Respondent longshoreman, an employee of respondent stevedore who
was engaged by petitioner shipowner to load its vessel, was injured
while working in the ship's hold when he was struck by cargo that
fell from a pallet being held in suspension by a winch that was
part of the ship's gear and was being operated by another
longshoreman. The winch's braking mechanism allegedly had been
malfunctioning for two days preceding the day of the accident, but
there was a dispute as to whether the cargo fell because the
suspended pallet was swinging back and forth or because the braking
mechanism slipped while the pallet was suspended, and as to whether
the shipowner knew or should have known of the alleged condition of
the winch. Respondent longshoreman brought suit against petitioner
under the provision of the Longshoremen's and Harbor Workers'
Compensation Act as amended in 1972, 33 U.S.C. § 905(b), which
states that a longshoreman injured "by the negligence of a vessel .
. . may bring an action against such vessel as a third party," and
that the vessel's liability "shall not be based upon the warranty
of seaworthiness." The District Court granted summary judgment for
petitioner, holding that, under the negligence standards governing
liability under § 905(b), a shipowner is not liable for dangerous
conditions created by the stevedore's negligence while the
stevedore is in exclusive control of the work, and that, even if
petitioner knew or should have known of the defective winch, a
shipowner has no duty to warn the stevedore or his employees of
open and obvious defects. The Court of Appeals reversed, holding
that, under the proper standard, petitioner had a duty to continue
to inspect conditions of the vessel even if it had been turned over
to the stevedore in safe condition, and that, if dangerous
conditions subsequently developed, in light of the vessel's
practical opportunities to discover and remedy the dangers, failure
to do so could be negligence. Concluding that there were several
material facts in dispute that were for a jury to resolve, the
court remanded the case for further proceedings.
Held:
1. A shipowner has a duty to have the ship and its equipment in
such
Page 451 U. S. 157
condition that the stevedore may carry on its cargo operations
with reasonable safety; and if the shipowner fails at least to warn
the stevedore of hidden danger which was known to the shipowner, or
should have been known to him in the exercise of reasonable care,
he is liable if his negligence causes injury to a longshoreman. But
once the stevedore's cargo operations have begun, absent contract
provision, positive law, or custom to the contrary, the shipowner
has no general duty under § 905(b) 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. Thus, the shipowner is not
liable to the longshoremen for injuries caused by dangers unknown
to the owner and about which he had no duty to inform himself. This
conclusion is consistent with Congress' intent under the 1972
Amendments of the Act to foreclose the shipowner's previous
faultless liability based on a theory of unseaworthiness or
nondelegable duty. The shipowner, within limits, is entitled to
rely on the stevedore, and owes no duty to the longshoreman to
inspect or supervise cargo operations. Pp.
451 U. S.
166-172.
2. However, there are circumstances in which the shipowner has a
duty to act where a danger to longshoremen arises from the
malfunctioning of the ship's gear being used in cargo operations.
In this case, it is possible that the stevedore's judgment in
continuing to use the winch despite its malfunctioning was so
obviously improvident that petitioner, if it knew of the defect and
that the stevedore was continuing to use it, should have realized
the winch presented an unreasonable risk of harm to the
longshoremen, and that, in such circumstances, it had a duty to
intervene and repair the winch. The same would be true if the
defect existed from the outset and petitioner must be deemed to
have been aware of its condition. The stevedore's duties under
positive law to provide a safe workplace and to use safeguards with
respect to the ship's gear, as well as the vessel's justifiable
expectations that those duties will be performed, are relevant in
determining whether the shipowner has breached its duty. But an
equally necessary inquiry is whether the pertinent statutes,
regulations, or custom place or assume a continuing duty on the
vessel to repair defective ship's gear being used by the stevedore
in the cargo operation. Here, the record supports the Court of
Appeals' holding that there was a triable issue as to whether the
shipowner had actual knowledge of the alleged failure in the
winch's braking mechanism or was chargeable with knowledge because
the winch was defective from the outset. Thus, the District Court
erred in granting summary judgment, and the case should be
Page 451 U. S. 158
returned to it and, if necessary, tried to a jury under
appropriate instructions. Pp.
451 U. S.
172-179.
598 F.2d 480, affirmed and remanded.
WHITE, J., delivered the opinion of the Court, in which all
other Members joined except BURGER, C.J., who took no part in the
decision of the case. BRENNAN, J., filed a concurring opinion, in
which MARSHALL and BLACKMUN, JJ., joined,
post, p.
451 U. S. 179.
POWELL, J., filed a concurring opinion, in which REHNQUIST, J.,
joined,
post, p.
451 U. S.
180.
JUSTICE WHITE delivered the opinion of the Court.
Respondent Santos, a longshoreman and an employee of respondent
Seattle Stevedore Co., was injured while he was helping load the
M/S Jakaratna, a vessel owned by petitioner Scindia Steam
Navigation Co., Ltd. He later brought an action against Scindia
pursuant to § 5(b) of the Longshoremen's and Harbor Workers'
Compensation Act (Act), as amended in 1972, [
Footnote 1] which, as set forth in 33 U.S.C. §
905(b), provides in relevant part as follows:
"In the event of injury to a person covered under this chapter
caused by the negligence of a vessel, then such person, or anyone
otherwise entitled to recover damages by reason thereof, may bring
an action against such vessel as a third party in accordance with
the provisions of section 933 of this title, and the employer shall
not be liable to the vessel for such damages directly or indirectly
and any agreements or warranties to the contrary
Page 451 U. S. 159
shall be void. . . . The liability of the vessel under this
subsection shall not be based upon the warranty of seaworthiness or
a breach thereof at the time the injury occurred. T he remedy
provided in this subsection shall be exclusive of all other
remedies against the vessel except remedies available under this
chapter. [
Footnote 2]"
The District Court granted petitioner's motion for summary
judgment; [
Footnote 3] the
Court of Appeals, disagreeing with the District Court on both the
facts and the law, reversed and remanded for further proceedings.
