Edward J. Rich v. United States Lines, Inc.

596 F.2d 541, 1979 U.S. App. LEXIS 16435, 1979 A.M.C. 2706

• Court: Court of Appeals for the Third Circuit
• Decided: March 6, 1979
• Docket: 78-1261
• Status: Published

Opinions

OPINION OF THE COURT

BIGGS, Circuit Judge.

The present appeal arises under Section 18(a) of the Longshoremen’s and Harbor Workers’ Compensation Act, Amendments of 1972, 33 U.S.C. § 905(b) (1976), pursuant to which a longshoreman may bring a negligence action against a vessel owner upon whose ship he is injured.

The plaintiff-appellant, Rich, a longshoreman employed by J. A. McCarthy (McCarthy) in its stevedoring operations, was hurt while handling containerized cargo aboard the M/V American Alliance (Alliance), owned and operated by the defendant-ap-pellee, United States Lines (Lines). Some of these containers were twenty feet long, others forty feet long, and they were all about eight to ten feet wide and about eight and one-half feet high. They were stored on the deck of the ship, stacked three high, and were fully exposed to weather conditions. Lashed down with wires running from the top of each container to the main deck of the vessel, they were further secured by a device known as a “pineapple,” ¹ which prevents stacked containers from sliding off of the lower containers. As part of the stevedore operation, the longshoremen had to be lifted up into the air by a crane and placed on top of the cargo.² They would then lash and unlash the containers as well as adjust the pineapples. It was during this operation, which took place at the Tioga Terminal in Philadelphia, Pennsylvania, that Rich was injured when he fell from the top of a container allegedly covered with ice. The Alliance was in navigable waters.

The Alliance left New York on February 6, 1973, at 8:12 p. m. While underway, the vessel encountered light rain and snow, although there is no indication in the record that the temperature was ever below freezing. Nevertheless, it seems clear that some ice had formed on the tops of the containers by the time the longshoremen began to work.

Zampitella, gang boss for McCarthy, and as such responsible for the safety of his gang, testified about the events leading up to the accident. He stated that the longshoremen reported to work at 1:00 p. m. on February 7, but had to wait three hours for the ship to arrive. Following his inspection of the vessel for safety the longshoremen boarded it sometime between 4:00 p. m. and 5:00 p. m. and cargo operations began at Number 2 and 3 hatches. While working there, the men discovered that there was ice on top of the containers and they complained to Zampitella, who made a request to the ship’s mate for rock salt or other nonskid material. The request was made about two hours after the operation began. By midnight, following several subsequent requests, Zampitella was doubtful that Lines would provide such material.

In accordance with the stevedore’s normal procedure, Zampitella additionally informed Kloss, the stevedore superintendent, of the ice. Kloss was responsible for supervising the loading and discharging of cargo on the vessel to make sure it was properly placed in the correct location. Kloss stated that the stevedore had a spare supply of nonskid material in a gear locker about 800 feet from the ship. There is no evidence that this was used to remedy the slippery condition of the containers. He also testified, over plaintiff’s objection, that such a condition should be alleviated by the stevedore and that if it became too dangerous, the longshoremen could cease work.

Cargo operations continued. At 1:30 a. m., on February 8, approximately nine hours after the stevedore gang began working, the plaintiff was lifted onto the top of one of the containers which had been fully exposed to the weather during the trip from New York to Philadelphia. He noticed that a pineapple, which should not have been there, was inserted into the edge of the container, and that there was ice on top of the unit. In order to remove this pineapple, the plaintiff ventured out to the end of the container, where he slipped on the ice and fell from 25 to 30 feet down to the main deck of the vessel. He sustained injuries.

Rich sued pursuant to 33 U.S.C. § 905(b).³ He alleged in his complaint, inter alia, that his injury was proximately caused by the defendant’s negligence in failing to remedy the icy condition of the containers. The case was permitted to go to the jury. It found that Lines was negligent, that this negligence was the proximate cause of Rich’s accident, and that Rich himself was 50% contributorily negligent. Accordingly, his stipulated damages in the amount of $30,000 were reduced to $15,000. The court did not charge on the liability of Lines.

I. JURISDICTION

This court has jurisdiction of the appeal. Lines filed post-trial motions for judgment N.O.V. and alternatively, for a new trial. The lower court granted defendant’s motion for judgment N.O.V., but failed to rule on the motion for a new trial as required by F.R.C.P. 50(c). The new trial motion has not been decided but the following appears in Lines’ brief: “[Defendant hereby waives determination of its motion for new trial and therefore, certifies this Court has jurisdiction pursuant to 28 U.S.C. § 1291.” Whether or not the waiver aids jurisdiction is an issue which we need not discuss. See, Readnour v. Commercial Standard Ins. Co., 253 F.2d 907 (10th Cir. 1958); Robinson v. Isbrandtsen Co., Inc., 203 F.2d 514 (2d Cir. 1953); Mays v. Pioneer Lumber Corp., 502 F.2d 106, 110 (4th Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1125, 43 L.Ed.2d 398 (1975); Posttape Associates v. Eastman Kodak Co., 68 F.R.D. 323 (E.D.Pa.1975), rev’d on other grounds, 537 F.2d 751 (3d Cir. 1976). See and compare Lowenstein v. Pepsi-Cola Bottling Co. of Pennsauken, 536 F.2d 9 (3d Cir. 1976), cert. denied, 429 U.S. 966, 97 S.Ct. 396, 50 L.Ed.2d 334 (1976). We can see no reason why the learned district judge did not obey the rule which is cogently stated and easily understandable. He should have done so.

II. LAW

Plaintiff raises three issues on appeal. First, he argues that the trial judge erroneously granted judgment notwithstanding the verdict⁴ in favor of Lines. Specifically, appellant alleges that there was sufficient evidence for his case to be submitted to the jury based on Section 414 and/or Sections 281-283 and 302A of the Restatement (Second) of Torts.⁵ Second, he contends that the district court mischarac-terized its own charge by concluding that it was based on an incorrect theory of ultimate control when it was entirely consistent with our former decisions construing Section 905(b); and that therefore, the jury verdict was arrived at properly and should be reinstated. Third, appellant alleges that the issue of Rich’s contributory negligence was improperly submitted to the jury since the trial record was devoid of any evidence supporting such a finding. In view of our decision, for the reasons stated immediately hereinafter, that the district court properly granted judgment notwithstanding the verdict, it is unnecessary for us to pass upon the second and third issues raised by Rich.

