709 F.2d 1031 | 5th Cir. | 1983
This appeal arises from injuries sustained by Edmond Helaire, a roustabout employed
In a jury trial, Cheramie was exonerated, and Mobil was found 100% liable for He-laire’s injuries.
We affirm the judgment of the district court with respect to the exoneration of Cheramie Brothers, the dismissal of the state law negligence claim, and the indemnification order. However, we find that the court’s instructions incorrectly stated the standard of owner liability under § 905(b) and that this error was potentially prejudicial to Mobil. Accordingly, we reverse the judgment on the issue of Mobil’s liability and remand for a new trial.
Facts
Edmond E. Helaire was employed as a roustabout, or general laborer, by Teledyne Movable Offshore, Inc. upon a Mobil Oil Corporation fixed platform located in the Gulf of Mexico off the coast of Texas. Tel-edyne, an independent contractor, had been hired by Mobil to drill a well in furtherance of Mobil’s search for oil and gas on the Continental Shelf. Through a charter agreement, Mobil had arranged with Chera-mie Brothers to provide an offshore supply vessel for the transportation of material between land and the platform. While Mobil was responsible for the procurement and transportation of casing to be used in the well, work done on the platform was carried out by Teledyne, whose employees were responsible for the handling of all material, including loading and unloading the boats. Helaire worked under the direct supervision of the Teledyne crane operator and tool-pusher as part of the crew furnished by Teledyne under its agreement with Mobil. Mobil, as owner of the platform, provided on-sight supervision through its drilling supervisor, or “company man.”
On the night of February 11, 1977, the M/V Bo-Truc No. 25 arrived with a load of casing to be delivered on the platform. Seas were rough and it was raining. The vessel was tied up on a mooring under the platform’s crane. A crew of roustabouts was then called to unload the casing,
I. Jury Instructions
The underwriters and Mobil argue on cross appeal that the trial court’s instructions, based on §§ 343 and 343(A) of the Restatement (Second) of Torts constituted reversible error. Specifically, they argue that the United States Supreme Court case of Scindia Steam Navigations Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), decided subsequent to the jury’s verdict in this case, altered the duty of vessel owners to longshoremen and their employees during unloading operations. Under Scindia, they assert that a finding of liability is predicated only in those cases where the owner has actual knowledge of an open and obvious danger as well as actual knowledge that the stevedore is doing nothing to correct the danger.
The question before us, therefore, is whether liability of a vessel owner with respect to open and obvious dangers once stevedoring operations have begun is less extensive under § 905(b) of the LSHWCA than under the traditional tort rules. If the situations under which an owner can be found liable for injuries to a third party are restricted under the interpretation of § 905(b) announced in Scindia, we must reverse and remand. If not, any error resulting from the erroneous instructions was harmless. Fed.R.Civ.P. 61.
A. Background
Prior to 1972, a longshoreman injúred in the course of his employment had several bases upon which he could recover for his injuries. First, he could receive compensation payments from his employer, regardless of the fault of his employer, the stevedore. In addition, the longshoreman could bring an action against the owner of the vessel and could recover if he could prove that he had been injured either because the owner was negligent or because the ship was unseaworthy. No showing of fault on the part of the owner was necessary to support the unseaworthiness claim. Even if the unsafe condition had been created by the stevedore, the shipowner was liable for the longshoreman’s injuries. See generally Scindia Steam Navigations Company v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981); Pluyer v. Mitsui O.S.K.
Although it was clear that the amendments imposed a negligence standard in place of a standard of liability without fault, the specifics of that standard were left to be “resolved through the application of accepted principles of tort law and the ordinary process of litigation”. S.Rep. No. 92-1125, 92d Cong., 2d Sess. 11 (1972); H.R. Rep. No. 92-1441, 92d Cong., 2d Sess. 7 (1972), U.S.Code Cong. & Admin.News 1972, p. 4698. Pursuant to this legislative charge, the process of defining the precise contours of shipowner liability under § 905(b) has been a matter of serious concern to the courts. Not unexpectedly, the circuits disagreed as to the standards to be applied, particularly in cases where the stevedore, the employer of the injured longshoreman, had also been negligent. This Court, along with the Second and Fourth Circuits, adopted the approach of the Restatement (Second) of Torts (1965), §§ 343 and 343A.