598 F.2d 480 (CA9 1979). We granted certiorari, 446 U.S. 934,
because the Courts of Appeals are in considerable disagreement as
to the meaning and application of § 905(b). [
Footnote 4]
I
For present purposes, we take the facts from the opinion of the
Court of Appeals, which properly viewed the case in the light most
favorable to Santos, against whom summary judgment had been
granted.
On December 10, 1972, Seattle Stevedore Co., pursuant to its
undertaking with Scindia, was engaged in loading a cargo of wheat
into a hold of the
M/S Jalaratna. A winch, part of the
ship's gear, was being used to lower wooden pallets, each
containing seventy 50-pound sacks of wheat, into the hold. Because
of the location of the winch controls, the longshoreman operator
relied on the hatch tender, another longshoreman,
Page 451 U. S. 160
to signal him when to start and stop the winch while lowering a
pallet of sacks into the hold. Santos and three other longshoremen
were in the hold. Their task was to remove sacks of wheat from the
pallet and properly stow them.
On the day of the accident, as it had for the two previous days,
the braking mechanism of the winch was malfunctioning in that it
would not quickly stop the descent of a loaded pallet, which would
continue to drop for several feet before coming to a stop. At the
time important here, while a pallet was being lowered, the hatch
tender signaled the winch operator to stop the descent of the load.
The brake was applied, but the pallet did not stop before striking
a pallet jack [
Footnote 5] with
some force and spilling about half the sacks of wheat from the
pallet. The hatch tender signaled the operator to raise the pallet
about 15 feet and, believing that the remaining sacks on the pallet
were secure enough not to fall, permitted Santos and the other men
to clear away the spilled sacks then lying below in the hold. Some
minutes later, however, more sacks fell from the pallet, striking
and injuring Santos. There was dispute as to whether the additional
sacks fell because the suspended pallet was swinging back and forth
or because, while the pallet was suspended, the braking mechanism
slipped on three or four occasions, each time requiring the
operator to raise it again, thus working loose the additional sacks
that fell on Santos.
Relying on the legislative history of the 1972 Amendments to the
Act, the District Court held that the negligence standards
governing the longshoreman's action against a shipowner under §
905(b) are best expressed in Restatement (Second) of Torts §§ 343
and 343A (1965), which purport to
Page 451 U. S. 161
state the prevailing or preferred rules governing the liability
of a possessor of land to an invitee. [
Footnote 6] Under these land-based negligence standards,
the District Court thought
"a shipowner is not liable for dangerous conditions created by
the stevedore's negligence while the stevedore [is] in exclusive
control over the manner and area of the work . . . , nor is the
shipowner under a duty to warn the stevedore or his employees of
dangers or open and obvious defects which are known to the
stevedore or his employees or which are so obvious and apparent
that they may reasonably be expected to discover them."
1976 A. M. C. 2583, 2585. Based on the admissions of the parties
and the depositions available to the court, the District Court
concluded (1) that there was no dispute that the premises were in
the exclusive control of Seattle during the loading operation and
(2) that
Page 451 U. S. 162
even if Scindia knew or should have known of the defective
winch, [
Footnote 7] the
condition of the winch "was open and obvious to the plaintiff,"
and
"the fact that plaintiff undertook his actions free from any
direction by the defendant while recognizing that the circumstances
were so dangerous is such that the defendant cannot be held liable
as a matter of law."
Id. at 2586-2587. In addition, the District Court found
that
"the alleged defective condition of the winch had only a remote
cause-of-fact relationship to plaintiff's accident, and could not
have been the proximate cause thereof as a matter of law."
Id. at 2587. Hence, summary judgment was granted.
[
Footnote 8]
Reversing, the Court of Appeals disagreed with the District
Court and with other Courts of Appeals with respect to the
applicable law. Sections 343 and 343A of the Restatement were
improper measures of the shipowner's liability for negligence under
§ 905(b) [
Footnote 9] because
those sections, in effect,
Page 451 U. S. 163
incorporated notions of contributory negligence and assumption
of risk that were inapplicable under the maritime law. Instead, the
Court of Appeals declared the controlling standard under § 905(b)
to be the following:
"A vessel is subject to liability for injuries to longshoremen
working on or near the vessel caused by conditions on the vessel
if, but only if, the shipowner"
"(a) knows of, or by the exercise of reasonable care would
discover, the condition, and should realize that it involves an
unreasonable risk of harm to such longshoremen, and"
"(b) the shipowner fails to exercise reasonable care under the
circumstances to protect the longshoremen against the danger."
598 F.2d at 485. Under this standard, Scindia's duty to inspect
did not end even if the vessel was turned over to the stevedore in
safe condition. If conditions dangerous to the longshoremen
subsequently developed, in light of the vessel's practical
opportunities to discover the dangers and remedy them, failure to
do so could be negligence on its part. [
Footnote 10]
Page 451 U. S. 164
Under the Court of Appeals' view of the law, there were several
material facts in dispute that were for a jury to resolve: whether
the shipowner knew or should have known of the defective winch;
whether Seattle was in exclusive control of the loading in the
sense that only Seattle could have repaired the winch; whether the
defective operation of the winch had caused the initial spillage of
the sacks, thus necessitating a cleanup, or had later been the
proximate cause of the additional sacks falling from the pallet and
injuring Santos. Accordingly, the Court of Appeals set aside the
judgment of the District Court and remanded for further
proceedings.
II
Initially, we must briefly revisit the 1972 Amendments to the
Act. Prior to 1972, a longshoreman injured while loading or
unloading a ship could receive compensation payments and also have
judgment against the shipowner if the injury was caused by the
ship's unseaworthiness or negligence.
Seas Shipping Co. v.
Sieracki, 328 U. S. 85 (194).
Proof of unseaworthiness required no proof of fault on the part of
the shipowner other than an unsafe, injury-causing condition on the
vessel. This was true even though the condition was
Page 451 U. S. 165
caused, created, or brought into play by the stevedore or its
employees. [
Footnote 11] In
the latter event, the shipowner could recover over against a
stevedore for breach of express or implied warranty to handle the
cargo in a reasonably safe manner.
Ryan Stevedoring Co. v.
