Hurman Lee Turner v. Costa Line Cargo Services, Inc.
1984 U.S. App. LEXIS 17361 · 744 F.2d 505
October 25, 1984 · Docket 83-2422
Opinion
Hurman Lee Turner, a longshoreman, instituted this action against Costa Line Cargo Services, Inc. (Costa Line), a vessel owner, under section 5(b) of the Longshoremen’s and Harbor Workers’ Compensation Act
I. Background and the District Court’s Fact Findings
Costa Line’s vessel, the M/V CORTINA, arrived in Houston, Texas on Sunday, January 25, 1981, and its contract stevedore, Strachan Shipping Company, commenced loading operations which continued through the following day. On the following Tuesday, the vessel was shifted to another dock and the stevedore continued operations to complete unloading and to load and secure new cargo.
On the following Friday, at 7 a.m., Hurman Turner came aboard the M/V CORTINA for the first time as a member of the cargo-securing crew. It is undisputed that he had not served with the earlier stevedore crews. When the crew arrived on the scene, both Turner and his foreman, a Mr. Goatcher, testified that they observed a pile of debris — dunnage—just aft of the number 4 hatch. The dunnage consisted of board, rags, sawdust and oil or grease. The dunnage was leaking oil across the deck. Significantly, the court found that the pile of dunnage and its associated slick were not in the work area of the securing gang for the number 4 hold; the dunnage and oily slick were on the main deck aft of the number 4 hold and against the engine room. Turner’s duties, as deck man for the securing gang, included obtaining the gear that the gang needed in order to secure the cargo. Both Goatcher and Turner testified that this gear customarily is available to a gang by the hatch where a gang is working. In this case, however, the gear was not by the hatch but instead was aft from where the gang was working. Consequently, Turner was required to make three or four trips across the oily area in order to secure the gang’s gear. On the last of these trips, Turner slipped and fell in the oily area at 7:15 a.m. Goatcher testified that even in the brief period of time before the injury to Turner, he asked the crew of the M/V CORTINA to clean up the slippery condition and repeatedly called the problem to the attention of a ship’s officer. Goatcher related that the first of these occasions was at 7:03 a.m., and that he received the response, “in a moment.”
After hearing the evidence, observing the witnesses and examining the documentary evidence, the district judge, as finder of fact in the instant case, made the following relevant findings:
A pile of dunnage composed of boards, rags, sawdust and oil or grease was stacked on the main deck aft of the no. 4 hold against the engine room. The pile of dunnage was the source of the slippery substance aft of the no. 4 hold. The pile of dunnage and its associated slick were present on the M/V CORTINA pri- or to Turner’s boarding the vessel at 7:00 A.M., Friday, January 30, 1981. The pile of dunnage and its associated slick were not in the work area of the securing gang for the no. 4 hold.
No members of the crew of the M/V CORTINA warned any members of the securing gang for the no. 4 hold of the existence of the pile of dunnage and the slippery main deck area. Harold Goatcher, gang foreman for the securing gang, twice requested the crew of the M/V CORTINA to clean up the slippery condition.
At approximately 7:15 A.M. on Friday, January 30, 1981, Turner slipped in the oil or grease from the pile of dunnage aft of the no. 4 hold. Turner’s injuries were the result of his fall on the M/V CORTINA and not due to any prior injuries or ailments.
The Defendants negligently failed to provide Turner a safe place to work, failed to warn Turner of an unreasonable risk of harm on the M/V CORTINA and failed to remove, eliminate or abate the dangerous condition.
Record Vol. I at 17-18.
Once again, significantly, the district court found that the dunnage and its associated oily slick were not in the work area of the crew. Clearly, the district court concluded as a factual matter that an unreasonably dangerous condition (the oil spill) existed when Turner boarded the vessel,
The record reveals that the trial court’s finding that the vessel owner was repeatedly requested to eliminate the inherently dangerous condition is fully supported by the evidence presented at trial.
II. The Trial Court’s Fact Findings and Existing Precedent
As we have seen, the district court, as fact finder, concluded (1) that the oily area in which Turner fell was not in the stevedore gang’s work area; and (2) that the vessel owner had actual knowledge of the unreasonably dangerous condition prior to Turner's injuries and that the vessel owner failed to remove the hazardous condition even though twice requested to do so. We conclude that both of these findings independently support the district court’s judgment under established precedent.
A. Vessel Owner’s Liability for Ship Areas Remaining Within Its Control
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 stated: “[T]he shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore.” Scindia, 451 U.S. at 172, 101 S.Ct. at 1624 (emphasis added). Generally, the vessel owner is entitled to rely on the stevedore to protect his employees from conditions that “develop within the confines of the cargo operations that are assigned to the stevedore.” Id. However, the vessel owner is not relieved of responsibility for conditions arising outside the area assigned to the stevedore. See Helaire v. Mobil Oil Co., 709 F.2d 1031, 1036 (5th Cir.1983) (the owner has a duty to avoid exposing the longshoremen to harm “from hazards under the act or control of the vessel.”) (citing Scindia, 101 S.Ct. at 1626). Thus, the vessel owner is relieved of liability only if the condition arises in an area turned over to the stevedore for cargo operations.
