622 F.

2d 1168

Lawrence A. SARAUW, Appellant in No. 79-2077,

v.
OCEANIC NAVIGATION CORPORATION and VLCC
Andreas Atlas,
Oceanic Navigation Corporation and VLCC Andros Atlas,
Cross-Appellants in No. 79-2076.
Nos. 79-2076, 79-2077.

United States Court of Appeals,

Third Circuit.
Argued April 22, 1980.
Decided May 20, 1980.

Robert B. White, Jr. (argued), Rawle & Henderson, Philadelphia, Pa., for
appellants in No. 79-2076 and appellees in No. 79-2077; John F. James,
James & Resnick, Christiansted, St. Croix, U. S. Virgin Islands, of
counsel.
Joseph L. Costello (argued), Christiansted, St. Croix, U. S. Virgin Islands,
for appellee in No. 79-2076 and appellant in No. 79-2077.
Before ADAMS, MARIS and SLOVITER, Circuit Judges.
OPINION OF THE COURT
ADAMS, Circuit Judge.

Lawrence A. Sarauw, an employee of Hess Oil Virgin Islands Corporation

(Hess), commenced this action in the District Court of the Virgin Islands
against Oceanic Navigation Corporation (Oceanic), the owner of the vessel
VLCC ANDROS ATLAS, pursuant to 18(a) of the Longshoremen's and
Harbor Workers' Compensation Act Amendments of 1972 (1972 Amendments),
33 U.S.C. 905(b).1 Sarauw sought damages for injuries sustained on
November 15, 1977, allegedly as a result of the negligence of Oceanic and
Hess, when the gangway to the ANDROS ATLAS fell while he was ascending
it.

Following a four day trial, the case was submitted to the jury on special
interrogatories. In answering these interrogatories the jury found (1) that
Oceanic was negligent and its negligence was the proximate cause of Sarauw's
injuries; (2) that Sarauw himself was negligent and was 25% at fault; (3) that
Hess, the stevedore-employer, was negligent and its percentage of fault was
25%; and (4) that Sarauw's total damages were $190,800.00.2 Judgment was
entered for Sarauw, but the court reduced the damage calculation by 25% for
Sarauw's negligence,3 and by another 25% for the negligence of Hess.

Both parties appealed. Sarauw claims that the 25% reduction because of the
negligence of Hess is error. Oceanic contends that it was error to deny its posttrial motion for judgment notwithstanding the verdict or, in the alternative, for a
new trial. Oceanic asserts in support of its appeal from the denial of its motion
for judgment n. o. v. that no duty of care was owed by it to Sarauw to provide a
safe gangway and that, even assuming such a duty, there was insufficient
evidence to establish a breach of that duty. In support of the appeal from the
denial of the new trial motion, Oceanic contends that the trial court incorrectly
instructed the jury on the duty of care, and that the listing of pain and suffering,
disfigurement, and loss of life's pleasures as separate components of damages in
the special interrogatories was plain error.

We reject each of Oceanic's contentions and, accordingly, affirm the denial of

its post-trial motions. Sarauw's appeal, though, is, as Oceanic concedes, clearly
meritorious on the basis of Edmonds v. Compagnie Generale Transatlantique,
443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979), handed down after entry
of judgment in this case by the district court. We shall therefore vacate the
judgment and remand with instructions to restore that portion of the verdict that
was decreased because of Hess's negligence.

I. FACTS
5

Sarauw was employed as a dock helper for Hess, which had the responsibility
of unloading the ANDROS ATLAS. The vessel had arrived at Hess's No. 3
dock at St. Croix, U. S. Virgin Islands, to discharge a cargo of crude oil. When
the vessel first arrived, a small gangway going from the ship to the dock was
put in place by Hess personnel. At about 2:30 a. m. on November 15, 1977,
Sarauw observed that the tanker had risen in the water to a point where the
small gangway had to be replaced with a longer one. While operating the pierside crane to swing the longer gangway into position, Sarauw observed that a
chain railing was in place on the edge of the vessel's deck where he wanted to
secure the head of the longer gangway. After failing to attract the attention of
anyone aboard the ship, Sarauw descended from the crane and started up the

small gangway which had not yet been removed from the ship's side. When he
was part of the way up, the small gangway suddenly came loose from the
tanker's side; Sarauw and the gangway fell to the dock, and he was seriously
injured.
6

The small gangway, owned by Hess, has a four inch angle iron welded to its
underside. The angle iron fits over a lip at the edge of the ship's deck. This
interlocking arrangement was designed to prevent the gangway from rolling
away as the vessel rises in the water. Additionally, the head of the gangway is
equipped with chains and ropes that are tied to stanchions or padeyes on the
deck in order to secure the gangway in the event the angle iron interlock
becomes dislodged. It was undisputed that the gangway was not, at the time it
fell, fastened to any stanchions or padeyes.

