658 F.

2d 66

Orazio ALBERGO, Plaintiff-Appellant,

v.
HELLENIC LINES, INC., Defendant-Appellee.
No. 1244, Docket 81-7006.

United States Court of Appeals,

Second Circuit.
Argued April 24, 1981.
Decided Aug. 21, 1981.
1

Morris Cizner, New York City (Zimmerman & Zimmerman, New York City,
Attys.), for plaintiff-appellant.

Edwin K. Reid, New York City (Robert Alexander Hulten, New York City, of
counsel, Zock, Petrie, Reid & Curtin, New York City, Attys.), for defendantappellee.

Before LUMBARD and OAKES, Circuit Judges, and POLLACK, District

Judge.*
POLLACK, District Judge:

Orazio Albergo, a longshoreman employed by Hellenic Lines, Inc., tripped over

loose lashing rope scattered on the deck of a ship being off-loaded by
stevedores and fell suffering injury. Pursuant to 905(b) of the Longshoremen's
and Harbor Workers' Compensation Act, 33 U.S.C. 901-950 (1976), Albergo
brought this third-party negligence action against the vessel owner in the
United States District Court for the Southern District of New York. After a five
day trial, the jury returned a verdict of $80,000 in favor of Albergo and found
that plaintiff's negligence contributed to the accident to the extent of 25%.
Judge Sweet set aside the jury's verdict and granted judgment N.O.V. to the
defendant dismissing the complaint on the grounds that the open, obvious and
known scattering of loose cuttings of lashing rope on the deck which plaintiff
himself had pushed aside with his hand just before the accident did not present
a negligent condition in the work area or pose an unavoidable danger to the
stevedoring crew and their operation and could not legally support a charge of
negligence against the vessel. Plaintiff appeals. We affirm.

Plaintiff, 58 years of age at the time of the accident, started out as a winch
operator in stevedoring operations but due to an injury in 1956 in that capacity
he became a stevedore's deckman. The accident sued on is plaintiff's fourth
instance and claim of injury as a longshoreman.

On April 24, 1978 defendant's vessel, the Hellenic Leader, was discharging
cargo at a pier in Brooklyn, New York using plaintiff and other longshoremen
as deckmen employed by Hellenic Lines in its stevedoring capacity. The men
started work at 8 A.M. on that day. Their task initially was to rig up and
remove deck cargo consisting of containers and cartons from the main deck,
located inshore and offshore. The cargo was lashed together with "skinny
ropes" (so styled by plaintiff) that were cut from the containers by the ship's
crew during the stevedoring operation; the cuttings were left strewn on the
deck. The lashings on the offshore deck cargo were cut by the ship's crew while
the longshoremen worked the inshore deck cargo, to ready the offshore
containers to be moved. There were two or three vans on the offshore side. The
cuttings were open and obvious to the longshoremen. This was not an unusual
way of unlashing cargo; plaintiff testified that on other occasions he had seen
crews leaving cuttings of such ropes on the decks.

Having completed the removal of the inshore cargo, the stevedores moved to
respot the up and down boom to the offshore side. However, the work plan was
changed before the offshore containers were moved; the men were told to leave
the offshore deck cargo for later on and instead, to raise the cargo from the hold
in Hatch # 5. In the respotting process the preventer guy was slacked off so that
plaintiff could fasten it to the deck (through a pad-eye). Plaintiff shackled the
preventer guy to the deck and the slack was taken up. He was then told to
recheck the fastening and did so and in turning away from the preventer, the
fall, which caused this law suit, occurred.

Though the testimony was imprecise and vague concerning the manner of the
occurrence, leaving much to the imagination, the evidence showed that prior to
initially fastening the preventer guy to the deck, the plaintiff found lashing rope
cuttings from the containers strewn in that part of the deck area where the
preventer was to be fastened and he swept these "skinny rope" cuttings aside
with his hand from the place where he had to do the shackling which he
testified he did "just to clean up that very area there, just to move the shackling
through the pad-eye." The guy was then loosened up by the winchman and the
plaintiff turned the lock down on the preventer, the boom was raised and it was
stopped when it reached the top and was fast and the plaintiff then locked up
the guy. Plaintiff stood up and told the signalman that it was okay. He was
asked by his co-worker to "give it another check". Plaintiff gave the guy a

second check in the very area from which he had just swept away the rope, and
then announced, "It's okay, it's locked". Plaintiff then turned around to leave
that very area he had cleared but according to his testimony he nevertheless
tripped on some rope and fell down. Plaintiff testified that when he went into
this area there were rope cuttings in between and around his feet and that he
moved some of it so it wouldn't be over the shackle. He testified he had seen it
before; "we worked on ropes all morning." When he got to the timekeeper's
office he told him that he had tripped over a pad-eye covered with lashings.
9

