Milton Marant v. Farrell Lines, Inc.

Thе jury returned a liability verdict DUSEN, and ALDI- Before VAN BIGGS against By special Farrell. interrogatories SERT, Judges. Circuit it determined that Marant was not contrib- utorily negligent, that Lavino and Farrell negligent, were both and that each THE had OPINION OF COURT percent contributed 50 happening to the ALDISERT, Judge. the accident. Damages stipulated were $20,000and the judg- district court entered dispositive The central ap- issue on this favor of against Marant and peal question is of the relative Far- responsi- rell in that amount. Farrell’s bility shipowner of stevedore and for motion long- for judgment notwithstanding safety shoreman under the 1972 Amend- the verdict or Longshoremen’s for a new trial was ments to and Harbor denied. (LHWCA), Act Workers’ Farrell raises the following points ap- Marant, seq. longshore- 901 et U.S.C. peal: injured unloading cargo, brought man (1) Under 1972Amendments to the Lines, negligence against action Farrell LHWCA, the primary stevedore has the shipowner. charged The trial court longshoremen’s for responsibility safety shipowner stevedore

jury that had con- duty and the vessel’s to disclose responsibility longshoring safe- current knowledge. latent defects which it has verdict, jury, by special ty and found law and Under this the factual circum- shipowner equally the stevedore stances, the district court erroneously causing injury. Damages fault were failed to direct a verdict for Farrell. judgment stipulated the full addition, incorrectly charged jury against entered was Farrell. Far- amount duty as to Farrell’s under the law and appealed. We reverse. rell compounded that error repeating the original confusing charge verbatim

I asked the jury for clarification of the relative duties of vessel and stevedore. longshoreman as a employed Marant was (2) Shipping Company, Lavino an inde- Under by the LHWCA, stevedoring contractor hired a vessel cannot pendent be held liable discharge Lines to a cocoa bean Farrell where the stevedore to a contributed vessel, cargo longshoreman’s from its the S.S. African injury. verdict intention of the Act to clearly was

(3) jury primary re- of the weight sponsibility evidence. on the stevedore. against the found (4) jury that Farrell’s Where principle joint concurrent or re- percent negligence contributed sponsibility as the first stated substan- accident, Farrell happening should legal precept the charge. tive It was percent, $10,000, only 50 be assessed later reiterated court told the $20,000. damages of stipulated ‍‌​​​​‌​‌​​​​‌​​​​‌‌‌​‌​‌​‌​‌​‌‌‌​​‌​‌‌‌​​‌​​‌‌‌‌‍job that it was jury their to decide if the was or “solely

stevedore concurrently” re- (548a), was, it sponsible at least II implication, reinforced when the court matter, we preliminary As a will charged duty that to provide a rea- “[t]he for a directed deny request Farrell’s verdict sonably place safe work can rest upon say, in its cannot as a favor. We matter of and it party, more than one includes the law, “critically is that the record deficient (549a) of the vessel.” owner After being quantum of evidence from of that minimum deliberate, the jury sent out to returned to reasonably jury might a afford re court, ask inter alia: “Is it the ship’s Siegel, Denneny 407 F.2d lief.” v. provide a safe responsibility and reasona- 1969). (3d Cir. ble for the men to work in the hold as charge?” (569a-570a) per your The court challenged has specifically Farrell answered repeating verbatim the pоrtion the trial portion charge that court’s charge beginning: of its jury that respon which informed the “[t]he your You have for determination the safety longshoreman for the of the sibility that the owner of claim the vessel or its jointly with the concurrently long lies or agents negligent plaintiff, were toward a and with the employer, ship shoreman’s longshoreman. shipowner, The for its (546a-547a) Farrell asserts that owner.” plaintiff’s denied part, allegation negli- statement of the rela this is an inaccurate gence. responsibilities imposed by the 1972 tive for responsibility safety of a to the LHWCA and that the longshoreman lies charged, concurrently jointly or trial court should have as Farrell longshoreman’s with the employer and (405a), primary responsi requested that shipowner. with the safety bility longshoremen’s was on the for court, A decision of this stevedore. recent (570a) way We have no knowing, district not available to the court at the course, but it unlikely seems not that the case, trial of this po substantiates Farrell’s equal responsibility portion of jury in- on the Accordingly, sition. basis of Brown played part, least, structions a in the Rederi, (3d 1976), 545 F.2d Cir. jury’s decision that the vessel and the steve- will order a new trial. dore were equally causing at fault in accident. Judge recently

