JOHNSON, Circuit Judge:
Hurman Lee Turner, a longshoreman, instituted this action against Costa Line Cargo Services, Inc. (Costa Line), a vessel owner, under section 5(b) of the Longshoremen's and Harbor Workers' Compensation Act
I. Background and the District Court's Fact Findings
Costa Line's vessel, the M/V CORTINA, arrived in Houston, Texas on Sunday, January 25, 1981, and its contract stevedore, Strachan Shipping Company, commenced loading operations which continued through the following day. On the following Tuesday, the vessel was shifted to another dock and the stevedore continued operations to complete unloading and to load and secure new cargo.
On the following Friday, at 7 a.m., Hurman Turner came aboard the M/V CORTINA for the first time as a member of the cargo-securing crew. It is undisputed that he had not served with the earlier stevedore crews. When the crew arrived on the scene, both Turner and his foreman, a Mr. Goatcher, testified that they observed a
After hearing the evidence, observing the witnesses and examining the documentary evidence, the district judge, as finder of fact in the instant case, made the following relevant findings:
Record Vol. I at 17-18.
Once again, significantly, the district court found that the dunnage and its associated oily slick were not in the work area of the crew. Clearly, the district court concluded as a factual matter that an unreasonably dangerous condition (the oil spill) existed when Turner boarded the vessel,
The record reveals that the trial court's finding that the vessel owner was repeatedly requested to eliminate the inherently dangerous condition is fully supported by the evidence presented at trial.
II. The Trial Court's Fact Findings and Existing Precedent
As we have seen, the district court, as fact finder, concluded (1) that the oily area in which Turner fell was not in the stevedore gang's work area; and (2) that the vessel owner had actual knowledge of the unreasonably dangerous condition prior to Turner's injuries and that the vessel owner failed to remove the hazardous condition even though twice requested to do so. We conclude that both of these findings independently support the district court's judgment under established precedent.
A. Vessel Owner's Liability for Ship Areas Remaining Within Its Control
In Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), the Supreme Court stated: "[T]he 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." Scindia, 451 U.S. at 172, 101 S.Ct. at 1624 (emphasis added). Generally, the vessel owner is entitled to rely on the stevedore to protect his employees from conditions that "develop within the confines of the cargo operations that area assigned to the stevedore." Id. However, the vessel owner is not relieved of responsibility for conditions arising outside the area assigned to the stevedore. See Helaire v. Mobil Oil Co., 709 F.2d 1031, 1036 (5th Cir.1983) (the owner has a duty to avoid exposing the longshoremen to harm "from hazards under the act or control of the vessel.") (citing Scindia, 101 S.Ct. at 1626). Thus, the vessel owner is relieved of liability only if the condition arises in an area turned over to the stevedore for cargo operations.
As we noted earlier in this opinion, Turner was required to cross over the oil slick in order to obtain ship's gear to be used in securing the number 4 hatch. However, this does not mean that the oil
Record Vol. II at 16. Goatcher then explained how the ship's gear on the M/V CORTINA was not in the normal place — by the hatch — but was scattered all over the vessel. See Record Vol. II at 20-23. Clearly, Turner was required to venture outside the area of normal and routine cargo operations to areas within the ship's control and was forced to cross the oil slick in a location outside of his work area. This theory was argued to the able and experienced district judge by Turner's counsel, see Record Vol. II at 5, and after hearing the evidence and observing the witnesses, the district judge made a clearly supported finding of fact that the slick area was not in the stevedore's work area.
Thus, the site in which the slick area was found — and in which Turner fell — was not an area turned over to the stevedore for cargo operations.
The dissent's argument is contradicted by the language it itself quotes from this Court's opinion in Helaire: "[T]he owner has no general duty by way of supervision or inspection to discover dangerous conditions that develop in the area assigned to the stevedore." 709 F.2d at 1036 (emphasis added). One can hardly say that the entire ship — except remote "enclaves" — was assigned to the stevedore; the district court's finding that the slick area was not in the gang's work area demonstrates that
B. Vessel Owner's Liability for Ship Areas Within the Stevedore's Control
Even assuming that the slick area could be said to be within the stevedore's assigned area, the district court's fact findings clearly support its judgment under existing precedent.
In Scindia, the Supreme Court expressly held that a vessel owner could be held liable for injuries suffered by a stevedore's employee after commencement of unloading operations if the vessel owner had knowledge of the unreasonably dangerous condition and actual knowledge that the stevedore could not be relied upon to protect the employees from the danger. 451 U.S. at 175, 101 S.Ct. at 1626. Moreover, numerous decisions in this Circuit support a recovery under such facts. See Wild v. Lykes Brothers Steamship Corp., 665 F.2d 519, 521 (5th Cir.1981) (quoting Scindia, 451 U.S. at 175, 101 S.Ct. at 1626); Hill v. Texaco, Inc., 674 F.2d 447, 451 (5th Cir. 1982) ("[T]he Scindia exception ... requires the vessel to protect a longshoreman or harborworker when the vessel knows of an unsafe condition and knows that the [stevedore] is not adequately guarding the longshoreman or harborworker against the danger ...."); Helaire v. Mobil Oil Co., 709 F.2d at 1038-39 (5th Cir.1983) ("Once loading operations have begun, the vessel owner can be held liable for injuries to employees of the stevedore ... only in the event of actual knowledge of the danger and actual knowledge that he cannot rely on the stevedore to remedy the situation.") (emphasis added);
As we have seen, the district court concluded as a factual matter that the vessel owner had actual knowledge of the unreasonably dangerous condition prior to Turner's injuries, but failed to remove the hazardous condition even though twice requested to do so. We have reviewed these fact findings and have concluded that they are not clearly erroneous. These fact findings clearly support the district court's judgment under existing precedent, and accordingly, we affirm the district court's judgment in all respects.
