Allen Carlos Woodruff, Appellant, v. United States of America, Appellee, 710 F.2d 128 (4th Cir. 1983)

Allen Carlos Woodruff, a longshoreman severely injured after accidentally falling over the side of a docked United States aircraft carrier on which he was working, brought suit in negligence against the United States as shipowner. At the conclusion of a bench trial, the district court entered judgment for the United States. The court reasoned that the risk of injury was not "reasonably foreseeable" by the Navy because the longshoreman's stevedore-employer had assumed full responsibility for work-area safety. Woodruff appeals, contending that the district court misapplied the controlling legal standard. We agree, and reverse. We remand for entry of a judgment of liability and the determination of damages.

Neither party challenges the district court's findings of fact. These we summarize: In February 1981, Woodruff was a longshoreman¹  employed by stevedore²  Douglas Call Company in the application of a non-skid coating to the deck of the USS GUADALCANAL. On the morning of February 9, Woodruff was clearing objects from an area of the flight deck. While dragging a heavily laden pallet close to the ship's edge onto an elevator platform then level with the deck, Woodruff tripped. He lost his balance, plunged overboard, and fell some fifty feet to the dock below before bouncing into the water. Woodruff was severely injured, but he survived.

Woodruff unluckily had stumbled at one of the few spaces along the edge of the GUADALCANAL that lacked safety nets hinged out from the side of the ship. On each side of the aircraft carrier an elevator platform is cut into the deck for use in raising and lowering helicopters stored below. By design, when the elevator lowers, stanchions with a wire strung between them automatically rise from the deck to create a safety barrier around the hole left by the depressed elevator. When the elevator rises back to flight deck level, the automatic stanchions retract, leaving a four-foot wide "void" in the safety netting along the side of the ship. However, a set of four manually-placed stanchions can be set in holes drilled into the deck approximately six inches away from the ship's edge. When so placed, the stanchions are rigged to fill this "void" with a wire barrier.

The manual barrier was not in place on the morning of the accident. The Call Company had contracted to apply non-skid material to within four inches of the deck's edge. According to Call's president and its operations manager, Call Company determined that placement of the portable stanchions during actual application of the non-skid material would have interfered with its performance according to the specifications, so Call had not requested rigging of the wire barrier. The Navy, however, was fully aware that Woodruff and others were working in the vicinity of the four-foot gap, and the stanchions were at all times under the Navy's control. Woodruff also knew that the gap existed, and was found to have been careless and inattentive in working near the hazard.³ 

Woodruff brought suit under Sec. 5(b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. § 905(b), alleging the government's negligence as shipowner in failing to erect the wire barrier or otherwise block the "void". Although Sec. 905(b) establishes a negligence standard,⁴  the contours of LHWCA liability had been a subject of disagreement among the circuits prior to the resolution of conflicting interpretations in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed. 2d 1 (1981). Now, however, because we recently articulated the law governing this area after Scindia in Gill v. Hango Ship-Owners/AB, 682 F.2d 1070 (4 Cir. 1982), our inquiry in this case is greatly narrowed to the question of whether the district court correctly applied that law.

Despite ruling prior to Gill, the district court to a large degree correctly discerned the proper duty of care owed. In Gill we stated that the shipowner⁵  is negligent "if it should have anticipated harm despite the fact that the risk of harm created by [a shipboard condition or practice] was open and obvious." 682 F.2d at 1074. The district court, relying on our earlier opinion in Harris v. Reederei, 657 F.2d 53 (4 Cir. 1981), accurately verbalized this standard, including the proviso that the injury to the longshoreman must be a "reasonably foreseeable" consequence of exposure to the open and obvious hazard for the shipowner to be liable. See Gill, supra, 682 F.2d at 1074.

Where the district court erred was in its holding that the injury is not as a matter of law "reasonably foreseeable" when the shipowner has some valid basis for relying on the stevedore to take charge of safety precautions. This view was specifically rejected in Scindia. There, Scindia, the shipowner, argued that even if it knew or was chargeable with knowledge of a malfunctioning winch, "it was nevertheless entitled to assume that Seattle, the specialist in loading and unloading [and the stevedore], considered the equipment reasonably safe and was entitled to rely on that judgment." 451 U.S. at 175, 101 S. Ct. at 1626. The argument was rejected:

Yet it is quite possible, it seems to us, that Seattle's judgment in this respect was so obviously improvident that Scindia, if it knew of the defect and that Seattle was continuing to use it, should have realized the winch presented an unreasonable risk of harm to the longshoremen and that in such circumstances it had a duty to intervene and repair the ship's winch. (footnote eliminated)

451 U.S. at 175-76, 101 S. Ct. at 1626. See also, Gill, supra, 682 F.2d at 1074. The district court's understanding of "reasonably foreseeable" would render this ultimate duty meaningless.

Under the guiding legal standard, then, the district court's findings of fact lead to no other conclusion than that an "obviously improvident" lapse by the stevedore occurred here. The evidence established that the Navy understood that the absence of netting created a serious hazard. As the district court stated in its bench ruling, "The Navy obviously knew that there was a hazard in this area because they designed in their plans, when they built the ship, according to the expert here who got the plans and reviewed them, a stanchion and rope system to guard against that opening." Placing the manual stanchions as a barrier against Woodruff or anyone else working in the area falling overboard required a minimum of effort. The choice to have the stanchions absent from the elevator area, to be sure, was found to be the stevedore's.⁶  But the stevedore's primary interest was in a fast and convenient performance of its contract. Call Company took no alternative precautions, an omission that was apparent to the Navy personnel in that area of the ship while the work progressed. Exposing the longshoreman to the risk of a sheer drop some fifty feet onto the dock below or into the water, by foregoing the available safety device without any offsetting precautions, was "obviously improvident" as a matter of law. Although the Navy may have preferred to rely completely on the stevedore to protect longshoremen, "in such circumstances it had a duty to intervene". Scindia, supra, 451 U.S. at 176, 101 S. Ct. at 1626; see also, Gill, supra, 682 F.2d at 1075.

In oral argument before us (but not in its brief), the government nonetheless contends that all responsibility for safety precautions had been shifted to Call Company by contract, and that such a contract overrides the duty otherwise owed by the shipowner.⁷  We do not reach this issue, however. No express written or oral agreement delegating full safety responsibility to Call Company has been brought to our attention, nor have we located one in the record.⁸  We do not think that such a contract can be implied from the relationship of the parties, their conduct or the documents which passed between them.

Having concluded that there was liability on the part of the government as a matter of law, we reverse the judgment of the district court and remand the case for entry of a judgment of liability and the assessment of damages.⁹  It is conceded by plaintiff's counsel that plaintiff was contributorily negligent at least in part. Of course, contributory negligence is not a total bar to recovery for a maritime tort, Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-09, 74 S. Ct. 202, 204-05, 98 L. Ed. 143 (1953), but plaintiff may recover only to the extent that his fault did not cause his injuries. The district court on remand will therefore determine total damages and the extent to which recovery accordingly shall be allowed against the government.

REVERSED AND REMANDED.