Pan-Atlantic S.S. Corp., 350 U. S. 124
(1956). [
Footnote 12]
The 1972 Amendments, particularly by adding § 905(b), radically
changed this scheme of things. The compensation payments due the
longshoreman from the stevedore for injuries incurred in the course
of his employment were substantially increased; the longshoreman's
right to recover for unseaworthiness was abolished; his right to
recover from the shipowner for negligence was preserved in §
905(b), which provided a statutory negligence action against the
ship; and the stevedore's obligation to indemnify the shipowner if
the latter was held liable to the longshoreman was abolished.
Section 905(b) did not specify the acts or omissions of the
vessel that would constitute negligence. In light of the
differences among the lower federal courts as to the construction
and application of § 905(b), neither can it be said that the
legislative history, which has been analyzed and reanalyzed in the
course of these cases, furnishes sure guidance for construing §
905(b). [
Footnote 13] Much
was left to be resolved through
Page 451 U. S. 166
the "application of accepted principles of tort law and the
ordinary process of litigation." Rep. p. 11.
III
We held in
Marine Terminals v. Burnside Shipping Co.,
394 U. S. 404,
394 U. S. 415
(1969), that the vessel owes to the stevedore and his longshoremen
employees the duty of exercising due care "under the
circumstances." This duty extends at
Page 451 U. S. 167
least to exercising ordinary care under the circumstances to
have the 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
394 U. S. 416,
n. 18. The shipowner thus has a duty with respect to the condition
of the ship's gear, equipment, tools, and work space to be used in
the stevedoring operations, and if he fails at least to warn the
stevedore of hidden danger which would have been known to him in
the exercise of reasonable care, he has breached his duty and is
liable if his negligence causes injury to a longshoreman.
Petitioner concedes as much. Brief for Petitioner 20-21. It is also
accepted that the vessel may be liable if it actively involves
itself in the cargo operations and negligently injures a
longshoreman or if it fails to exercise due care to avoid exposing
longshoremen to harm from hazards they may encounter in areas, or
from equipment, under the active control of the vessel during the
stevedoring operation.
The parties, however, like the District Court and the Court of
Appeals, are in sharp disagreement as to the vessel's duty under §
905(b) once the stevedore's cargo operations have begun. Scindia
contends that the shipowner has no duty to supervise or inspect the
stevedore's cargo operations or to take reasonable care to discover
dangerous conditions that develop or come to light during the
loading or unloading. Scindia also submits that, even if the vessel
learns of the hazard, it has no duty to correct it, and is entitled
as a matter of law to rely on the stevedore to protect his
employees from injury. This is true, Scindia argues, even though
the hazard is an obviously
Page 451 U. S. 168
defective ship's winch being used by the stevedore and his
longshoremen employees, [
Footnote 14] and even if the winch was defective when the
stevedore came aboard and the vessel is charged with knowledge of
the condition. Respondents, on the other hand, defend the view of
the Court of Appeals that the vessel is subject to a continuing
duty to use reasonable care to discover dangerous conditions
exposing longshoremen to unreasonable risk of harm, and to exercise
reasonable care under the circumstances to protect them. We are
unable to agree wholly with either of these submissions.
Considering first the position of the Court of Appeals, we
cannot agree that the vessel's duty to the longshoreman requires
the shipowner to inspect or supervise the stevedoring operation.
Congress intended to make the vessel answerable for its own
negligence, and to terminate its automatic, faultless
responsibility for conditions caused by the negligence or other
defaults of the stevedore. Cases holding the vessel liable on the
ground that it owed nondelegable duties to protect the longshoremen
from injury were rejected. [
Footnote 15] It would
Page 451 U. S. 169
be inconsistent with the Act to hold, nevertheless, that the
shipowner has a continuing duty to take reasonable steps to
discover and correct dangerous conditions that develop during the
loading or unloading process. Such an approach would repeatedly
result in holding the shipowner solely liable for conditions that
are attributable to the stevedore, rather than the ship. True, the
liability would be cast in terms of negligence, rather than
unseaworthiness, but the result would be much the same.
"[C]reation of a shipowner's duty to oversee the stevedore's
activity and insure the safety of longshoremen would . . . saddle
the shipowner with precisely the sort of nondelegable duty that
Congress sought to eliminate by amending section 905(b)."
Hurst v. Triad Shipping Co., 554 F.2d 1237, 1249-1250
n. 35 (CA3 1977);
Evans v. S.S. "Campeche," 639 F.2d 848,
856 (CA2 1981). [
Footnote
16]
Page 451 U. S. 170
As a general matter, the shipowner may rely on the stevedore to
avoid exposing the longshoremen to unreasonable hazards. Section 41
of the Act, 33 U. S.C. § 941, requires the stevedore, the
longshoremen's employer, to provide a "reasonably safe" place to
work and to take such safeguards with respect to equipment and
working conditions as the Secretary of Labor may determine to be
necessary to avoid injury to longshoremen. [
Footnote 17] The ship is not the common employer
of the longshoremen, [
Footnote
18] and owes no such statutory duty to them. Furthermore, as
our cases indicate, the stevedore normally warrants to discharge
his duties in a workmanlike manner; and although the 1972
Amendments relieved the stevedore of his duty to indemnify the
shipowner for damages paid to longshoremen for injuries caused by
the stevedore's breach of warranty, they did not otherwise disturb
the contractual undertaking of the stevedore, nor the rightful
expectation of the vessel that the stevedore would perform his task
properly without supervision by the ship.
Page 451 U. S. 171
The approach of the indemnity cases in this Court, beginning
with
Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp.,
350 U. S. 124
(1956), was that the stevedore was in the best position to avoid
accidents during cargo operations, and that the shipowner could
rely on the stevedore's warranty to perform competently. In
Italia Societa v. Oregon Stevedoring Co., 376 U.