As Van Dusen has ob- served, court, speaking “express for question legаl responsibili of relative language legislative in the statute and the case; ty very went to the essence of the reports accompanying the 1972 Amend- jury’s question amply evidences their amply ments that for reasons demonstrate importance. awareness of its Particularly policy major responsibility for circumstances, under these we believe that proper and safe of the work conduct was to Farrell is entitled new Upon trial. by remand, be borne stevedore.” Brown v. Re- the district court will now have the deri, important at 860. This aspect 'advantage analysis our of the 1972 legislative plan, of the intended Brown, to focus Amendments in supra, and also in longshoremen’s responsibility safety Wheeling Griffith v. Pittsburgh Corp., Steel it, improve those best able to the steve- 1975), denied, 521 F.2d 31 Cir. cert. say responsibility dores. To that is concur- 46 L.Ed.2d 643 ^U.S. joint plainly (1976); or rent inconsistent and we will direct consideration of they are rele- the stevedore’s fault and without precedents insofar contribu- these Second, tion the stevedore. be raised.1 to issues ves- vant sel, after paying the whole of the damages, might be held entitled to a true “contribu- Ill stevedore, tion” from the either in a fixed required will be a new trial As percentage according or to relative fault. us event, necessary to meet it is any Third, might the vessel be held entitled to a will points. We take additional appellant’s reduction “credit” because however, express our opportunity, fault, stevedore’s concurring again, apportion question about concern percentage either a fixed or according to damages in cases where is found relative fault. This last concept of a credit have been concur stevedore vessel is a to the vessel relative newcomer on the recognize ap rently at fault. We scene. It has legal espoused been by some fraught with diffi question is portionment commentators,2 and of the by embraced sev- largely involves intractable it culty, courts,3 trial but, eral federal date, to has interests, implicates it conflicting and acceptance not found wide appellate ju- contradictory ordinarily sepa ways three risprudence. law, to-wit, the common law fields of rate percent A fixed 50 reduction of recovery torts, statutory compensation workmen’s of by allowed Appeals Court of for But, we law, law maritime. as and the of the District Columbia Circuit in a case it, really only are three alterna there view implicating the Employees’ Federal Com- tives. Act, pensation Murray States, v. United 132 First, pay 91, be to the vessel could made U.S.App.D.C. 405 (1968), F.2d 1361 and damages of the without reduction for come be whole has to known as a “Murray Cred- Brown, emphasized (b) down, of breaking the relevance precautions 1. In In shall be 941(a) taken, Act: necessary, of the prevent to the re- maining cargo falling. Every and maintain shall furnish employment employment places and proportionate “equitable” The idea of or reasonably safe for his shall em- proposed Dougherty, credit in Cohen and employments by ployees all covered Longshoremen’s The 1972 to install, furnish, maintain, chapter shall and Compensation and Harbor Workers’ An Act: safeguards use such devices and and Equitable Oppоrtunity Uniformity Tripar- by equipment particular to reference used Litigation, tite Industrial Accident 19 N.Y.L.F. working and conditions established such (1974). It is 587 further discussed and advo- Secretary may employers as the determine Daly, Equitable cated Coleman and Credit: reasonably regulation or to be order nec- Damages Apportionment According to Fault life, health, essary safety protect and to Tripartite Litigation Under the 1972 Amend- employees, to of such render safe such Longshoremen’s ments and Harbor places employment employment Act, Workers’ 35 351 Md.L.Rev. prevent injury employees. to his to (1976). 941(a) (1970). 33 U.S.C. § possible importance also indicated the We Koninklijke Nedlloyd, v. 3. Croshaw B. V. non-compliance applicable with the OSHA F.Supp. Rijswijk, (D.Or.1975) (accept 1224 398 Safety Regulations. responsi- and Health The theory declining apply ing credit in but to bility compliance regulations with the is on contrary precedent district); because in the employers. regula- “It is not the intent of the Lines, Inc., Frasca v. Prudential-Grace 394 part responsi- of this to additional tions (D.Md.1975); F.Supp. 1092 v. Shellman United owners, operators, agents or on bilities duties Lines, Inc., (C.D.Cal. 175 362 States A.M.C. persons vessels unless such are or masters of rev’d, 1974), (9th 1975); 528 F.2d 675 con Cir. acting employers 29 C.F.R. tra, Transports, Santino v. Liberian Distance regulation relating OSHA to 1918.2. The Inc., F.Supp. (W.D.Wash.1975); 405 34 Hub special cargo to would seem be of rele- ‍‌​​​​‌​‌​​​​‌​​​​‌‌‌​‌​‌​‌​‌​‌‌‌​​‌​‌‌‌​​‌​​‌‌‌‌‍stowed Co., F.Supp. Shipping Pacific 404 v. Great bard to the case at bar: vance (D.Or.1975); v. Lucas “Brinknes” Schiff 1242 cargo, tiering 1918.83 Stowed 29 C.F.R. § Co., Lange, Franz G.m.B.H. & 379 ahrts Ges. breaking down. (E.D.Pa.1974) F.Supp. (specially 759 convened (a) necessary, cargo shall be When secured three-judge panel). shifting falling. prevent its or blocked 146 rejected Leventhal, panel for a Credit” —has been writing Judge

