Booker Clemons, Plaintiff-appellee, v. Mitsui O. S. K. Lines, Ltd. and Baba-daiko Shosen, K. K.,defendants-appellants, 596 F.2d 746 (7th Cir. 1979)

In this suit for recovery of damages for personal injury, the amended complaint was, as plaintiff puts it, "concurrently based upon diversity of citizenship. (28 U.S.C. § 1332) and * * * cognizable in admiralty (28 U.S.C. § 1333)."¹  Plaintiff sought $250,000 from the owners of M/V MAYASAN MARU and from co-defendant Baba-Daiko Shosen, K. K., the charterer of the vessel. The amended complaint showed that plaintiff was employed as a longshoreman by Transoceanic Terminals Corporation ("Stevedore"), a stevedoring company, to unload cargo from the M/V MAYASAN MARU in Chicago, Illinois, when he stepped backwards "over an open hatch, causing him to plummet approximately eighteen (18) feet below into a tank." His ensuing injuries were said to have been caused by defendants' failure to provide a safety line or net about the hatch.

At the jury trial, the evidence showed that on November 23, 1976, plaintiff was performing stevedoring services aboard the MAYASAN MARU under contract between the Stevedore and the defendants. He was 66 years old, largely retired, and had 14 years' experience in his trade. He was assigned to work in Hatch No. 4 containing four deep tanks. The aft pair consisted of tanks A and D; the forward pair were designated B and C. Each pair had a common cover and was about 20' deep and 20' wide. He was directed to work in tank A. During the afternoon of November 23, he and his fellow longshoremen were discharging bales of wire from that tank and tank D, the other aft tank. This work had not been finished when they stopped for supper at 6:00 PM. They were to return to work at 7:00 PM.

About 4:30 PM that afternoon, a supervisory employee of the Stevedore, identified only as "George," told foreman Albert Johnson, also an employee of the Stevedore, that the longshoremen would load empty tanks B and C after supper and therefore to have the crew open them before then. Consequently, Johnson told a member of the ship's crew to open those tanks between 6:00 PM and 7:00 PM and he did so. A few minutes after 7:00 PM, on returning from his supper break, plaintiff fell backwards into tank C while on his way back to his station in tank A. On his way to tank A, plaintiff had decided to peek into its companion aft tank D to see how the longshoremen who had returned to work ahead of him were doing. Plaintiff testified that thereafter:

"When I straightened up from peeping in D, I stepped backwards. From looking over here, I must have stepped over a little too far. I stepped right over here in C, this open hole right here * * *." (App. 120.)

At 7:35 PM, the Stevedore employee named George decided that tanks B and C should not be loaded until the following morning. Until then, the ship's crew had still expected tanks B and C to be worked that evening.

After remaining unconscious at the bottom of tank C, plaintiff climbed three sets of ladders to the deck of the ship and reported the incident to Johnson. Plaintiff was then hospitalized for ten days at South Shore Community Hospital where he was diagnosed as having "(m)ild cerebral concussion; superficial laceration of the scalp; contusion, right knee and foot; acute cervical strain; degenerative disease of the thorocolumbar spine and both knees" (Plaintiff's Exhibit 3). His medical expenses totaled approximately $4,000 (Plaintiff's Exhibit 1).

The jury found that plaintiff's contributory negligence was 13% Responsible for his fall but entered a verdict of $322,000 for him, and the trial court entered judgment on the verdict for that sum less 13%. Defendants filed a motion for judgment n. o. v. or, in the alternative, for a new trial. After considering defendants' post-trial briefs, the motions were denied, resulting in the filing of this appeal. We reverse on the ground that the motion for judgment notwithstanding the verdict should have been granted.