A

Section 905(b), in pertinent part, provides: “In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person . may bring an action against such vessel as a third party . . . and the employer shall not be liable to the vessel for such damages . . . . If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel.” Thus, the only time a longshoreman may maintain a suit against a vessel owner is when the latter is negligent and when this negligence is the proximate cause of the longshoreman’s injury. The vessel owner is prohibited from seeking indemnification from the stevedore ⁶ and the longshoreman is prohibited from maintaining suit against the stevedore-employer.⁷

By enacting Section 905(b), Congress achieved three basic goals, albeit with various degrees of success. First, it overruled Seas Shipping Company v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946) and Ryan Stevedoring Co. v. Pan Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). The former extended the strict liability doctrine of unseaworthiness to longshoremen thereby permitting them to recover damages from a vessel owner when injured while working aboard his ship even though the injury resulted solely from the stevedore’s conduct. The latter, perhaps an inevitable result of the former, permitted a ship owner forced to pay damages as a result of the stevedore’s conduct to bring an action against the employer for indemnification. The action would be brought on the grounds that the employer breached its implied warranty of workman-like performance. Thus, the stevedoring company was no longer to be held “circuitously liable for injury to its employee by allowing the employee to maintain an action for unseaworthiness against the vessel and allowing the vessel to maintain an action for indemnity against the employer.” Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 113 n. 6, 94 S.Ct. 2174, 2178, 40 L.Ed.2d 694 (1974).

Second, Congress placed a maritime employee injured while working on a vessel in the same position he would have been in had he been injured in a non-maritime work place. Therefore, a longshoreman injured while working on a vessel was no longer to be endowed with “any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as ‘unseaworthiness,’ ‘nondele-gable duty,’ or the like.” House Report No. 92-1441, 92d Cong., 2d Sess. (1972), reprinted in [1972] U.S.Code Cong. & Admin.News, pp. 4698, 4703 (hereinafter referred to as “House Report”).

Third, Congress partially brought about an end to the increasingly complex three-party law suits which, in growing more protracted and complex, increased the cost of insurance without increasing its scope of coverage and which contributed to the generally depressed state of the maritime industry in the United States. House Report at 4702. Indeed, the “social costs of these law suits, the delays, crowding of court calendars and the need to pay for lawyers’ services [had] seldom resulted in a real increase in actual benefits for injured workers.” Senate Report 92-1125, 92d Cong., 2d Sess. (1972) at 4 (hereinafter referred to as “Senate Report.”)⁸

In achieving these goals, Congress was required to satisfy the mutually exclusive interests of the stevedoring companies, the longshoremen, and the vessel owner. The result is a legislative scheme characterized as a “paradigm of political compromise.” Munoz v. Flota Mercante Grancolombiana, SA, 553 F.2d 837, 840 (2d Cir. 1977). The longshoremen gave up the opportunity to secure large jury verdicts in suits against their employers and, in exchange, were assured of increased workmen’s compensation

benefits.⁹ The stevedoring employer gave up the chance to effectively defend these suits and thereby avoid court-imposed liability in exchange for the certainty of smaller, administratively determined awards. Additionally, the employer was freed from burdensome indemnification suits brought by the vessel owner under Ryan Shipping Co., supra. The vessel owner, in exchange for giving up its right to bring these indemnification suits, received in return legislation limiting its liability in suits brought by injured longshoremen to damages caused by its own negligence.¹⁰

B

We must interpret § 905(b) in respect to the specific rights and liabilities of the parties. An unduly expansive application of the ship’s duties would vitiate the Congressional intent to do away with absolute liability for vessels. See Canizzo v. Farrell Lines, Inc., 579 F.2d 682, 687 (2d Cir. 1978) (Friendly, J., dissenting) cert. denied, - U.S. -, 99 S.Ct. 316, 58 L.Ed.2d 322 (1978). However, an excessively constricted notion of a ship’s duty equally defeats Congress’ intention to hold a ship owner liable for injuries caused by his own negligence.¹¹ In discovering the middle ground between these policies, courts have looked to the Restatement (Second) of Torts for guidance and through this process they have attempted to uniformly apply Section 905(b).¹² Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, 1237-38 (5th Cir. 1977); 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); Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 508-9 (2d Cir. 1976); Anuszewski v. Dynamic Mariners Corp., Panama, 540 F.2d 757, 759 (4th Cir. 1976) (per curiam), cert. denied, 429 U.S. 1098, 97 S.Ct. 1116, 51 L.Ed.2d 545 (1977). However, in this Circuit, only those sections of the Restatement which are clearly consistent with the purposes and policies of the Act have been applied.¹³ In applying § 905(b) and the liability of the parties thereunder, we think it necessary to call attention to previous decisions of this court.

Brown v. Ivarans Rederi A/S, supra, was the first occasion we had to pass on the standard of care to be imposed upon a vessel owner in an action brought under Section 905(b). A longshoreman was injured while employed by an independent stevedore hired to unload angle iron. Because of empty barrels left stacked in the ship’s hold, the angle iron had to be lifted through the hatch at an angle. When it became caught in the plywood separating the tiers of barrels, the plaintiff attempted to guide the angle iron away from the plywood by pulling on it as it was being hoisted out of the hold. When he did so, however, the angle iron swung towards him and, to avoid being hit, he tried to climb up the side of the hold. He grabbed at a sweat batten clip which came out of the rib of the ship into which it was fastened and the longshoreman fell about fifteen feet onto the angle iron.