it”. McGowan, Appeals and now-Chief directly has con himself, Judge Court it, Dodge the result thus: the Ninth explained Circuit. v. Burger, sidered Justice Ginko, 669, Mitsui 672 Shintaku 528 F.2d with an responsible jointly A tortfeasor 1975), denied, cert. 425 U.S. (9th Cir. the total compelled pay is not 48 L.Ed.2d 188 Senior law The common S.Ct. damages. law common rejected Brown Judge Murray “both is thus injured employee of the recovery [Equitable Doctrines Shellman employee’s consequence Credit] reduced they contrary greater are act, gave act him because but compensation authority, weight they even in the and also because assurance unjustified impose upon burdens the in of fault. absence Judge longshoreman.” Brown reaf jured Ibid, was sub- Murray Credit at 1366. result, firmed identical grounds and arising a case extended sequently panel, case, same in a companion for the LHWCA, Dawson Contrac- pre-1972 Lines, v. United States 528 F.2d Shellman U.S.App.D.C. Corp., 151 Transport tors denied, (9th 1975), cert. Cir. 425 U.S. (1972), Judge McGow- 729-30 F.2d (1976). S.Ct. follows: elaborating the result as further workmen’s covered employers Since in Landon v. Lief Second are not liable in statutes Co., 1975), 521 F.2d Hoegh & Cir. other injured employees, their tort denied, cert. contribu- not entitled to are tortfeasors (1976), held that the stevedore L.Ed.2d 642 thus, and employers, negligent tion necessary indispensable party was not a the entire burden of Murray, bore before longshoreman against in an action the damages. the tort vessel, adjudicate specif but did not the the ‍‌​​​​‌​‌​​​​‌​​​​‌‌‌​‌​‌​‌​‌​‌‌‌​​‌​‌‌‌​​‌​​‌‌‌‌‍of this re mitigate the harshness question Similarly, To ic of a credit. the Su a Murray person that sult, we held precedent mоst often cited on preme Court awarded employee the against whom question, Halcyon Lines v. Ship Haenn action could reduce the damages in a tort 282, Ceiling Refitting Corp., & 342 U.S. 72 show per 50 cent if he could judgment 277, (1951), 96 L.Ed. 318 denied contri negligence contribut employer’s that the from the stevedore-employer bution to the injury.3 to the ed directly present adju vessel but did not 3 Murray an extension of this was itself possibility it dication a And credit. Hawley, 112 U.S. in Martello v. rule court’s established that is well decision is not “[a] (1962), App.D.C. where we 300 F.2d authority any questions as to of law which plaintiff when a settled his claim that held tortfeasor, against another tortfeasor court, onе presented raised or were not to the actually brought plaintiff against whom it, and were not considered and decided resulting judg- to reduce a was entitled suit though they logically present were even 50% might argued, have been and the case and Murray Although Em- involved the Federal Act, Compensation ployees’ 5 U.S.C. 8101 et questions, if though such considered even equally applies seq. (1970), its rationale court, would have caused a different by the virtually provisions Longshore- identical Black, judgment given.” to be H. Law of Harbor Workers’ men’s and (1970). Act, seq. (1912). 901 et . Precedents See Kramer 33 U.S.C. Judicial Corp., Control 534 F.2d v. Scientific apply concept Dawson did the сredit While denied, 429 U.S. Cir.), cert. LHWCA, the 1972 amendments were (1976). 