It is true that a court should sparingly enter judgments n. o. v. As Judge Hastings pointed out in Hohmann v. Packard Instrument Company, Inc.,471 F.2d 815, 819 (7th Cir. 1973), a motion for judgment notwithstanding the verdict or for a directed verdict "should be denied where the evidence, along with (the) inferences to be reasonably drawn therefrom, when viewed in the light most favorable to the party opposing such motion, is such that reasonable men in a fair and impartial exercise of their judgment may reach different conclusions" (citations omitted). In the present case, we firmly conclude that the evidence is of insufficient probative value for jurors fairly and impartially to differ as to the inferences to be reasonably drawn on the question of whether in the context of the 1972 amendments to the Longshoremen's and Harbor Workers' Compensation Act, any negligence could be attributed to these defendants. Consequently, it was error to deny the judgment n. o. v. Wright and Miller, Federal Practice and Procedure § 2524; 5A Moore's Federal Practice P 50.02(1).

Under the provisions of the Longshoremen's and Harbor Workers' Compensation Act as amended in 1972 (33 U.S.C. §§ 901, Et seq.), Congress placed a longshoreman injured on board a vessel in the same general position as if injured in non-maritime employment ashore, concluding that the major responsibility for the proper and safe conduct of the work is to be borne by the Stevedore, from whom this plaintiff apparently has already recovered workmen's compensation under the Act. Responsibility for the longshoremen's safety was focused on those best able to improve it, the stevedores.²  Although the shipowner retains the legal duty to exercise ordinary care to keep the premises in a condition reasonably safe for use by the longshoremen, negligence of the shipowners must now be based on negligence principles applicable to land-based activities in non-maritime pursuits. Chavis v. Finnlines, Ltd., 576 F.2d 1072 (4th Cir. 1978). As a result of the amendments to the Act, a vessel owner is to be judged by the same standard of care as a land owner to a business invitee, such as embodied in Sections 343 and 343A of the Restatement of Torts (2d) (1965).³ 

The 1972 amendments substantially increased the benefits payable under workmen's compensation secured by the longshoreman's employer⁴  but made the shipowner liable only for negligence attributable to the vessel, rather than as had previously been the case for any unseaworthy condition. The amendments also eliminated the shipowner's third-party action against the longshoreman's employer, in the event the shipowner is held liable for negligence.⁵  The House Report accompanying the 1972 amendments makes clear that whether the vessel was negligent is to be determined primarily by established principles of land-based tort law,⁶  that the primary responsibility for the safety of the longshoremen rests with the employer,⁷  and that the shipowner is not to be held liable for the negligence of the employer.⁸  The five Circuits that have considered the question of what standard determines the shipowner's liability under the 1972 amendments have agreed that the shipowner will not be liable if the employer knew (or should have known) of the dangerous condition and nevertheless continued working the longshoremen unless the shipowner knew of special circumstances which would compel the longshoremen to continue to encounter an open and obvious danger which the shipowner was (or should have been) aware of and could have alleviated. Cox v. Flota Mercante Grancolombiana, S. A., 577 F.2d 798 (2d Cir. 1978);⁹  Hurst v. Triad Shipping Co., supra ;¹⁰  Chavis v. Finnlines, Ltd., supra, and Riddle v. Exxon Transportation Co., 563 F.2d 1103 (4th Cir. 1977);¹¹  Gay v. Ocean Transport & Trading, Ltd., supra ;¹²  Westcott v. Impresas Armadoras, S. A. Panama, 564 F.2d 875 (9th Cir. 1977).¹³  We agree with the approach taken in those cases and conclude that on the facts of the present case, the plaintiff cannot recover.

Here both the plaintiff and his employer knew that B and C tanks were open and unguarded. After plaintiff reported his fall,¹⁴  his foreman testified that he could see that tank C was open and unguarded when he looked down from the upper deck into the lower hold.¹⁵  Under earlier tort law principles, the fact that the open condition should have been apparent to plaintiff would have precluded his recovery, but the Restatement of Torts creates an exception where the possessor of land (here the possessor of the ship) "should anticipate the harm despite a known or obvious dangerous condition." Napoli v. Hellenic Lines, Ltd., supra at 508; Restatement of Torts (2d) § 343A; Prosser, The Law of Torts § 61 (4th ed. 1971).¹⁶  Here there was no evidence that defendants should have anticipated that plaintiff, a longtime longshoreman, would be unable to avoid falling backwards into tank C. Since an open tank is a condition routinely encountered by longshoremen, there was no reason to anticipate that anyone would be harmed by it. Therefore the exception in Section 343A is inapplicable.¹⁷  Stanley v. United States, 476 F.2d 606, 609 n. 5 (1st Cir. 1973). As in Stanley, there is no evidence that defendants should have supposed that the Stevedore would employ careless workers on this job or fail in its obligations to take any needed safety precautions. Therefore, the Stanley court, with which we agree, refused to apply the exception embodied in Section 343A.