The jury returned a verdict in favor of the plaintiff and the vessel owner appealed contending that the trial judge’s instructions, which were based on Section 416 of the Restatement (Second) of Torts,¹⁴ were erroneous. We agreed. Writing for the court, Judge Van Dusen analyzed the theoretical basis of Section 416, concluding that it was based on the concepts of non-delega-ble duty and vicarious liability. Since both of these concepts were inconsistent with the intent of Congress to place major responsibility of safe working conditions on the stevedore, he held that the charge was erroneous. Remanding the case for further proceedings, Judge Van Dusen also stated: “It would appear that the principles of the law of negligence, as adopted in the admiralty field during the history of our country, are to form the basis of any recovery against shipowners insofar as such principles are not inconsistent with 905(b). See, e. g. . . . Sections 281-83, 302A, 305 and 452, Restatement (Second) of Torts. . . .” Id. at 863.

The second time we addressed the issues presented here was in Marant v. Farrell Lines, Inc., 550 F.2d 142 (3d Cir. 1977). In that case a longshoreman was injured while unloading bags of cocoa beans which were allegedly stowed improperly and which, as a result, collapsed. The bags were stowed under the direction of the vessel’s officers. Following a jury verdict for the plaintiff, the vessel owner filed an appeal in which he contended the jury instructions imposing concurrent or joint responsibility on both the stevedore and vessel owner was viola-tive of Section 905(b). Remanding the case to the district court in light of Brown, we stated, “To say that responsibility is concurrent or joint is plainly inconsistent with the intention of the act to place primary responsibility [for the longshoreman’s safety] on the stevedore.” Id. at 144.

In the last case before us dealing with § 905(b), Hurst v. Triad Shipping Co., 554 F.2d 1237 (3d Cir. 1977), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977), the facts were as follows: Two longshoremen employed by an independent stevedore were injured while unloading steel coils from the S.S. Island Archon. They were using a shore-based crane owned and operated by the stevedore. At the end of the crane’s cable was a large open hook from which two lower cables were suspended by loops, known as eyes. At the end of one of these cables was a second hook and at the end of the other was a braided cable. By pulling the cable through the steel coil and attaching it to the lower hook, the cargo was able to be hoisted out by the crane. The hook from which the lower two cables were attached lacked a safety catch to prevent them from slipping off and falling. While lowering these two cables, a clamp securing the eyes caught on the side of the hatch opening. As a result, when additional cable was lowered, the eyes were lifted off of the hook and the lower two cables became disconnected from the crane. They fell on top of the two longshoremen, who incurred serious injuries.

The district judge granted the defendant’s motion for summary judgment, the plaintiffs appealed, and we affirmed. Writing for the court, Judge Hunter stated that the longshoring company had the status of an independent contractor and that land-based principles should be applied in formulating the standard of care to be applied under 905(b); that in doing so, this and other courts have turned to the Restatement (Second) of Torts; that Section 409 ¹⁵ which applies to independent contractors is the provision of the Restatement which is both factually applicable and consistent with the policies and purposes of the Act; that the only exception to Section 409 which similarly comports with the Act is Section 414;¹⁶ and that the plaintiffs failed to adduce sufficient evidence to bring the vessel owner within that provision by demonstrating the owner had control over the stevedore’s operation. He concluded, “Because the district judge correctly decided that holding the vessel owner to such a duty of supervision would violate the thrust of amended Section 905(b), he properly withdrew the case from the jury.” 554 F.2d at 1253.¹⁷ We must follow this gonfalon. The ruling constitutes the law of this Circuit.

C

Plaintiff first contends that sufficient evidence was presented on which to base a finding that Lines controlled the stevedore’s operation within the meaning of Section 414 and that accordingly his case should have been submitted to the jury for a determination of defendant’s liability. This evidence consisted of a statement by Donald Penny,¹⁸ the third mate aboard the Alliance, and testimony by Captain Kenneth Mistry, plaintiff's expert witness in the area of stevedore and ship-board safety.

Penny stated that he was aware of the practice of longshoremen walking on top of containers in order to load and unload cargo and that this method of operation was used during February of 1973 (T. 299). He further stated that if a vessel arrived in port with an ice-covered deck, he would provide the longshoremen working on board the ship with nonskid material kept on the ship for this and other purposes, provided the longshoremen requested the material (T. 299-300).¹⁹

Captain Kenneth Mistry’s²⁰ testimony was more detailed. He stated that the chief officer of a ship is in charge of cargo operations and in that capacity instructs the longshoremen which containers are to be loaded, removed or shifted around (T. 650). In addition, the officer must keep the ship in a condition to receive and discharge cargo and is in charge of general ship maintenance (T. 641). As part of these duties, the chief officer, or those to whom his powers are delegated, must always be concerned that the vessel is safe for both the longshoremen and crew members. Captain Mis-try further testified that he had followed procedures whereby slippery conditions either on the deck or on top of the cargo left exposed to the weather were remedied by the ship’s crew (T. 653) and that in his opinion, the dangerous conditions of the containers should have been alleviated by the ship’s personnel since they alone were aware of the weather conditions encountered during the voyage to Philadelphia and since they were aware that the longshoremen would be walking on top of the containers (T. 661-63).

Although plaintiff seeks to rely on Penny’s statement, supra, as an admission by the defendant that the vessel owner retained control, possession and responsibility of the vessel during cargo operations, and although plaintiff construes Captain Mis-try’s testimony, supra, as establishing defendant’s control over the cargo operations, we find that this evidence alone does not bring Lines within the ambit of Section 414. Comment C specifically states: “In order for the rule stated in this Section to apply, the employer must have retained at least some control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Accordingly, the critical evidence needed to impose liability under Section 414 is that of the vessel owner’s control over the operative detail of the stevedore’s work.