As we noted earlier in this opinion, Turner was required to cross over the oil slick in order to obtain ship’s gear to be used in securing the number 4 hatch. However, this does not mean that the oil covered area was within Turner’s work area. In fact, as the district court found, the site was outside the work area of the number 4 hatch, in an area normally not traversed by longshoremen. This finding is fully supported by the record. During direct examination of gang foreman Goatcher, the following exchange occurred:
Q: You have been a longshoreman how long, 27 years?
A: 26 years.
Q: Excuse me. In your 26 years as being a longshoreman, when you go aboard a boat and you are going to use the ship’s gear, where is this gear under normal and routine practice, where is this gear located?
A: Normally, it’s near the hatch where we are working.
Record Vol. II at 16. Goatcher then explained how the ship’s gear on the M/V CORTINA was not in the normal place — by the hatch — but was scattered all over the vessel. See Record Vol. II at 20-23. Clearly, Turner was required to venture outside the area of normal and routine cargo operations to areas within the ship’s control and was forced to cross the oil slick in a location outside of his work area. This theory was argued to the able and experienced district judge by Turner’s counsel, see Record Vol. II at 5, and after hearing the evidence and observing the witnesses, the district judge made a clearly supported finding of fact that the slick area was not in the stevedore’s work area.
Thus, the site in which the slick area was found — and in which Turner fell — was not an area turned over to the stevedore for cargo operations.
The dissent’s argument is contradicted by the language it itself quotes from this Court’s opinion in Helaire: “[T]he owner has no general duty by way of supervision or inspection to discover dangerous conditions that develop in the area assigned to the stevedore.” 709 F.2d at 1036 (emphasis added). One can hardly say that the entire ship — except remote “enclaves”— was assigned to the stevedore; the district court’s finding that the slick area was not in the gang’s work area demonstrates that the slick area was not in the stevedore’s assigned area.
B. Vessel Owner’s Liability for Ship Areas Within the Stevedore’s Control
Even assuming that the slick area could be said to be within the stevedore’s assigned area, the district court’s fact findings clearly support its judgment under existing precedent.
In Scindia, the Supreme Court expressly held that a vessel owner could be held liable for injuries suffered by a stevedore’s employee after commencement of unloading operations if the vessel owner had knowledge of the unreasonably dangerous condition and actual knowledge that the stevedore could not be relied upon to protect the employees from the danger. 451 U.S. at 175, 101 S.Ct. at 1626. Moreover, numerous decisions in this Circuit support a recovery under such facts. See Wild v. Lykes Brothers Steamship Corp., 665 F.2d 519, 521 (5th Cir.1981) (quoting Scindia, 451 U.S. at 175, 101 S.Ct. at 1626); Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982) (“[T]he Scindia exception ... requires the vessel to protect a longshoreman or harborworker when the vessel knows of an unsafe condition and knows that the [stevedore] is not adequately guarding the longshoreman or harborworker against the danger____”); Helaire v. Mobil Oil Co., 709 F.2d at 1038-39 (5th Cir.1983) (“Once loading operations have begun, the vessel owner can be held liable for injuries to employees of the stevedore ... only .in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation.”) (emphasis added);
III. Conclusion
As we have seen, the district court concluded as a factual matter that the vessel owner had actual knowledge of the unreasonably dangerous condition prior to Turner’s injuries, but failed to remove the hazardous condition even though twice requested to do so. We have reviewed these fact findings and have concluded that they are not clearly erroneous. These fact findings clearly support the district court’s judgment under existing precedent, and accordingly, we affirm the district court’s judgment in all respects.
AFFIRMED.
. 33 U.S.C. § 905(b):
(b) In the event of injury to a person covered under this chapter 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 933 of this title, 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. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. 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 chapter.
. Almost immediately after coming on board— within two or three minutes — the first request to eliminate the dangerous condition was made. See infra, note 5.
. The urgency of the need for the owner’s immediate remedial action would seem to be apparent in that no less than two separate requests were made within a quarter of an hour.
. The record reflects that Turner and the rest of the stevedore’s crew boarded the M/V CORTINA at 7:00 a.m. and that the vessel owner received actual notice of the oil slick only two or three minutes after the crew boarded. The dangerous condition was allowed to persist during Turner’s entire stay on the ship despite two separate requests for .its elimination. In fact, the record reveals that the condition was not
. During direct examination of the stevedore’s gang foreman, the following exchanges pertaining to the oil slick and the requests to the vessel owner occurred:
Q: Did you or any of your members of your gang do anything to bring this to the attention of anybody on the ship?
