Carmen Di Rago and Joan Di Rago, His Wife v. American Export Lines, Inc.

636 F.2d 860

• Court: Court of Appeals for the Third Circuit
• Decided: February 27, 1981
• Docket: 80-1317
• Status: Published

Opinions

OPINION OF THE COURT

GIBBONS, Circuit Judge.

Carmen DiRago, an employee of an independent contractor stevedore company, I.T.O. Corp. (“I.T.O.”), brought this action against American Export Lines (“Export”), the owner of the S. S. EXPORT AGENT, pursuant to § 18(a) of the Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972 (“LHWCA”). 33 U.S.C. § 905(b) (1976). He sought damages for injuries sustained while working aboard the EXPORT AGENT discharging rolls of carpet backing. Plaintiff alleged that negligent stowage of the rolls was the proximate cause of his injuries; and after trial to a jury, special interrogatories were returned finding the defendant vessel owner liable and the plaintiff 5% contributorily negligent. The parties thereafter stipulated as to damages-and this appeal followed.

Export does not challenge the jury’s finding that it was negligent in permitting the improper stowage. Rather, it defends on the ground that the stevedore crew’s failure to remove or avoid the danger to DiRago, once it discovered the hazardous condition of the stowage, constitutes a superseding cause of his injuries, thereby relieving Export of any liability. The sole issue presented for review then is whether the trial court erred in refusing to charge the jury on superseding pause. Because we find the instructions of the trial court on proximate cause adequate, and do not believe complete discharge of the shipowner’s duty under the facts of this case is warranted by either legislative mandate or judicial decision, we affirm the judgment of the court below.

The facts at trial showed negligence on the part of both the stevedore crew and the vessel owner:

On the accident date, DiRago was working with his gang foreman, William Collins, and his fellow holdman, Stephen Pakech, in the No. 3 lower ’tween deck of the S. S. EXPORT AGENT, while it was moored at I.T.O.’s Tioga Terminal in Philadelphia. The cargo of carpet backing was divided into two approximately equal sections, one in the port wing and the other in the starboard wing. The center portion of the hatch was clear of cargo, with the exception of several banded bundles of plywood adjacent to the forward bulkhead of the hatch. The rolls of carpet backing were 13 to 14 feet long, IV2 to 2 feet in diameter, and weighed approximately 1,500 pounds each. The rolls were stowed with their lengths perpendicular to the center line of the vessel, and they were stacked in tiers with each roll tightly abutting the ones next to it. The rolls in the subsequent tiers rested in the recesses formed by the junctions of the rolls below. DiRago claimed at trial and Export does not contest on appeal that the rolls had been improperly stowed in Bangladesh without insertion of chocks to fix the bottommost rolls in place. No representative of Export warned I.T.O. about the absence of chocks.

In order to discharge the cargo, I.T.O. elected to use a forklift machine (or “chisel”) which had been fitted with a prong. By inserting the prong into their cores, the machine could remove the rolls from the stow one at a time. Complicating the task of taking the carpet backing out of the wings and into the center of the deck for hoisting was the fact that the forklift machine could not reach the forwardmost rolls because it was blocked by the plywood bundles and by the presence of a stanchion in both the starboard and port wings. DiRago contended that this configuration prevented a complete tier-for-tier discharge on each side (which might have maintained the stability of the remaining stow at all times), with the result that as the aft portions of the stow were brought out of the wings, a pile of unstable rolls remained stacked at the forward end on each side. There was conflicting testimony as to the exact method of discharge DiRago’s crew employed under such circumstances. According to Collins, the tier-by-tier method was used for the aft portion and the forward portion was loosened by undermining it. According to DiRago and Pakech, the entire load had to be discharged by undermining since the rolls were fitted so that the top tier was between the coaming of the hold and the side of the vessel. This prevented the use of the usual prong to discharge the top roll because only its bottom 'half was showing. It was allegedly necessary, therefore, to work out a roll from a lower tier so that the top tier would then fall down into the “V” thus formed — a procedure Collins called “dangerous” and denied was used. In any event, testimony was offered by Export to show that neither of the methods testified to by plaintiff’s witnesses was the safest possible.