This evidence does not exist in the present case. The testimony suggested only that the vessel owner was aware that the longshoremen would walk on top of the containers; that, if asked, the vessel owner would supply non-skid material; that the vessel’s officers exercised the limited role in these cargo operations of instructing the longshoremen which containers were to be loaded, removed, or shifted; and that the vessel owner must keep the ship in a condition fit to receive and discharge cargo. As Captain Mistry himself stated, “[T]he longshoremen come aboard the vessel, the longshoremen have a certain job to do, i. e. to load cargo or discharge cargo or shift cargo, whatever. But the duty officer oversees the operation. That does not mean he is going to tell the longshoreman, Tut the sling this way,’ ‘put it that way.’ He’s not going into those specific details of it.” (T. 642-43)

Therefore, because the vessel owner exercised supervision over these operations only to the extent that it told the stevedore which containers to load, discharge or shift, and because there is no evidence suggesting the vessel owner was involved in decisions with respect to the manner in which these tasks would be accomplished, we conclude that the district court was correct in holding that liability could not be imposed on the defendant under Section 414. Hurst v. Triad Shipping Co., supra at 1251-53. Compare Lubrano v. Royal Netherlands Steamship Co., 572 F.2d 364 (2d Cir. 1978) (evidence was sufficient to permit jury to find ship’s officers had joined in directing that longshoremen should continue to work even though there was insufficient dunnage, which was to be supplied by defendant, and that it was error to grant vessel owner’s motion for directed verdict) and Butler v. O/Y Finnlines, Ltd., 537 F.2d 1205 (4th Cir. 1976), cert. denied, 429 U.S. 897, 97 S.Ct. 260, 50 L.Ed.2d 180 (1976) (where mate instructed longshoremen to place counterweight in location objectionable to longshoremen, ship owner’s motion for directed verdict was erroneously granted) with Cox v. Flota Mercante Grancolombiana, SA, 577 F.2d 798 (2d Cir. 1978) (where evidence shows that boom operated solely by stevedore dislodged a beam which fell and injured longshoreman and where stevedore was wholly entrusted with cargo operation, district court erroneously entered judgment on jury verdict in favor of plaintiff), and Hickman v. Jugoslavenska Linij-ska, 570 F.2d 449 (2d Cir. 1978) (per curiam) (where contract between stevedore and vessel owner required stevedore to load and lay dunnage boards as required, and where longshoreman was injured from inadequate dunnage, district court erroneously permitted case to be submitted to the jury since vessel owner had no control over the steve-doring operation).²¹

Plaintiff next contends that even if he did not satisfy the requirements of Section 414, the trial court erred in granting judgment notwithstanding the verdict by not considering whether negligence could have been imposed under Sections 281 — 83 and 302A of the Restatement. Although we agree that the district court should have examined the evidence submitted by the plaintiff in light of these provisions of the Restatement prior to granting Lines’ motion for judgment notwithstanding the verdict, it does not follow that we are precluded from affirming the decision. It seems generally established that an appeals court may affirm a decision granting summary judgment or judgment notwithstanding the verdict based on a theory different from that of the district court so long as the parties have had the opportunity to present all the available evidence. United States v. General Motors Corp., 171 U.S.App.D.C. 27, 47-48, 518 F.2d 420, 440-441 (1975); Paskaly v. Seale, 506 F.2d 1209, 1211 n. 4 (9th Cir. 1974); Archer v. United States, 217 F.2d 548 (9th Cir. 1954), cert. denied, 348 U.S. 953, 75 S.Ct. 441, 99 L.Ed. 745 (1955). In this regard, we note the plaintiff argues in his brief that the jury was justified in finding the defendant negligent based on these provisions of the Restatement as charged by the trial court. (Brief of Appellant at 31). Further, at no time did he request a new trial to enable him to produce additional evidence. We thus conclude that, since plaintiff perceived his case to be based at least in part on these provisions, he presented all relevant facts available to him bearing on defendant’s negligence. Therefore, no interest would be served by a remand on this issue and we proceed to the merits of this argument. Sprague v. Fitzpatrick, 546 F.2d 560, 563 n. 4 (3d Cir. 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977); Bethlehem Mines Corp. v. United Mine Workers of America, 494 F.2d 726, 736 (3d Cir. 1973).

The evidence upon which plaintiff bases his second argument consists of statements made by Zampitella that those working in his gang told him of icy conditions shortly after they began working onboard the vessel (T. 38-39), that he requested some salt or other nonskid material during the first hour they were working (T. 53), and that these requests continued for the next several hours but to no avail (T. 105). Plaintiff further draws the inference that the dangerous condition existed at the time the vessel arrived in Philadelphia since the ship encountered light rain and snow while on its voyage (T. 314-15) but did not encounter any precipitation in Philadelphia from the time of its arrival until the time Rich was injured (T. 323). Lastly, plaintiff argues that the vessel owners were aware the longshoremen would be walking on top of the containers left exposed to the weather conditions (T. 298-99) and that the defendant was similarly aware of the icy conditions as a result of Zampitella’s requests (T. 63). We are thus asked to hold that when a vessel owner knows or has reason to know that the stevedore is not providing a safe working area, the vessel owner has an independent duty to provide such an area and that its failure to do so constitutes negligence. On the facts of this case, we decline to do so.

This standard of liability which plaintiff seeks to impose on the vessel owner is derived in large part from Section 302A of the Restatement. We restate the language: “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.” However, this provision assumes the existence of a duty owed by the actor to the injured party. Comment A to Section 302, incorporated by reference as Comment A to 302A states: “This Section is concerned only with the negligent character of the actor’s conduct, and not with his duty to avoid unreasonable risk. . . . The duties of one who merely omits to act are more restricted, and in general are confined to situations where there is a special relation between the actor and the other which gives rise to a duty. . . . If an actor is under no duty to the other to act, his failure to do so may be negligent conduct within the rule stated in this Section, but it does not subject him to liability because of the absence of a duty.” Accordingly, the fact that the vessel owner knew of the dangerous condition of the containers becomes relevant in determining his liability for Rich’s injuries under Section 905(b) only if a duty existed on the part of the vessel owner to take some action to remedy the ice.

Plaintiff seeks to demonstrate the existence of this duty by invoking several passages from the Act’s legislative history. First, he cites the following portion of the House Report submitted with the Act: “Permitting actions against the vessel based on negligence will meet the objectives 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.” House Report at p. 4704. Second, he analogizes the present case to a hypothetical included in the Act’s legislative history wherein a longshoreman, injured by an oil spill on the vessel’s deck, may recover from the vessel owner if it put the oil on the deck, or knew that it was there, and willfully or negligently failed to remove it or if the oil was on the deck for a period of time during which the vessel owner, in the exercise of reasonable care, should have discovered and removed it. House Report at pp. 4703 — 4.