II. OCEANIC'S APPEAL

7A. The Denial of its Motion for Judgment Notwithstanding The Verdict.
8

1. The Existence of a Duty.

Oceanic maintains that under the controlling principles of vessel liability to

longshoremen under the 1972 Amendments, as enunciated in three recent
decisions of this Court, it owed no duty to Sarauw as to the safety of the
gangway. See Hurst v. Triad Shipping Co., 554 F.2d 1237 (3d Cir.), cert.
denied, 434 U.S. 861, 98 S.Ct. 188, 54 L.Ed.2d 134 (1977); Rich v. United
States Lines, Inc., 596 F.2d 541 (3d Cir.1979); and Griffith v. WheelingPittsburgh Steel Corp., 610 F.2d 116 (3d Cir.1979).

10

In Hurst, we concluded that because the 1972 Amendments abolished

unseaworthiness as a basis of liability, all species of liability without fault were
abolished as well, including the doctrine of nondelegable duties. 554 F.2d at
1246-47. This Court recently observed that Hurst and Rich "firmly establish"
that

11 vessel has no general duty (under 905(b)) continually to supervise the

"the
activities of the stevedore, to assume responsibility for the stevedore's equipment, or
to assume responsibility for dangerous conditions in the vessel created by the
stevedore during the course of its operations (at least when the vessel has no
knowledge of the dangerous conditions)."

12

Griffith, 610 F.2d at 124 (quoting Rich, 596 F.2d at 560 (Garth, J.,
concurring)).

13

From these principles, Oceanic argues that the line of vessel liability has been
drawn on the simple basis of determining who owns the equipment involved in
the injury. Oceanic likens the ownership of the gangway in this case to the
ownership of the crane causing injury in Hurst, which we held to be the
exclusive responsibility of the stevedore.

14

A careful examination of the three principal cases cited by Oceanic reveals that
our linedrawing has not been so simplistic. It was not ownership of the crane,
but the degree of control over its operation, that was determinative in Hurst. See
544 F.2d at 1251-52. Retained control was also the critical factual issue in Rich.
See 596 F.2d at 550. As explained in Griffith, the evidence in Rich "showed
'beyond a doubt ' that the stevedoring company, rather than the vessel, was 'in
complete charge of the details of handling of the containers (on which the
injury occurred).' " Griffith, 610 F.2d at 124 (quoting, with emphasis added,
Rich, 596 F.2d at 557).

15

In Hurst, some cables slipped off a hook at the end of a crane, operating
without a safety catch, while the crane was being used to hoist cargo from the
ship's hold. The crane from which the hook was appended was land-based and
was the means by which the ship was unloaded. Unloading the ship was the
primary function of the stevedore, and the crane was an integral part of that
operation over which the vessel owner had no control. In contrast, the gangway
here was not in the exclusive control of the stevedore. Here, although the
stevedore owned the gangway, the vessel owner did not surrender control over
the manner in which the gangway was to be secured. Since the ship customarily
retains that control, to posit a duty on the basis of it does not amount to
reimposition of strict liability and the warranty of seaworthiness.4

16

As the trial judge concluded, sufficient evidence was adduced in this case to

17
establish
a duty on the part of the shipowner and crew to secure and maintain the
gangway. Plaintiff's expert, Captain David James, testified that good seamanship
requires that the ship officers and crew make certain that the gangway is safely and
firmly secured at all times and that a watch be posted in the gangway area as an
additional safety precaution. Captain James' testimony as to the duty of the crew of
the vessel to secure and maintain the gangway equipment was corroborated by
statements to the same effect by the ship's captain and second officer, Captain
Thalissimos.

18

The verdict thus did not rest on an impermissible theory of unseaworthiness or

respondeat superior, but on a theory of the vessel's negligence in performing a
duty separate from any duty owed by the stevedore. The statute recognizes that

a ship may be held liable when it and the stevedore are concurrently negligent.
Indeed, "holding the vessel accountable for its negligence, even though the
stevedore has been negligent as well, is necessary to effectuate the
congressional design of creating an incentive for the vessel 'to exercise the
same care as a landbased person in providing a safe place to work.' " Rich, 596
F.2d at 560 (Garth, J., concurring); see Griffith, 610 F.2d at 124-25; Santos v.
Scindia Steam Navigation Co., 598 F.2d 480, 488-89 (9th Cir.1979). The
standard by which Oceanic is to be judged is of "reasonable care under the
circumstances," which
19
would
permit a finding of negligence upon a showing: (1) that the vessel knew of or
by the exercise of reasonable care could have discovered the condition on board ship
that led to the injury; (2) that the vessel knew or should have known that the
condition would pose an unreasonable risk of harm to longshoremen working on
board ship; and (3) that the vessel failed to exercise reasonable care to protect the
longshoremen against that danger.
20

Griffith, 610 F.2d at 126.

21

We conclude that Oceanic had a duty of care with respect to the gangway
appurtenant to its vessel, notwithstanding that the gangway was owned by the
stevedore. Neither the 1972 Amendments nor our previous decisions in Hurst,
Rich, and Griffith are to the contrary.