Nonetheless, at this point the crew assumed the cargo to be chocked. Not until Pakech removed the rolls comprising the bottom tier on the port side was it discovered that there were no chocks under any of the rolls. Collins ordered his men to stay out of the area aft of the remaining pile because of the danger that they might collapse. No such problem eventuated on the port side. However, during the course of the discharge of the starboard rolls, at a time when DiRago was inadvertently in the portion of the starboard wing from which rolls had been cleared, the remaining rolls at the forward end suddenly collapsed, striking him. He had just helped guide a draft loaded with several rolls up and out of the hold. Keeping his eyes on the draft and being careful not to stand under it, DiRago had walked backwards into the starboard area.

At trial, DiRago argued on the basis of the facts above that his injuries were caused by the defendant’s failure to inspect that the cargo was properly secured by chocks; that the shipowner knew or had reason to know that this created an unreasonable risk of harm to the longshoremen, including plaintiff; and that the shipowner did not take reasonable steps to prevent such harm from occurring. In this way, the plaintiff satisfied the three-part test for § 905(b) recovery set forth in Griffith v. Wheeling-Pittsburgh Steel Corp., 610 F.2d 116 (3d Cir. 1979), appeal docketed, No. 79-813, 48 U.S.L.W. 3374 (S.Ct. Dec. 4, 1979) (hereinafter Griffith), in which this court recognized that § 905(b) imposes on vessel owners the same duty to exercise “reasonable care under the circumstances” of each case that would be applicable to a land-based business.¹ The vessel owner in Griffith had argued that a vessel should not be held liable if it has delivered the ship in such condition that an expert and experienced stevedoring contractor, mindful of the dangers he would expect to encounter, will be able to load or unload the vessel safely by exercising ordinary care under the circumstances. In rejecting this argument, the court relied on the clear implication by the Supreme Court in Edmonds v. Compagnie Generale Transatlantiqne, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979), that injured longshoremen could recover in full against a negligent shipowner, even where the stevedore was concurrently negligent.

Thus to avoid the impact of Griffith and Edmonds, Export is forced, in effect, to argue that this is not a case of concurrent negligence. Instead, it contends the failure of the stevedore company to prevent harm from the unchocked stowage constitutes a superseding cause and thereby relieves the shipowner of all responsibility. Export relies principally on § 452 of the Restatement (Second) of Torts, which this court has indicated is an appropriate guide in actions by longshoremen against shipowners. Brown v. Ivarans Rederi A/S, 545 F.2d 854, 863 (3d Cir. 1976), cert. denied, 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 361 (1977). However, until now, this court has never been called upon to address precisely when and how § 452 applies.

That provision reads in full:

§ 452. Third Person’s Failure to Prevent Harm

(1) Except as stated in Subsection (2), the failure of a third person to act to prevent harm to another threatened by the actor’s negligent conduct is not a superseding cause of such harm.

(2) Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.

The text and accompanying comments leave no doubt that subsection (1) states the general rule and that subsection (2), on which Export relies, is decidedly the exception. To that extent, § 452 adheres to the usual notion that connected acts of negligence result in concurrent liability and that the law recognizes the possibility of more than one proximate cause for a given injury. Thus, § 462 is, in fact, more properly viewed as a basis on which the vessel is held liable despite the negligence of the stevedore, rather than as an escape clause for the defendant shipowner.

Export, however, argues that this case comes within the ambit of subsection (2). Unfortunately, the Restatement gives little assistance in defining the standards for measuring when responsibility has shifted to a third person. See Blackburn v. Prudential Lines, Inc., 454 F.Supp. 1302, 1308 (E.D.Pa.1978). At first glance, the burden on one seeking to invoke § 452(2) would seem to be a heavy one. Comment (e) suggests that the subsection is applicable only to “exceptional” cases and adds, significantly, that “where the personal safety of third persons is threatened it is probably true that normally any duty to exercise reasonable care for their protection cannot be shifted.”²

Appellant Export advances two reasons for nonetheless treating this as an “exceptional” case in which the duty to prevent harm had fully shifted to the stevedore. First, it argues that Congressional policy, as reflected in the 1972 Amendments to the LHWCA, contemplates that stevedores will be solely responsible for accidents occurring after they have assumed control of the ship and begun unloading. Secondly, it is Export’s contention that the negligence of the stevedores in this case rose to the level of gross or “exceptional” recklessness and thus constitutes a superseding cause.

