Mario Lubrano v. Royal Netherlands Steamship Company

judges unanimously given of this Court should be active the opportunity explain agreed upon guidelines certain to be con- did, he why did he what remanding the deciding sidered “in whether to remand for case to him for re-sentencing. To cut off resentencing before a retrial different opportunity is demeaning to the trial judge personal and to assure that no criti- judge precisely one things we — original judge cism of the is involved.” Id. sought guard against in our en banc at 11. opinion in : Robin “to assure that no per- sonal original criticism of the judge in- Robin, Our re- unanimous decision volved.” 553 F.2d at 11. above, emerged ferred from en banc proceedings which turn followed a 2-1 Significantly panel opinions in the dissented, panel decision in which I 545 F.2d instant Ramos case eloquently silent 782-84, alia, ground at inter that the respect guide- unanimous Robin majority’s vacating for asserted reason remanding lines for resentencing for by a namely, that the defense had not judge. I suggest sentence— different that the reason given been sufficient time examine the that, for this is very nature of the presentence report surely would not im- — case and the reasons for vacating the sen- pair the ability judge reimpose of that tence, there could be no justifica- rational Judge Motley sentence on remand. was the tion for not remanding Judge Platt for original sentencing judge in I Robin. dis- resentencing. Judge sented from Moore’sdirection for the For these reasons I respectfully dissent panel majority “resentencing will be from the denial of rehearing en banc. judge.” before different 545 F.2d at 782. I And while one of the nine active

judges later unanimously agreed upon who guidelines for remanding to a different judge resentencing, for retrial or 553 F.2d

8, I also was one of the judges three active thought guidelines

who that those did not assignment judge warrant case Judge other than Motley for resentencing: LUBRANO, Mario Plaintiff-Appellant, Oakes, “Judges Meskill, Timbers and while concurring foregoing princi-

ples, application believe that their to the ROYAL NETHERLANDS STEAMSHIP facts of this case does not assign- warrant COMPANY, Defendant-Appellee. ment of judge the case to a different No. Docket 77-7211. resentencing upon remand.” 553 F.2d at United States Appeals, Court of 11. Second Circuit. later, year Judge Now less than a Moore’s panel majority opinion in the instant Ramos Argued Sept. 1977. case, by Judge Feinberg, concurred con- Decided Feb. cludes that “since no ‘reasons selecting particular imposed’ sentence to be were stated the Court .... [t]he present sentence should be vacated and Ra-

mos should be hearings re-sentenced after conducted before judge.” another 362 (emphasis added). that,

It me strikes as elemental if the true vacating reason for this sentence is sentencing judge failing erred give sentence, reasons for his then he

J., a directing verdict for ship- defendant owner, Royal Steamship Netherlands Com- negligence brought in this action pany, un- 905(b). Examination of der U.S.C. judge record indicates that the district re- jury’s an moved frоm the consideration is- presented by ambiguous sue fact testi- Moore, Judge, dissented Circuit error, mony. was must re- Since this we opinion. filed a new trial. verse for

I part undisputed in large

The facts are and, to, exception already referred admirably forth the trial judge’s set granting judgment opinion memorandum defendant. We therefore state the facts briefly, fuller reserving discussion for what as regard we crucial issue. Plaintiff 27, 1972, injured was on December while loading tallow the greasy drums of hold was of defendant’s vessel. Plaintiff em- Stevedoring Company, Northeast ployed performing stevedoring was which duties Royal. loading While a for defendant tier, tier of the first second drums on allegedly greasy plaintiff slipped theory plaintiff’s and fell. The drums fall was case was that his caused (pieces dunnage rough lumber absence plywood), supposed sup- to be insufficiency plied by defendant. The during the apparent had become had course of the work and been called plain- Ashley, Willie Joe the аttention of boss, Spano, and Pete steve- tiff’s hatch Ashley’s supe- dore foreman and immediate Spano were Ashley rior. Both em- (Zimmer- Cizner, City York Morris New Company. ployed by Stevedoring Northeast Zimmerman, City, of New York man & They, turn, problem to the called the counsel), plaintiff-appellant. officer, ship’s of a ‍​​​‌‌‌‌​‌‌‌‌​‌​​​‌‌​‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌‍since dun- attention Kimball, City York New William M. nage supplied by ship. Lord, & New York (Burlingham Underwood only point, plaintiff At although counsel), defendant-appellee. City, of testified, parties Ashley disagree as indicates next occurred. what the record LUMBARD, MOORE and FEIN- Before opinion, judge viewed the his written BERG, Judges. Circuit ship’s showing that officer evidence as FEINBERG, Judge: Circuit substance, Spano Ashley, advised charge the vessel were Lubrano, those in longshoreman, Mario Plaintiff dunnage; need for more aware in the United appeals judgment from dunnage had in fact been sent Dis- that more for the District Court Southern States for; Jr., York, and that Haight, New Charles S. trict of working principles the hоld until hold off as the standard of dunnage arrived. additional care for vessels boarded dock workers.” Lines, Napoli Ltd., v. Hellenic below, plaintiff As will be seen characteriz- es this version of facts unwarranted. however, undisputed, Spano It is told Carrying congressional intent, out