S. 315 (1964), for example, the vessel was found liable
for injuries to a longshoreman caused by an unseaworthy condition
arising when the stevedore, without negligence, supplied defective
equipment used in handling the cargo. We held the vessel entitled
to recover over against the stevedore, saying:
"Oregon, a specialist in stevedoring, was hired to load and
unload the petitioner's vessels and to supply the ordinary
equipment necessary for these operations. The defective rope which
created the condition of unseaworthiness on the vessel and rendered
the shipowner liable to the stevedore's employee was supplied by
Oregon, and the stevedoring operations in the course of which the
longshoreman was injured were in the hands of the employees of
Oregon. Not only did the agreement between the shipowner place
control of the operations on the stevedore company, but Oregon was
also charged under the contract with the supervision of these
operations. Although none of these factors affect the shipowner's
primary liability to the injured employee of Oregon, since its duty
to supply a seaworthy vessel is strict and nondelegable, and
extends to those who perform the unloading and loading portion of
the ship's work,
Seas Shipping Co. v. Sieracki,
328 U. S.
85,
cf. Pope & Talbot v. Hawn, 346 U. S.
406, they demonstrate that Oregon was in a far better
position than the shipowner to avoid the accident. The shipowner
defers to the qualification of the stevedoring contractor in
the
Page 451 U. S. 172
selection and use of equipment, and relies on the competency of
the stevedore company."
Id. at
376 U. S.
322-323. [
Footnote
19] The 1972 Amendments foreclosed indemnity of the shipowner
by the stevedore in § 905(b) cases; but they also rejected the
notion of a nondelegable duty on the shipowner to provide a safe
place to work, and did not undermine the justifiable expectations
of the vessel that the stevedore would perform with reasonable
competence and see to the safety of the cargo operations.
We are of the view that, absent contract provision, positive
law, or custom to the contrary -- none of which has been cited to
us in this case -- 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. The necessary
consequence is that the shipowner is not liable to the longshoremen
for injuries caused by dangers unknown to the owner and about which
he had no duty to inform himself. This conclusion is plainly
consistent with the congressional intent to foreclose the faultless
liability of the shipowner based on a theory of unseaworthiness or
nondelegable duty. The shipowner, within limits,
is
entitled to rely on the stevedore, and owes no duty to the
longshoremen to inspect or supervise the cargo operations. To the
extent that the judgment of the Court of Appeals rested on a
contrary view, we disagree.
IV
We arrive at the more difficult and recurring issue involved in
this case: what are the shipowner's duties when he learns that an
apparently dangerous condition exists or has developed in the cargo
operation, which is known to the stevedore
Page 451 U. S. 173
and which may cause injury to the longshoreman? Must the owner
take some action? Scindia and the District Court would have it that
the vessel is entitled to rely on the expertise and responsibility
of the stevedore, and is not liable for injuries caused by dangers
known by or obvious to the stevedore, who, if he fails to take
proper precautions, is necessarily the sole and proximate cause of
the injury. There is arguable support for this position in our
cases.
In
Crumady v. The J. H. Fisser, 358 U.
S. 423 (1959), a ship's winch had been set by ship's
officers to shut off the current at twice the safe working load of
the unloading gear. The gear parted when subjected to undue strain
because of the negligence of the stevedore. The Court held the ship
unseaworthy. Consistent with past cases, the Court declared that
the longshoremen's protection against unseaworthiness "imposes a
duty which the owner of the vessel cannot delegate," a duty which,
as to appliances, "does not end with supplying them; he must keep
them in order." The shipowner "is not relieved of these
responsibilities by turning control of the loading or unloading of
the ship over to a stevedoring company."
Id. at
358 U. S. 427.
The Court, nevertheless, permitted the ship to recover over from
the stevedore "since the negligence of the stevedores . . . brought
the unseaworthiness of the vessel into play. . . ."
Id. at
358 U. S. 429.
[
Footnote 20]
In
Crumady, the Court declared that "those acting for
the vessel owner" had adjusted the winch "in a way that made it
unsafe and dangerous for the work at hand."
Id. at
358 U. S. 427.
It thus appeared that the vessel had at least been negligent, yet
it was entitled to shift its entire liability to the stevedore
Page 451 U. S. 174
because it was entitled to rely on the stevedore's undertaking
to perform in a workmanlike manner. Arguably, Scindia should
likewise be justified in expecting Seattle to perform its
undertaking, and should therefore have no duty or responsibility
with respect to the ship's winch, which, if defective, was
obviously so, and which the stevedore continued to use.
The court below rejected this position, holding that, if the
vessel should realize that the condition presents an unreasonable
risk of harm, it is liable if it "fails to exercise reasonable care
under the circumstances" to protect the longshoremen. The court did
not suggest how to recognize an "unreasonable risk" of harm from an
obvious danger, or suggest what reasonable care under the
circumstances might be.
The Court of Appeals for the Second Circuit, while disagreeing
with the duty-to-inspect thesis of the Court of Appeals in the
present case, has also rejected this position, ruling that,
although the shipowner is normally entitled to rely on the
stevedore to guard against hazards to its employees, "there may be
circumstances in which it would not be reasonable for the shipowner
to assume that the stevedore will correct the problem."
Evans
v. S.S. "Campeche," 639 F.2d at 856. [
Footnote 21] As that court sees it, mere
knowledge of the
Page 451 U. S. 175
danger would not be sufficient, in itself, to fasten such a duty
on the shipowner, but if the shipowner should anticipate that the
stevedore will not or cannot correct the danger and that the
longshoremen cannot avoid it, then the shipowner's duty is
triggered to take steps, reasonable in the circumstances, to
eliminate or neutralize the hazard. We are presently unprepared to
agree that the shipowner has precisely the duty described by the
Court of Appeals for the Second Circuit, but, for the reasons that
follow, we agree that there are circumstances in which the
shipowner has a duty to act where the danger to longshoremen arises
from the malfunctioning of the ship's gear being used in the cargo
operations.
On the facts posited here, for two days prior to the accident,
it had been apparent to those working with the winch that this
equipment was malfunctioning. Even so, whether it could be safely
used or whether it posed an unreasonable risk of harm to Santos or
other longshoremen was a matter of judgment committed to the
stevedore in the first instance. The malfunctioning being obvious
and Seattle having continued to use it, Scindia submits that, if it
was aware of the condition or was charged with knowledge of it, it
was nevertheless entitled to assume that Seattle, the specialist in
loading and unloading, considered the equipment reasonably safe and
was entitled to rely on that judgment.