50 L.Ed.2d 97 S.Ct. and, accordingly, in the case implicated not open considered wheth- be question our research has not been ex- Though will con- District of Columbia Circuit er the haustive, perceive “greater we do not arising to Dawson in cases adhere tinue authority on weight” of the issue of cred- the 1972 amendments. under contrary, our would it. On the observation that, appeals of the two courts of that recovery pro- reduction of idea of a general according “Equitable concept considered the credit to fault —an have portioned LHWCA, it, passive one, he accepted one has will be willing to delegate amendments, responsibility change, to the 1972 prior albeit and he will care rejected greatly We have found no the delegated it. whether one has au- directly disposi- thority is precedent Court exercised or Supreme not. If he views the issue, as an instrument of courts are court society designed district tive of the its to reflect in decisions the circumstances, these disarray. morality Under he community, will be more likely Supreme view to look particularly precedent teeth and to measure it mat- activist attitude maritime Court’s against the ideals and the aspirations of his ters, v. Reliable Transfer see Unitеd States Schaefer, W. time.” Precedent Policy, Co., 44 L.Ed.2d 34 U.Chi.L.Rev. 3 (1966) (quoted in R. Aldi- that the of a question we believe sert, The Judicial Process at vessel possible credit in cases of (1976)). Although we have indicated some is, negligence stevedore-vessel concurrent of our concerns on the difficult issue of circuit, very an open in this much at least apportionment, we emphasize, again, question. do expressly not decide the issue at this expresses concern concurring opinion time. credit or rule would any apportionment The judgment of the district court will be that, litigation increased even lead to reversed and the cause remanded for fur- unfair, is present change rule “if” proceedings ther in accordance with the Congress. come from This court be- should foregoing. already with ing litiga- inundated LHWCA amendments, interpret tion to DUSEN, VAN Judge, concurring: though concededly frightening— difficult — join parts I I and II of the majority It seem imagine increase. would Also, opinion. agree I however, a rule conclusion likely, equitably part III that the issues of apportionment apportioned liability according to fault damages between the stevedore and the might litigation and promote decrease set- ship, they where are fault, both at should tlement, especially by removing incen- not be rеached on appeal. this I cannot large judgment against shipown- tive of a agree with the extensive III, dicta part in is only partly er who at fault. As the which I believe should be until omitted Supreme recently Court has observed: “Ex- appropriate there is an record requiring de- with perience comparative negligence in the cision of the issues discussed there. How- personal injury area teaches a rule that ever, part in view of majority III of the produce in fairness court will fair out-of- opinion, I feel is desirable to set forth a court settlements.” United States v. Relia- number of other factors which are relevant Co., supra, ble Transfer at U.S. part to the issues in III and be should 1714. Concerning the propriety by any considered trial court is re- which judicial against legislative as action in this quired directly to face these in issues field, will today temptation resist to future. continue venerable debate. Suffice it say, Judge eloquent to Walter Schaefer’s judicial A apportionment of doc- damages words, depends upon judge’s that “most brought against trine in cases the vessel unspoken notion toas the function of his 905(b) under 33 U.S.C. § be inconsist- court. he role If views the of the court as a ent Congress with the intent of in enact- gave Congress thought S. 1547 Before the Subcomm. on Labor of 1. It is clear thаt careful Comm, statutory Longshoremen’s on Labor to scheme of the the Senate and Public Welfare, (1972), Hearings Cong., and Harbor Workers’ Act 92d 2d Sess. (LHWCA) changes on H.R. H.R. H.R. and the in that scheme H.R. brought about Before the Labor Subcomm. on of the House the enactment of P.L. 92-576 Comm, Labor, Congress Cong., on Education and Both Houses of held exten- 92d 2d hearings