Gaines v. DAIICHI CHUO SHIPPING, INC.

673 So. 2d 1192, 95 La.App. 4 Cir. 1597, 1996 La. App. LEXIS 710, 1996 WL 203183
Louisiana Court of Appeal·Decided April 24, 1996·No. 95-CA-1597·Published·Cited by 6 cases

Opinion

673 So.2d 1192 (1996)

John L. GAINES
v.
DAIICHI CHUO SHIPPING (AMERICAN), INC., et al.

No. 95-CA-1597.

Court of Appeal of Louisiana, Fourth Circuit.

April 24, 1996.

*1194 Stephen P. Bruno and Natasha R. Zimmerman, Bruno and Bruno, New Orleans, for Plaintiff.

Robert B. Fisher, Jr., Douglas L. Grundmeyer, and Scott A. Soule, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for Defendant.

Before BARRY, KLEES and BYRNES, JJ.

BYRNES, Judge.

Plaintiff, John L. Gaines, appeals the damage award in his personal injury action arising from his slip and fall on a ship's deck. Defendant, Cavalier Shipping Company ("Cavalier"), answers the appeal, contesting liability, as well as damages. We affirm as amended.

In March 1990, Daiichi Chuo (American) Inc. ("Daiichi") contracted with Cooper/T. Smith Stevedoring Company, Inc. ("Cooper") to unload steel coils shipped on Cavalier's vessel, the M/V CRYSTAL QUEEN in New Orleans. On March 20, 1990 when Cavalier turned over the vessel to Cooper for unloading, both the shipowner and the stevedore were aware of the obvious hazard of hydraulic oil leaking on the deck. The vessel's shipmate provided one or two bags of sawdust to cure the hazard. The stevedore also instructed his derrick men to pour more bags of sawdust on the oil, but the problem continued. On March 21 and 22, 1990, Vincent *1195 Lampo, the Superintendent for Cooper, inspected the ship, again advised the vessel's chief mate, and instructed the derrick men to pour additional sawdust and for his men to work safe. At nearly noon on March 22, 1990, upon exiting the cargo hold, plaintiff fell on hydraulic oil, hurt his back, and was assisted off the vessel. Subsequently, plaintiff was treated by Dr. Andrew Lombardo, Dr. James Williams and Dr. Robert Applebaum. Gaines did not work for a month and then returned to restricted work in September 1990. In July 1991 he returned to full-time employment as a dray clerk rather than as a clerk checker, as he had been employed previously for 25 years.

On March 22, 1991, Gaines filed an action against Daiichi and Linden Shipping Company ("Linden"). After plaintiff's supplemental and amended petition named Cavalier as the vessel owner, plaintiff dismissed his claims against Daiichi and Linden. Cooper intervened, seeking medical and compensation benefits paid to the plaintiff.

At a bench trial in December 1994, the parties stipulated that Cooper paid plaintiff $82,422.27 in compensation benefits and $10,878.90 in medical benefits. The trial court entered a judgment on March 2, 1995, in favor of the plaintiff and against Cavalier for damages totalling $132,668.19, subject to plaintiff's 30 percent comparative negligence. In its written reasons, the trial court awarded $13,000 in general damages, $83,399.91 in past loss earnings, and $36,268.28 for future loss earnings. On March 20, 1995, the trial court rendered an amended judgment in favor of intervenor Cooper in the sum of $10,878.90 to recover medical benefits paid to the plaintiff. Gaines' appeal and Cavalier's answer to the appeal followed.

On appeal plaintiff seeks an increase in the general damage award. Cavalier denies liability and contends that all claims against Cavalier should be dismissed, or alternatively that plaintiff's comparative negligence should be increased to at least 50 percent. A review of damages follows a review of the liability claims.

LIABILITY

Cavalier contends that it is not liable for plaintiff's damages. Under Section 5(b) of the Longshoremen and Harbor Worker's Compensation Act, 33 U.S.C. Sec. 905(b), plaintiff has a cause of action against a negligent shipowner. The shipowner owes the stevedore and its employees a duty to exercise due care under the circumstances. Scindia Steam Nav. Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). The court recognized the following three duties of the shipowner:

(1) The "turnover duty" to provide safe conditions and a duty to warn of known, non obvious hazards when the shipowner turns over the ship to the stevedore upon commencement of stevedoring operations;
(2) The duty to exercise reasonable care to prevent injuries to longshoremen in areas that remain under active control of the vessel; and
(3) The duty to intervene, arising when the shipowner has knowledge of the hazard and that the stevedore, in exercising improvident judgment in continuing to work in the face of it, cannot be relied on to remedy the hazard or work around it.

A shipowner may be negligent for failing to eliminate an obvious hazard that it could have eliminated, but only when it should have expected that an expert stevedore could not or would not avoid the hazard and conduct cargo operations in a reasonably safe manner. Kirsch v. Plovidba, 971 F.2d 1026 (3 Cir.1992).

The fact finder has a duty to assess the credibility of the witnesses, and the determination of fact may not be disturbed on appeal unless the record establishes that the finding is clearly wrong or manifestly erroneous. Alexander v. Pellerin Marble & Granite, 93-1698, p. 5 (La. 1/14/94), 630 So.2d 706, 710. A trier of fact's finding in questions of causation are subject to the manifest error-clearly wrong standard. Young v. Armadores deCabotaje, S.A., 617 So.2d 517 (La. App. 4 Cir.1993), writs denied, 625 So.2d 170 & 171 (La.1993), certiorari denied, ___ U.S. *1196 ___, 114 S.Ct. 1067, 127 L.Ed.2d 386 (1994). Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Cooper's superintendent, Vincent Lampo, and Gregory Miller, Cooper's operations manager, testified that on observing oil on a vessel, they would advise the ship mate and ask to owner to cure the hazard. Work would continue.

The ship's crew knew that the hazard existed, that the stevedore tried to cure the problem, and that the stevedore continued to unload the cargo. This court cannot find that the trial court was manifestly erroneous or clearly wrong in determining that Cavalier breached its duty to intervene and protect Gaines. The breach of duty was the cause in fact of the accident.

Cavalier complains that plaintiff is at least 50 percent comparatively negligent because he knew of the hazardous condition of the hydraulic oil on the deck but he had no recollection of looking down before he stepped on the deck and slipped. The photographs showed that a metal ladder was permanently attached next to the doorway so that plaintiff could have held onto the handrail when stepping down. George Duffy, the defense marine and stevedoring operations expert, testified that plaintiff should have watched his step and failed to act safely because he did not exit the same door where he entered the cargo hold. Because testimony showed that the oil continued to flow in a considerable amount, and Cavalier did not attempt to cure it when the stevedore continued to unload the cargo, we conclude that the trial court was not clearly wrong in finding that the greater fault lies with Cavalier, and that plaintiff is 30 percent comparatively negligent.

DAMAGES

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Gaines v. DAIICHI CHUO SHIPPING, INC., 673 So. 2d 1192, 95 La.App. 4 Cir. 1597, 1996 La. App. LEXIS 710, 1996 WL 203183 (La. Ct. App. 1996).

673 So. 2d 1192 (Gaines v. DAIICHI CHUO SHIPPING, INC.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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