Yet it is quite possible, it seems to us, that Seattle's
judgment in this respect was so obviously improvident that Scindia,
if it knew of the defect and that Seattle was continuing to use it,
should have realized the winch presented
Page 451 U. S. 176
an unreasonable risk of harm to the longshoremen, [
Footnote 22] and that, in such
circumstances, it had a duty to intervene and repair the ship's
winch. The same would be true if the defect existed from the outset
and Scindia must be deemed to have been aware of its condition.
As we have indicated, the legal duties placed on the stevedore
and the vessel's justifiable expectations that those duties will be
performed are relevant in determining whether the shipowner has
breached its duty. The trial court, and, where appropriate, the
jury, should thus be made aware of the scope of the stevedore's
duty under the positive law. But an equally necessary inquiry is
whether the pertinent statutes, regulations, or custom place or
assume a continuing duty on the vessel to repair defective ship's
gear being used by the stevedore in the cargo operation. [
Footnote 23]
The statutory duty of the stevedore under § 941 to provide a
safe place to work has been implemented by the Safety and Health
Regulations for Longshoring. 29 CFR § 1918.1
et seq.
(1980). Subpart F of these regulations, § 1918.51
et seq.,
deals with the use of the ship's gear by the stevedore. Section
1918.51(b) provides that "[a]ny component of cargo handling gear .
. . which is visibly unsafe shall not be used until made safe." In
addition, § 1918.53, dealing with cargo winches, provides that
"[a]ny defect or malfunction of winches shall be reported
immediately to the officer in charge of the vessel," §
1918.53(a)(5); that, in the case of electrical winches, "[w]hen the
electromagnetic or other service brake is unable to hold the load,
the winch shall not be used,"
Page 451 U. S. 177
§ 1318.53(c)(1); and that "[e]mployees shall not be permitted to
tamper with or adjust electric control circuits," § 1918.53(c)(2).
[
Footnote 24] Even in the
absence of other statutory or regulatory law placing on the
shipowner the obligation to repair a defective winch, [
Footnote 25] a possible inference
from the
Page 451 U. S. 178
provisions already described is that, when a defective winch is
discovered, it should not be repaired by the stevedore, but should
be reported to and repaired by the shipowner. If this is the case,
the situation comes down to this: if Scindia was aware that the
winch was malfunctioning to some degree, and if there was a jury
issue as to whether it was so unsafe that the stevedore should have
ceased using it, could the jury also have found that the winch was
so clearly unsafe that Scindia should have intervened and stopped
the loading operation until the winch was serviceable?
We raise these questions, but do not answer them, since they are
for the trial court in the first instance and since neither the
trial nor appellate courts need deal with them unless there is
sufficient evidence to submit to the jury either that the shipowner
was aware of sufficient facts to conclude that the winch was not in
proper order, or that the winch was defective when cargo operations
began and that Scindia was chargeable with knowledge of its
condition. The District Court concluded that there was no triable
issue of fact as to whether the shipowner knew or should have known
of the alleged condition of the winch. The Court of Appeals read
the record quite differently, ruling that there was a disputed
material fact, which the District Court should not itself have
resolved, with respect to the shipowner's actual or constructive
knowledge of the condition of the winch. To the extent that this
conclusion was based on the Court of Appeals' erroneous view that
the vessel should have known the facts because of its duty to
inspect the stevedore's cargo handling operation, it was infirm.
But as we understand the opinion below, the Court of Appeals held
that there was a triable issue as to whether the shipowner had
actual knowledge of the failure in the winch's braking mechanism or
was chargeable with knowledge because the winch was defective from
the outset. Based on our own examination of the record, we agree
with the Court of Appeals in this respect, and with its conclusion
that the District Court erred in granting
Page 451 U. S. 179
summary judgment. The case should be returned to the District
Court and, if necessary, tried to a jury under appropriate
instructions. [
Footnote
26]
Accordingly, we affirm the judgment of the Court of Appeals and
remand the case to that court for further proceedings consistent
with this opinion.
So ordered.
THE CHIEF JUSTICE took no part in the decision of this case.
[
Footnote 1]
Pub.L. 92-576, 6 Stat. 1251, amending 33 U.S.C. §§ 901-950.
[
Footnote 2]
Section 933, referred to in § 905(b), among other things
provides that an injured longshoreman need not elect between
compensation and suing a third party. It also specifies the
relative rights of the longshoreman and his employer where the
longshoreman accepts compensation and sues a third party or fails
to do so within a specified time. Because its compensation payments
to Santos gave it an interest in Santos' recovery, Seattle
Stevedore Co. intervened and is a respondent here.
[
Footnote 3]
The District Court's opinion is reported at 1976 A.M.C. 2583 and
is Appendix A to the petition for certiorari.
[
Footnote 4]
See n 9,
infra.
[
Footnote 5]
A pallet jack is a small, wheeled, cart-like vehicle with prongs
on the front like a forklift with which the longshoremen in the
hold would cart the pallet load to the wings of the hold, where
they would then remove the sacks and stow them by hand. Record
77.
[
Footnote 6]
Restatement (Second) of Torts § 343 provides:
"§ 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."
Restatement (Second) of Torts § 343A provides:
"§ 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."
[
Footnote 7]
The District Court stated, 1976 A.M.C. at 2586, that
"[p]laintiff does not controvert defendant's claim that no one
from the ship's crew was ever informed of the winch's condition
prior to the accident,"
and further stated that, if the winch was defective, it was
a
"condition [about] which the Court finds the shipowner did not
know nor should it reasonably have been expected to know, given the
exclusive control of the gear by the stevedores during the relevant
time period."
Ibid. Scindia contended, in any event, that the winch
was not defective, but concedes that, for present purposes, the
case should be judged on the assumption that it was.
[
Footnote 8]
Federal Rule of Civil Procedure 56 (c) provides that judgment
shall be entered in favor of the moving party
"if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law."