Ashley men in the hold should not Napoli we held in that the standard for idle, kept should continue to work be and determining the liability of a ship to a can,” that Ashley relayed “do the best longshoreman, who had fallen from unse plaintiff instructions to his these col- cured plywood boards on a drums, load of plaintiff leagues, and that thereafter was found in Section 343A of the Restate On slipped theory this fell. Torts, ment of reproduced in the margin.2 facts, judge directed a verdict for de- Since there was evidence in that case from fendant at the end of plaintiff’s case. This jury might which a conclude the ship that appeal followed. owner had “notice obviously danger of an II ous condition” and that ship “the should Plaintiff sues under the 1972 rеasonably amend anticipated have Napoli that Longshoremen’s ments to the and Harbor would not be able to avoid danger de Act, Compensation produc Workers’ spite .obviousness,” 509, its id. at we re significant changes in governing ed the law versed for a new charge.3 trial and a proper injured longshoremen remedies for on their Still more recently, however, we em jobs. The amendments relevant here have phasized that under principles “land-based fully been discussed in several recent deci ... a be cannot held liable for court, g., sions of this e. Munoz v. Flota dangerous a condition by created an inde Grancolombiana, S.A., Cir., Merchante 553 pendent stevedore unless he has actual or 837, (1977); 839-41 v. Landon Lief constructive knowledge that the condition Hoegh Co., Inc., Cir., 521 F.2d exists.” See Ruffino Scindia Steam Navi (1975), denied, 1053, 96 cert. 423 U.S. Co., Ltd., gation (2 (1976), S.Ct. L.Ed.2d and need 1977). Accord: Munoz v. Flota Merchante be extensively again. not examined It is Grancolombiana, S.A., supra; Agro Bess v. enough our purpose recognize, as the Line, mar F.2d 738 parties do, a longshoreman may that still We turn damages apply now to by principles recover for caused these negli gence shipowner, of a this 905(b),1 above, U.S.C. case. As indicated it is undis- “Congress suggested and that land-based puted ship’s a that officer was notified of 905(b) provides: repair 1. Section services to the vessel. The injury person the event to a vessel under covered this subsection shall not be chapter by negligence under this warranty caused based or seaworthiness vessel, person, anyone of a then such or a injury breach thereof at the time the oc- damages by otherwise entitled to recover rea- remedy provided curred. The in this subsec- thereof, may bring against son an action such tion shall be exclusive all other remedies party vessel as third in accordance with the against except the vessel remedies available provisions of sectiоn 933 of this title and the chapter. (Emphasis supplied). under this employer shall not be liable to the vessel for states, pertinent part: 2. Section 343A in damages any directly indirectly such or possessor A of land is not liable to his agreements contrary or warranties physical by invitees for harm caused them person employed shall be void. If such was any activity by or provide services, condition the land stevedoring whose the vessel to danger them, is known permitted or obvious to injury unless no such action shall if possessor anticipate negligence persons was caused the harm de- en- spite knowledge gaged providing stevedoring such or services obviousness. person employed the vessel. If such was Appellee points Napoli ship out that provide ship building repair the vessel regard was also the stevedore. We do not that services, permitted no such action shall be if rendering inapplicable legal here rules injury was caused quotеd above. persons engaged ship providing building However, analysis ac- as the above dunnage, ship shortage of indicates, supply dun- the evidence could have record knowledged accident, differently. the time of interpreted though that at been Even nage, and judge, The trial to do so. attempting sparse testimony was and the it was the record law however, as a matter ruled this was supporting plaintiff on issue am- anticipate that no reason ship “had unimpressive, enough biguous and not the addition- await jury ship’s allow conclude that Appellant argues .” . . dunnage al joined in the direction approved officer judge, before the the record that on working, although the men keep was unwarranted. conclusion jury there. Had so found, concluded, it might also have as we came key support plaintiff Napoli, said “that should reason- boss, latter Ashley. The his hatch from ably anticipated have substance, men testified, to avoid the [plaintiff] would nоt be able they needed gang noticed that in the work its danger despite obviousness.” ship, on the spoke to someone dunnage, he here, at 509. It is as true as it was that as officer. he identified an whom case, that testimony, Ashley appar first his course of “[T]hey as follows: ently quoted the officer might argued . be that if this we can and do the best we had wait said only place [plain- was the for . . Then, be dunnage] arrive.” until it [the carry job, to work and out his tiff] that Ashley testified specific, more coming might reasonably anticipate vessel that we “We to do the best said: had the officer it despite he use obvious dan- would its that we could get something we can until ger, only would be since alternatives judge then asked with.” The trial work job for delay- to leave his or face trouble re witness, Ashley that?” and “Who said ing jury per- be the work. Should come “This was from plied: argument suaded and find that men keep couldn’t the 18 ship. We and the negligent not cor- ply by doing nothing until standing open danger recting the аnd obvious but Ashley testified arrived.” then wood contributorily neg- plaintiff hour, same he saw the following in the ligent, apply if would the doctrine of ship walking “back and forth officer reduce comparative negligence to parts is true that other constantly.” It shipowner’s proportionately. quoted the testimony, Ashley direct of his Id. “they stating merely that ship’s officer as We do not know what the true facts are dunnage] they had had ordered [the what at new probing or more examination Ashley’s cross-exami wait it.” And for may obtain the same or trial from witnesses Spano, Ash nation, a similar direction others, who Spano, testify. from like did not ship’s to the was attributed ley’s superior, only ship’s shows that a If evidence why trial helps explain This officer. longshoreman stop told the work officer supporting as evidence judge viewed the arrived, thereby ing dunnage until the ful Thus, in plaintiff. than defendant rather filling ship’s longshoreman, re opinion, judge places in his several jury. there be no case for the But if “suggestion” that shipowner’s ferred to officer, ship’s evidence that a again there dunnage working hold off until the men being open after notified of obvious of the offi This arrived. characterization danger dunnage slip of insufficient judge’s was the basis cer’s statement keep working had the men reasonably pery cargo, holding that could so, joined an in the stevedore’s decision do continue and apprehend might that work jury question.4 there would be a then injury occur. Ltd., dissenting nor with his agree F.2d 505 brother’s do not with our We Lines, analysis Napoli Munoz v. Flota Merchante Granco- attempt v. Hellenic to overrule The Judgment cargo being reversed and case remanded loaded Lubrano’s gang consisted of metal containing new drums for a trial.