proposed incorporating sive on bills and both Houses Sess. wrote extensive Hearings changes, S. reports explain S. purpose different see to committee un- seldom resulted in a real increase in actu- 1972) for these (Oct. 92-576 ing P.L. injured al benefits workers. reasons: apportionment doctrine of judicial A1. representatives years “For a number of would result 905(b) cases damages in employees attempted have to have Congress that litigation increased levels under the Act raised so the benefit Amendments, by the 1972 avoid to sought injured properly workers would be wording in 33 U.S.C. this inserted which time, the Act. At the same protected 905(b): groups willing- § indicated their employer payments such but indi- increase ness injury person to a event “(b) Long- if the they could do so cated chapter caused this under covered and Com- Harbor Workers’ shoremen’s vessel, person, then such aof negligence again Act were to become pensation entitled to reсover otherwise anyone or remedy against the stevedore exclusive thereof, may bring an by reason damages passage intended since its had been party third vessel as a such against action Supreme various modified 1927 until of sec- provisions accordance decisions. Court title and tion for such to the vessel liable be shall indirectly any or directly damages testimony heard “The Committee contrary warranties agreements third-party actions number remedy pro- . The void. shall Ryan under the Sieracki line brought shall be exclusive this subsection vided substantially in has increased of decisions against the vessel remedies other all that much of the finan- years recent employer of the right except [the resources could better be uti- cial recover longshoreman improved compensation bene- pay lized negligent under found a vessel paid being spent defray now fits were liti- 933(b).]” 33 U.S.C. 905(b). § See Industry costs. witnesses testified gation inju- the fact that since 1961 despite (Emphasis supplied). rates have decreased in the frequency ry language inserted These pay- and the maximum benefits industry, 905(a): 33 U.S.C. the Act have remained con- able stant, cost of insurance liability Exclusiveness “§ has increased substan- longshoremen liability of an (a) pre- of the increased number of tially because 904 of this title in sеction shall be legal expenses scribed party cases third and in of all other exclusive in such recoveries cases. The higher employee, his testimony such heard that of also Committee . . representative any- . and legal being workers were cases encour- some entitled to recover dam- otherwise file claims for one not to aged employer at law return to work delay from such or their in the ages toor injury increasing possible recovery account of such or their admiralty on hope ” action. The party . Committees a third death. the was also called to decision attention 4-5, Report on P.L. 92-576 Senatе court the United district States in 1966 language: uses this 11 and impact the Philadelphia concerning suits, injured involving long- party costs of these law the claims social third “The inju- backlog personal on the crowding of court calendars and shoremen delays, in that court.2 ry have pay lawyers’ for services cases to need the Examining the 1125, Act: Workers’ S.Rep. No. 92d see derlying P.L. 92— (1975-1976). Viewpoints, H.Rep. 92d (1972), No. 21 Vill.L.Rev. Cong., Sess. 2d Comment, (1972). See also Cong., Sess. 2d to the case of Turner apparently refers 2. This The 1972 Amend- Under Negligence Standards Maritima, (E.D. Transportacion 44 F.R.D. 412 v. Longshoremen's Harbor and the ments to prohibit Committee’s intention such re- covery any theory including, with- liability “Sincе vessel’s is to be based limitation, out theories based on contract negligence, on its own and the vessel will or