In addition, in the present case the Stevedore was responsible for the hazard both because it requested the tanks to be opened and because, knowing they were open, it was charged by the Act with seeing to the safety of the longshoremen. After 4:30 PM, the Stevedore instructed the ship's crew to open tanks B and C between 6:00 and 7:00 PM because the longshoremen would be working there after their 7:00 PM return from supper. The undisputed evidence showed that, as plaintiff himself testified, in accord with the usual industry practice, no safety line would be placed around tanks being worked (App. 154). As the Stevedore's General Manager Paul Lopes testified, such a line would create a hazard to the longshoremen who would have to go under it (App. 332).

Plaintiff relies on a Chicago port custom that a safety line should be erected around an open deep tank. There is no evidence that this custom was known to defendants.¹⁸  Moreover, the uncontroverted evidence is that this custom applies only to tanks in which no one is to be working. When this accident occurred a few minutes after 7:00 PM, tank C was to be worked that evening. It was not until 7:35 PM that the Stevedore employee named George countermanded his previous order. Indeed the only reason foreman Johnson had ordered the ship's crew to open tank C was to enable it to be worked that evening. Johnson's testimony evidenced what the ship's crew was told and what the custom of stringing safety lines consisted of. He said that he told the ship's duty officer to open the B and C tanks during the supper break because the longshoremen would be working there when they returned (App. 186, 200). By Johnson's own unequivocal testimony, the custom was that no safety lines should be rigged when the longshoremen were working a tank (App. 201), so that if the crew believed the men would be working B and C tanks, the crew would not be expected to rig a line. Johnson consistently testified that if open tanks were not to be worked for some time, a safety line would be rigged (App. 201). There was no evidence that the defendants were aware of or should have been aware of the local custom, nor was there evidence that in the circumstances the failure to rig a line was a departure from the alleged custom.

Additionally, the behavior of the Stevedore belies any possible inference that the ship's crew was negligent. The majority of the longshoremen who were working in the same hatch as plaintiff had returned to work before him, without complaint of the failure to rig lines around the open tanks. The Stevedore, statutorily charged with the primary responsibility for its employees, did not ask the ship's crew to rig a safety line at the time it requested tanks B and C to be opened or after plaintiff's accident. The longshoremen continued to work with all four tanks open and no safety lines around them during the evening after plaintiff's fall and throughout the following day (App. 33). Therefore, the evidence was insufficient to support a verdict for the plaintiff. Even if the absence of a safety line in these circumstances could be considered negligent, the negligence was not shown to be, in the context of the Act, chargeable to the defendants rather than to the Stevedore.

As seen (notes 9-13 Supra), the pertinent case law is in accord with the undisputed evidence in this case. In addition, Long v. Silver Lines, Ltd., 48 F.2d 15 (2d Cir. 1931); Miller v. The Sultana, 176 F.2d 203 (2d Cir. 1949); Ove Tysko v. Royal Mail Steam Packet Company, 81 F.2d 960 (9th Cir. 1936), specifically hold that it is not negligent for a hatch to be left open in anticipation of the commencement of cargo work. The authority of these cases has remained undiminished. In fact, plaintiff admits that general maritime law is pertinent and that cases decided on the basis of standards of maritime negligence prior to the 1972 amendments to the Longshoremen's Compensation Act are still viable precedents (Br. 10). In view of our holding that a reasonable jury could not find that this accident was caused by defendants' negligence, it is unnecessary for us to consider other errors claimed by defendants.

The judgment is reversed with directions to enter a new judgment in favor of defendants.