tallow. The drums were slippery. Some (wooden dunnage boards) was supplied by MOORE, Judge (dissenting): Circuit the' was its responsibility, but fallacy majority opinion The is to as the work progressed it became apparent thereof, sentencе found in last name- to the stevedore that there was insufficient ly, again there dunnage “But if evidence that a cover the first tier of drums. officer, called this deficiency after ship’s being notified of the boss, the attention of their Willie Joe Ash- open danger and obvious of insufficient ley, inwho turn so informed the stevedore’s dunnage cargo, a slippery had the men foreman, Spano. Ashley Spano told working joined keep in the stevedore’s ship’s one of the officers of the necessity so, jury decision to do then there would be a dunnage. for more Ashley was told that question.” fallacy is that order additional dunnage had been ordered and ship’s officer to a stevedore whose hands “you had to wait until it arrived”. placed had been the exclusive control of the (49a). The “you” is by Ashley’s clarified loading operation, and who had exclusive testimony. question In answer to the “Who authority direct employees as to when you you told said, had to wait?” he and under what conditions “Well, says the stevedore the ship— respect awaiting the arrival of that the Dutch had ordered the lumber and continuing additional work in it hadn’t arrived so we had to continue the meantime under conditions known to * * * gets until it working there. When shipowner alike to be danger- sayI wait I don’t mean that he that said we ous, liability placed negligence ship- on the stop work. We had to do the best owner rather than on the stevedore whose got (50a). we can until it there”. To make employee injured. was identification even more certain that it was orders, gave the stevedore who the there following: ensued the I. “Q. This was the stevedore who told you that? FACTS A. Yes. judge a trial Before is faulted for an Q. Who was the stevedore on that error it is the the well consider facts and day, that which foreman? applicable law which he made his deci- Spano. Pete A. sion. Q. Petey Spano you, said to in about Plaintiff, Lubrano, long- Mario was a words, these the ship had ordered employed by stevedoring shoreman a dunnage, you com- the had to wait a while till came, the pany, Stevedoring Company dunnage but Northeast meantime the men (“Northeast”). working should continue and do Northeast had been en- the they best could under the circumstances? gaged by shipowner, Royal Netherlands A. Yes. Steamship Company cargo (“Royal”) to load into ship, Q. course, S. CHIRON”. Lubrano “S. Of Petey Spano your was boss, employee, right? was Northeast’s hence is was cover- compensation ed Northeast’s insurance. right. A. That’s independent Northeast was an contractor Q. So he having said you, you that to of, complete charge responsi- had do, did what he you you told as best bility for, loading operation. could, right, you relayed the same in- lombiana, A., 1977); negligent S. 553 F.2d 837 cannot be held under the precedents law, we believe that he cites from new when the both had knowl- edge open other circuits are danger not relevant here. Even more of an and obvious and also significantly, many affirmatively joined not one cases cited in in a stevedore’s decision to lengthy dissenting opinion keep working a states nonetheless. hold, they The factual error the assumption in the to the men structions could, ‘Keep they power to the best retained the direct to do had can, you those the best working, employees having giv- do the stevedore's after right? orders,’ is that stevedore, independent as an en con- tractor, (50a-51a) complete loading control over the right.” A. That’s law operation. error a matter of However, Ashley previously had testified shipowner, holding having that a so relin- dunnage had asked more that when he independent quished the control con- officer): by ship’s (presumably he was told tractor, by to must stand countermand the the best we had do “We stevedore] [the charged stevedore’s directions lest work something we could get we can until law, in. The as evidenced in joining (42a). with.” to the LHWCA and thе 1972 Amendments he injured was Lubrano Thereafter since the many cases decided Amend- greasy drum not covered slipped ments, contrary. is to the dunnage. no in the I find basis record for II. shipowner, majority’s conclusion officer, interjected itself through an had INTENT LEGISLATIVE stevedoring operation supervising into Despite Congressional enacting intent by giving orders that stevedore should to the LHWCA1 1972 Amendments despite continue drums ab- thereby (1) to give substantially increased told Spano sence of who [it injured longshoremen (2) benefits to “they Ashley to do the best could under clarify legal situation created The most that can be said circumstances”]. cases, holding Sieracki-Ryan so-called working “we had to continue for the words today law long step the court takes the gets there” is that constituted until it backward toward the strict doc keep working. advice to the stevedore yesteryear. trine of However, from some- order loading operation, charge one in Sieracki, Inс. v. Shipping Under Seas it was the stevedore’s sole 85, 872, 90 328 66 S.Ct. L.Ed. 1099 U.S. how, employees direct its thereafter to law, (1946), by court-created doctrine of where and under what circumstances liability was strict to seamen extended assuming continue work. Even were to longshoremen upon theory a of unseaworthi had said that officer were to be shipowners ness.2 And held continue, regarded cannot be this statement unseaworthy even if for conditions liable attempt as an to take the stevedore’s con- by caused the in the unseaworthiness was loading operation trol of the and of its own stevedore, dependent rather than the vessel employees out of its hands. crew. Some or member of vessel’s to ameliorate the years possibly later and majority The focal error in the point of situation, Ryan it was held result of contrary-to-fact in its opinion is be found Pan Atlantic S. S. Stevedoring Inc. v. contrary assumption, which in turn 124, 232, Corp., 76 100 L.Ed. law, 350 U.S. S.Ct. ship’s if there is evidence that a (1956), shipowner could recover keep working the men or 133 that the officer “had so, damages for which joined in the stevedore’s decision do from the stevedore jury liable, that the stevedore question”. theory then there would be a was on the Longshoremen’s gave way, causing a bale to fall 1. and Harbor Workers’ Com- knee 1972, pensation Bryant plaintiff); Amendments of P.L. 92- v. Partenreederei-Ernest Act 27, (Oct. Russ, (4th 1964) seq. (warped et 86 Stat. 1251 330 F.2d 185 grain board construction of feed- furnished for Line, by Lighterage concept er); far- 258 2. the courts A stretched Reddick McAllister See, lengths during ensuing years. 1958) (cargo e. broke fetched crate F.2d 297 Inventor, g., it). S. Oriental longshoreman Dillon v. M. 426 on stood (fellow 1970) longshoreman’s warranty legislation remedy of work- The 1972 was to implied “the its had breached situation anomalous arose in which to the vessel. performance [which] manlike stevedore, participation whose in a necessity for the and the background The compensation precluded wоrkmen’s scheme concisely be more or legislation cannot by employ- direct actions for his Judge Kaufman Chief stated than better ees, liable, nevertheless, became in a court Flota Mer- in Munoz v. year within law the very injury compen- for Grancolombiana, A., 553 F.2d 837 S. chante system designed sation remedy.” was 1977), who said: (2d Cir. 553 F.2d at 839-40. out bring order “In an effort Placing high potential liability on either chaos, Longshore- Congress amended unjusti stevedore was not Compensa- Harbor Workers’ men’s and fied long because LHWCA then limited clarify (LHWCA) Act 1972 to tion compensation shoremen’s to a maximum of which the the circumstances under limit However, per major week.3 $70 concern stevedore could recover employee of a was that liability initial was on-the-job damages from a for wrong party strictly —the F.2d at 838. accidents.” liable for accidents where it had little no jured rubric creased and sure owners, overhaul “ achieve ^[*] . longshoremen, . of the LHWCA in # ‍​​​‌‌‌‌​‌‌‌‌​‌​​​‌‌​‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌‍. several Congress, encоuragement ^[*] without compensation goals: elimination ^[*] fault adequate, 1972, sought ^[*] extensive safety ship- ^[*] in- in- The ultimate reflects a delicate the administrative control over the interests of the various that was in burdens made lightly. dire decision reached need actual balancing by received increased bene costs courts created a Instead, operations. reform in 1972.4 parties high Congress of the result legal involved. Congress system Also, fees industry by placing fits, within shipowners liable only negli if prevent party care on the best gent, able and the does not face the Ryan secondary F.2d at 839. accidents.” suit.5 92-1441, H.Rpt.No. Cong., Philadelphia 92d 2d Sess. 2 United States district court in H.Rpt.], reprinted (1972) concerning impact party in 3 U.S. [hereinafter of third claims Cong. pp. involving injured Admin.News Code (1972). & longshoremen on the back- log personal injury cases in that court.” 92-1125, S.Rpt.No. Cong., (1972) 92d 2d Sess. Reports 4. The Committee indicate: S.Rpt.], H.Rpt. at [hereinafter 3 U.S.Code testimony “The Committee heard Cong. pp. & Admin.News third-party brought number of actions under apparently Transportacion reference to Turner v. Ryan the Sieracki and increased that much could pensation defray litigation line of decisions has itima, (E.D.Pa.1968). Mar F.R.D. substantially years recent Lines, Inc., 142, See v. Marant Farrell 550 F.2d financial resources which (3d 1977). 2 148-49 n. Cir. improved pay better utilized to be com- being spent were benefits now to Report 5. The Senate states the of Industry nature costs. witnesses compromise: despite the fact that since testified 1961 injury frequency rates have decreased in the ‘ years representatives “For a number of of industry, payable and maximum benefits un- employees attempted have to have the constant, remained der the Act have of cost benefit levels under the Act raised so that compensation longshoremen insurance for injured properly protected workers would be substantially of has increased because time, the Act. At employer the same party of third cases and increased number legal expenses groups willingness indicated their higher in to and recoveries such increase payments such only testimony but indicated The Committee also heard could do cases. that couraged so Longshoremen’s being if the en- some cases workers were and Harbor compensation Compensation file Workers’ again not to claims for Act were to delay hope remedy to become the against or their return to work exclusive recovery increasing possible in a third their stevedore sage had pas- been intended since its party attention action. The Committee’s in 1927 until modified various Su- 1966 of called to the decision in preme also S.Rpt. Court decisions.” at 5.