Based on these passages, plaintiff concludes that Congress intended a vessel owner be liable to encourage safety; that to achieve this goal, liability should be imposed on the vessel owner even when it only has knowledge of a slippery substance on the deck of its ship; that it is possible for the vessel owner and stevedore both to be negligent in failing to remove this substance but for the ship owner alone to be held liable; that, since the vessel owner knows or has reason to know that the longshoreman will walk on both the ship’s deck, and the container tops they are the functional equivalents; and that therefore to impose liability on the vessel owner is entirely consistent with the Act.

The difficulty with plaintiff’s argument is that there is no evidence supporting his position that, the deck and container top are essentially the same. Clearly he carried the burden on this issue. He was required to present evidence demonstrating that the custom and practice of the industry was such that the vessel owner would normally assume responsibility for the tops of the containers, just as it would normally assume responsibility for the condition of the decks and passage-ways. See e. g., Canizzo v. Farrell Lines, supra, (vessel owner liable when longshoreman slipped and fell on deck because of cluster lights placed on top of patches of grease); Darwin v. United States, 435 F.Supp. 501 (N.D.Cal.1977) (vessel owner liable when longshoremen slipped on ramp leading from lower tween deck to lower hold of ship); Davis v. Inca Companía Naviera S.A., 440 F.Supp. 448 (W.D.Wash. 1977) (vessel owner liable when longshoreman slipped on wet wheat chaff on vessel’s deck when ship owner had knowledge of the dangerous condition and when condition prevented longshoremen from having safe access to work site); Dodge v. Mitsui Shintaku Ginko, K.K., No. 73-852 (D.Or.1974), aff’d 528 F.2d 669 (9th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976) (vessel owner negligent when longshoreman slipped and fell on snow allowed to accumulate on deck of ship).

This burden was not met. The closest plaintiff came to demonstrating the vessel owner would normally assume responsibility for the slippery condition was the following testimony from his expert witness, Captain Mistry:

THE COURT: May I just ask you this. Is it your statement, when longshoremen were coming on board your ship to unload cargo, if that cargo had ice or snow on it, that you told the longshoremen to stand back while your seamen cleaned up the cargo for them?

THE WITNESS: Yes. I would try to keep that cargo clear for the longshoremen.

THE COURT: That was the manner in which you did it?

THE WITNESS: That’s the manner in which I did it, and that’s the manner I have seen many ships come in. They try to keep the surface free of such slippery matter.

We go on many ships right now as a surveyor, and go on the ship right after it docks. On deck sometimes there is ice patches here and there, and we are seeing that the snow has been cleared out where we are expected to walk.

THE COURT: Now, you are talking about in the usual places where people are expected to walk. I am talking about if you had containers. You worked container ships?

THE WITNESS: Yes, sir.

THE COURT: You worked container ships three-high?

THE WITNESS: Right.

THE COURT: Is it your testimony that when snow was on top of those containers your seamen went up and shoveled off the snow and put down some type of material; and that the longshoremen did not do that, your seamen did that?

THE WITNESS: I have seen it, yes.

THE COURT: I asked you: Is that what your seaman did, instead of the longshoreman?

THE WITNESS: As I said, I did not sail on a container ship. I did not have that situation. But when we had deck cargo, and we expected people to go on top of that deck cargo — there would be sometimes hard pieces, tall pieces — we would have put non-skidding material on such cargo. (T. 654 — 55)

Without more, this testimony establishes only that when deck cargo was aboard a vessel and when people were expected to walk on top of it, the vessel owner would place non-skid material on top of it. The testimony does not establish any practice with respect to container ships. Significantly, at no time was Captain Mistry asked exactly what the custom and practice of the trade was with respect to the obligations of the vessel owner and stevedore to clear the tops of the containers, nor did he ever state that, as a vessel captain, he took it upon himself to do so. Indeed, he admitted that he was never in charge of a container ship. As a result, we cannot agree that what constitutes “appropriate” vessel action required to remedy a slippery deck is the same as that necessitated by slippery container tops.²²

The second reason we conclude the statute does not impose a duty on the vessel owner in this case is because of that portion of the Act which imposes primary responsibility for the longshoreman squarely on the stevedore. As we indicated in Brown v. Ivarans Rederi A/S, 545 F.2d at 860-61, Congress retained Section 941(a) of the unamended Act when it modified this legislation in 1972. That section provides: “Every employer shall furnish and maintain employment and places of employment which shall be reasonably safe for his employees in all employments covered by this Chapter and shall install, furnish, maintain, and use such devices and safeguards with particular reference to equipment used by and working conditions established by such employers as the Secretary may determine by regulation or order to be reasonably necessary to protect the life, health, and safety of such employees, and to render safe such employment and places of employment, and to prevent injury to his employees.” The reason it left this provision unchanged was to insure that the primary responsibility for the longshoremen’s safety would remain on his employer, the stevedore, who was best able to provide and maintain a safe place in which to work: “It is important to note that adequate workmen’s compensation benefits are not only essential to meeting the needs of the injured employee and his family, but, by assuring that the employer bears the cost of unsafe conditions, serve to strengthen the employer’s incentive to provide the fullest measure of on-the-job safety.

“This consideration is particularly crucial with respect to high-risk occupations such as those covered by this Act. Long-shoring, for example, has an injury frequency rate which is well over four times the average for manufacturing operations. It is the Committee’s view that every appropriate means be applied toward improving the tragic and intolerable conditions which take such a heavy toll upon workers’ lives and bodies in this industry, and such means clearly include vigorous enforcement of the Maritime Safety Amendments of 1958 and the Occupational Safety and Health Act of 1970, as well as a workmen’s compensation system which maximizes industry’s motivation to bring about such an improvement.” Senate Report at 2.

