Hayes v. Wilh Wilhelmsen Enterprises Ltd.

818 F.2d 1557, 1988 A.M.C. 259, 1987 U.S. App. LEXIS 7507

Opinions

PER CURIAM:

Appellants, Sylvester and Mamie Lue Hayes, appeal the district court’s granting of summary judgment in favor of appellee, Nissan Motor Car Carrier Co., Ltd. (Nissan), on their claim for injuries Sylvester Hayes incurred resulting from an accident aboard a vessel Nissan time chartered. 622 F.Supp. 1554. We affirm.

Facts

The M/V TAKARA is owned by Partrederieni Takara, managed by Wilh Wilhelm-sen Enterprises, Ltd., and at the time of the accident, was time chartered by Nissan. On July 5, 1979, the day of the injury, the M/V TAKARA docked at Jacksonville, Florida, at 1:20 a.m. The doors of the vessel were opened by 1:30 a.m., and longshoremen employed to unload the vehicles aboard began entering the vessel about 8 a.m. Sylvester Hayes slipped on hydraulic fluid which was located on the entry deck of the vessel just inside the door. The fluid had leaked from the hoses of the hydraulically-operated cargo doors of the vessel, and not from the vehicles being unloaded. The Hayeses brought suit against the owners, the manager, and the time charterer — Sylvester Hayes for the injuries he sustained, and Mamie Lue Hayes, his wife, for loss of consortium. The Hayeses entered into a settlement agreement with the owner and the manager; thus, Nissan, the time charterer, remains the only party to this lawsuit.

The district court granted Nissan’s motion for summary judgment, and this appeal followed. For purposes of our review, we assume, as did the district court and the parties, that the fluid leaked from the hoses when the cargo doors were opened, and it was on the deck prior to the longshoremen boarding the vessel.

Discussion

The 1972 amendments to the Longshoremen and Harbor Workers’ Compensation Act provide a right of action to longshoremen injured due to negligence of a vessel. 33 U.S.C.A. § 905(b) (West 1986). The term “vessel” includes the vessel’s owner as well as the time charterer. 33 U.S.C. § 902(21); see also Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236, 242 n. 5 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). For the purposes of summary judgment, the parties stipulated to facts which constitute negligence on the part of the Master and crew for failure to warn the longshoremen of the fluid on the deck, or to remove the fluid. Nissan is answerable for Hayes's injuries under 33 U.S.C. § 905(b) only if negligence against it can be separately established. Haluapo v. Akaski Kaiun, K.K., 748 F.2d 1363, 1365 n. 2 (9th Cir. 1984). The dispositive issue, therefore, is whether the negligence of the Master and crew is attributable to Nissan.

Clause 8 of the charter party provides: That the Captain shall prosecute his voyage with the utmost dispatch, and shall render all customary assistance with the ship’s crew and boats. The Captain (although appointed by the Owners), shall be under the orders and directions of the Charterers as regards employment and agency; and Charterers are to load, stow, trim, lash, unlash, and discharge the cargo at their expense under the supervision of the Captain, who is to sign Bills of Lading for cargo as presented, in conformity with Mate’s or Tally’s Clerk receipts.

The Second Circuit had occasion to interpret the legal significance of an identical clause 8 of a charter party in Fernandez v. Chios Shipping Co., Ltd., 542 F.2d 145 (2d Cir.1976). In Fernandez, a longshoreman was injured when a pallet, which was used to unload cargo, came apart spilling cargo on him. The court declared, “[w]hen Clause 8 shifts the responsibility of proper discharge of cargo to the charterer, that responsibility includes whatever damage results from improper discharge, whether to the cargo or to the personnel unloading it.” 542 F.2d at 152. The court then found that the injury was caused by improper discharge of cargo, and it held the time charterer liable to indemnify the owner pursuant to clause 8.

Under a virtually identical clause 8, the Sixth Circuit distinguished Fernandez in a case in which a longshoreman died when he fell through an open hatch during loading operations. Migut v. Hyman-Michaels Co., 571 F.2d 352 (6th Cir.1978). While not determining “whether or not clause 8 placed operation and responsibility for loading and stowing upon the charterer,” the court concluded that the open hatch was a condition that existed prior to cargo unloading and that the partially uncovered hatch served no purpose of the charterer. Therefore, the court concluded the liability “resulted from acts or omissions of the captain which were not connected to cargo handling,” and that the charterer was entitled to indemnity from the owner. 571 F.2d at 355.