371 primary responsi shoulders rests on its legislation, for the the basis analyzing In safety longshoremen. Such bility for the the ex to given be must consideration due promo with the is consistent responsibility employers force Congress aim press econom working conditions and of safe tion safety responsive be more (stevеdores) par is also the efficiency. The stevedore ic steve The work.6 their considerations the cost of accidents spread ty best able avoid primary has the dore through higher insurance through Transportation v. Exxon Riddle accidents. general See performed.7 charges for 1977); (4th Cir. 1103 F.2d Company, ly, of Accidents Calabresi, The Costs G. 142, Lines, Inc., F.2d Farrell v. Marant “Brinknes” v. 1977); Lucas (3rd Cir. 759, 768-69 Ges., the LHWCA F.Supp. Congress intended Schiffahrts K. nation-wide, Toko Kaiun uniformly Ramirez applied should be (E.D.Pa.1974); negligence apply, 644, (N.D.Calif.1974). comparative and K., F.Supp. apply, of risk would not assumption to while position the best is in The Also, accidents, Congress intended longshoremen.8 causes the costs avoid industry, clearly vig- and such means include Report later states that Safety orous enforcement of the Maritime improvement compensation “given Occupational Amendments of 1958 and the provide, it which this bill would benefits 1970, Safety and Health fully Act of as well as a would be fairer to all cоncerned system compensation objective protecting workmen’s max- consistent with safety employees industry’s bring who work the health and imizes motivation to about improvement.” for the of vessels as S.Rpt. on board vessels third rather than the no-fault such an at 2. predicated negligence, parties to be may 7. The stevedore balance the cost of acci- concept seawor- instituting dents with the cost of measures Id. at 10. thiness.” The By forcing which will reduce accidents. steve- history has the 1972 Amendments of in pay higher compensation dores to amounts of detail in recent cases been discussed more Amendments, under the 1972 See, e.g., circuits. Munoz v. this Flota Merchante other stevedores are forced to take into account the Grancolombiana, S.A., 553 Congressionally determined cost of accidents. 837, (2d 1977); Landon v. Lief Cir. precautions A stevedore will take to reduce Inc., Co., (2d Hoegh 521 F.2d 756 point reducing accidents to a where the cost of denied, 423 U.S. 96 S.Ct. cert. safety accidents in the form of additional meas- (1976); Wheeling Griffith v. 46 L.Ed.2d equals ures the cost of accidents in Pittsburgh Corp., terms of Steel 521 F.2d 31 paid. 1975); Shipping lost time and benefits which must be v. Triad Hurst denied, position (3d Cir.), spread 861 98 stevedore is then in a cert. 434 U.S. (1977); Gay compensation 54 L.Ed.2d 134 v. Ocean S.Ct. cost benefits or insurance Ltd., Transport Trading, F.2d 1233 through higher prices. & stevedoring The cost of services will then reflect their true economic workers, cost, injured including increasing paying benefits to cost benefits Congress provide injured job. an incentive to intended to those Those stevedores provide place stevedore to a safe to work. safety higher who have worse records will have Report The Senate states: prices accept profits. or will be forced to lower important adequate shipowners “It is to note that will tend to Customer hire the rela- compensation workmen’s benefits are not tively priced superi- lower stevedorеs who have only meeting essential to the needs of the Overall, safety records. accidents will be but, injured employee family, and his as- efficiency pro- reduced and will economic suring employer bears the cost of moted. conditions, strengthen serve to unsafe employer’s Reports state: 8. The Committee provide incentive to the fullest “Finally, not intend does the Committee safety. on-the-job measure of remedy in the authorized particularly crucial “This consideration applied differently different shall be bill respect high-risk occupations such as with those covered depending State in ports on the law of the by Longshoring, for this Act. may port The Com- be located. which injury frequency example, rate which has an questions legal which intends average mittee four times the for manu- is well over facturing operations. brought these may under arise in actions It is the Committee’s be determined as provisions of the law shall ap- every appropriate to be means view that ' connection, In that Federal law. improving tragic a matter of plied and intol- toward admiralty heavy intends that the Committee which take such erable conditions negligence, concept comparative in this of rather bodies workers’ lives and toll 372 negligence parative law to negligence, of be application contributory not negli- principles.9 appli land-based