[
Footnote 9]
The Court of Appeals acknowledged that the Courts of Appeals for
the Second, Fourth, and Fifth Circuits had relied on these sections
in § 905(b) suits.
See, e.g., Canizzo v. Farrell Lines,
Inc., 579 F.2d 682 (CA2 1978);
Gay v. Ocean Transport
& Trading, Ltd., 546 F.2d 1233 (CA5 1977);
Anuszewski
v. Dynamic Mariners Corp., Panama, 540 F.2d 757 (CA4 1976);
Napoli v. Hellenic Lines, Ltd., 536 F.2d 505 (CA2 1976).
The Court of Appeals for the Second Circuit has recently reaffirmed
its position.
Evans v. S.S. "Campeche," 639 F.2d 848
(1981). On the other hand, the First and Third Circuits, like the
Ninth Circuit, have held that these sections should not apply in §
905(b) suits, since they might bar a longshoreman from recovery
because he was contributorily negligent or because he voluntarily
encountered a known or obvious risk.
See Sarauw v. Oceanic
Navigation Corp., 622 F.2d 1168 (CA3 1980);
Johnson v. A/S
Ivarans Rederi, 613 F.2d 334 (CA1 1980);
Griffith v.
Wheeling Pittsburgh Steel Corp., 610 F.2d 116 (CA3 1979);
Lawson v. United States, 605 F.2d 448 (CA9 1979);
Bachtel v. Mammoth Bulk Carriers, Ltd., 605 F.2d 438 (CA9
1979); 598 F.2d 480 (CA9 1979) (case below).
[
Footnote 10]
The Court of Appeals referred to its standard as being a
"reasonable care under the circumstances" approach.
Id. at
486. It found support for this formulation in
Kermarec v.
Compagnie Generale Transatlantique, 358 U.
S. 625 (1959). In that case, a visitor paying a social
call on a member of the ship's crew was injured when he fell on a
defective stairway. The jury found the shipowner negligent and
returned a verdict, which was set aside on appeal because the
visitor had been a licensee, rather than an invitee. This Court
reversed, preferring to adopt a single duty of "exercising
reasonable care under the circumstances of each case," rather than
to incorporate in the maritime law the complexities of the common
law of invitee and licensee.
Id. at
358 U. S. 632.
The
Kermarec standard was reaffirmed in
Marine
Terminals v. Burnside Shipping Co., 394 U.
S. 404 (1969), a case involving a suit by a stevedore
against the shipowner. We have no quarrel with this standard.
Inevitably, however, the rule will undergo refinement as it is
applied to various categories of cases. Thus, in considering the
reasonableness of Scindia's conduct under this standard, the Court
of Appeals found it appropriate to inquire whether the shipowner
had a continuing duty to inspect, and held that it did. As will
become evident, we have a different view: the shipowner's duty of
reasonable care under the circumstances does not impose a
continuing duty to inspect the cargo operations once the stevedore
begins its work.
[
Footnote 11]
Alaska S.S. Co. v. Petterson, 347 U.
S. 396 (1954);
Weyerhaeuser S.S. Co. v. Nacirema
Operating Co., 355 U. S. 563
(1958);
Crumady v. The J. H. Fisser, 358 U.
S. 423 (1959);
Waterman S.S. Corp. v. Dugan &
McNamara, Inc., 364 U. S. 421
(1960);
Italia Societa v. Oregon Stevedoring Co.,
376 U. S. 315
(1964).
In
Usner v. Luckenbach Overseas Corp, 400 U.
S. 494 (1971), however, we ruled that a single act of
operational negligence by the stevedore did not render the vessel
unseaworthy or subject the vessel to liability.
[
Footnote 12]
See also the cases cited in
n 11,
supra.
[
Footnote 13]
Section 905(b) itself negates the vessel's liability for
unseaworthiness, and the Committee Reports state that the purpose
of eliminating this remedy was to place the injured
longshoreman
"in the same position he would be if he were injured in
non-maritime employment ashore . . . , 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,' 'nondelegable duty,' or the like."
S.Rep. No. 92-1125, p. 10 (1972) (hereafter Rep.). (H.R.Rep. No.
92-1441 (1972) is in all relevant respects identical to the Senate
Report.) The vessel was not to be liable on the theory of
unseaworthiness for the acts or omissions of stevedores, or of the
employees of stevedores, for the manner in which the stevedore
performed its work, or for its defective gear or equipment. Rep. p.
10. Its liability was to be "based on its own negligence," and
could be proved only if it was shown
"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."
Id. at 11.
At the same time, the Committees observed that the statutory
cause of action for negligence would
"meet the objective of encouraging safety because the vessel
would still be required to exercise the same care as a land-based
person in providing a safe place to work."
Id. at 10. Nothing was intended "to derogate from the
vessel's responsibility to take appropriate corrective action where
it knows or should have known about a dangerous condition" as long
as the vessel was not "chargeable with the negligence of the
stevedore or employees of the stevedore."
Id. at 10,
11.
The Committees also anticipated that, in § 905(b) cases, as in
other admiralty cases, the rule of comparative negligence would
apply, and the defense of assumption of risk would be barred.
Furthermore, the Reports emphasized that the amendments were not
intended to relieve any person from his duties and obligations
under the Occupational Safety and Health Act of 1970.
Otherwise, the definition of the vessel's negligence and its
resulting liability were left to 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."
Rep. p. 11. It was anticipated, however, that questions arising
in § 905(b) cases "shall be determined as a matter of Federal law."
Rep. p. 12.
[
Footnote 14]
Because the legislative history suggests that the shipowner's
liability is to be judged by land-based standards,
see
n 13,
supra, it is
urged that the District Court properly turned to and applied §§ 343
and 343A of the Restatement (Second) of Torts. But the legislative
history does not refer to the Restatement, and also states that
land-based principles of assumption of risk and contributory
negligence are not to be applied in § 905(b) cases. This strongly
suggests, as
Kermarec v. Compagnie Generale
Transatlantique, 358 U. S. 625
(1959), indicated, that maritime negligence actions are not
necessarily to be governed by principles applicable in nonmaritime
contexts. Furthermore, since the lower courts are in disagreement
not only as to the applicability of §§ 343 and 343A but also as to
their import and meaning when applied in the maritime context,
those sections, while not irrelevant, do not furnish sure guidance
in cases such as this.