The reliance on Congressional intent is not persuasive. The House Report on the 1972 Amendments makes it clear that in abolishing the vessel owners’ non-delegable duty, the drafters did not intend that full responsibility was thereby delegated to stevedores. H.R.Rep.92-1441, 92d Cong., 2d Sess., reprinted in [1972] U.S.Code Cong. & Ad.News 4698, 4704 (hereinafter “House Report”). The imposition of a duty on stevedores did not relieve owners of their duty to exercise reasonable care with regard to the condition of the ship:

Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because the vessel will still be required to exercise the same care as a land-based person in providing a safe place to work. Thus, nothing in this bill is intended to derogate from the vessel’s responsibility to take appropriate corrective action where it knows or should have known about a dangerous condition.

Under this standard, as adopted by the Committee, there will, of course, be disputes as to whether the vessel was negligent in a particular case. Such issues can only be resolved through the application of accepted principles of tort law and the ordinary process of litigation — just as they are in cases involving alleged negligence by land-based third parties.

House Report at 4704 (emphasis added). Such discussion hardly supports the view that Congress meant courts to treat cases involving longshoremen’s injuries as “exceptional.” What is exceptional about the Congressional scheme under the 1972 Amendments is that only the vessel owner and not the stevedore can be a party to the longshoreman’s suit. But the Supreme Court in Edmonds v. Compagnie Generale Transatlantique, supra, refused to infer from this that a shipowner could only be held liable only where its negligence was the sole cause. Indeed it indicated that a vessel owner’s principal defense against liability, like that of most tort defendants, is to show the absence of proximate cause. 443 U.S. at 265 n.15.

Export places much reliance on the applicability of OSHA’s Safety and Health Regulations for Longshoring, which impose on the stevedore who breaks down cargo the duty to take precautions, “when necessary to prevent the remaining cargo from falling.” 29 C.F.R. § 1918.83(b) (1979). However, the regulation does not by its terms preclude a finding that shipowner negligence also contributed to an accident by creating a latent danger. Indeed, to interpret the OSHA regulations as establishing a full shift of responsibility for purposes of § 452(2) is to ignore the preface to the longshoring regulations which states:

It is not the intent of the regulations of this part to place additional responsibilities or duties on owners, operators, agents or masters of vessels unless such persons are acting as employers, . . . Nor is it the intent of these regulations to relieve such owners, operators, agents or masters of vessels from responsibilities or duties now placed upon them by law, regulation or custom.

29 C.F.R. § 1918.2(b) (emphasis added). See Blackburn v. Prudential Lines, Inc., supra. Appellant fails to convince us that common law negligence doctrine has been preempted by the OSHA regulations.³

Although the effect of § 452 was not considered in Griffith, the reasoning of that decision is controlling. Indeed, to accept Export’s argument that § 452(2) applies because of Congressional mandate or the peculiar nature of the stevedore-vessel owner relationship would be to reintroduce through the back door the very same “divided duties” approach which Griffith rejected.

There remains the possibility that the interplay of specific facts in this particular case might indicate that full responsibility had shifted to the stevedore. After deeming it “impossible to state any comprehensive rule” as to when responsibility shifts, § 452, Comment f, suggests several factors to be considered: the degree of danger, the magnitude of risk, the stevedore’s knowledge of the danger, and the likelihood that he will or will not exercise proper care, the stevedore’s relation to plaintiff or defendant, and the lapse of time between the defendant’s negligence and plaintiff’s injury. The issue thus becomes, whether on consideration of these factors in this case, there is a basis for applying § 452(2), in which event the defendant might be entitled to have the jury instructed on superseding cause.

Applying the enumerated factors to this case, Export first stresses the contractual and oral assurances given to it by I.T.O., DiRago’s employer, that stevedoring operations would be performed safely and competently, entitling it to assume that I.T.O. would take the precautions necessary to avert injuries. However, such general warranties are universally given and, if given weight, would absolve vessel owners in almost every case. Such a result would thwart Congress’ clear intent to eliminate the significance of indemnity agreements between stevedoring companies and vessel owners, by which the latter shielded themselves from the harsh consequences of liability without fault under the unseaworthiness doctrine.⁴ See House Report at 4704-OS.

