Eugene H. Bandeen v. United Carriers (Panama), Inc., Japan Line, Ltd., and Nichimen Co., Inc.

712 F.2d 1336 1984 A.M.C. 1425 Eugene H. BANDEEN, Plaintiff-Appellant, v. UNITED CARRIERS (PANAMA), INC., Japan Line, Ltd., and Nichimen Co., Inc., Defendants-Appellees. No. 81-3641. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 9, 1982. Decided Aug. 12, 1983. Raymond J. Conboy, Pozzi, Wilson, Atchison, Kahn & Oleary, Portland, Or., for plaintiff-appellant. John R. Brooke, Wood, Tatum, Mosser, Brooke & Holden, Katherine O'Neil, Randall B. Kester, Schwabe, Williamson, Wyatt, Moore & Roberts, Portland, Or., for defendants-appellees. Appeal from the United States District Court for the District of Oregon. Before GOODWIN, PREGERSON, and CANBY, Circuit Judges. GOODWIN, Circuit Judge: 1 Bandeen sued under section 905(b) 1 of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 , for damages for injuries caused in a fall from a ship while loading logs. Defendants are the shipowner, United Carriers (Panama), Inc. (United); the time charterer, Japan Line, Ltd. (Japan Line); and the subcharterer, Nichimen Co., Inc. (Nichimen). 2 At the close of the evidence the district court directed verdicts in favor of all…

Bandeen sued under section 905(b) 1 of the Longshoremen’s and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950 , for damages for injuries caused in a fall from a ship while loading logs. Defendants are the shipowner, United Carriers (Panama), Inc. (United); the time charterer, Japan Line, Ltd. (Japan Line); and the subcharterer, Nichimen Co., Inc. (Nichimen). 2 At the close of the evidence the district court directed verdicts in favor of all defendants. Plaintiff appeals. We affirm.

*1338 I

On February 16, 1978, the ship Grand Spruce was in the Port of Astoria, Oregon, to take on logs bound for Japan. Nichimen, the ship’s subcharterer, had engaged the Jones-Oregon Stevedore Co. (Jones-Oregon) to load the ship. Crew members of the Grand Spruce and an agent of Nichimen were on board the vessel when the Jones-Oregon gangs arrived for work and remained there throughout the day’s loading.

Bandeen was a member of one of the Jones-Oregon gangs employed on the Grand Spruce on February 16. By mid-afternoon the gangs had filled the hold and were working on deck, placing logs between steel stanchions installed vertically at regular intervals along the starboard and port…

dissenting:

I respectfully dissent. I do not read the cases relied upon by the majority to hold that a shipowner is insulated from liability simply because, in the words of the majority, it neither “helped to create the hazard” nor “voluntarily undertook a duty of inspection and breached it.” 1 To the contrary, the Supreme Court in Scindia stated expressly that a shipowner has a duty to intervene when the stevedore’s continued use of defective ship’s gear is “so obviously improvident” that it presents an unreasonable risk of harm to longshoremen. 451 U.S. at 175-76, 101 S.Ct. at 1626-27. This duty, which the majority jettisons, arises despite the fact that “whether [the ship’s gear] could be safely used or whether it posed an unreasonable risk of harm to ... longshoremen was a matter of judgment committed to the stevedore in the first instance.” Id. Here, a reasonable jury could have found that the stevedore’s conduct exposed the longshoremen to such an unreasonable risk of harm that the duty to intervene imposed on the shipowner required it to remedy the dangerous condition. As the district court noted, the record contains ample evidence from which a reasonable jury could have…