Unpublished Disposition, 860 F.2d 1089 (9th Cir. 1988)

MEMORANDUM^* 

This is an appeal from a third-party damages action brought under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901 et seq., by a casual longshoreman injured while working aboard a docked vessel. The appellant contends that the district court erred by refusing to give one of his tendered jury instructions and by denying his motion for a new trial. We review for an abuse of discretion, see Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1044 (9th Cir. 1988) (jury instruction); Springs v. First Nat'l Bank of Cut Bank, 835 F.2d 1293, 1295 (9th Cir. 1988) (new trial motion), and we affirm.

The essence of the appellant's jury instruction argument is that the appellee either knew or reasonably should have known that its crew had created a hidden and dangerous condition, and that the appellee had a duty at least to warn the stevedore of that hazard. Among the instructions given by the court to the jury was the following:

The vessel owner also has a duty, prior to the commencement of work by the stevedore, to warn it of any hidden hazards on the ship or which, in the exercise of reasonable care, should be known to the vessel, that are likely to be encountered by the stevedore in the course of its work....

The above instruction is consistent with the Supreme Court's pronouncement in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 167, 172 (1981); accord Bilderbeck v. World Wide Shipping Agency, 776 F.2d 817, 818 (9th Cir. 1985). As the above instruction is neither misleading nor a misstatement of relevant law, and because the appellant has failed to show how he was prejudiced by the court's refusal to use the additional instruction, there was no reversible error on this point. See Collins v. City of San Diego, 841 F.2d 337, 340 (9th Cir. 1988).

With respect to the appellant's argument that the district court erred by refusing to grant him a new trial, we note the following: (1) no evidence was presented to indicate that the appellee's crew did anything to the lashings prior to docking other than what the stevedore would have done as part of normal cargo operations; (2) the appellant's employer knowingly paired two largely inexperienced casual longshoremen to work as lashers, only one of whom had previously worked with the type of lashing involved; and (3) contrary to normal practice, the appellant's employer did not conduct a pre-work "walk-through" with the appellant or his partner, did not carefully instruct them on what was to be done or how it was to be accomplished, and did not inspect their work areas before releasing the appellant and his partner to begin unlashing the cargo containers. Viewing the above in the light most favorable to the verdict, see Locricchio v. Legal Servs. Corp., 833 F.2d 1352, 1359 (9th Cir. 1987), and bearing in mind that "the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards [,]" Scindia, 451 U.S. at 170, it cannot be said that the verdict was against the great weight of the evidence or that the district court abused its discretion by denying the new trial motion.

The appellee's request for attorney fees on appeal is denied.

AFFIRMED.