RODRIGUEZ v. SAUSE BROTHERS TOWING COMPANY INC (1981)

STATEMENT OF THE CASE

This is an action brought under section 905(b) of the Longshoremen and Harbor Workers Compensation Act, 33 U.S.C. section 901, et seq., for personal injuries suffered by plaintiff and appellant Joe Rodriguez aboard the vessel “Barge Coquille” owned and operated by defendant and respondent Sause Brothers Towing Company. On March 14, 1979, after a jury trial, judgment was entered in favor of defendant Sause Brothers Towing Company and against plaintiff Joe Rodriguez.

Rodriguez made a motion for a new trial which was denied. Subsequently he filed this appeal.

STATEMENT OF FACTS

On March 22, 1975, Joe Rodriguez, a longshoreman employed by Crescent City Marine Ways and Dry Dock Company, was working aboard the vessel “Barge Coquille” which is owned and operated by Sause Brothers Towing Company. The barge had been in service since March 15, 1974. Rodriguez was part of a longshore gang responsible for the discharge of lumber from the barge. Crescent City Marine Ways and Dry Dock Company was retained by Sause Brothers Towing Company for two separate and distinct functions, stevedoring and barge maintenance.

The “Barge Coquille” was equipped with a number of raised metal stanchions approximately 21 feet in height running the length of the starboard (right) and port (left) sides of the vessel. Each stanchion had a tripod support and a metal container on the top. Each stanchion was equipped with a metal chain weighing approximately three pounds per foot. The chain was bolted at one end to the steel deck of the vessel, and ran vertically through the cross-sections of the uprights of the stanchion. At the top cross-section of the stanchion the chain was designed to be permanently secured by either a bolt or horseshoe device attached to the chain. By securing the chain at the top cross-section of the stanchion by a device attached to the chain, the weight and gravitational pull of approximately 15 feet of chain or 42 pounds below that point was eliminated. There was approximately 45 feet of chain above the point where it was secured to the stanchion. The width of the barge was 60 feet.

The purpose of the stanchions and chains was to secure the lumber cargo during the voyage. Each stanchion on the port side corresponds or is lined up with another on the starboard side. The chain from each corresponding stanchion ran approximately half the distance of the width of the barge and hooked together on top of the lumber cargo to secure the cargo during transit. When the chain lashing was not in use, it was stored in the metal box (chain tub assembly) on top of each stanchion.

On the day of the accident, Rodriguez' job was to unlash the cargo. He did this by unhooking the chain lashing about mid-ship. He was working on top of a lumber cargo about 20 feet above the deck. He would drag the chain lashing from mid-ship over to the metal bucket on top of the stanchion. He would then put a length of chain into a slot on the metal bucket. The securing device on the chain made it possible for Mr. Rodriguez to get slack on the chain so he could fit the link in the slot. He would then hand feed the chain into the storage bucket. This procedure required him handling about 12 to 15 pounds of chain.

At the time of the accident, he was following the same procedure in placing the chain in the storage bucket, but suddenly the chain pulled at his arm and the entire length of chain ran through the cross-section to the deck below. Upon inspecting the chain after the accident, it was determined that the metal device which was supposed to secure the chain into the stanchion had deteriorated. One of the purposes of the securing device was to lessen the weight of the chain the longshoremen had to work with from 40 to 50 pounds to 12 or 15 pounds.

As a result of the unexpected and sudden pulling and pressure of approximately 40 to 50 pounds of chain caused by the failure of the securing device, Rodriguez suffered an injury to his left arm, shoulder, and strain to his neck.

CONTENTIONS

1. The evidence was insufficient to justify the verdict because (a) Sause Brothers was guilty of active negligence, and (b) Sause Brothers had a duty to inspect and maintain the securing device, and failed to inspect for the presence of dangerous conditions.

2. The trial court erred in the instructions given to the jury.

3. The trial court erred in allowing irrelevant testimony.

DISCUSSION

1. Sufficiency of the evidence.

Rodriguez contends that the evidence before the court was insufficient to justify a finding by the jury that the Sause Brothers Towing Company was not negligent. In order to evaluate this contention, it is necessary to consider the standard of negligence that was set forth by the Ninth Circuit Court of Appeal in the case of Santos v. Scindia Steam Navigation Co. (9th Cir. 1979) 598 F.2d 480, 485.

“We adopt the following standard of negligence for purposes of 33 U.S.C. § 905(b) actions:

A vessel is subject to liability for injuries to longshoremen working on or near the vessel caused by conditions on the vessel if, but only if, the shipowner

(a) knows of, or by the exercise of reasonable care would discover, the condition, and should realize that it involves an unreasonable risk of harm to such longshoremen, and

(b) the shipowner fails to exercise reasonable care under the circumstances to protect the longshoremen against the danger.”

Initially Rodriguez contends that the shipowner was actively negligent in creating an injurious condition by negligently constructing, providing and maintaining certain items of ship's gear and equipment, to wit, the securing device on the chain.

Evidence in the record indicates, without contradiction, that the task of inspection had been contracted by the barge owner to the stevedore contractor, Crescent City Marine Ways and Dry Dock Company. There is no evidence in the record to indicate that the barge owner ever undertook to conduct its own inspection. Contrary to the assertions by counsel for Rodriguez, the barge owner does not have a nondelegable duty to place the barge in reasonably safe condition.

