Eugene H. Bandeen v. United Carriers (Panama), Inc., Japan Line, Ltd., and Nichimen Co., Inc.

712 F.2d 1336, 1984 A.M.C. 1425, 1983 U.S. App. LEXIS 24945
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 12, 1983
Docket81-3641
StatusPublished
Cited by19 cases

This text of 712 F.2d 1336 (Eugene H. Bandeen v. United Carriers (Panama), Inc., Japan Line, Ltd., and Nichimen Co., Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Eugene H. Bandeen v. United Carriers (Panama), Inc., Japan Line, Ltd., and Nichimen Co., Inc., 712 F.2d 1336, 1984 A.M.C. 1425, 1983 U.S. App. LEXIS 24945 (9th Cir. 1983).

Opinions

GOODWIN, Circuit Judge:

Bandeen sued under section 905(b)1 of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950, for damages for injuries caused in a fall from a ship while loading logs. Defendants are the shipowner, United Carriers (Panama), Inc. (United); the time charterer, Japan Line, Ltd. (Japan Line); and the subcharterer, Nichimen Co., Inc. (Nichimen).2 At the close of the evidence the district court directed verdicts in favor of all defendants. Plaintiff appeals. We affirm.

[1338]*1338I

On February 16, 1978, the ship Grand Spruce was in the Port of Astoria, Oregon, to take on logs bound for Japan. Nichimen, the ship’s subcharterer, had engaged the Jones-Oregon Stevedore Co. (Jones-Oregon) to load the ship. Crew members of the Grand Spruce and an agent of Nichimen were on board the vessel when the Jones-Oregon gangs arrived for work and remained there throughout the day’s loading.

Bandeen was a member of one of the Jones-Oregon gangs employed on the Grand Spruce on February 16. By mid-afternoon the gangs had filled the hold and were working on deck, placing logs between steel stanchions installed vertically at regular intervals along the starboard and port rails of the vessel. Bandeen and a fellow longshoreman were positioned several feet above the deck on a pile of logs stowed parallel with the rails. Their job was to move the logs to achieve a solid stow. As Bandeen was walking on a log, its bark gave way. He tumbled into the Columbia River, striking a floating boom stick in the water. He injured his shoulder and has been unable to return to work.

Bandeen contends that defendants were negligent in their failure to provide safety wires or netting between the stanchions which could have kept a workman from going overboard. Most of the testimony presented during the two-day jury trial concerned the hazards associated with loading logs on ships and the safety practices of the industry. It was established that falls into the water are such a common peril to longshoremen working on logs on deck that Jones-Oregon makes it a practice to place life lines in the water. On the day of Bandeen’s fall, a safety boat was also standing by to retrieve any longshoremen who might fall in the water. One defense witness, Captain Hill, a master mariner, testified that the principal means used by longshoremen to prevent falls into the water when loading logs is a special caulked boot, but the steel caulks, which bite into the bark, afford little protection when, as in this instance, the logs are hemlock. According to Captain McKimmey, another master mariner called by defendants, hemlock logs readily shed their bark when walked on. Captain Hill also stated that a second safety measure, a harness on a lanyard, so limits mobility and impairs performance that it is seldom used.

Captain Hill further testified that safety netting or lines rigged between the stanchions could partially reduce the risk of a falling longshoreman going over the side. He added, however, that lines and nets are not widely used because they could be damaged in the loading process. Captain McKimmey’s testimony supported Hill’s, but McKimmey stated that the problem of damage to lines or nets could be controlled through the use of wire. McKimmey also stated that safety lines or nets could create a new danger: logs caught in a line or net could pivot and swing across the deck, sweeping longshoremen over the side.

Louis Brock, a veteran longshoreman, testified that the most effective safety measure would be permanent reach wires strung between the stanchions at intervals of four feet. McKimmey testified to the factors that could influence a stevedore’s decision not to rig such wires. McKimmey stated that the stevedore business is highly competitive and that customers do not want stevedores to “drag out [their] work” by taking extra steps, such as rigging lines, during the loading process. Brock also testified that lines rigged between the stanchions would become part of the ship’s stowage. This claim was confirmed by McKimmey: “You have to remember whatever you rig is going out with the ship. So you wouldn’t want to buy it if you could not charge it back to the ship.” He added that if the practice of rigging lines became standard there would be a demand that ships provide lines as part of their gear. “It is the same as stanchions. We didn’t used to have stanchions,” McKimmey said.

At the close of the evidence, the district court granted defendants’ motions for directed verdicts. The court determined that under the provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, [1339]*1339the stevedore was solely responsible for Bandeen’s safety. The court stated: “The stevedore is hired for its expertise in the handling of cargo safely, and the basic policy decisions of safety ... must be entrusted to the stevedore company.” The court granted Japan Line’s motion for “the further reason that ... [no] evidence shows us that they were involved to any extent in the operation.”

II

In determining the propriety of a directed verdict, district and appellate courts follow the same standard: a directed verdict is proper if the evidence permits only one reasonable conclusion. Cal. Computer Products, Inc. v. Intern. Business Machines, 613 F.2d 727, 732-33 (9th Cir.1979). To avoid passing on the credibility of witnesses and weighing contradictory evidence, however, the court must resolve all inferences in favor of the party with the burden of persuasion.3 The motion should be denied if the record contains “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” in favor of the party opposing the motion. Id. at 734. See Consolidated Edison Co. v. Labor Board, 305 U.S. 197, 229, 59 S.Ct. 206, 216-17, 83 L.Ed. 126 (1938).

III

All parties agree that the Supreme Court’s decision in Scindia Steam Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), provides the analytical framework for this case. Under Scindia, the shipowner must provide a reasonably safe workplace under the circumstances by having

“[T]he ship and its equipment in such condition that an expert and experienced stevedore will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety to persons and property, and to warning the stevedore of any hazards on the ship or with respect to its equipment that are known to the vessel or should be known to it in the exercise of reasonable care, that would likely be encountered by the stevedore in the course of his cargo operations and that are not known by the stevedore and would not be obvious to or anticipated by him if reasonably competent in the performance of his work.” Id. at 167,101 S.Ct. at 1622.

Under Scindia,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Abruska v. Northland Vessel Leasing Co.
258 F. App'x 158 (Ninth Circuit, 2007)
Ralston v. San Juan Excursions, Inc.
252 F. App'x 180 (Ninth Circuit, 2007)
Witt v. American Trading & Transp. Co., Inc.
65 F.3d 177 (First Circuit, 1995)
Branko Sindicich v. "M Highway"
47 F.3d 1176 (Ninth Circuit, 1995)
Keller v. United States
First Circuit, 1994
Witt v. American Trading Transportation Co.
820 F. Supp. 1249 (D. Oregon, 1993)
Eliud A. Torres v. Johnson Lines N.Y.K. Lines
932 F.2d 748 (Ninth Circuit, 1991)
Whitehill v. United States Lines, Inc.
177 Cal. App. 3d 1201 (California Court of Appeal, 1986)
Dugas v. C. Brewer & Co.
165 Cal. App. 3d 203 (California Court of Appeal, 1985)
Cowsert v. Crowley Maritime Corp.
680 P.2d 46 (Washington Supreme Court, 1984)

Cite This Page — Counsel Stack

Bluebook (online)
712 F.2d 1336, 1984 A.M.C. 1425, 1983 U.S. App. LEXIS 24945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eugene-h-bandeen-v-united-carriers-panama-inc-japan-line-ltd-and-ca9-1983.