This component of the Act is of considerable importance in determining the scope of a vessel owner’s duty toward the longshoreman. It is a reminder that the underlying purpose of the Act is to encourage safety on the waterfront within the framework of the relationship established between the stevedore on the one hand and the vessel owner on the other. Thus, in order to impose liability on the vessel owner under Section 905(b), we must be sure that it and not the stevedore is in the position best able to prevent similar accidents from arising in the future.²³

Clearly, the stevedore was best able to prevent such an accident as this from occurring in the future. It was hired as an expert by the vessel owner to load, unload and shift cargo. Zampitella testified in this regard that the ship’s personnel do none of the physical work with respect to the' containers (T. 65) and Donald Penny stated that it is the stevedore’s personnel who decide how a container is to be moved from one location to another (T. 298). Further, Captain Mistry indicated that the purpose of hiring the stevedore was to bring on board men who are experts in handling containerized cargo (T. 669). As a result, it is the stevedore and not the vessel owner who is most intimately familiar with the procedures to follow in order to safely load, unload and shift cargo and who is best able to assess the relative dangers its employees will face. Cf. Munoz v. Flota Mercante Grancolombiana, 553 F.2d 837, 840-41 (2d Cir. 1977).

Accordingly, since there is no evidence suggesting the deck and container tops are the functional equivalent, and since the stevedore is in the position best able to prevent this type of accident from occurring in the future, we conclude that the statute does not impose a duty on the vessel owner to supply the requested nonskid material.

Plaintiff next seeks to establish the existence of this duty by turning to our former decisions of Brown v. Ivarans Rederi A/S, supra, Marant v. Farrell Lines, supra, and Hurst v. Triad Shipping, supra. He argues that Brown is applicable to the present case since there, as here, the longshoreman was injured as a result of an unsafe condition aboard the vessel which its owner failed to correct, even after it was notified of the condition. He further contends that Mar-ant is analogous to the instant case since the dangerous condition causing the longshoreman’s injury there, as here, was the condition of the cargo. Finally, he distinguishes Hurst from the instant case since there the vessel officers had no actual knowledge of the dangerous condition which ultimately caused the longshoreman’s injury while here the vessel owner was aware of the ice on top of the cargo containers.

This characterization of our decisions overlooks the fact that the conditions causing the longshoreman’s injury play just as significant a role in determining the vessel owner’s liability as does his knowledge of the condition itself. In Brown we indicated that the longshoreman’s injury was caused by barrels left stacked in the hold and that there was some evidence suggesting the longshoremen needed the vessel owner’s permission to remove them. 545 F.2d at 856. Similarly, in Marant we noted that the dangerous condition resulting in the longshoreman’s injury was improperly stowed cargo loaded under the supervision of the vessel owner. 550 F.2d at 143. Therefore, we remanded both of these cases in light of this evidence suggesting the vessel owner was directly involved with creating the condition which resulted in the longshoreman’s injury. Here, in contrast, the vessel owner’s sole involvement in the events leading up to Rich’s injury amounted to taking no action to remedy a condition of the cargo not customarily his responsibility.

In addition to ignoring the nature of the conditions causing the longshoreman’s injuries discussed in our prior decisions, plaintiff’s reading of Hurst would significantly alter the relationship between the vessel owner and the stevedore by shifting the duty owed by the stevedore to his employees to the vessel owner.²⁴ Rich argues that here, unlike Hurst, the vessel owner did indeed have knowledge of the dangerous condition of the cargo and, on the basis of this knowledge, should be held liable for his injuries. However, were we to make either actual or constructive knowledge the sole basis of a vessel owner’s “independent duty” to assume the stevedore’s obligation to provide a safe work place for its employees, the vessel owner would have to become intimately involved in the stevedore’s operations. For example, under plaintiff’s standard of liability, if the vessel owner in Hurst would have had either actual or constructive knowledge of the defective steve-doring equipment which resulted in the longshoreman’s injury, and if he further had either actual or constructive knowledge that the stevedore had failed to remedy the defect, an “independent obligation” would have arisen on his part to intervene in the cargo operations and alleviate the danger. That the practical effect of this intervention would be to intimately involve the vessel owner in an operation he hired an expert to perform is irrelevant.

Similarly, in this case there is no evidence even remotely suggesting that the vessel owner would customarily assume the responsibility for alleviating the icing conditions on the containers. Indeed, the practice of the industry was for the longshoremen to gain access to the containers through the use of a shore-side crane operated by the stevedores. We find nothing in the record which counters this custom (T. 24—25; 41; 58; 227; 648). Therefore, only the stevedore’s personnel were expected to walk on the tops of the containers and in that sense their condition was no more the responsibility of the vessel owner than was a dangerous condition created by stevedoring equipment. To nevertheless hold the vessel owner had an “independent obligation” to alleviate this dangerous condition based only on his knowledge, would thus impose a “duty of supervision” on the vessel owner and would “amount once again to the establishment of a nondelegable duty.” Hurst v. Triad Shipping, 554 F.2d at 1251. We therefore conclude that our former decisions do not suggest that, in this case, the vessel owner is liable for Rich’s injury.²⁵

III.

The case is a close one and the plaintiff-appellant makes a strong argument that the ship’s owner should be held liable. It can be cogently contended that the legislative history to the 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901, et seq., shows that a vessel may be liable under land-based theories of negligence for injuries sustained by a longshoreman, as we have demonstrated above. Specifically, the following appears: “The Committee believes that where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in non-maritime pursuits are liable for damages when, through their fault, a worker is injured.”

And further, and more pertinently, from the same source of legislative history: “So, for example, where a longshoreman slips on an oil spill on a vessel’s deck and is injured, the proposed amendments to Section 5 would still permit an action against the vessel for negligence. To recover he must establish that: 1) the vessel put the foreign substance on the deck, or knew that it was there, and willfully or negligently failed to remove it; or 2) the foreign substance had been on the deck for such a period of time that it should have been discovered and removed by the vessel in the exercise of reasonable care by the vessel under the circumstances. The vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore.

“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. The Committee intends that on the one hand an employee injured on board a vessel shall be in no less favorable position vis a vis his rights against the vessel as a third party than is an employee who is injured on land, and on the other hand, that the vessel shall not be liable as a third party unless it is proven to have acted or have failed to act in a negligent manner such as would render a land-based third party in non-maritime pursuits liable under similar circumstances.” House Report at pp. 4702-04 (1972).