Alternatively, Export emphasizes the lapse of time. It points out that the stevedore became aware of the absence of chocks when it uncovered the bottom tier on the port side and that from that time to the moment of the accident, I.T.O. had ample opportunity, including a one hour lunch break, to obtain any additional equipment or materials it needed to perform the work properly. As Chief Judge Lord noted in a § 905(b) case with somewhat similar facts, “[t]here can be no bright lines as to when the lapse of time is itself sufficient to make a shift of full responsibility.” Blackburn v. Prudential Lines, Inc., supra, 452 F.Supp. at 1309. See Restatement (Second) of Torts § 452, Illustration 9, (1965) (six months sufficient for full shift); W. Prosser, The Law of Torts, § 44, at 289 (1971) (describing the lapse of time cases as difficult to explain and suggesting they are best understood, “merely on the ground that there must be a terminus somewhere, short of eternity, at which the second party becomes responsible in lieu of the first”). We do not believe that a matter of hours in this context makes this one of the “exceptional” cases in which a jury could find that the entire responsibility had shifted.⁵

Export’s claim that the stevedore’s selection of equipment or use of a V-wedge undermining process was extraordinarily negligent and thus provided a basis for instructions on superseding cause presents a closer question. Among the factors which the commentary to § 452(2) suggests may shift responsibility to a third person are that person’s “knowledge of the danger and the likelihood that he will or will not exercise proper care.” However, the existence of these factors alone, rather than in combination with deliberate disregard of an express warning⁶ or lapse of time,⁷ would not seem sufficient to warrant instructing the jury that full responsibility potentially shifted. It is enough that the jury be instructed to consider whether the stevedore’s knowledge and intervening negligence was foreseeable and whether the vessel owner’s antecedent negligence thus remained a substantial factor in bringing about the injury. We find support for our view in § 447 of the Restatement⁸ and conclude that the close adherence of the instructions given in this case to that provision ⁹ leave defendant Export with little grounds for complaint.

This conclusion is most consistent with this court’s holding in Griffith. We agree with Export that vessel owners should not always have to bear the costs of injuries to longshoremen occasioned by the stevedore’s extraordinary negligence. However, we find that the instructions patterned after Griffith adequately shield the vessel owner from such liability without resorting to the ambiguities inherent in §.452. The charge promulgated in Griffith made foreseeability a core element of the vessel’s standard of care. Owners were charged with a duty to inspect for those conditions which they “knew or should have known . . . would pose an unreasonable risk of harm to longshoremen working on board ship.” 610 F.2d at 126. In determining whether a risk was unreasonable “the likelihood of negligent conduct on the part of the stevedoring contractor” was sometimes relevant, a point the court emphasized by reference to Restatement (Second) of Torts § 302A (1976), which reads:

An act or omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person.

Thus, if the jury finds the stevedore’s conduct in a given case to be negligent, Griffith suggests the jury must then determine whether such a negligent response was nonetheless foreseeable to the vessel owner. If so, the shipowner would not be relieved of liability for creating the hazard in the first place. Conversely, if the stevedore’s negligence is truly extraordinary, the Griffith charge permits the jury to absolve the vessel. See also McCarthy v. Silver Bulk Shipping Ltd., 487 F.Supp. 1021, 1029 n.20 (E.D.Pa.1980).

Thus, in effect, the issue of the extraordinariness of the stevedore’s negligence was put to the jury and resolved in this case. Where a jury is directed to impose liability upon the defendant only if the stevedore’s intervening negligence could have been anticipated,¹⁰ the jury’s verdict for the plaintiff would seem to dispense with the notion that the failure of the stevedore to remove or avoid the danger was extraordinary enough to constitute superseding cause.

A party is entitled to have its requested instructions given only when there is evidence in the record supporting their submission. Smith v. Lauritzen, 356 F.2d 171 (3d Cir. 1966) (longshoreman’s suit); McNello v. Kelly, Inc., 283 F.2d 96 (3d Cir. 1960). Perhaps instructions on superseding cause would be justified where, for example, evidence showed that the stevedore had rejected offers of assistance by the vessel owners, had been alerted to the danger some time in advance, or had expressly assured the owner that in spite of the unchocked condition of the stowage, it had the matter under control and would assume full responsibility for unloading the cargo safely. Cf. Blackburn v. Prudential Lines, Inc., supra, 454 F.Supp. at 1309 n.8; Restatement (Second) of Torts § 452, Comment e, Illustrations 5 & 10 (1965). We thus decline to hold that § 452(2) is never available to shipowners in injury suits by longshoremen. Where, however, evidence of such communications between vessel and stevedore is lacking and the vessel contends that the stevedore recklessly disregarded a discovered hazard in the stowage, the vessel’s defense should be subjected to the usual test of foreseeability under the circumstances.