based on gence, Furthermore, is applied. in a land- cation, principles of by analogy, land-based action, tort based one who is held liable can develop rules require courts to of does not receive contribution from another concur- of the LHWCA interpretation law for tortfeasor, rent while the LHWCA pre- identical to land-based tort law. which are cludes contribution from the stevedore tort- concepts must contrary, To the land-based short, In special feasor. characteristics to mari aрplicable used fashion rules be preclude unthinking LHWCA adher- reflecting Congressional time situations ence to 343A alone or to a reading § literal intent. thereof. Section 343A also must be together read III. with 409 of the fact, Restatement. § dealing specifically 409 § with “Indepen COURT INTERPRETATIONS dent Contractors” should be the appli more Courts have looked to the Restatement cable section. Section 409 states: “Except (Second) guidance of Torts for formulat 410-29, as stated in the employer of §§ an ing the principles land-based independent contractor not liable for law. This circuit and other circuits have physical harm caused to by another an act followed the rule of law ‍​​​‌‌‌‌​‌‌‌‌​‌​​​‌‌​‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌‍provided modern or omission of the contractor or his ser However, 343A of the Restatement.10 § (Second) Torts, vants”. Restatement 343A must be read in light the intent § (1965). section, Under this § with cer Congress enacting the 1972 Amend exceptions, tain the landowner is not liable ments. rule The basic found in 343A is § per se negligent acts of indepen an that no will arise obvious de dent “If 343-43A §§ contractor.12 were fects, on assumption based notions of applied create escape provided of risk.11 The clause in the of, apprise longshore himself to warn the phrase 343A(l) last is expressly de § men of protect and to them danger signed [from] to avoid in traditional tort situations ous the independent features of contractor’s consequences the harsh of assumption of e.,—i. contributory risk and negligence. activity then the doc stevedore’s — assumption trine of of risk is Restatement specifically dealing sections employer actions, excluded from LHWCA and com- control of activity independent con (4th contributory denied, than the common law as to 1098, rule Cir. cert. 429 U.S. negligence, apply 1116, shall in cases where S.Ct. 51 L.Ed.2d 545 injured employee’s negligence may own have Also, causing injury. contributed to part: 11. Comment e to 343A states in admiralty Committee intends rule possessor may reasonably “The of the land precludes ‘assumption defense protect assume that will invitee] himself [the injured employee risk’ an action ordinary care, the exercise of or that he applicable.” (emphasis added). shall be also voluntarily will assume the risk of harm if he Cong. p. 3 U.S.Code Admin.News 4705 and & doing does succeed in so. Reasonable S.Rpt. at 12. part possessor care therefore See, g., Gay Transport Trading Ocean e. v. & ordinarily require precautions, does not Co., 1237-38; supra Shipping at Hurst v. Triad warning, against dangers even which are 1247; supra Lines, Napoli at v. Hellenic visitor, known to so obvious to him Ltd., 1976); (2d F.2d v. Butler O/Y may expected that he to discover them.” Finnlines, Ltd., 1206 n. 496A, See § Comment d. independent 12. Stevedores contractors meaning within of the Restatement. Hurst g., Navigation 10. E. Ruffino v. Scindia Steam Co., supra 1249; Shipping v. Triad at Teofilo- Co., Ltd., 1977); 559 F.2d 861 Munoz Line, vich v. d'Amico Mediterranean/Pacific A., Grancolombiana, supra; Flota Merchante S. F.Supp. (C.D.Cаlif.1976); Frasca Napoli Lines, Gay supra; v. Hellenic v. Ocean Lines, Inc., F.Supp. v. Prudential-Grace Transport Trading, Ltd., supra; Anuszew- (D.Md.1975). Dynamic Corp., ski v. Mariners 540 F.2d 757