B. The Scindia decision.
In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court under
While the opinion itself does not address every issue of vessel owner liability under § 905(b),
Despite these broad areas of immunity, however, there are circumstances where the owner cannot escape liability by reliance upon the stevedore. First, before turning over the ship to the stevedore, the owner has a duty to warn the longshoremen of hidden defects that would be known to the shipowner in the exercise of reasonable care. He must also exercise care to deliver to the stevedore a safe ship with respect to gear, equipment, tools, and work space. Second, the owner has a duty to avoid exposing the longshoremen to harm “from hazards under the act or control of the vessel.” Third, even though the owner is generally relieved of responsibility for accidents which occur once the unloading process has begun, “if [the stevedore’s] judgment ... was so obviously improvident that [the owner], if it knew of the defect and that [the stevedore] was continuing to use it, should have realized the [defect] presented an unreasonable risk of harm to the longshoremen, ... in such circumstances [the owner] had a duty to intervene” and eliminate or neutralize the hazard. Id. 101 S.Ct. at 1626.
The impact of the Supreme Court’s decision in Scindia upon the extent of a vessel’s duty to longshoremen under 33 U.S.C. § 905(b) as previously applied in this Circuit under the Restatement standard remains less than clear. The majority of the Court in Scindia specifically stated that it was “unprepared to agree that the shipowner has precisely the duty described by the Court of Appeals for the Second Circuit [drawn from the Restatement (Second) of Torts],” 101 S.Ct. at 1626, while Justice Powell stated in his concurrence that he did not consider the Restatement standard “to be inconsistent” with the majority’s opinion. Id. 101 S.Ct. at 1628 n. 1. This Court has considered cases subsequent to Scindia which involve the relationship between jury instructions in § 905(b) actions based on Scindia and those based on § 343(A) of the Restatement. These cases provide general guidance but are not controlling. Each revolved around factual situations where there was no knowledge. Clearly, under these cases Scindia denied liability.
In Hill v. Texaco, Inc., 674 F.2d 447 (5th Cir.1982), we found that a vessel owner was not liable to the employee of an indepen
In Duplantis v. Zigler Shipyards, Inc., 692 F.2d 372 (5th Cir.1982), we reiterated the interpretation of Scindia we first articulated in Hill We found no duty on the part of the owner to intervene because “[tjhere is no evidence that [the owner] ever became aware of any defects developing during [the contractor’s] repair operation.” Id. at 876. In Moser v. Texas Trailer Corp., 694 F.2d 96 (5th Cir.1982), we affirmed a decision of the district court that a shipowner breached no duty to the employee of the independent contractor because his injury was caused “by a transitory condition of which it had no knowledge”. We explained that “[s]ince Scindia, at all events, it is clear that this liability [under § 905(b) ] is no more than, if as, extensive as that subsisting under ‘the general law of torts.”’ Id. at 98. (emphasis added).
Thus, we must decide today the question left open by our decisions in Hill, Duplantis, and Moser: Once unloading operations have begun, is the vessel’s duty under § 905(b) LSHWCA less extensive than under traditional tort rules?
C. Owner Liability under LSHWCA
Helaire’s cause of action against Mobil is based upon his assertion that he was ordered by his stevedore employer to continue unloading operations in spite of high seas, poor visibility and rain, and that this inclement weather created a dangerous condition on deck. The casing Helaire had to traverse in order to unload it onto the platform was slippery from the rain and unsteady from the rocking of the boat in heavy seas. Although the hazardous condition was readily apparent and brought to the attention of his employer’s supervisor, the unloading continued and his injury resulted.
The district court instructed the jury that Helaire was considered an invitee aboard the vessel and that
[a] vessel owner is subject to liability for physical harm caused by a condition of a vessel or its equipment, if, and only if, he knows or, by the exercise of reasonable care, would discover the condition and should realize that it involves an unreasonable risk of harm and should expect that invitees — that is, the longshoremen — would not discover or realize the danger or will fail to protect themselves against it and the vessel owner fails to exercise reasonable care to protect them against danger.
This is virtually a verbatim recitation of § 343 of the Restatement (Second) of Torts. See supra note 6, at 7. The court went on to explain that
[t]he general rule is that the vessel owner is under no obligation to protect the invitee against dangers which are obvious and apparent. This is not a fixed rule, and all of the circumstances must be taken into account. And, where the vessel owner, in this case, Mobil or Cheramie— through its people aboard the Bo-Truc 25 — where the vessel owner as a reasonable man should anticipate an unreason*1038 able risk of harm to the invitee, not withstanding the obvious nature of the condition, the exercise of reasonable care may require additional precautions on the part of the vessel owner for the safety of the invitee who is aboard his vessel.
This is an accurate recounting of § 343A which exempts a possessor of land for liability to an invitee for harm caused by obvious dangers “unless the possessor should anticipate the harm despite such knowledge or . obviousness.”