By its verdict for the plaintiff, the jury in this case implicitly found the vessel owner should have known that the unchocked stow created a hazardous working condition for longshoremen and implicitly rejected the Export claim that it could not foresee the stevedore’s subsequent acts. The shipowner knew longshoremen would be working in the hold, might not simply quit unloading once the danger was discovered, and thus might have to improvise a risky method of discharge. Granted, Export demonstrated that alternative methods of discharge were available and that the stevedore crew exercised poor judgment. However, in light of testimony by Collins, the gang foreman, and Capt. Cullen, an expert witness, that such unchocked stowage was rarely encountered,¹¹ the jury might not find it surprising that the stevedore crew’s attempts to prevent the threatened harm from occurring were feeble and unsuccessful. Hence, we find there was sufficient evidence for plaintiff to have prevailed under the standard enunciated in Griffith and reaffirmed today.

Those who perceive in the 1972 LHWCA Amendments a leniency towards stevedore-employers may be tempted to seize upon § 462(2) as a means of rectifying the imbalance and inducing stevedores to exercise greater precaution on the job. The 1972 Amendments entitled injured longshoremen to statutory benefits under a workmen’s compensation scheme; in return for their participation, the employers were insulated from injury suits by their employees. However, stevedore companies continue to enjoy lien rights in any recovery the longshoreman obtains by suing the vessel himself, with the result that the longshoreman’s employer is out of pocket only the excess of the statutory benefits over the amount recovered against the vessel. 33 U.S.C. § 933(f) (1976). Critics of the current scheme object that such lien rights undermine the stevedore-employer’s incentive to exercise care and instead shifts the weight of deterrence onto the vessel owner who is rarely in a position to control the conduct of stevedoring operations.

Such criticism, however valid, is. more appropriately directed to Congress, especially where “some inequity appears inevitable,” as the Supreme Court observed when it was asked to superimpose the “equitable credit doctrine” on the LHWCA scheme in Edmonds v. Compagnie Generale Transatlantique, supra, 443 U.S. at 270, 99 S.Ct. at 2761. In that decision, the Court noted the potential inequities created by the stevedore’s lien rights, but squarely rejected an opportunity to redress them. It indicated unwillingness to disturb the balance struck by legislation which had all the earmarks of a carefully bargained political compromise.¹² This court should show similar deference and not miscast what would otherwise be considered a case of concurrent negligence as an “exceptional” case of shifted responsibility simply because Congress has chosen to insulate one of the joint tortfeasors from suit.¹³

Moreover, to shift full responsibility to the stevedore once it discovers and attempts to eliminate the hazard created by the vessel, as Export would have us do, merely substitutes new inequities for old ones. If Export’s theory were accepted, vessel owners would have correspondingly less incentive to assure proper stowage of cargo, over which they clearly have more control than do the stevedores. The fact that only the stevedore is in a position to effect a remedy at the time and scene of the accident does not mean the vessel owner should not be deterred from allowing the hazardous working condition to exist in the first place. Imposition of liability upon the vessel in the case at bar will thus promote safer working conditions for longshoremen, consistent with Congress’ purpose to alleviate dangers in one of today’s most hazardous occupations.

Accordingly, the judgment of the lower court will be affirmed.

1 . At a minimum, we think that the standard of reasonable care under the circumstances would permit a finding of negligence upon a showing: (1) that the vessel knew of or by the exercise of reasonable care could have discovered the condition on board ship that led to the injury; (2) that the vessel knew or should have known that the condition would pose an unreasonable risk of harm to longshoremen working on board ship; and (3) that the vessel failed to exercise reasonable care to protect the longshoremen against that danger.