373 expert The stevedore was an in loading nu be rendered tractors, would 409-26 §§ unloading Royal operations. could rea landowners-shipown to respect with gatory Northeast, sonably expect that which “was Co., F.2d 554 Shipping v. Triad Hurst ers.” than position shipowner in a far better the 1977).13 (3d Cir. 1237, n. 35 1249-50 accident”, expert avoid the its to use cases, this circuit prior analyzed, When knowledge preventive “to adopt measures view others, with consistent thereby inju to reduce the of likelihood against claim longshoreman’s that a Oregon Stevedoring Italia Societa v. ry”. permitted normally should not be Co., 315, 323, 324, 748, 753, 376 U.S. 84 S.Ct. of control relinquished ship has when 754,11 (1964). handling L.Ed.2d 732 The of injury. to See led which operation of type tallow drums is the task that is Co., Navigation v. Steam Ruffino Scindia expert competence within the of the steved 1977) and Munoz (2d Cir. Ltd., 861 Slaughter The ore.15 cоurt v. S. S. A., Grancolombiana, S. Flota Merchante v. Ronde, (S.D.Ga.1974), 390 F.Supp. 637 af present In the (2d 837 Cir. F.2d 553 firmed, (5th 1975), noted F.2d of exception case, appellant argues that How applies.14 of the Restatement § “it has also held that physical been ‘The record of ever, proof there is no handling of ordinary bale or bundle is of control any retention example the clearest of a detail within thereof any reference special competence facts from and peculiar or re- Appellant sponsibility contends of the stevedoring be drawn. contractor’ might ‘clearly have and that such crew could is . . . not any time the CHIRON’s at province halted, responsibility or Royal the work ordered (Citation omitted) ship’.” Id. at 645. en care to reasonable duty a breached performed properly, that the work sure stop work, stevedore can and has in no evidence appellant presented but work, stop dangerous par dicating the crеw CHIRON giv- conditions arise. The stevedore is also right in, had a or even ticipated comply controlled the primary responsibility en load mandatory requirements functions of with the operative to control the Safety Regulations Long- contrary. Health for ing. The facts establish questioned not mean that the contractor whether is controlled as has 13. Another court work, apply operative LHWCA at all in the his or 343-43A should methods of as to §§ incorporation of their context because such detail. There must be a retention of a v. Ivar of risk. Brown assumption supervision right doctrine that the contractor is not 854, A/S, n. 10 ans Rederi F.2d entirely way.” free work in to do the his own denied, 97 S.Ct. cert. 430 U.S. (Second) Restatement of Torts Com- § (1977). 52 L.Ed.2d 361 cment Shipping supra, In Hurst v. Triad independent work to an 14. “One who entrusts rejected argument a similar § court for contractor, who the control but retains opin- reasons. court noted that in the few work, part subject any for is holding injuries ions liable safety physical to others whose harm improper stevedoring oper- suffered because of duty employer reasonable exercise owes ations, “shipowners’ participation in the care, to exer- caused his failure which is direct, clear, significant operations and of Re- reasonable care.” his cise control proportions.” Id. at Torts, 1252 n. 38. (Second) of § statement Section in this for the rule stated order course, 15. Of to exercise reasonable apply, employer at must have retained may delegated if care not be the work to be degree the manner of control over least some “inherently dangerous”. Orr v. United done is enough is done. It is not in which the work States, 1973); Restate merely general right to order he has 413; Prosser, (Second) Law § ment of Torts W. resumed, inspect stopped or the work Appellant Torts 71 at 472. not con does sug- reports, progress to make receive or to inherently loading tend tallow drums is not gestions which need recommendations Fitzgerald Compania dangerous. Navi Cf. followed, prescribe necessarily alter- Molinera, La F.Supp. (E.D.La.1975) era right general ations and deviations. Such (loading grain inherently dangerous). usually employers, it does but reserved only developed et seq.16 during 29 C.F.R. 1918 These shoring, the stevedore’s load- ing), condi did not regulations require “[sjlippery open create an and obvious danger. The they be eliminated as occur”. 29 had some dunnage tions shall avail- able the 1918.91(c). began, is to when work shipowner C.F.R. If the be Northeast request did not even only for be mani more until negligence, dunnage liable after the work progressed. had well festly shipowner the unfair saddle with spite request dunnage, for more results which occurred the unfortunate after stevedore ordered work the to continue. work to the stevedore. Cf. turning the over The delay in States, providing dunnage resulted Baum v. United 427 F.2d only in slippery the conditions continuing (5th 1970) (pre-amendments Cir. case where initially after were created the in shipowner the was not control mainte stevedore. The shipowner had no operations). nance supervise the stevedore to if determine con- court, Lines, Napoli This v. Hellenic ditions longshoremen were safe for the the 536 F.2d 505 addressed equipment continue work until that problem dangerous of an condi obvious arrive. tion, and, 343A, using the standard of § Second, in Napoli was act- However, liable. Na found ing as its own stevedore. The majority poli distinguishable on at impor is least two opinion glosses footnote, over fact in this First, grounds.17 Napoli tant defect but the critically distinction is important. present began when the stevedore Because acted as its own Here, present duties. the defect was not stevedore, Napoli did not involve considera- work, longshoremen when began but tion of provides 409 which § standard of Appellant arose progressed. as work delegation care for rеsponsibility to the argues the danger present when independent contractor, the stevedore. began pro because the failure to dunnage vide sufficient created defect One major premises behind the However, loading began. before no evi holding Napoli is shipown Royal dence in record indicates that stevedore, er acts own longshore as its danger by provide failing created stop men cannot dangerous work when a dunnage. Merely turning over the CHI- condition arises which is the fault of the (a RON without shipowner/stevedore.18 sufficient fact If they did stop responsibility compliance opinion Napoli “The with 17. This does take issue with regulations part placed ‘employ- case, facts, of this because that on its is little related 1918.2(a). problem ers’ . . ..” 