In the Santos case, supra, 598 F.2d at page 489, the court stated:

“Within these bounds it is correct to say that the ‘shipowner [has] a duty to use reasonable care to provide a safe place to work.’ [Citations.] By this we do not mean an absolute or nondelegable duty to provide a safe place. That notion is gone with unseaworthiness. We only mean that under the circumstances of a particular case, failure to repair dangerous equipment or conditions may be negligent.”

The next contention urged by Rodriguez is that the shipowner was under a duty to carry out periodic inspection of its equipment. Applying the standard set forth in Santos, we must determine whether the shipowner knew or by the exercise of reasonable care would have discovered the fact that the securing mechanism had deteriorated.

“The 1972 amendment to that act [33 U.S.C., §§ 903-905], in expanding the rights of an injured longshoreman against his employer, removed his previously existing cause of action against the vessel upon which he was working based on the doctrine of unseaworthiness․” (Kelleher v. Empressa Hondurena De Vapores, S.A. (1976) 57 Cal.App.3d 52, 58, 129 Cal.Rptr. 32.)

The Kelleher case went on to hold that the primary responsibility for the safety of the longshoremen lies with the stevedoring company because it is in the best position to provide for the safe unloading of the ship.

That doctrine certainly meshes well with the facts of this case, and is inconsistent with the existence of a duty on the part of the owner to inspect his vessel. It is uncontradicted that the defect in the securing device that gave way was a latent defect which would not have been easily discovered. One should bear in mind that the barge in question contained over 60 separate stanchions that rose to a height of approximately 21 feet above deck.

The defective securing device was located approximately five feet below the top of the stanchion. That would have placed it approximately 16 feet above the deck. When the barge is fully loaded with lumber, the top of the lumber rises to a height of 20 feet above the deck. Presumably as the lumber is unloaded, more of the stanchions become exposed. In all probability the longshoreman who worked for the stevedoring contractor would be in the best position to observe the condition of the securing device. If the defective condition was reported to the barge owner and it failed to instruct its agent Crescent City Marine Ways and Dry Dock Company to make the necessary repairs, there would be a clear breach of duty on the part of the barge owner. However, the record is completely devoid of any evidence that the defective condition was ever reported to the barge owner.

We conclude that the evidence indicates that through the exercise of reasonable care, the barge owner would not have been able to discover the latent defect. Accordingly, the evidence was sufficient to support a finding by the jury that the barge owner was not negligent.

2. The instruction given to the jury.

Rodriguez next complains of the following instruction which was given to the jury:

“The defendant, Sause Brothers Towing Company, the owners of the barge, Coquille, had the responsibility to exercise ordinary care under the circumstances to place the barge, Coquille, on which the stevedoring work was to be done and the equipment and the appliances aboard the barge in such condition that an expert and experienced stevedoring contractor would be able to load and discharge the cargo and to give the stevedoring contractor, Crescent City Marine Ways and Dry Dock Company, reasonable warning of the existence of any latent or hidden danger if the barge owner actually knew or in the exercise of ordinary care under the circumstances should have known the existence of such danger.”

The only improvement that could be made in the above instruction is that the words “with reasonable safety” should have followed the word “cargo” so that the pertinent part of the instruction should have read “… to load and discharge the cargo with reasonable safety.”

It should be noted that this minor defect in the instruction is taken care of by wording toward the conclusion of the instruction which requires the shipowner to “give to the stevedoring contractor reasonable warning of the existence of any latent or hidden defect if the barge owner actually knew or in the exercise of ordinary care under the circumstances should have known of the existence of such danger.” This minor error in the instructions can hardly be deemed to be prejudicial since as indicated above the evidence was such that the barge owner could not have been expected to discover the latent defect involved.¹

3. The alleged erroneous admission of the irrelevant testimony.

Finally, Rodriguez' counsel complains that it was improper for the court over his objection to permit his client to testify relative to working on lumber barges that had no stanchions. In determining whether evidence is relevant it must be determined whether or not it has some probative value. Evidence Code section 210 defines relevant evidence as follows:

“‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”

Although the record is not clear, the evidence was probably offered to show that Rodriguez was physically capable of handling a chain that had a greater gravitational pull than a chain that was secured to a stanchion near the top of the cargo.

Rodriguez contends that the jury speculated from this testimony that the purpose for securing the chain at the top cross-section was for the convenience of the longshoremen, rather than for their safety.

The record is not really clear as to the purpose the securing device served. There is no question that it obviously made it easier for the longshoremen to handle the chain, but on the other hand, there is no testimony in the record that the device was installed for the purpose of safety. Under these circumstances, we cannot say as a matter of law that the testimony was irrelevant.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.  We are sympathetic with the problem encountered by counsel and trial judges in attempting to draft a basic instruction for cases arising under the provisions of 33 U.S.C. section 901 et seq. Accordingly, we suggest the following basic instruction which is paraphrased from language found in the Kelleher case, supra, at pages 59-60, 129 Cal.Rptr. 32:“While the ship and her agents have a duty to refrain from active negligence and to warn or take corrective action where they know or should know of a latent dangerous condition, the primary burden of providing a safe place and equipment for the longshoreman's work is upon the stevedore company. The ship and her owners are relieved of that obligation except for warning against dangerous defects which the stevedore and longshoreman cannot, with the exercise of reasonable care in the light of their expertise, discover or reasonably be expected to protect against.”

SMITH,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

COBEY, Acting P. J., and POTTER, J., concur.