But in this gray area perhaps the tell-tale color is furnished by the record itself, which demonstrates the use of a shore-side crane by the stevedore to put Rich on top of the container from which he fell (T. 24-25; 41; 58; 227; 648-649). Though this aspect of the case was not fully developed, nonetheless it seems to indicate beyond a doubt that the stevedoring company rather than the ship was in complete charge of the details of handling of the containers. We therefore, will affirm the judgment.²⁶

1 . A “pineapple” is a steel device which looks something like a fruit pineapple in appearance, and is used as a brace. The following is a description of a “pineapple” by Zampitella, gang boss, at T. 42: “We call them pineapples. They are square; they are about four or five inches in diameter around — square, rather— and they point up, sort of like a pyramid.” A more exact description is not contained in the record or briefs.

2 . This was common stevedoring practice. See T. 648-649.

3 . Rich’s accident took place on February 8, 1973, well after November 26, 1972, at which time 33 U.S.C. § 905(b) went into effect. 33 U.S.C. § 901 (1976). Burris v. Global Bulk Carriers, Inc., 505 F.2d 1173, 1178 n. 9 (3d Cir. 1974).

4 . As part of its decision granting judgment notwithstanding the verdict, the district court held after examining the evidence in a light most favorable to Rich, that he did not produce sufficient evidence to establish a legal theory upon which his case could be submitted to the jury and that he therefore had no cause of action under § 905(b). Our scope of review, as a result is to examine the record, also in a light favorable to the plaintiff, and then determine whether this conclusion was correct as a matter of law. Cf. Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 note 4 (3d Cir. 1978). In this case, our standard of review is “to view the evidence in the light most favorable to the party securpng] the verdict, drawing all reasonable inferences that the jury might have drawn to support its decision.” Monsen v. Consolidated Dressed Beef Co., Inc., 579 F.2d 793, 796 (3d Cir. 1978), cert. denied sub nom. First Pennsylvania Bank N.A. v. Monsen, -U.S.-, 99 S.Ct. 318, 58 L.Ed.2d 323 (1978). See also DeMarines v. KLM Royal Dutch Airlines, 580 F.2d 1193, 1197 (3d Cir. 1978); Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 327, 87 S.Ct. 1072, 18 L.Ed.2d 75 (1967).

5 . Section 414 states, “One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

Sections 281-283 and 302A state the following:

§ 281. Statement of the Elements of a Cause of Action for Negligence The actor is liable for an invasion of an interest of another, if:

(a) the interest invaded is protected against unintentional invasion, and

(b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and

(c) the actor’s conduct is a legal cause of the invasion, and

(d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.

§ 282. Negligence Defined

In the Restatement of this Subject, negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. It does not include conduct recklessly disregardful of an interest of others.

§ 283. Conduct of a Reasonable Man: The Standard

Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

§ 302A. Risk of Negligence or Recklessness of Others

An act or an 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.

6 . Congress made it very clear that any attempts to impose indemnification agreements on the stevedore were void as against public policy. “Under the proposed agreements the vessel may not be contractual agreement or otherwise require the employer to indemnify it, in whole or in part, for such damages. House Report No. 92-1441, 92d Cong.2d Sess. (1972), reprinted in [1972] U.S.Code Cong. & Admin. News, pp. 4698, 4705. Accordingly, it is not surprising that courts have been unwilling to enforce such agreements. Meredith v. A & P Boat Rentals, Inc., 414 F.Supp. 788 (E.D.La. 1976); Swans v. United States Lines, 407 F.Supp. 388 (E.D.Pa.1975); Landon v. Lief Hoegh and Co., Inc., 386 F.Supp. 1081 (E.D.N. Y.1974) aff'd, 521 F.2d 756 (2d Cir. 1976), cert. denied sub nom. A/S Arcadia v. Gulf Insurance Co., 423 U.S. 1053, 96 S.Ct. 783, 46 L.Ed.2d 935 (1976); Lucas v. “Brinknes” Schiffahrts Ges., 379 F.Supp. 759 (E.D.Pa.1974) (three judge panel). But see Griffith v. Wheeiing-Pittsburgh Steel Corp., 521 F.2d 31 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976).

7 . Section 905(a) of the Act provides, in pertinent part, “The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer . . . . ”

See 1A E. Jhirad, Benedict on Admiralty Section 27 at 2-25 (7th Ed. 1977), Murphy v. Woods Hole, Martha’s Vineyard, and Nantucket Steamship Authority, 545 F.2d 235 (1st Cir. 1976).

8 . Whether and to what extent Congress was successful in accomplishing this third goal remains an open question. As we noted in Edynak v. Atlantic Shipping Inc. CIE Chambon Maclovia S.A., 562 F.2d 215, 218 (3d Cir. 1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978), the unseaworthiness remedy is still available to those injured prior to November 6, 1972, at which time Section 905(b) went into effect. See note 3, supra. Of even more significance, however, is that the amendments themselves have generated litigation which is illustrated by this and other similar actions seeking to more concretely define the negligence action included in the Act.

9 . The Act was amended to “provide that the maximum compensation for disability shall not exceed 200% of the national average weekly wage to be determined annually by the Secretary of Labor. The expectation is that a 200% maximum will enable approximately 90% of the work force covered by this Act to receive 2h of their average weekly wage.” House Report at p. 4700.

10 . For a more detailed analysis of the legislative history of § 905(b) see Hurst v. Triad Shipping, 554 F.2d 1237, 1242 (3d Cir. 1977), cert. denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977); Griffith v. Wheeling-Pittsburgh Steel Corp., 521 F.2d 31, 38-41 (3d Cir. 1975), cert. denied, 423 U.S. 1054, 96 S.Ct. 785, 46 L.Ed.2d 643 (1976); Munoz v. Flota Mercante Grancolombiana, SA, 553 F.2d 837, 840 (2d Cir. 1977); Gay v. Ocean Transport & Trading Ltd., 546 F.2d 1233, 1235-38 (5th Cir. 1977).

In particular, see Viiianova Law Review, Third Circuit Review, 1977-78, Vol. 23, No. 4, Admiralty, at 766, et seq., discussing “Hurst v. Triad Shipping Co. (1977).” This article covers our Hurst decision in every important particular.

11 . “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.” House Report at p. 4704.

12 . “The Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends the legal questions which may arise in actions brought under these provisions of the law shall be determined as a matter of Federal law.”' House Report at 4705. Thus, the Restatement serves “as the national expression of non-maritime tort principles.” Hurst v. Triad Shipping, 554 F.2d at 1248.