A time charterer who has no control over a vessel assumes no liability for negligence of the crew or unseaworthiness of the vessel absent an agreement to the contrary. Mallard v. Aluminum Co. of Canada, Ltd., 634 F.2d 236, 242 n. 5 (5th Cir.), cert. denied, 454 U.S. 816, 102 S.Ct. 93, 70 L.Ed.2d 85 (1981). In the present case, clause 8 shifts responsibility for cargo operations to Nissan. Specifically, the clause provides that the charterers are responsible for, among other things, the discharge of cargo. The district court, in applying a “cargo-related” standard, determined that Nissan was not responsible for the negligence of the Master and crew. We agree. The cargo doors are part of the vessel’s equipment. Maintenance of the cargo doors is not within the scope of responsibility assumed by the time charterer under clause 8.¹ Nissan did not by contract assume responsibility for the seaworthiness of the vessel. In short, the fluid on the deck did not relate to the cargo being carried; thus, the Master and crew were not acting as agents of Nissan when they negligently failed to clean up or warn of the fluid.²

Hayes’s contention that the district court erred in not properly considering the testimony of Chief Officer Ringsoey and its expert witness, Robert Stone, a professional stevedore manager, as to whether the crew was acting as agent for Nissan at the time it should have discovered the spill and as to when “discharge” began is without merit. Clause 8 of the charter party serves to delineate the responsibility of the parties. Interpretation of clause 8 is a question of law and is properly addressed to the trial court. See Turner v. Japan Lines, Ltd., 651 F.2d 1300, 1305-06 (9th Cir. 1981), cert. denied, 459 U.S. 967, 103 S.Ct. 294, 74 L.Ed.2d 278 (1982) amended 702 F.2d 752 (9th Cir.1983). Testimony of the Hayes’s two witnesses amount to no more than legal conclusions, and thus raise no question of material fact which would necessitate a denial of summary judgment.

Conclusion

Under the provisions of the time charter, the owner had assumed responsibility for maintaining the vessel’s equipment so that cargo could be loaded and unloaded. Defects in the cargo doors or problems in their operation, which caused fluid to leak, were the responsibility of the owner. Based on the intention of the parties as disclosed in the time charter, the time charterer did not assume responsibility for cleaning up or warning of fluid which leaked from the cargo doors when they were opened. The failure of the Master and crew to properly do so is attributable to the owner of the vessel. For these purposes, the crew was acting as the agents of the owner. The Hayeses have failed to establish an act of negligence on the part of Nissan or negligence attributable to it.

AFFIRMED.

1

. In its order, the district court correctly stated:

The Eleventh Circuit, because it adopted the precedent of the former Fifth Circuit, See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981), may have adopted an interpretation of Clause 8 of the time charter which is inconsistent with that of the courts which hold a time charterer liable for cargo-related personal injuries. In D/S Ove Skou v. Hebert, 365 F.2d 341, 351-52 (5th Cir.1966), cert. denied, 400 U.S. 902, 91 S.Ct. 139, 27 L.Ed.2d 139 (1970), the court held that clause 8 makes a charterer responsible for the costs of cargo handling, but it does not transfer any operational control from the owner to the charterer. However, this case was decided prior to the 1972 action against, among others, a charterer for negligence. Several lower courts have followed D/S Ove Skou v. Hebert even after the 1972 amendments. See Shaw v. South African Marine Corp. and Burnham Shipping Corp. of Monrovia, 1983 A.M.C. 1579, 1580 (E.D.Va.1982); Desormeaux v. Oceans International, et al., 1979 A.M.C. 1962, 1964-65 (W.D.La.1979). Recently, the Fifth Circuit in Mallard v. Aluminum Co. Of Canada, Ltd., 634 F.2d 236, 242 n. 5 (5th Cir.1981), declined to overrule D/S Ove Skou, stating: "In light of Skou, this circuit seems reluctant to find any shift of operational responsibility for personal injuries to the time charterer absent clear language to that effect." Id. However, in Mallard, the court reversed the grant of summary judgment for the time charterer as well as the owner. Thus, it is unclear whether the holding of D/S Ove Skou is still good law and binding precedent in this circuit.

The 1972 amendments, which afford an injured longshoreman a right of action against a charterer for negligence, undercuts the rationale of D/S Ove Skou v. Hebert, 365 F.2d 341 (5th Cir.1966). At an appropriate time, the en banc court must address the continued vitality of that case.

2

. Other provisions in the time charter support the conclusion that the vessel owner is responsible for the cargo doors. Clause 1 of the time charter provides, in pertinent part: "That the Owners shall ... keep the vessel in a thoroughly efficient state in hull, machinery and equipment____” Clause 48 makes the owner responsible for side parts and ramps used to load and unload vehicles. Clause 65 makes the owner responsible to correct problems of the vessel which delay the longshoremen. Clause 71 provides: "The vessel to be suitable for the carriage of such unboxed cars as Roll On Roll Off pure car carrier. If corrective measures are necessary same are to be performed by the Owners on their time and their expense."