tort. longer no be liable under the seaworthi- injuries for ness doctrine which are really proposed “Under .the amendments stevedore, the fault of the there is no may vessel not by contractual agreement longer any necessity for permitting the or otherwise require the employer to in- vessel recover the for damages which it, demnify in whole or in part, for such injured it is liable to the worker from the damages.” or other employer stevedore of the work- er. does meet Part III the problems by cited, raised the authorities since it ap- “Furthermore, unless such hold-harm- a pears likely “equitable result less, indemnity agree- or contribution credit” doctrine or any apportion- similar prohibited as a of pub- are matter ments to, ment of again, would be once by superior vessels their eco- policy, lic drag the stevedore litigation back into the strength could circumvent and nul- nomic (thus process undermining safety)3 provisions of Section 5 Act lify order to defend the subrogation he lien has a requiring indemnification from cov- by longshoreman’s recovery against on injuries. employee ered Pope Hawn, vessel.4 See & Talbot v. bill “Accordingly, expressly ‍‌​​​​‌​‌​​​​‌​​​​‌‌‌​‌​‌​‌​‌​‌‌‌​​‌​‌‌‌​​‌​​‌‌‌‌‍prohib- 406, 411-12, U.S. 74 S.Ct. 98 L.Ed. 143 recovery, whether its such based an (1953); Third Circuit cases cited in footnote express It implied warranty. is the Rederi, v. Opinion 6 of Brown of November 1968), particularly congestion crucial Pa. which described the “This consideration court high-risk occupations respect such in this Circuit caused decisions of Seas Sieracki, Shipping Longshoring, Co. v. this Act. those covered Ryan frequency example, injury 90 L.Ed. 1099 Stevedoring which has an rate Steamship Corp., average Co. 124, Pan-Atlantic four for manu- U.S. well over times is facturing (1956). may operations. 100 L.Ed. It It is the Committee’s judicial apportionment ap- well be ages every appropriate dam means view that litigation tragiс doctrine will increase improving plied intol- toward possibly impact have a heavy similar in not take such erable conditions which district courts but this court as well. If such upon toll workers’ lives bodies result, litigation does this will undermine the industry, clearly vig- and such means include congressional purpose to free the courts from Safety Maritime orous enforcement longshoremen the burden of these cases Occupational of 1958 enacting P.L. 92-576. The Chief Justice of the Safety as well as a and Health Act pointed impact United States has out system max- workmen’s legislation of carefully and court decisions should be bring industry’s motivation about imizes prescribing considered courts such improvement.” an such See, legal g., rules. e. The Judiciary State of the 92-1125, Cong., Report No. 92d 2d Senate —1975, by Burger, Chief Justice 61 A.B.A.J. 439 Sess., (1972). (1975). judicial appor- that a It is clear doctrine of major congressional It is that a clear concern damages in these suits will make tionment enacting P.L. 92-576 was that maritime safe- indispensable party the stevedore ty Report be enhanced. The Senate contains party, the is not a then stevedore action. If language: this assessing proportionate finding any his fault important adequate “It is to note that judicata against res him in a later will not be workmen’s benefits are not asserting rights by those аfforded himto suit meeting essential the needs of the 933, by as amended P.L. 92-576. § U.S.C. 33 but, injured employee family, by and his as- See, Judgments (1942). g., 6 of § e. Restatement suring the bears the cost of paragraph 2 below. See conditions, strengthen unsafe employer’s serve to the provide incentive to the fullest on-the-job safety. measure of 150 Cir.); (3d 1976, right 854 33 U.S.C. employer’s 545 F.2d “The to reimburse-

