Fernando Jacobo v. United States of America, and Triad Marine & Industrial Cleaning Corporation Industrial Indemnity, Plaintiff-Intervenor-Appellant

853 F.2d 640 1993 A.M.C. 1171 Fernando JACOBO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee, and Triad Marine & Industrial Cleaning Corporation; Industrial Indemnity, Plaintiff-Intervenor-Appellant. Nos. 87-6395, 87-6414. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 8, 1988. Memorandum July 5, 1988. Order and Opinion Aug. 1, 1988. Preston Easley, San Pedro, Cal., for plaintiff-appellant. Philip A. Berns, Atty. in Charge, and William M. Duncan, Atty., Civil Div., San Francisco, Cal., for defendant-appellee. Russell P. Brown, Littler, Mendelson, Fastiff & Tichy, San Diego, Cal., for plaintiff-intervenor-appellants. Appeal from the United States District Court for the Central District of California. Before TANG, FARRIS and KOZINSKI, Circuit Judges. PER CURIAM: 1 The district court granted summary judgment for the defendants in this admiralty case. We review de novo. Solano v. Beilby, 761 F.2d 1369, 1372 (9th Cir.1985). Facts 2 Employed as a tank cleaner for Triad Marine & Industrial Cleaning Corporation (Triad), Fernando Jacobo was injured when he entered a storage tank aboard the U.S.S. Norton Sound in order to adjust…

dissenting:

I respectfully dissent. I agree that Jaco-bo has not adduced any evidence that the United States knew of the condition of the tank, thereby creating a duty to warn of unusual dangers under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 , 101 S.Ct. 1614 , 68 L.Ed.2d 1 (1981). However, I believe that the United States had a duty to enforce the Navy’s own safety regulations and that summary judgment was thus inappropriate.

In Scindia the Supreme Court articulated the rule that a shipowner has no general duty to discover dangerous conditions that develop within the confines of operations assigned to stevedores, “absent contract provision, positive law, or custom to the contrary.” Id. at 172 , 101 S.Ct. at 1625 . The Ninth Circuit has extended the same duties of care to employees of independent repair companies who are working on a vessel. Cook v. Exxon Shipping Co., 762 F.2d 750, 752 (9th Cir.), amended, 773 F.2d 1001 (9th Cir.1985). The critical inquiry in this case is whether contract provisions, positive law or custom create a duty to supervise the tank cleanup operation. In my view, the contract requires compliance with the Navy’s Technical Manual,…

The district court granted summary judgment for the defendants in this admiralty case. We review de novo. Solano v. Beilby, 761 F.2d 1369, 1372 (9th Cir.1985).

Facts

Employed as a tank cleaner for Triad Marine & Industrial Cleaning Corporation (Triad), Fernando Jacobo was injured when he entered a storage tank aboard the U.S.S. Norton Sound in order to adjust the placement of a pump. Approximately five minutes after entering the tank, Jacobo collapsed. He was rescued and removed from the tank by Navy personnel. Subsequent testing of the tank revealed a toxic level of hydrogen sulfide.

Jacobo claims the United States was negligent in not providing him with a safe place to work. Plaintiffs-in-intervention are seeking indemnity for monies paid to Jacobo.

Because this claim sounds in admiralty, id. at 1371 , federal, rather than California, law applies. Id. at 1373 ; see also Nelson v. United States, 639 F.2d 469 (9th Cir.1980).

Issues

1. Jacobo claims that the Navy was negligent per se because it violated the Naval Ships Technical Manual Chapter 74, Volume 3, Sec. 18.7, which places a duty on the commanding officer of a vessel to assure that others (including contractors)…