A: I went and got the First Mate and pointed this out to him. And asked him if he could do something about it, put some sawdust over it or put boards over it or cover it over with something, remove it someway or other.
Record Vol. II at 18-19. Moreover, the record reveals that the vessel owner was repeatedly requested to clean up the oil spill.
Q: Before Mr. Turner slipped and fell and injured himself would you tell the judge how many times you went and got their mate and brought him over there to have him clean up this oil slick or put something down?
A: I made three trips to get the mate, to get him to clear this problem up.
Record Vol. II at 22.
. The dissent notes, "The record indicates that five hatches — Nos. 1, 2, 3, 4 and 5 — were being worked by the stevedore, thus is it patent that the finding of the trial court regarding the No. 4 hold will not stretch to cover the entire area turned over to the stevedore.” Dissent’s op. at 513 (emphasis original). An examination of the ship’s diagram, however, indicates that the oily area lay behind the number 4 hold on the other side from the number 3 hatch. The slick area could not be said to be within the number 3 gang’s work area. Likewise, the slick area was separated from the number 5 hatch by the major part of the ship’s superstructure and therefore cannot be said to be within that gang’s work area. That the slick area was somehow in the work area of the stevedore generally — when it was held to be not in the work area of the number 4 work gang specifically — seems a logical impossibility. The district court has already found explicitly that the oily area was not in the number 4 gang’s work area. Further, that gang was the closest of all the work gangs to the oily area. To remand this case to the district court to determine whether the oily area was in the stevedore’s work area would be a needless exercise.
. The dissent argues that the district court’s finding that the slick area was not in the stevedore gang’s work area "is not dispositive.” Infra at 512. Rather, the dissent argues the significant issue is "whether it was in the area over which the shipowner had relinquished control to Turner’s employer, the stevedore, rather than in some enclave of the vessel over which the shipowner had reserved control while otherwise turning the vessel to the stevedore.” Id. at 512. Thus, the dissent would interpret the stevedore’s work area to include any area over which the stevedore’s employees are required to traverse. This is clearly too broad a rule, since a longshoreman might be required to traverse numerous areas (walkways, ladders, planks, etc.) to get to the assigned work area — in this case the number 4 hatch — and these areas cannot be said to be within the stevedore’s work area. Moreover, situations could arise in which a longshoreman, in the course of his/her duties, is required to venture into areas normally not entered by the longshoreman to carry out his/her duties. Indeed, such is the case here.
. In Helaire, the panel recognized an exception to this rule if it was proved that it was “reasonable” for the vessel owner to rely on the stevedore’s judgment that the condition, though dangerous, was safe enough. See Helaire, 709 F.2d at 1039, n. 12. But such is certainly not the case here, for the district court expressly held that the stevedore had repeatedly requested that the dangerous condition be removed. Surely the stevedore did not find the condition “safe enough” since it was the stevedore who urgently sought to have it removed virtually upon arrival and on at least two separate occasions. See Record Vol. II at 18-19, 22. See also note 5, supra.
. In researching this issue, it becomes apparent that this Circuit has not spoken with a harmonious voice on the "obviously improvident judgment" language. Certain decisions of this Court have emphasized that the vessel owner must have actual knowledge of the unreasonably dangerous condition, actual knowledge that the stevedore cannot be relied upon to remedy the situation, and knowledge that the stevedore will — in the exercise of obviously improvident judgment — continue to work on in face of the dangerous condition. Indeed the "obviously improvident judgment” language appears in the majority opinion in Scindia. Scindia, 451 U.S. at 175, 101 S.Ct. at 1626. See also Stass v. American Commercial Lines, Inc., 720 F.2d 879, 885 (5th Cir.1983) (”[T]he vessel knows of an unsafe condition that the stevedore ... is improvidently failing to guard the worker against.”) (emphasis added). However, other decisions of this Court have not employed the "obviously improvident judgment" language and — in what is submitted is language that better describes the vessel owner’s duty — have instructed that liability exists when the vessel owner had actual knowledge of the unreasonably dangerous condition and actual knowledge that the stevedore could not be relied upon to remedy the situation. See Harris, 730 F.2d at 299; Helaire, 709 F.2d at 1039.
Under either test, however, the district court’s judgment should be affirmed in the instant' case. The evidence reveals (and the district court found) that the vessel owner twice was requested to remove the inherently dangerous oil slick, that the vessel owner replied that the condition would be remedied "in a moment" — thereby clearly indicating to the stevedore that the condition would be cleared up in a moment — yet failed to remove the condition until sometime after Turner’s injuries when yet another individual slipped and fell on the same oil. See note 4, supra. It cannot be gainsaid but that the vessel owner knew of the dangerous condition, that the vessel owner knew the stevedore was not going to clean up the oil slick, and that the vessel owner knew that the stevedore was requiring its employees to work on in the face of the inherently dangerous condition.