4. 933, as amended. employee his is from not an issue in § Moreover, this question case. the of event, Murray cases of v. any the 2. In Murray’s validity was not argued to this States, 91, U.S.App.D.C. 405 132 United which, in panel, any event, is without v. (1968),5 and Dawson Contrac- 1361 F.2d to overrule authority prior decisions of 401, Corp., U.S.App.D.C. 151 Transport tors Consequеntly, this court. we assume the (1972)6 were 727 decided before F.2d 467 continuing validity of Murray the rule amended Congress the 33 U.S.C. when 1972 application 933, majority points its cases involving as the out the 905 and §§ reason, Longshoremen’s For opinion. III of this part its Harbor Workers’ in value prece- a doubtful as Act.” cases have these judicial ap- creating a doctrine of dent for leading admiralty jurisdic- 3. Two of the 905(b) damages in of cases. portionment § have written decisions tions which indicate Also, substantial reserva- there are other will “equi- that those Circuits not follow an Daw- applicability the of concerning tions credit” any table doctrine or appor- similаr maritime Murray the section son liability 905(b) cases § tionment under injured longshore- an 905(b) actions where the 1972 Dodge Amendments. See v. Mit- vessel, the since both Dawson and man sues Corp.,9 669, (9th sui Shintaku 528 F.2d 672 exclusively em- Murray involved land-based 1975); Hoegh, Cir. Landon v. Lief 521 F.2d engaged exclusively land-based ployees 760, 756, (2d 1975). Cir. It would seem occupations injured.7 Secondly, that resolution of the “contribution” issue opinion does not deal with the so- Murray necessary step was a in Landon and since right “lien” which the called admiralty jurisdiction this Circuit shares (by way subroga- insurer country’s with Second Circuit over the 933,8 tion) have under 33 U.S.C. as amend- § port major complex, the New York-New- Dawson, by Judge P.L. 92-576. In ed area, ark-Elizabeth espe- Landon case indicated his concern that McGowan cially, Dodge case, and also the ought to be 933 had raised not been problems § carefully considered before this court ac- in the court’s earlier opinion considered cepts “equitable credit” any doctrine using Murray, language in note 3 at similar theory apportionment 730: page 905(b) To enact judicial appor- § cases. pri- District Court was concerned “The tionment of damages in this in view marily apparent inability of an these other cases Murray applied, if is undermine the employer, to obtain payments uniformity Congress made under essential which the in- reimbursement compensation statute. [Citing tended Long- the 1972 Amendments to the cases.] Murray opinion apparent brought 905(b), 5. It as amended P.L. important theoretical considerations in the two 92-576. reaching (1) mind in the result were court’s immunity sovereign since the Unit- Huy doctrine Judge 7. This factor formed basis for compensation employer, was the “Murray ed States rejection ett’s in Lucas credit” Ryan (2) doctrine” Ges., the “indemnification F.Supp. Schiffahrts “Brinknes” Stevedoring Steamship 759, appeal v. Pan-Atlantic (E.D.Pa.1975), dismissed, Co. No. 232, Cir., Corp., 1975), denied, Apr. 76 S.Ct. L.Ed. 133 75-1223 cert. immunity sovereign (1956). The doctrine has 46 L.Ed.2d 95 U.S. Ryan Brown, in this case and doctrine no a case cited court Congress аbrogated supra explicitly in enact- at 858 note ing pages P.L. See above. 92-576. Brown, 6; supra at 858 1A Benedict 8. See note (7th rev., release). Judge Admiralty ‍‌​​​​‌​‌​​​​‌​​​​‌‌‌​‌​‌​‌​‌​‌‌‌​​‌​‌‌‌​​‌​​‌‌‌‌‍ed. first view McGowan’s sentence in and the fact that district court did Dawson case, “Murray set-off credit” in the allow page 9. Most of the cases cited note precise opinion supporting appor- about majority considerable doubt I have theory meaning consequently ap- damages of case and its are from the Ninth tionment of Dodge. longshoremen’s third-party decided plicability to and were before suits Compen- Worker’s and Harbor review problem of Larson, shoremen’s 2A 75.