The crux of the claim of negligence against the vessel is whether the presence
of rope cuttings on the deck that plaintiff undertook to move with his hand to
clear his work space can legally support a charge of third-party negligence
against the vessel. Loose rope as such has no inherent mobility or dangerous
propensities not tied down, and left lying under foot openly and obviously it
does not, in and of itself on a ship, pose an unreasonable risk of harm. As a
matter of law a charge of negligence of the vessel can only be predicated on
hazardous conditions or circumstances and not on ordinary clumsiness of
movement of the longshoreman. The case might be different under the
discarded theory of unseaworthiness which was a liability of a vessel eliminated
in 1972 by the Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq.
during cargo operations.
In his opinion the Judge said

10 a matter of law the ship is not required to provide an immaculate working place,
as
see Giglio v. Farrell Lines (613 F.2d 429 (2d Cir. 1980)); Hickman v. Jugoslavenska
Linijsk Plovidba Rigcka, Zvir, 570 F.2d 449 (2d Cir. 1978), and if there is ever
anything to be expected aboard a vessel, it is a line. There is simply no basis in fact
upon which a jury could conclude that the cut line was a dangerous condition that
the ship could reasonably conclude could not be avoided, particularly since Albergo
had in fact avoided it once.
The Judge went on to say
11There is but one conclusion reasonable men could have reached here: that is, that
...
Hellenic could reasonably have expected Albergo to avoid the cut line. Since
Albergo could have avoided the cut line, Hellenic, in failing to remove it, did not
deviate from the standard of care imposed upon it by the law of this Circuit.
12

The place of plaintiff's employment was an area in which the law has imposed
on the stevedore the primary obligation, as a matter of "Housekeeping", to "be
kept reasonably clear of lines, bridles, dunnage and all other loose tripping or

stumbling hazards". 29 C.F.R. 1918.1(a) (OSHA). The duty to clear away any
loose debris when that can be done as plaintiff did it here, is placed squarely on
the stevedore employer, not the vessel owner. Thus, the danger to be perceived,
if any, spells the duty of the stevedore to be observed. With the duty on the
plaintiff's employer it would be contradictory to suggest that loose debris of the
sort here involved, so easily removable as it was here, by hand, can establish
liability for negligence on the part of the vessel owner. The longshoreman is
adequately protected by looking to his employer for compensation when injured
by accident. Evans v. Transportacion Maritime Mexicana SS "Campeche", 639
F.2d 848 (2d Cir. 1981) held that the ship owner could consider the stevedore
to be primarily responsible for the safety of the longshoremen and to be
obligated to take whatever steps are necessary to correct even an "unsafe"
condition aboard the ship. Thus, this is a case, where on the testimony adduced,
it must be said that as a matter of law there was no factual or legal basis for an
anticipation by the ship that the plaintiff would be unable to avoid the claimed
hazard despite its obviousness and the way he himself dealt with it.
13

The appellee cogently argues that a vessel owner is entitled, as a matter of law,
to anticipate that the stevedore and his longshoremen will abide by the OSHA
regulations in such a case, and take whatever steps are necessary to correct an
untidy condition aboard the ship; otherwise, longshoremen such as appellant,
will know they can ignore the statutes, receive compensation from the
stevedore and then try for even more money by suing the vessel owner.
Appellee correctly says that, "Misplacement of the statutory standard will
destroy the 'delicate balance' for safety which ... Congress sought to establish ...
and adjust the ship owner's liability to that of an insurer". As stated by this
Circuit in Evans, 639 F.2d at 852:

14
Finally,
Congress made clear that the stevedore is to have the primary responsibility
for the safety of the longshoremen. Section 941 requires the stevedore to "furnish
and maintain employment and places of employment which shall be reasonably safe
for his employees" and to comply with the regulations promulgated under the Act.
33 U.S.C. 941(a) (1976).
15

The simple act performed by the plaintiff of moving the skinny rope cuttings
aside with his hand from the area where he had to shackle, which was the area
of the accident, eloquently strikes down any notion of the existence of a
negligent condition for which the vessel owner could be held in damages. As a
matter of law there was no such negligent condition nor any basis for
anticipation that the longshoreman could not avoid the rope in this case
certainly not one remaining at any time after plaintiff cleared the untidy
condition impeding him.

16

Judgment affirmed.
OAKES, Circuit Judge (dissenting):

17

I respectfully dissent.

18

I adhere to what I said in my dissenting opinion in Giglio v. Farrell Lines, Inc.,

613 F.2d 429, 436 (2d Cir. 1980). I there pointed out that the trial judge's
construction of the Safety and Health Regulations for Longshoring (there 29
C.F.R. 1918.91(c), here 29 C.F.R. 1918.91(a)), also relied upon by the
panel majority here, does not impose an exclusive duty upon stevedores. See
Lubrano v. Royal Netherlands Steamship Co., 572 F.2d 364, 373-74 (2d Cir.
1978) (Moore, J. dissenting); see also Canizzo v. Farrell Lines, Inc., 579 F.2d
682-88 (2d Cir. 1978) (Friendly, J. dissenting), cert. denied, 439 U.S. 929, 99
S.Ct. 316, 58 L.Ed.2d 322 (1978). The Safety and Health Regulations
specifically provide that they do not relieve vessels "from responsibilities or
duties now placed upon them by law, regulation or custom." 29 C.F.R.
1918.2(b). If the stevedore and his employees are contributorily negligent, the
liability recovery against the vessel may be reduced under the principles of
comparative negligence, but not eliminated. See Napoli v. Hellenic Lines, Ltd.,
536 F.2d 505, 508 (2d Cir. 1976).