[
Footnote 15]
"Thus, a vessel shall not be liable in damages for acts or
omissions of stevedores or employees of stevedores subject to this
Act.
Crumedy v. The J. H. Fisser, 358 U. S.
423,
Albanese vs. Matts, 382 U. S.
283,
Skibinski vs. Waterman SS Corp., [360]
F.2d 539, for the manner or method in which stevedores or employees
of stevedores subject to this Act perform their work,
A. N. G.
Stevedores vs. Ellerman Lines, 369 U. S.
355,
Blassingill v. Waterman SS Corp., 336 F.2d
367, for gear or equipment of stevedores or employees of stevedores
subject to this Act whether used aboard ship, or ashore,
Alaska
SS Co. vs. Peterson, 347 U. S. 396,
Italia
Societa vs. Oregon Stevedoring Co., 376 U. S.
315, or for other categories of unseaworthiness which
have been judicially established. This listing of cases is not
intended to reflect a judgment as to whether recovery on a
particular actual setting could be predicated on the vessel's
negligence."
Rep. p. 10.
[
Footnote 16]
Much is made of the Committees' statement that nothing in the
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."
Ibid. But the statement did not explain what the
vessel's "responsibility" is and what "appropriate" action might
be, or when it "should have known" of the condition. The Committees
did offer an example:
"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."
Id. at 111. However, when the failure to remove the oil
spill would be "willful" or "negligent" or what the exercise of
reasonable care under the circumstances would require was not
explicated, except to say that the "vessel will not be chargeable
with the negligence of the stevedore or employees of the
stevedore."
Id. at 11.
[
Footnote 17]
Title 33 U.S.C. § 941 provides in relevant part as follows
"(a) . . . 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."
[
Footnote 18]
The Committees rejected the proposal that the vessel and the
stevedore be considered joint employers of longshoremen. Rep. p.
8.
[
Footnote 19]
See also the cases cited in
n 11,
supra. Of course, in the situation
presented in the
Italia case, the faultless liability of
the shipowner would no longer obtain under § 905(b).
[
Footnote 20]
Justice Harlan, joined by Justices Frankfurter and Whittaker,
dissented, being of the view that the ship was not unseaworthy, and
that, if it was, the ship was not entitled to indemnity if the
stevedore merely brought into play the unseaworthy condition of the
ship's own equipment.
Crumady was reaffirmed in
Waterman S.S. Co. v. Dugan & McNamara, Inc., 364 U.S.
at
364 U. S.
423.
[
Footnote 21]
The panel was divided. Judge Meskill wrote the principal
opinion, joined for the most part by Judge Friendly, who also wrote
a concurring opinion. District Judge Bonsal, sitting by
designation, dissented. The majority could not accept the notion
that the shipowner had a continuing duty to inspect the cargo
operations, since
"to so require would 'saddle the shipowner with precisely the
sort of nondelegable duty that Congress sought to eliminate by
amending section 905(b).'
Hurst v. Triad Shipping Co.,
supra, 554 F.2d at 1249 n. 35."
639 F.2d at 856. The majority also rejected the so-called
"control test" which the court thought would, inconsistently with
the statute, entirely relieve the shipowner from any liability for
accidents occurring in the course of operations under the control
of the stevedore. The majority's approach, which is considered
consistent with § 343A of the Restatement and which it called the
"reasonable anticipation standard," would place a duty of care on
the vessel when it would be unreasonable to assume the stevedore
will deal with an apparent hazard -- for example,
"where the dangerous condition would be too difficult for the
stevedore alone to remedy, or where the custom in the industry
places the burden of acting on the shipowner, or where the ship
affirmatively joins in the decision to continue despite the
hazard."
639 F.2d at 856. The court should endeavor "to reach a realistic
conclusion concerning the shipowner's reasonable anticipation."
Id. at 856-857.
[
Footnote 22]
We agree with the Court of Appeals that the shipowner may not
defend on the ground that Santos should have refused to continue
working in face of an obviously dangerous winch which his employer,
Seattle, was continuing to use. The District Court erred in ruling
otherwise, since the defense of assumption of risk is unavailable
in § 905(b) litigation.
See also Napoli v. Hellenic Lines,
Ltd., 536 F.2d at 509.
[
Footnote 23]
It may also be that the contract between the stevedore and the
shipowner will have provisions specifically bearing on the dispute.
The contract between Scindia and Seattle is not part of the record
in this case.
[
Footnote 24]
Petitioner acknowledged in its brief that only the shipowner
could have repaired the defective winch, Brief for Petitioner 24,
but argued that, even if notified of the defect, it would merely
have had the opportunity, but not the duty, to repair. Tr. of Oral
Arg. 10.
[
Footnote 25]
The United States Coast Guard has issued regulations with
respect to the gear and equipment of cargo ships. 46 CFR Ch. 1,
Subchapter 1, Cargo and Miscellaneous Vessels (1980). For ships to
which the regulations are applicable, the shipowner must obtain a
certificate of inspection at stated intervals. There are detailed
requirements for the testing of winches. There is provision for
accepting the certificate of private testing organizations
recognized by the Coast Guard, such as the International Cargo Gear
Bureau, Inc., which has its own manual specifying necessary testing
procedures. The regulations, however, do not appear to specify the
respective duties of the vessel and the stevedore in situations
such as we now have before us. Scindia asserts that the Coast Guard
regulations place no continuing duty on the shipowner to inspect
the ship's equipment during cargo operations. Tr. of Oral Arg. 14.
Also, the
M/S Jalaratna appears to be an Indian ship, and
may not be covered by the regulations, which do not apply to
"[a]ny vessel of a foreign nation signatory to the International
Convention for Safety of Life at Sea, 1960, and which has on board
a current, valid safety equipment certificate."