29 It here § C.F.R. involved. 1918.2(b) regu- clear from C.F.R. only applies importance apparently 18. lation to stevedores and not of this fact 343A, shipowners: arises from to § Illustration 5 where a person employed slipped in an office over a regulations “It is not the intent slippery stairway waxed whose condition was place part responsibilities additional open and obvious. In that case she walked owners, operators, agents or duties only taking because “[h]er alternative to persons masters of vessels unless such forego employment”. risk was to her In that acting employers, nor is it intent permit situation the Restatement would the in- owners, regulations op- those to relieve such jured employee recover ac- erators, agents or masters of vessels from against building tion precisely the office owner. That is responsibilities placed upon or duties now Napoli, quite the situation in un- but by law, regulation them or custom.” here, longshoremen like the situation where the Even under the LHWCA before the 1972 stop any could work at time. Amendments, general principle was that Report “nothing The House did note that “liability comply safеty regu- for failure to derogate this bill is intended from ves- imposed party expos- lations should be ing appropriate sel’s to take correc- injured employee dangerous con- tive action where it knows or should have Inc., Drilling, dition”. Brock v. Coral dangerous known about a condition.” U.S. (5th 1973). Burrage See v. Flota Cong. Code & Admin.News Grancolombiana, S.A., Merchante conditions, concerning slippery The illustration statement, immediately may following this carelessly then knocked face one into hold. longshoremen might dismiss- work, the type danger inde- This was not the at 509. When an supra Napoli, al. stevedore, notwithstanding is the must be faced contractor knowl- pendent fear stop work without edge.” can Id. at 1242. found jobs. If a condition is their losing of applying 343A, In cases have found the the longshoremen, the unsafe for to be not shipowner obviously danger- liable for the remedy difficulty at can the stevedore conditions, existing ous whether before con- opera- if the shipowner, and expense of the relinquished is to the trol aris- nor- delayed, the must tions are ing knowledge later with the the ship- of standby time. See Ramirez mally for pay owner, danger if the is such that the steve- (N.D. K.K., F.Supp. 385 644 v. Toko Kaiun expected dore would be to correct the condi- Cal.1974), ‍​​​‌‌‌‌​‌‌‌‌​‌​​​‌‌​‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌‍Hugev Dampskisaktieselskabet v. discharging in responsibility, tion to the (S.D.Cal. International, F.Supp. 601 170 longshoremen and the condition is one (9th 1960). affirmed, F.2d 274 875 where the could defer the Munoz, the Cir- cited Fifth this court competence of the stevedore. See Riddle v. in Transport v. Ocean Gay of cuit case Transportation Exxon Company, supra; Napoli: distinguishing Dynamic Anuszewski v. Mariners Corp., “ * * * Na- prefer therefore We [to Panama, (4th F.2d 1976); 757 Fras- by Gay v. guidance the afforded poli] Inc., Lines, ca v. Prudential-Grace Trading, F.2d & Transport Ocean F.Supp. (D.Md.1975). One commenta- where, in related 1977) two (5th Cir. explained has tor these decisions: refused to hold cases, Circuit the Fifth “The these philosophy consistent dе by injuries sustained shipowner liable ordinary cisions is that the in situation their a direct result of longshoremen as shipowners position are in no to learn of failing properly in employers’ arising unsafe conditions or methods dur ade- omitting hold and to ventilate the ing operations; the stevedore’s pallets ship’s quately to secure shipowners dangers, do learn such or do, we recognized, deck. Court and dinarily employees the stevedore his the inimical to intent that it would be greater awareness, equal will have an shipowner with charge the Congress danger so can be to be open said (citations omit- wrong.” the stevedore’s obvious; safety and ted) 553 at 841. stevedoring operations such other latent, the defect was but In Munoz usually responsi primary the sole Transport Corp., com- v. Bulk Guerra Robertson, bility stevedore.” longshoreman was panion Gay, case to by Longshoremen “Negligence Actions near pallets, stacked injured when wooden Shipоwners Against Under struck by longshoremen, were a boom Longshoremen’s Amendments injuring fell plaintiff. the boom and Act”, 7 Compensation Workers’ Jour. of court’s upheld the district The Fifth Circuit Mar. Law and Comm. not was determination Here, plaintiff long- stated: negligent. The court and the other did discover and realize dan- shoremen of the vessel though “Even crew The entire ger, supervisors. as did their dangerous condition was aware loading having put operation, been under pallets, presented the stack stevedore, ship- the sole control the hazard who created the stevedore duty countermand owner was under no it was the stevedore place and the first nor had a right the stevedore’s order even pallets tie the down that failed to possibly ship- been relates have intended establish read to indicate itself, supervise mainly activities.” not owner’s such to the condition of Shipping supra at Hurst v. Triad the stevedore. “[G]iven the activities of eliminating non- n. 35. congressiоnal about concern duties, quoted delegable sentence could Furthermore, “the stevedore’s so. no evidence to do whatsoever “[t]here better position in a far employees were those charge pres- the vessel were any than of the members danger abate suring to continue Brown Mitsubishi ship’s crew”. that, work without interruption, so Ginko, 550 F.2d Shintaku the vessel example, might sail with the tide or accordance a prearranged work,