- §§ Brown, supra, Act have. 545 22-75.23; to See sation 76.00 seq.; et 77.00 seq. et 862-863; also see G. Gilmore & pp. at F.2d 5. To create judicially an “apportion- Black, Admiralty, The Law of C. damages” of 905(b) doctrine into § 1975) (hereinafter cited Gilmore & ed. may greatly cases major undercut congres- Black). sional policy considerations underlying the Brown, supra, pointed out that 1972 Amendments without providing ade- erroneously im- trial court’s instruction the quate replacements instance, for them. For negligence upon the stevedore’s the posed major complaint a longshoremen’s of labor Congress intended that Apparently vessel. representatives the Senate and House doctrine of vicarious would not the hearings the considering 1972 Amendments 905(b) Similarly, actions. the apply § 933 and that most §§ vessels “equitable an credit” of doctrine application upon which these men worked were of for- damages of judicial apportionment or other and, eign registry thus, did not adhere effect, longshoreman, in that the will means American safety standards under OSHA vicariously negligence the liable for of be safety and other maritime reg- statutes and stevedore-employer extent his Congress may ulations. that, have felt ($10,000. amount of the reduction in this the allowing a longshoreman to recover full case) paid thе compensation exceeds the damages against the vessel regard without has a result been con- employer.10 Such to the relative of stevedore, fault a Prosser, Dean Prosser. See W. demned practical incentive would be provided for Torts, (4th 1971). Law of ed. The § these vessels and their owners to adhere of this result has increased and '.unfairness Also, American safety standards. n confused formu- litigation common law lating the “rules” for uniform results under engrafted they judicial have courts “equitable an credit” doctrine may well ex- concept onto the damages of apportionment power. ceed the courts’ Article III A сourt- compensation of the workmen’s situation apportionment created injury doctrine third-party suit where the occurred would negligence without a well as a result of the of the formulated If partially structure.11 compensation employer. thorough 905(b) See the result of is unfair to the vessel Larson, leading authority $60,000. Professor Arthur By logic what conceivable he can law, the field of workmen’s $16,- be told that he should absorb a loss of following analysis Murray: of offers third-party of 400 for the benefit tort- damages $20,000, “Assume total are feasor? $9,000 plaintiff . had if the received capable producing “A rule such a result Murray, in workmen’s under clearly unacсeptable, particularly its since $9,000 pay employee would have over just legal underpinnings are as unsound as its $10,000 recovery, his out of practical result.” recovery leaving compen- him with a total Larson, 2A Compen- A. The Law Workmen’s $10,000. only plus damages sation sation, pp. (Release 14-318 to 76.22 at 14-319 side, policy prime practical “On the 17, 1974) (hereinafter Larson). No. cited as 2A Murray is that there defect result is no fifty percent rational relation between the Transfer, 11. United States v. Reliable recovery plaintiff’s and the inter- reduction L.Ed.2d 251 in- employee employer. or the ests of either the abrogation completely of а volved the court go Let us back to the facts Kittleson Applying 905(b) created rule. case to § opened. case with which section engrafting apportionment cases would be $6,800 compensation liability there was damages remedy complex carefully onto a $60,000. third-party recovery was If this statutory thought out structure with which the Murray situation were to arise case, Congress rights fix intended to of the steve- $60,- plaintiff, recovering instead dore, owner, longshoreman. $6,800, reimbursing vessel See 000 and $53,200, retaining Moragne Lines, Inc., would thus recover also v. States Marine $30,000 $6,800 party, plus 375, 388-408, from the third his U.S. 26 L.Ed.2d $36,800 compensation, spite for a total Black, (1970); 6-33, —in & Gilmore 6-31 to §§ trial of the fact that at the he must be as- 7-20; Larson, seq. 76.00 et 2A §§ damages sumed to have established actual owner, apply he should relief not to this court.

Congress et

Constantine EVANGELINOS

al., Appellants, AIRLINES,

TRANS WORLD

INCORPORATED.

No. 75-1990. Appeals,

United Court of States

Third Circuit.

Argued Feb. 1976. Before the Court En Banc

Reheard

Nov.

Decided Feb.

Case Details

Case Name: Milton Marant v. Farrell Lines, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: Jan 31, 1977

Citation: 550 F.2d 142

Docket Number: 76-1383

Court Abbreviation: 3rd Cir.