13 . See Hurst, supra, n. 35 cited to the text at 1249.

14 . Restatement (Second) of Torts § 416 provides:

Ҥ 416. Work Dangerous in Absence of Special Precautions

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.”

15 . Section 409 states, “Except as stated in Sections 410-429, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.” The exceptions, other than § 414, are not relevant here.

16 . See note 5, supra.

17 . In Hurst, Judge Hunter also quoted the House Committee Report: “The Committee believes that where a longshoreman or other worker covered under this Act is injured through the fault of the vessel, the vessel should be liable for damages as a third party, just as land-based third parties in non-maritime pursuits are liable for damages when, through their fault, a worker is injured. .

“The purpose of the amendments is to place an employee injured aboard a vessel in the same position he would be if he were injured in non-maritime employment ashore, insofar as

bringing a third party damage action is concerned, and not to endow him with any special maritime theory of liability or cause of action under whatever judicial nomenclature it may be called, such as ‘unseaworthiness,’ ‘non-dele-gable duty’, or the like . . . .”

House Report at pp. 4702-04. See Hurst, at n. 25 cited to text at 1247.

18 . Penny’s statement was from a deposition taken on July 2, 1975 and was read into the record. He was not available to testify at trial.

19 . George Hatta, the chief mate on board the Alliance, similarly testified that, if asked, he would supply nonskid material (T. 431), as did Erline Johnson, another of the ship’s officers (T. 477).

20 . For the qualifications of Captain Mistry, see T. 636, et seq.

21 . The cases we have just cited do not in any way detract from our observations that Sections 343 and 343A of the Restatement (Second) of Torts, upon which these decisions purport to rest, are both inconsistent with Section 905(b) and therefore should not be relied upon to create a duty on the part of the ship owner.

“35. Although they do not raise the point on appeal, appellants argued below that Restatement (Second) of Torts §§ 343-^13A (1965) applied to the facts in the case sub judice. These sections, which according to § 343, Comment a, must be read together, provide as follows:

“ ‘§ 343. Dangerous Conditions Known to or Discoverable by Possessor

‘A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.’

“ ‘§ 343A. Known or Obvious Dangers

‘(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

‘(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.’ We do not believe these sections are apposite.” Hurst v. Triad Shipping Co., 554 F.2d at 1249 n. 35. Indeed, the Second Circuit, which has adopted these provisions, has not done so without considerable difficulty. As Judge Friendly stated, “In retrospect it seems to have been a mistake for courts to give such talismanic significance to §§ 343 and 343A of the Restatement of Torts 2d as has sometimes been done. These sections are awkwardly drafted; the framers had no notion that they would be applied to the tangled situations of ship loading or unloading; and they must be read together with Chapter 15, ‘Liability of an Employer of an Independent Contractor’. ” Canizzo v. Farrell Lines, Inc., 579 F.2d at 688 (Friendly, J., dissenting).

22 . Plaintiff further argues that the vessel owner carried rock salt, sand and sawdust. However, since there is no evidence that the longshoremen were relying on the vessel owner to supply the material, and since it was used for slippery deck conditions, ship repairs and firefighting (T. 423, 386), this evidence does not directly bear on defendant’s duty to supply it.

23 . Indeed, under the terms of 33 U.S.C. Section 933, “if the injured longshoreman won his third-party suit, the employer stevedoring company or its insurance carrier would be reimbursed to the extent of the compensation award.” Johnson v. Sword Line, Inc., 257 F.2d 541, 546 (3d Cir. 1958); Brown v. Ivarans Re-deri A/S, 545 F.2d at 859, n. 6. Therefore, if we would hold U.S. Lines liable so that Rich would recover a verdict against it, his employer or its insurance carrier would receive any compensation paid. The effect of this would be to remove any incentive Congress placed on the industry to develop and maintain the safest possible working conditions.

24 . We note in this regard several regulations promulgated by the Occupational Safety and Health Administration concerning slippery conditions. 29 C.F.R. Section 1918.2 provides, “The responsibility for compliance with the regulations of this part is placed upon ‘employers’ as defined in Section 1918.3(c).” That provision defines employer as “an employer any of whose employees are employed, in whole or in part, in longshoring operations or related employments, . . . ” 29 C.F.R. Section 1918.-3(c). Finally, 29 C.F.R. Section 1918.91(c) states, “Slippery conditions shall be eliminated as they occur.”

25 . Espinoza v. United States Lines, Inc., 444 F.Supp. 405 (S.D.N.Y.1978), is the only other case in which a vessel owner was sued when a longshoreman fell from the top of a cargo container. In this case, however, the longshoreman claimed his fall was the result of a dent in the top of the container. The court granted judgment notwithstanding the verdict for the defendant since the vessel owner had no knowledge or reason to know of the danger. In reaching this decision, it relied upon Gallardo v. Westfal-Larsen & Co. A/S, 435 F.Supp. 484 (N.D.Cal.1977), which the plaintiff urges us to follow. Under Gallardo, a vessel owner would be held liable for injuries sustained by a longshoreman if, inter alia, “(1) a condition existed in an area of the ship in which the plaintiff could reasonably be expected to work which created an unreasonable risk of harm; (2) the defendant had knowledge of the condition (actual or constructive knowledge for conditions arising before the commencement of cargo operations; actual knowledge for conditions arising after commencement of cargo operations)

. .” Gallardo v. Westfal-Larsen & Co. A/S, 435 F.Supp. at 497-98. In view of the emphasis this standard places on the vessel owner’s knowledge while at the same time de-emphasizing the relationship between the stevedore and vessel owner, we decline to adopt it. Accordingly, Espinoza is not persuasive either.

26 . Since Sections 281-283 of the Restatement (Second) of Torts do not in themselves impose a duty, our analysis of this element of liability made concerning Section 302A applies to these sections as well. Comment “a” to Section 283, for example, states, “This Section is concerned only with the standard of conduct required of the actor to avoid being negligent. It is not concerned with the question of when he owes to another a duty to conform to that standard.” See also Comment “a” to Section 282.