Martin Cavalier, Plaintiff-appellant, v. T. Smith and Son, Inc., et al., Defendants-appellees, 668 F.2d 861 (5th Cir. 1982)

A longshoreman injured by the negligence of the crew of a vessel may sue the owner of the vessel even though the owner is also his employer, liable to him for compensation under the Longshoremen's and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950 (1976 & Supp. III 1979). Smith v. M/V Captain Fred, 546 F.2d 119, 122-23 (5th Cir. 1977). In this case the district court held that a longshoreman's suit is barred by the provisions of the LHWCA, however, if the negligence that caused the injury is attributable to members of the vessel's crew who are performing stevedoring services when the plaintiff is injured. This holding is based on an express provision of the LHWCA, and we, therefore, affirm.

The facts were stipulated. Because they are set forth at length in the district court's opinion, 499 F. Supp. 650 (E.D. La. 1980), we merely sketch them here. T. Smith & Son, Inc. ("T. Smith"), a general contract stevedore, contracted with the owners of the M/V Sei Shin to discharge cargo from that ship and to load the cargo into river barges. Martin Cavalier, a longshoreman employed by T. Smith, was a member of a gang of longshoremen working inside a lower hold of the ship hooking up bundles of cargo. The cargo was to be removed from the ship by a crane mounted on the derrick barge Patricia, owned and operated by T. Smith, then lying alongside the ship. The flagman and the operator of the derrick crane, both of whom were members of the derrick crew, controlled the passage of cargo as it was lifted up through open hatches of the ship. The crane operator could not see the loads until they cleared the coaming of the hatch at the main deck of the ship, so the flagman was positioned on the main deck of the ship giving hand signals to the crane operator. Cavalier was injured when, solely through the negligence of either the crane operator or the flagman, a draft of pipes failed to clear the hatch coaming, causing the pipes to slip out of their sling and fall into the hold below, injuring Cavalier. T. Smith, through its compensation insurer, paid Cavalier compensation benefits under the provisions of the LHWCA. Cavalier now seeks to recover from T. Smith for negligence in causing his injury.

In Smith v. M/V Captain Fred, supra, we analyzed the applicability of 33 U.S.C. § 905(b) when longshoremen working on a vessel owned by their employer are injured through the fault of members of the crew of the vessel. We have since applied its precepts when the crew members were not performing stevedoring work. Bossard v. Port Allen Marine Serv., Inc., 624 F.2d 671 (5th Cir. 1980) (per curiam). However, the scope of Smith v. M/V Captain Fred is limited by the statute itself,¹  which provides that an action for "negligence of a vessel" cannot be brought "if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel." That proscription fits this case perfectly. The authority of Smith v. M/V Captain Fred stops at the statute's bar. This is the interpretation given the LHWCA by other Courts of Appeals. Richardson v. Norfolk Shipbuilding & Drydock Corp., 621 F.2d 633, 634-635 (4th Cir. 1980); Smith v. Eastern Seaboard Pile Driving, Inc., 604 F.2d 789, 795 (2d Cir. 1979); Griffith v. Wheeling Pittsburgh Steel Corp., 521 F.2d 31, 41 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S. Ct. 785, 46 L. Ed. 2d 643 (1976).² 

We join these courts in following the clear language of the statute and we AFFIRM for these reasons and for the additional reasons set forth in the district court's clear opinion.