Basically, therefore, the court instructed the jury that it could find liability if the owner knew, or “as a reasonable man should anticipate” harm, despite the fact that the condition was open and obvious.
If we consider the condition of the rain-soaked deck on the supply vessel analogous to the ice-laden steps on a landowner’s property described by Dean Prosser, we conclude that an owner may be liable, assuming Restatement § 343A applies, if “as a reasonable man” he should have anticipated that ice had built up on the steps and that this ice created an unreasonable risk of harm. Utilizing the Scindia standards, however, that owner would not be liable for injuries caused by a fall on the steps unless (1) he was actually aware that the steps were icy, and (2) he knew that the invitee would do nothing to protect himself (or his employees) from danger.
Although the circumstances in which this Court before Scindia indicated an owner might be held to a duty to anticipate harm which resulted from the stevedore’s negligence are not frequent, they do exist.
Helaire testified at trial that he saw the Mobil supervisor on the platform “three or four times in the course of the operation and during the night and that morning.” However, when later recalled to the stand, he stated on cross examination that this had been on the night of February 11, when the loading was first attempted, not on the morning of the accident. The Mobil supervisor himself testified that he had no specific recollection whether he had been outside the morning of the accident, although he did admit going outside the night before. No one actually placed the supervisor on the platform at the time of the accident.
Additionally, there was no testimony to the effect that the Mobil company man had ever been apprised that the unloading operation was being carried out in spite of He-laire’s protests concerning the weather conditions. Helaire testified only that he had complained to the Teledyne crane operator who was his immediate superior, and that the crane operator was the person who ordered him to continue the work because “the company man wanted the boat unloaded.” The record does not support a conclusion that Mobil desired to complete the unloading regardless of dangers. Such a statement might reflect only the oil company’s general desire to unload the casing as quickly and efficiently as possible under the circumstances. The Mobil supervisor himself had no recollection of Helaire’s accident, nor of any events on the morning in question. He testified that he “relied” on the Teledyne crane operator and toolpusher to “shut down the operation” if weather conditions made unloading unsafe, but admitted that, as a general matter, he “periodically” checked the work taking place on the platform.
While we agree with Helaire that this evidence might be sufficient to uphold a jury verdict finding Mobil negligent under the standard announced in Scindia, this cannot be the focus of our inquiry. In order to find that the court’s instructions were harmless, we must be certain that the jury finding would of necessity have been the same under a proper Scindia charge. We would have to be convinced that the jury based its verdict on the conclusion that the owner knew of the dangerous condition and knew of the stevedore’s refusal to heed Helaire’s requests to suspend the unloading. It was the jury’s province either to believe or disbelieve Helaire’s testimony.
Helaire alternatively argues that the evidence was “sufficient” to find Mobil negligent under a second category of owner liability announced in Scindia —i.e., that Mobil had actively involved itself in the unloading process so deeply that a “contract provision, positive law, or custom” then imposed a duty on the owner to supervise the steve-doring operations. 101 S.Ct. at 1622. The trial court did not instruct the jury concerning the possibility of Mobil’s control over the stevedoring operation so as to impose a duty under custom or contract or by law.
We emphasize again that our review of the verdict of the jury, then, must turn upon whether the facts relating to Mobil’s involvement in the unloading operation were established with complete certainty and to such a level that contract, custom, or positive law made Mobil responsible under the Scindia analysis. We cannot draw such a conclusion. We cannot find a guarantee in the evidence that control over the unloading operation was vested in the Mobil Company representative on the platform. Yet, without such a certainty, the erroneous instructions to the jury cannot' support the jury’s verdict.
There is no evidence in the record to support Helaire’s contention that Mobil actively participated in the unloading operation. In fact, there was considerable dispute as to the actual role played by the company man on the platform. Testimony offered at trial indicated that Teledyne, the independent contractor who was Helaire’s employer, was specifically hired by Mobil to operate and oversee the unloading operations, and that the Teledyne toolpusher was the man responsible for offloading the boats and all other phases of the unloading operations. While the Teledyne workers were ultimately responsible to the Mobil supervisor, simply because Teledyne was itself responsible to Mobil, certainly this general level of responsibility cannot be sufficient to constitute “active involvement” in the unloading operation. Nor is there any significant degree of responsibility placed upon Mobil for unloading in the contract between Mobil and Teledyne.
We conclude that Helaire did not establish facts concerning Mobil’s activities in the unloading which would enable us to conclude that the jury necessarily relied upon those facts in reaching its verdict. A jury must resolve disputed evidence under proper instructions to draw a conclusion concerning the extent of Mobil’s actual involvement in the unloading.