46 CFR § 90.05-1 (1980).
We note with some interest that, in affirming a jury verdict for
a longshoreman in
Irizarry v. Compania Maritime Navegacion
Netumar, S.A., No. 79-7876 (CA2, May 22, 1980),
cert.
pending, No. 80-94, the Court of Appeals for the Second
Circuit relied on the Joint Maritime Safety Code issued by the New
York Shipping Association, Inc., the International Longshoremen's
Association, and the Port of New York Joint Safety Committee. The
Code was prepared pursuant to the terms of the labor agreement
between the shipping association and the longshoremen's union, and
contains what is described as "the commonly agreed on practices for
working together safely." The provision of the Code relied on by
the Court of Appeals states that
"[t]he owner, master and officers of the vessel shall supply and
maintain in safe condition for use all ship's gear, equipment,
tools, and work spaces which are to be used in stevedoring
operations."
[
Footnote 26]
Of course, it has not been determined whether the winch was
defective or, if it was, when it became defective and whether the
defect contributed to the accident. If the effective cause was a
simple act of operational negligence by the crane operator or the
hatch tender, the vessel would not be liable in any event.
Cf.
Usner v. Luckenbach Overseas Corp., 400 U.
S. 494 (1971). The District Court apparently thought
this conclusion was necessitated by the fact that the stevedore was
in operational control, and was necessarily the sole cause of the
accident.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, concurring.
My views are that, under the 1972 Amendments: (1) a shipowner
has a general duty to exercise reasonable care under the
circumstances; (2) in exercising reasonable care, the shipowner
must take reasonable steps to determine whether the ship's
equipment is safe before turning that equipment over to the
stevedore; (3) the shipowner has a duty to inspect the equipment
turned over to the stevedore or to supervise the stevedore if a
custom, contract provision, law or regulation creates either of
those duties; and (4) if the shipowner has actual knowledge that
equipment in the control of the stevedore is in an unsafe
condition, and a reasonable belief that the stevedore will not
remedy that condition, the shipowner has a duty either to halt the
stevedoring operation, to make the stevedore eliminate the unsafe
condition, or to eliminate the unsafe condition itself.
Page 451 U. S. 180
Since I read the Court's opinion to be consistent with these
views, I join the Court's opinion.
JUSTICE POWELL, with whom JUSTICE REHNQUIST joins,
concurring.
I join the Court's opinion because I agree with its basic thrust
-- placing the primary burden on the stevedore for avoiding
injuries caused by obvious hazards. I write only to emphasize the
distinction between this approach and the general "reasonableness"
standard adopted by the Ninth Circuit in this case.
Under the Court's opinion,
"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."
Ante at
451 U. S. 172.
In addition, the opinion makes clear that the shipowner has only a
limited duty with respect to obvious hazards of which it is aware.
Although the shipowner cannot rely in all cases on the judgment and
primary responsibility of the stevedore concerning what conditions
allow safe work to continue, safety is a "matter of judgment
committed to the stevedore in the first instance."
Ante at
451 U. S. 175.
Only where the judgment of the stevedore is "obviously
improvident,"
ibid., and this poor judgment either is
known to the shipowner or reasonably should be anticipated under
the circumstances, does the shipowner have a duty to intervene.
[
Footnote 2/1] As the opinion
points out, the customs and regulations allocating responsibility
for particular repairs are highly relevant to this inquiry.
Page 451 U. S. 181
The difficulty with a more general reasonableness standard like
that adopted by the court below is that it fails to deal with the
problems of allocating responsibility between the stevedore and the
shipowner. It may be that it is "reasonable" for a shipowner to
rely on the stevedore to discover and avoid most obvious hazards.
But when, in a suit by a longshoreman, a jury is presented with the
single question whether it was "reasonable" for the shipowner to
fail to take action concerning a particular obvious hazard, the
jury will be quite likely to find liability. If such an outcome
were to become the norm, negligent stevedores would be receiving
windfall recoveries in the form of reimbursement for the statutory
benefit payments made to the injured longshoremen. [
Footnote 2/2] This would decrease significantly the
incentives toward safety of the party in the best position to
prevent injuries, and undercut the primary responsibility of that
party for ensuring safety.
[
Footnote 2/1]
In my view, the Restatement standard adopted by the Second,
Fourth, and Fifth Circuits,
see ante at 162, n. 9, and
discussed most recently in
Evans v. SS. "Campeche," 639
F.2d 848 (CA2 1981), is consistent with the plain intent of
Congress to impose the primary responsibility on the stevedore.
Although it is unnecessary in this case for the Court to adopt this
standard fully, I do not understand our opinion to be inconsistent
with it.
[
Footnote 2/2]
Under 33 U.S.C. § 905(b), the shipowner is liable in damages to
the longshoreman if it was negligent, and it may not seek to
recover any part of this liability from the stevedore. The
longshoreman's recovery is not reduced to reflect the negligence of
the stevedore.
Edmonds v. Compagnie Generale
Transatlantique, 443 U. S. 256
(1979). Under 33 U.S.C. § 933, the stevedore -- even if
concurrently negligent -- receives reimbursement for its statutory
benefit payments to the longshoreman, up to the full amount of
those payments.
See also Bloomer v. Liberty Mutual Ins.
Co., 445 U. S. 74 (1980)
(stevedore's lien is not reduced by its proportional share of the
costs of litigating the negligence suit). As a result of this
automatic reimbursement, there is a danger that
"concurrently negligent stevedores will be insulated from the
obligation to pay statutory workmen's compensation benefits, and
thus will have inadequate incentives to provide a safe working
environment for their employees."
Edmonds, supra, at
443 U. S. 274
(BLACKMUN, J., dissenting). In cases involving obvious and
avoidable hazards, this danger will be realized unless the
shipowner's liability is limited to the unusual case in which it
should be anticipated that the stevedore will fail to act
reasonably. Any more stringent, or less defined, rule of shipowner
liability will skew the statutory scheme in a way Congress could
not have intended.
Cf. Canizzo v. Farrell Lines, Inc., 579
F.2d 682, 687-688 (CA2 1978) (Friendly, J., dissenting).