schedule. The decision to continue IV. face hazard, of a known and de- spite knowledge requested CONCLUSION additional way, was on the having stevedoring been operation made the stevedoring supervisors; and stevedore, solely to it had entrusted that decision was requested neither nor ship observing the —of —not participated by the defendant or its loading progress- the conditions of the as it (79a). officers.” Ashley employee] ed. It was [stevedore’s longshoremen When the discovered that “grease sаw everyplace” who that is and loading the operation required more dun- grease that because of the “the men nage, shipowner the set about to obtain it. to real- sufficiently couldn’t hold the drums found, As the trial court them, (42a). ly it was unsafe”. It store Ashley says said “the who stevedore anticipate had no reason “[defendant the the Dutch had ordered longshoremen the would not await —that the lumber it hadn’t arrived so we had and the additional dunnage, which would working get until continue there”. hazard; have enabled them to avoid the (50a). and there is no evidence that defendant’s efforts to obtain here, dunnage, more When, in order con- stevedore, danger, to correct the of an were less independent they trol the condi- than could have tion arose as a result of stevedore and been the circumstances.” themselves, (footnote longshoremen shipowner omitted) (81a). steps provide requested

had taken Upon the presented faсts plaintiff’s dunnage, and the stevedore ordered the case, the trial court’s inescap- conclusion is loading operation proceed, the district able jury could not find for plain- “[a] no in removing court committed error tiff on this state of the record without jury directing from case and a verdict. departing from the guiding principles of the Holding liable on a “should (footnote (81a). statute.” omitted) anticipate” basis would allow the burden of reasons, For these I believe that deci- safety to be shifted from stevedore to majority sion of the contrary to the stat- result intended —a ute, clearly-expressed intent of Con- Congress. The had no reason to gress, anticipate, many Third, decisions taking even from the evidence most Fourth, plaintiff, Circuits, Fifth Ninth favorable to the neither the as well as longshoremen themselves, nor carefully considered decision of this protect take would sufficient measures to court otherwise, in Munoz: “To hold in our conditions, slipрery from view, concept risks return to the which knew existed which were a fault shipowners, without which Con- type normal of this component loading gress emphatically reject- so and recently operation. ed”. 553 F.2d at 841. summary, my opinion, majority reached “a result reading A careful record discloses judicially long- revive the negligence by no fact the ship- [which] owner, inference, remedy unseaworthiness, shoremen’s even could be based. clear, proof very remedy Congress repudiated as found trial court, that through the 1972 Long- Amendments to the Compen Harbor Workers’ shoremen’s Act.”19

sation Therefore, would affirm. I FOODS NUTRITIONAL NATIONAL

ASSOCIATION, the National Associa- Manufacturers of Pharmaceutical

tion Petitioners, Co., Inc., Solgar KENNEDY, Commissioner Donald Drugs, De- States United Food and Health, & Wel- partment Education Administration, fare, Drug Food Respondents. ROBINSON, se, Petitioner, pro H. Miles KENNEDY, Commissioner Donald Drugs, States De- and United Food and Health, partment & Wel- Education Administration, fare, Drug Food Respondents. 605, Dockets 77-4097

Nos. and 77-4104. Appeals, United Court States Circuit. Second Dec. Argued 1977. Feb. 1978. Decided ‍​​​‌‌‌‌​‌‌‌‌​‌​​​‌‌​‌‌​​‌‌​‌​‌​​‌‌‌​​​‌​‌​‌‌‌‌‌‌‍Lines, Inc., Frasca v. Prudential Grace supra, F.Supp. (granting judgment n.o.v.). at 1102

Case Details

Case Name: Mario Lubrano v. Royal Netherlands Steamship Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 15, 1978

Citation: 572 F.2d 364

Docket Number: 104, Docket 77-7211

Court Abbreviation: 2d Cir.