We emphasize that our holding evinces no opinion as to whether, when faced with determining these issues under proper instructions, a jury should or should not find Mobil negligent either by virtue of its control over the operations or by virtue of its knowledge of the dangerous conditions on deck. We say only that our decision remanding for a new trial is required by the absence of proper instructions concerning control and/or actual knowledge, and conflicting testimony as to those issues. Once we conclude that the jury finding as to Mobil’s liability could have been based upon less involvement by Mobil than is required to establish liability under Scindia, there must be a new trial.
II. State Law Negligence and Indemnification
After Mobil had been sued by Helaire for his injuries sustained during the vessel unloading procedure, it made a third party demand against Cheramie and its under
It is undisputed that Mobil, as time charterer of the vessel, would normally be covered under the broad definition of “vessel owner” under 33 U.S.C. § 902(21)
In support of this argument the underwriters cite Lanasse v. Travelers Insurance Co., 450 F.2d 580 (5th Cir.1971), cert. denied sub nom. Chevron Oil Co. v. Royal Insurance Co., 406 U.S. 921, 92 S.Ct. 1779, 32 L.Ed.2d 120 (1972), in which the plaintiff was injured when a crane operator on the platform negligently lifted a heavy welding machine from the deck of a time-chartered vessel during the unloading of cargo. There, as in the instant case, the defendant possessed the “dual identity” of platform owner/time charterer. Upholding a jury verdict that the vessel was liable as a platform operator, not as vessel owner or time charterer, the court said that the unloading procedure “was not even remotely related to the operation, navigation or management of the vessel”, 450 F.2d at 583. The underwriters argue that here, too, the vessel was no more than the “inert locale of the injury” which is not enough to create the required “causal operational relation” between the vessel and the resulting injury. Id. at 584.
We disagree. In Lanasse, the jury’s finding of negligence was predicated upon the negligent manner in which a platform-based crane was operated. The operation of the crane on the platform was in no way related to the navigation or manage
Moreover, even assuming that Mobil’s liability may have arisen from its status as platform operator, indemnification was still properly awarded. The indemnity policy which named Mobil as assured was a standard fleet insurance policy providing assured’s coverage “against liabilities ... in respect of the vessel”, with one significant deletion. The words “as owner of the vessel named herein” were deleted from the policy.
III. Prejudgment Interest
Helaire challenges the failure of the trial court to award prejudgment interest.
CONCLUSION
Prior to the decision of the United States Supreme Court in Scindia Steam Navigation Co. v. De Los Santos, this Circuit held a vessel owner liable under 33 U.S.C. § 905(b) for injuries to a longshoreman from open and obvious dangers if the owner knew, or if he should reasonably have foreseen, the dangerousness of the condition. Scindia makes clear, however, that liability in such cases can be imposed only if the owner has actual knowledge of the dangerous condition as well as actual knowledge that the stevedore is not acting to protect the longshoreman. Because the trial court’s instructions did not restrict Mobil’s liability to these situations of actual knowledge, we reverse the judgment of the court relating to Mobil’s liability and remand for a new trial. We affirm the judgment exonerating Cheramie Brothers and dismissing the state negligence claim brought under La.Civ. Code Art. 2315. We also affirm the indemnification order granting Mobil recovery from Cheramie’s underwriters in the event Mobil is found liable upon retrial.
AFFIRMED IN PART AND REMANDED FOR A NEW TRIAL IN PART.
. The jury awarded Helaire $135,000. This amount was reduced by $40,615.90 which was awarded to Teledyne as recoupment for disability payments paid Helaire.
. These underwriters included Highlands Insurance Company, American General Fire and Casualty Company, St. Paul Mercury Insurance Company, Citadel Insurance Company and Lloyd’s Insurance Company of London.
.Helaire testified that the order to begin unloading was given by the Teledyne crane operator, his immediate supervisor.
. Mobil argues that the jury’s exoneration of Cheramie Brothers from liability should be overturned because the court’s instructions were based on the pre-Scindia tort standards. Because we find that any difference between the Scindia requirements and those predicated upon § 343(a) would be to impose stricter standards upon which liability could be based, Mobil’s argument of prejudicial error has no applicability where an owner has been cleared of liability. If the jury found that Cheramie Brothers was free from responsibility under either the actual or the constructive knowledge tests of § 343(a), it necessarily follows, a forti-ori, that Cheramie would also be exonerated under a standard that imposed liability only for actual knowledge. The sole consequence of a holding that Scindia mandated a duty inconsistent with the Restatement standard would be that an owner be given a new trial based on instructions which limited liability to situations where it had actual knowledge of the dangerous condition as well as knowledge that the judgment of the stevedore was “obviously improvident”. The discrepancy here between the Scindia and Restatement standards accrued to Cheramie’s benefit, not prejudice. See Moser v. Texas Trailer Corp., 694 F.2d 96, 98 (5th Cir.1982).
