Philip C. Wild, Jr. v. Lykes Brothers Steamship Corporation

734 F.2d 1124, 1984 U.S. App. LEXIS 21141
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 25, 1984
Docket83-3359
StatusPublished
Cited by13 cases

This text of 734 F.2d 1124 (Philip C. Wild, Jr. v. Lykes Brothers Steamship Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Philip C. Wild, Jr. v. Lykes Brothers Steamship Corporation, 734 F.2d 1124, 1984 U.S. App. LEXIS 21141 (5th Cir. 1984).

Opinions

CLARK, Chief Judge:

Philip C. Wild, Jr., appeals the judgment of the district court in favor of Lykes Brothers Steamship Corporation on his negligence claim brought under the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA). Wild contends that the district court’s findings are clearly erroneous. We affirm the district court’s decision, because Wild failed to prove the prerequisites for establishing liability under the LHWCA laid down by the Supreme Court.

I

In May 1977, Dixie Welding and Metal Works, Inc., a stevedoring company, began performing extensive repairs on the DOCTOR LYKES, an oceangoing vessel owned by Lykes. Wild performed general repair work for Dixie Welding while on board the DOCTOR LYKES. The repair contract required several longshoremen, including Wild, to work on an elevator deck. Cargo barges rest on the elevator deck, which is then raised to a position level with the main deck to allow the barges to be transferred to the main deck. In its stowed position the elevator deck is five to six feet below the main deck. To move from the main deck to the stowed elevator deck, Wild and other longshoremen used an appurtenance of the vessel that could be positioned either as a guardrail or as a ladder. This device, which is bolted to the ship, was used primarily as a guardrail around three sides of a small observation platform on the main deck. It could be converted into a ladder, its secondary use, by unfastening the bottoms of its two inboard vertical stanchions from their main deck attachments and then rotating the appurtenance approximately 145 degrees outboard about the pinfixed bases of its two outboard vertical stanchions. When thus unbolted and rotated, the guardrail’s inboard vertical stanchions became a handrail, and its horizontal sections became the steps of a ladder leading from the main deck down to the elevator deck. The appurtenance also had two arms with cross bars that hung from the top of the outboard vertical stanchions when in the guardrail mode. When the appurtenance was converted to use as a ladder these arms and bars folded out to add two more steps. The handrails did not extend alongside these two additional steps.

On the day Wild began working, his foreman took him down this device, which was then in the ladder position. Wild used the ladder several times a day while working in the area of the elevator deck. Although Wild considered the ladder unsafe, he continued to use it and never told his foreman he thought it was unsafe.

Wild was injured when he slipped on the ladder. The district court found that grease on Wild’s shoes and on the steps partially caused him to slip and that movement of the ladder and the absence of a handrail for the lower end of the ladder also contributed to his fall.

Wild sued Lykes under the LHWCA, 33 U.S.C. § 905(b). He alleged that Lykes was negligent since it maintained a defective ladder on its vessel for use by longshoremen. After a bench trial, the district court ruled in favor of Lykes. The district court found that although the device, when used as a ladder, was defective and unreasonably dangerous, Wild failed to prove that Lykes had affirmatively acted to furnish the ladder for use by Dixie’s workers. In addition, the district court held that Wild failed to prove that Lykes had actual knowledge that Dixie’s employees were using the device as a ladder. Wild introduced no evidence to prove that Lykes placed the device in the ladder position before turning the ship over to Dixie Welding for repair.

These findings are reviewed on appeal under the clearly erroneous rule. Fed.R.Civ.P. 52(a); see Hill v. Texaco, Inc., 674 F.2d 447, 450 (5th Cir.1982). A finding is clearly erroneous when “although there is [1126]*1126evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

II

Our analysis begins with Scindia Steam Nav. Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). In Scindia, the Supreme Court extensively analyzed the 1972 amendments to the LHWCA1 and outlined the duty owed to longshoremen by the owner of a vessel on which they work. “As a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards. The ship is not the common employer of the longshoremen and owes no such statutory duty to them.” Id. at 170, 101 S.Ct. at 1623-24 (footnote omitted). We have stated that “the primary responsibility for the safety of the longshoremen rests upon the stevedore.” Helaire v. Mobile Oil Co., 709 F.2d 1031, 1036 (5th Cir.1983).

Scindia teaches that the vessel owner no longer has a duty to inspect or supervise the stevedore once its work has begun. “[A]bsent contract provision, positive law, or custom to the contrary ... the shipowner has no general duty by way of supervision or inspection to exercise reasonable care to discover dangerous conditions that develop within the confines of the cargo operations that are assigned to the stevedore.” 451 U.S. at 172, 101 S.Ct. at 1624. The Scindia Court also described the circumstances in which reliance by the vessel owner on the stevedore would not absolve the owner of liability. We summarized the Scindia holding in Helaire:

First, before turning over the ship to the stevedore, the owner has a duty to warn the longshoremen of hidden defects that would be known to the shipowner in the exercise of reasonable care. He must also exercise care to deliver to the stevedore a safe ship with respect to gear, equipment, tools, and work space. Second, the owner has a duty to avoid exposing the longshoremen to harm “from hazards under the act or control of the vessel.” Third, even though the owner is generally relieved of responsibility for accidents which occur once the unloading process has begun, “if [the stevedore’s] judgment ... was so obviously improvident that [the owner], if it knew of the defect and that [the stevedore] was continuing to use it, should have realized the [defect] presented an unreasonable risk of harm to the longshoremen, ... in such circumstances [the owner] had a duty to intervene,” and eliminate or neutralize the hazard.

709 F.2d at 1036.

As in Helaire and Scindia, we deal here with an injury that occurred after stevedoring operations had begun and as a result of an open and obvious danger.2 Thus, our inquiry focuses on the standard set forth in Helaire for determining a vessel owner's liability:

Once loading operations have begun, the vessel owner can be held liable for injuries to employees of the stevedore resulting from open and obvious dangers only in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation.

Id.

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734 F.2d 1124, 1984 U.S. App. LEXIS 21141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/philip-c-wild-jr-v-lykes-brothers-steamship-corporation-ca5-1984.