by
ance afforded
Unfortunately the blower
(5th
1977)
properly
was not
Trading,
White,
specifically that
the vessel
“gas-free.”
the Court declared
was
“instances
immunity extended to those
required
Such determination was
to be
repair created the
the work of
Chemist, and,
in which
made
a Certificated
since
Horn,
in Van
And
condition.”
unsafe
accepting
the one
subse-
Sobeloff,
discussing West v. Unit
Judge
quent
responsibility,
that Certificated
189, 4
(1959)361
U.S.
S.Ct.
ed States
Chemist was to be
compensat-
selected and
161, said:
L.Ed.2d
Shipyard.
ed
The test was made in
“
* *
*
was a
Control of the vessel
Chemist,
this case
a Certificated
who
danger-
case because the
vital test in that
vessel,
reported that the
as delivered to the
injured dry-
of which the
ous condition
Shipyard,
“gas-free.”
There is no
*12
complained
a
worker
caused
dock
question
competency
raised of the
drydock
custody
worker after
fellow
thoroughness
chemist or the
of his test.
been turned over to the
ship
had
plaintiff suggests, however, that,
The
be-
this,
Specifically noting
repairman.
gas
cause
was in the vessel’s pipes
days
five
appears manifestly
‘It
unfair
said:
Court
test,
after the
the test must have been in
requirement
place
of a
apply the
safe
to
plaintiff’s
error. But the
own expert wit-
shipowner when he has
work to the
no
to
that,
ness confirmed the
testimony
other
ship
repairs,
over the
or the
and
control
though
even
may
the vessel
have
“gas-
been
repair
work of
in effect creates the
earlier,
days
free” five
gas can later accu-
”
place
which makes the
unsafe.’
danger
pipes
mulate in the
and no doubt this is the
(Italics
opinion.)27
in
safety
reason for the
requirement,
recog-
follows, therefore, both under the 1972
It
nized in the trade
incorporated
in the
negligence princi-
under
Amendments
employee instructions of the Shipyard, that
the enactment of
recognized before
ples
always, throughout
the ship repairs, “hot”
danger-
where the
Amendments that
those
work could not
performed
be
in any area
resulting
injuries
long-
in
to a
condition
ous
which had not been contemporaneously cer-
repair worker was due to
ship
or
shoreman
“gas-free.”28
tified as
shipyard
or
negligence of the stevedore
dangerous
The
condition which re
knowledge
participation
without
plaintiff’s injuries
sulted in
manifestly
latter was not liable.
shipowner, the
due to the
of the Shipyard and
apparently
this case
rec-
plaintiff in
The
its employees.
gas
Whether the
was intro
position
his
if the
the weakness of
ognized
through
manipula
duced into the room
resulting
injuries
in his
dangerous condition
tion of the valves or drawn into the room
to be due to
room could be said
pump
outside,
the painting
from
it was the Ship
Shipyard. He
negligence of the
accord-
yard
employees
responsi
and its
who were
argued that the vessel was not deliv-
ingly
for the dangerous
ble
condition thus created
reasonably
in a
safe
Shipyard
to the
ered
responsibility
and it was the
the Ship
“gas-free” at
because it was not
condition
yard to have seen that the pump room was
with this
difficulty
The initial
the time.
gas
permitting
free of
before
is that
there is no evidence
contention
engage
to
in “hot” work in that room. The
Shipyard
support
it. Both
the record
that,
unquestionably
dereliction was
that of the
shipowner agreed
before the
vessel, Shipyard and its
done in the
employees
assumed control of the
Shipyard
careful,
performance
their
Ship-
be a
scientific determi-
course of
there should
reasonably
expect
that
F.2d at 639.
would
27. 388
steps
discharge
See, also,
take
to correct
of its own
Baum v. United States
primary
215, 219,
responsibility
for the
of its em-
cert. denied 400 U.S.
916,
175,
ployees
accordingly
Finally,
argues
instructing
erred in
the District Court
jury:
WIDENER,
Judge, concurring:
Circuit
“Therefore,
you
believe from the evi-
I concur in
in
the result
this case and also
plaintiff’s
dence that
accident was
opinion.
in the
in which the
plain-
caused
the manner
performed
tiff
workers
I add
only
point
part
and his fellow
a note
out that
II
making
repairs
their
opinion,
duties
I consider
to be a
room,
pump
including
law,
main
removal
correct statement of the
seems to me
valves,
welding
with,
of the flange
and,
irreconcilable
since we do
chest,
painting
to the
sea
court,
not
en banc
overrule absent an
will
opening,
about the sea chest
and if this
facts,
certainly limit to its
Leathers v. Gen-
was the efficient cause of the accident
eral
Corp.,
Motors
and this is. sufficient reason to
this claim of error. Nor for that matter do
we any prejudice see and his against
contentions as vessel
charge. Apparently, plaintiff’s objec- is directed at
tion the instruction
Court’s use of the term “efficient” rather But, if “proximate.” objec-
than this is the
tion, merit. plainly Actually, it is without Am.Jur., puts In 57 the editor it: scribe or characterize cause without which “ * * * happened, per- the accident could not proximate Since the cause as an haps ‘primary’ or ‘efficient’ would be more element is not nec- descriptive essarily upon of the cause which the dependent law nearness in time cognizance ‘proximate’.” distance, takes proximity than with which is most readi- associated, ordinarily ly but used to de-