19

Here as in Giglio it was the ship's duty as substantiated by the Joint Maritime
Safety Code prepared by New York Shipping Association, Inc., International
Longshoremen's Association, and the Port of New York Joint Safety
Committee, with an effective date of January 1, 1970, of which the trial court
took "judicial notice," to keep the "(w)eather deck, walking and working areas
... reasonably clear of lines, bridles, dunnage and all other loose tripping or
stumbling hazards." See Part Q. Moreover, under Part C of the Code:

20 owner, master and officers of the vessel shall supply and maintain in safe
The
condition for use all ship's gear, equipment, tools and work spaces which are to be
used in stevedoring operations. (Emphasis added).
21

In my view, as I said in the Giglio dissent, supra, 613 F.2d at 438, the Safety
Code qualifies under the Safety and Health Regulations as a regulation or
custom for the maritime industries in the Port of New York. Moreover, the
union contract with the New York Shipping Association in evidence states that
the Joint Safety Code must be followed, and Hellenic Lines was a signatory to
this contract. As the trial court indicated, the appellees could not disclaim
knowledge of the New York standard of care in the maritime industry because

it was a participant in one of the two organizations propounding the Safety

Code Regulations.
22

In short the vessel did not comply with its duties under the Safety Code. Its duty
exists independent of the stevedore's own duties under the OSHA regulations.
The majority opinion speaks without any reference to the Joint Safety Code
whatsoever and certainly disregards its impact on this case.

23

I note that Judge Sifton's concurring opinion in Giglio v. Farrell Lines, supra, at
least implies that the ship's responsibility is not secondary to that of the
stevedore, 613 F.2d at 436, and while our rules prevent my citation as authority
to Irizzary v. Compania Maritime Navegacion Netumar S.A., 628 F.2d 1345
(2d Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 2045, 68 L.Ed.2d 347
(1981), since it was not a published opinion, I believe it is proper to note that in
Scindia Steam Navigation Co., Ltd. v. De Los Santos, --- U.S. ----, ---- n.25,
101 S.Ct. 1614, 1622, 68 L.Ed.2d 1 (1981), the Irizzary decision's holding that
the Joint Safety Code was a custom or practice within the OSHA Safety
Regulations was "note(d) with some interest" by the Supreme Court but not
ruled upon. Certainly until the Supreme Court rules otherwise, the point I made
in the Giglio dissent is an open one.

24

Following the analysis there set forth, 613 F.2d at 436-37, the question then
becomes whether in the exercise of reasonable care the ship should have
cleaned up the loose lines. See Napoli, supra, 536 F.2d at 509; Restatement
(Second) of Tort 343A. This court's own decision in Lopez v. A/S D/S
Svendborg, 581 F.2d 319 (2d Cir. 1978), as well as Napoli itself, permit the
imposition of liability, on a comparative negligence basis, on the vessel for
dangers obvious to the stevedore, where as here custom or practice (The Joint
Safety Code) makes the vessel responsible and the longshoreman relies on the
vessel to eliminate the danger. Here there was ample evidence for the jury to
find, as it did find, that Albergo did so rely. He was working in close quarters
with maybe a "foot, foot and a half" between the ship's rail and the van where
the pad eye for the schooner rope was located. "It wasn't (his) job to (push the
loose rope to one side)". His fellow worker, Tony Lavadera, had previously told
the mate to clean up the deck because it was the ship's job and the loose ropes
left a dangerous condition as Albergo himself described it, "like when you walk
on the snow."Under what I think was basically a proper charge the jury found
the vessel negligent, its negligence the proximate cause of the accident, and
Albergo twenty-five per cent contributorily negligent. I believe the law requires
that the jury verdict stand.

25

Purely as an aside, I fail to understand the relevancy of the majority's point that

25

Mr. Albergo had three previous claims for injury. I do not find this in the
slightest surprising; the man was fifty-eight years old at the time of this
accident, he had been a longshoreman for twenty-nine years, and it is well
known that a longshoreman's work is one of the most hazardous of any. The
present case is simply another example. A longshoreman is expected to step
over 20 to 30 loose pieces of rope totalling some 300 to 400 feet in length
thrown haphazardly in a narrow little space to loosen and resecure the preventer
on a padeye to respot the up and down boom so that the men could work in the
hold. It was the ship's equipment to be secured to the padeye. The ship knew
some longshoreman would have to go into the narrow space with the loose rope
obstructions but did nothing. Thus, Albergo's fourth claim, which the majority
now denies. Only its merits are relevant, I think.

Honorable Milton Pollack of the United States District Court for the Southern
District of New York, sitting by designation