. Section 905(b) provides in relevant part:
In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.... The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this Act.
. Section 343 states,
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a)knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against danger.
Section 343A continues,
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
.This Court considered that the approach followed by the First and Third Circuits would enable an owner to insulate himself from liability for obvious defects merely by agreeing to relinquish control of the work area to the stevedore, which would thwart the congressional intent to retain a negligence action against the owner. Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236, 243 (5th Cir.1981).
. Scindia addresses the extent of the owner’s liability in situations where a longshoreman is injured as a result of the negligence of the stevedore.
. The exact height of the seas was disputed by Mobil and Cheramie. No one, however, denied that the conditions that day were poor. If the jury found there was a “dangerous condition” on the ship as the result of the rain and heavy seas, it goes without saying that such a condition was “open and obvious”. The open nature of the condition, rather than the magnitude of the storm, defines our inquiry.
. Restatement (Second) of Torts § 343, comment a (1965), instructs that § 343 “should be read together with § 343A.”
. See, for example, Guidry v. Continental Oil Co., 640 F.2d 523 (5th Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 96, 70 L.Ed.2d 87 (1981), where we found there was an insufficient basis to support a third party claim for demands for negligence of the owner in a § 905(b) action “absent a showing that the owner knew or had reason to know of any unreasonably dangerous condition and failed to exercise reasonable care to make the condition safe or warn “the plaintiff.” Id. at 532. (emphasis added); Mallard v. Aluminum Co., 634 F.2d 236, 243 (5th Cir.1980).
. The opinion in Scindia recognized that the owner’s actual knowledge of a dangerous condition which later injured a longshoreman would not in itself make him negligent. It might well be “reasonable” for the owner to rely on the stevedore’s judgment that the condition, though dangerous, was safe enough. 101 S.Ct. at 1626.
. We note that Helaire’s credibility was attacked by the defendants in their attempts to show that he grossly exaggerated the height of the seas and the general weather conditions during the unloading.
. The contract provided “Mobil shall have no directional control of the contractor or its employees and agents except in the results to be obtained. The actual performance and superintendence of all work hereinafter shall be by contractor, Teledyne Movable Offshore, but Mobil shall have access to or have a representative or representatives who shall at times have access to the premises for the purposes of observing depths or inspecting the work performance performed by a contractor in order to determine whether in Mobil’s opinion such work is being performed by contractor in accordance with all provisions of the contract.”
. Title 33 U.S.C. § 902(21) provides: “The term ‘vessel’ means any vessel upon which or in connection with which any person entitled to benefits under this chapter suffers injury or death arising out of or in the course of his employment, and said vessel’s owner, owner pro hac vice, agent, operator, charter or bear boat charterer, master, officer, or crew member.” An owner “pro hac vice” for purposes of LSHWCA is one who assumes by charter or otherwise “exclusive possession, control, command and navigation” of the vessel for specific period of time, has complete, though perhaps only temporary dominion over the vessel entrusted to him and commands her navigation and is entitled to avail himself fully of her services. Bernier v. Johns-Manville Sales Corp., 547 F.Supp. 389, 394 (D.Me.1982).
. The fact that Mobil’s representative was physically on the platform and not on the vessel is irrelevant. See Offshore Logistics Services, Inc. v. Mutual Marine Office, Inc., 462 F.Supp. 485, 490 (E.D.La.1978), where the charterer oil company negligently dispatched a vessel into heavy weather, injuring a passenger. The insurance underwriters claimed that the oil company’s sole liability was as a land-based company and was unrelated to the vessel. The district court disagreed, explaining that “[t]he fact that the decision to dispatch the crew boat was made on fixed ground hardly detracts from the maritime vessel-centered character of the negligence.”
. The relevant portion of the policy provided as follows:
“The Assurer hereby undertakes to make good to the Assured ... all such loss and/or damage and/or expense as the Assured shall as owners of the vessel named herein have become liable to pay and shall pay on account of the liabilities, risks, events and/or happenings herein set forth:
(1) Liability for ... personal injury to ... any person ...
(14) Costs, charges, and expenses, reasonably incurred and paid by the Assured in defense against any liabilities insured against hereunder in respect of the vessel named herein, subject to the agreed deductibles applicable, and subject further to conditions and limitations hereinafter provided...”
.The court ordered “legal interest” to be paid on the jury’s award from the time of the judgment until paid. No mention was made with respect to either the granting or denial of prejudgment interest.