610 F.2d at 126.

2 . This presumption is reflected elsewhere in the Restatement. For example, §§ 392-93 indicate that responsibility does not normally shift when a supplier of goods permits another’s employees to load and unload them in fulfillment of his contract to deliver. This court has previously intimated in Griffith that the provisions applicable to suppliers of chattel in commerce may be an appropriate analogue for use in longshoremen injury suits. 610 F.2d at 125. That being so, the express provision for concurrent liability in § 393 takes on added significanee and casts doubt on Export’s theory that full responsibility typically shifts to the stevedore. The section reads:

Effect of Third Person’s Duty to Inspect

One who supplies through a third person a chattel to be used for the supplier’s business purposes is subject to liability . .. although the dangerous character or condition of the chattel is discoverable by an inspection which the third person is under a duty to the person injured to make.

See also Comment a.

3 . Therefore, the court below was correct to inform the jury of the OSHA regulations as evidence of a stevedore’s duties and the care with which a shipowner could legitimately expect a stevedore to proceed; but, it properly cautioned the jury that particular circumstances might indicate to a reasonably prudent shipowner that such an assumption was unwarranted, in which case the regulations did not subtract from the vessel owner’s common law responsibility.

4 . Section 905(b) provides in relevant part that in the case of injury to a covered employee, “the employer [stevedore] shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void.”

5 . We note in passing that among the factors to be considered in applying § 452(2) are the degree of danger and magnitude of the risk. In the kind of rough calculus § 452 seems to envision, the probability of severe injury from unchocked rolls of carpet backing, weighing 1500 lbs. each, should not be overlooked.

6 . Restatement (Second) of Torts, § 452, Illustration 9 (1965).

7 . Id., Illustration 10.

8 . § 447. Negligence of Intervening Acts

The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if

(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

(c) the intervening act is a normal consequence of a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.

9 . The trial judge explained:

Now although the defendant shipowner may be only held liable for its own negligence, and not for the negligence, if any, of the stevedores, if as a reasonably prudent person or shipowner the defendant should anticipate the negligence of another, such as a stevedore, that would cause harm to some third person, the shipowner might nevertheless be found to be negligent, and a negligent act of omission may be one which involves unreasonable risk of harm to a longshoreman through either the operation of negligence or a negligent act of the shipowner, or by the foreseeable action of another, such as the stevedore.

An act or an omission may be negligent if the shipowner realizes, or should realize that it involves unreasonable risk of harm to the longshoremen, through the negligence or reckless conduct of some third party such as the stevedore. Thus, the shipowner is under a duty to exercise reasonable care under all of the circumstances.

10 . See note 9, supra.

The force of Export’s complaint is further weakened when one considers that the lower court included in its instructions a presumption favorable to the defendant vessel:

The shipowner, therefore, in the absence of circumstances indicating to a prudent, reasonably prudent person to the contrary, has the right to assume that the stevedore will conduct its operations in a non-negligent manner.

The defendant, being the shipowner, is entitled to take into account the experience and expertise of the stevedore in assessing the relative safety of the conditions that the stevedore, and its employees, will confront during the performance of their work.

Charge of the Court at 28.

We do not address the necessity or validity of such a presumption, except to say that a verdict delivered in favor of the plaintiff despite such instructions should not lightly be disturbed.

11 . Indeed, Collins testified that in all his experience he had never seen a cargo such as the carpet backing come in unchocked.

12 . The Court observed:

In 1972 Congress aligned the rights and liabilities of stevedores, shipowners, and longshoremen in light of the rules of maritime law that it chose not to change. “One of the most controversial and difficult issues which [Congress was] required to resolve . . . concerned] the liability of vessels, as third parties, to pay damages to longshoremen who are injured while engaged in stevedoring operations.” S.Rep. 8. By now changing what we have already established that Congress understood to be the law, and did not itself wish to modify, we might knock out of kilter the delicate balance. As our cases advise, we should stay our hand in these circumstances [citations omitted]. 443 U.S. at 272-73.

13 . The Supreme Court may soon have more to say about the respective duties of stevedores and vessel owners in a § 905(b) action, when it decides the appeal in Santos v. Scindia Steam Navigation Co., 598 F.2d 480 (9th Cir. 1979), cert. granted, 446 U.S. 934, 100 S.Ct. 2150, 64 L.Ed.2d 786 (1980).