GEE, Circuit Judge, dissenting:
As I do not agree that the fact findings of the district court support its judgment under today's precedents of our court, I respectfully dissent.
About a month after the trial court made its findings quoted above and entered judgment for Turner based upon them, we had occasion in Helaire v. Mobil Oil Co., 709 F.2d 1031 (5th Cir.1983), to review the law in this area. Discussing the Supreme Court decision in Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), we observed:
Helaire, 709 F.2d at 1036 (footnote omitted) (emphasis added).
Further on in our opinion, at 1038-39, we addressed the situation presented today:
Helaire, 709 F.2d at 1038-39 (emphasis original).
More recently, in Stass v. American Commercial Lines, Inc., 720 F.2d 879, 884 (5th Cir.1983), we spoke directly to the precise hazard at issue today:
(emphasis added) (footnotes omitted).
The Law Applied
From the above it is immediately apparent that the trial court's findings do not suffice to support its judgment under the law of our circuit as it exists today. That law is that once unloading operations have begun, the stevedore has the chief and primary responsibility for the safety of his employees within the area of the ship that is under his control, that the shipowner has no duty to monitor the stevedore's operations or inform himself regarding them, and that — with three narrow and specific exceptions — the shipowner is not responsible for injuries sustained in these circumstances. The exceptions are:
Turning to the facts of today's case, it is clear that although the latter two exceptions have possible application, the first does not: Turner testified that the presence of the oil was apparent at a glance.
The second exception may apply if the oil spot was located in an area over which the shipowner retained control despite the stevedore's general control of the ship as a result of the owners "turning over the ship to the stevedore ...." Helaire, 709 F.2d at 1036. To be sure, the trial court did find that the oil was "not in the work area of the securing gang for the no. 4 hold." Under Helaire, however, this finding is not dispositive. Instead, what signifies for this purpose is not whether the oil was in the
The majority achieves its result by extending the trial court's fact-finding quoted above that the oil was "not in the work area of the securing gang for the No. 4 hold" into one that it "was not in the stevedore's work area" or in "an area turned over to the stevedore for cargo operations." (Majority op. p. 509, all emphasis in quoted matter added). The record indicates that five hatches — Nos. 1, 2, 3, 4 and 5 — were being worked by the stevedore, thus it is patent that the finding of the trial court regarding the No. 4 hold will not stretch to cover the entire area turned over to the stevedore. In my view, therefore, we should remand to the trial court to permit it to make an adequate finding under the law as it exists today.
There remains the final exception. If this is to apply, the court must determine that the shipowner should, in the twelve minutes between first complaint and injury, have deduced from the complaints of Goatcher about the presence of the oil, or in some other manner, that the stevedore could not be relied on to remedy the hazard but would, in the exercise of "obviously improvident" judgment, work on in the face of it so that the shipowner was required to intervene in the stevedore's operations. The trial court found as to this exception only that the ship's crew did not warn Turner or his colleagues about the presence of the oil and that Goatcher, the foreman, twice asked the crew to clean it up. The first finding is not of any significance, since it is undisputed that Turner and Goatcher knew of the condition and therefore required no warning. The second is something to the purpose. It clearly falls short of a determination, however, that the stevedore could not be relied on either to wait "a moment" or to throw some sawdust on the spot, but would — in the Supreme Court's phrase, not our's — in the exercise of "obviously improvident" judgment, work on in the face of the hazard rather than stop work or take the measures, trivial in this case, required to remedy it.
Our precedents following Scindia seem to me plainly to establish a simple and workable rule: that once the shipowner turns the vessel over to the stevedore for loading or unloading operations, primary responsibility for the safety of the stevedore's employees rests with him, subject only to the narrow exceptions that I have noted. The trial court's findings do not address any of these exceptions, as scarcely they could have: Helaire, in which they took definitive form, came down after the findings were made. Nevertheless, the majority affirms, ignoring the circumstance that the factual determinations of the trial court do not mesh with current precedent. I cannot join in so Procrustean an approach.
I would vacate the judgment of the trial court and remand the cause for further proceedings at which the trial court could address the correct issues in the case in light of our current precedent. Since the majority does otherwise, I respectfully dissent.
Record Vol. II at 18-19. Moreover, the record reveals that the vessel owner was repeatedly requested to clean up the oil spill.
Record Vol. II at 22.
Under either test, however, the district court's judgment should be affirmed in the instant case. The evidence reveals (and the district court found) that the vessel owner twice was requested to remove the inherently dangerous oil slick, that the vessel owner replied that the condition would be remedied "in a moment" — thereby clearly indicating to the stevedore that the condition would be cleared up in a moment — yet failed to remove the condition until sometime after Turner's injuries when yet another individual slipped and fell on the same oil. See note 4, supra. It cannot be gainsaid but that the vessel owner knew of the dangerous condition, that the vessel owner knew the stevedore was not going to clean up the oil slick, and that the vessel owner knew that the stevedore was requiring its employees to work on in the face of the inherently dangerous condition.