22

2. The Breach of the Duty.

23

Oceanic claims that there was insufficient evidence to establish a breach of its
duty to maintain the gangway in a safe and secure manner. It argues that the
evidence shows that the gangway was secured when it was initially emplaced
at about 7:30 p. m., that the gangway was unsecured when it fell with Sarauw
aboard at about 2:30 a. m. the following day, and that there was no evidence as
to exactly when the gangway became unsecured. Therefore, contends Oceanic,
the jury was left to speculate as to the breach because there was no evidence as
to when the gangway became untied that would support a finding of Oceanic's
actual or constructive knowledge of the dangerous condition of the gangway.

24

Our scope of review of a jury verdict is, of course, quite limited. "(W)e must
view the evidence," and the inferences to be drawn therefrom, "in the light most
favorable to the party which obtained the verdict below." Herman v. Hess Oil
V. I. Corp., 524 F.2d 767 (3d Cir.1975). With this limitation in mind, we note
that Oceanic's analysis overlooks another ground upon which the jury could

have found a breach of the duty to maintain a safe and secure gangway.
25

Sarauw's expert, Captain James, testified that the officer in charge of the ship
was responsible for seeing that the gangway was properly secured and that a
gangway watch would be the customary method of fulfilling this responsibility.
A gangway watch is a competent, sober, and reliable seaman positioned at the
head of the gangway to relay communications to the shore and to check that the
gangway is secured at all times. Second Officer Thalissimos of the ANDROS
ATLAS confirmed that neither of the two seamen in charge of the night watch
were in the immediate vicinity of the gangway at the time of the accident. Since
the accident occurred because the gangway was unsecured, it would have been
reasonable for the jury to conclude that the gangway watch could have alerted
Sarauw of the dangerous condition of the gangway had the watch been properly
in place. Moreover, there was no evidence that the gangway lashings broke
loose; the evidence is that they simply were not attached at all. Had the
gangway watch fulfilled its responsibilities, it should have been aware that the
ropes and chains were not tied down. There was therefore ample evidence upon
which the jury could reasonably have found a breach of the duty as to the safety
of the gangway.

26

Because Oceanic's duty of reasonable care included responsibility for the safety
of the gangway and because there was evidence to support the finding that
Oceanic had breached that duty, we conclude that the trial court did not err in
denying Oceanic's motion for judgment n.o.v.

B. The Denial of its Motion for a New Trial.

27
28

1. The Jury Instructions.

29

Oceanic argues that the trial court should have granted a new trial because its
instructions on the standard of care based on the Restatement (Second) of Torts
343 and 343A5 were erroneous.6 In Hurst we indicated that those sections
were inapplicable to a longshoreman's case insofar as they could be interpreted
to create a duty of the shipowner to oversee and be responsible for activities of
a stevedore within the latter's exclusive control. See Hurst, 554 F.2d at 1249
n.35. Such extensive responsibility, we said, would "saddle the shipowner with
precisely the sort of nondelegable duty that Congress sought to eliminate." Id.;
see Rich, 596 F.2d at 551.

30

Shortly after the trial court denied the motion for a new trial, this Court's
opinion in Griffith was filed. In that case we held that in some respects 343

and 343A were inapplicable because they were too favorable to the shipowner.
We stated that those provisions do not "define for all cases the appropriate
standard of care under 905(b)," because they "would apparently relieve a
vessel owner of all liability for an unreasonably dangerous condition on board
ship if the invitee longshoreman has failed to exercise ordinary care in dealing
with that danger, on the theory that a negligent invitee has assumed the risk of
injury. . . . (T)hat principle is inconsistent with the clearly stated intention of
Congress to abolish the doctrines of contributory negligence and assumption of
risk" in these cases. 610 F.2d at 125. Accord, Santos v. Scindia Steam
Navigation Co, 598 F.2d 480, 486-87 (9th Cir.1979).
31

In the circumstances of this case, we conclude that any error in using

instructions based on 343 and 343A would not be a basis for reversal,
because it would be error in Oceanic's favor. The standard for vessel liability
given in the jury instructions in this case was a more qualified one than that
enunciated in Griffith of " 'reasonable care under the circumstances.' " 610 F.2d
at 125.

32

2. The Damage Interrogatories.

33

Oceanic argues that it was error to submit to the jury damage interrogatories
that allowed the jury to assess as separate components pain and suffering, loss
of enjoyment of life, and permanent disability. Separate assessment of disability
as a distinct element of damages, Oceanic claims, is duplicative of the other
two components, and an award for disability is contrary to the compensatory
purpose of damage awards. Because Oceanic not only failed to object at trial to
the verdict form, but also specifically agreed to its use, the claim is reviewable
by us only if the separate assessment of damages amounts to plain error that "is
so fundamental or prejudicial that not to consider it could result in a gross
miscarriage of justice." Thompson v. Burke, 556 F.2d 231, 236 n.8 (3d
Cir.1977).

34

All of the elements of the jury's damage award, however, may be found in
905, 924 of the Restatement (Second) of Torts,7 which, this Court has noted, is,
when consistent with congressional intent, an appropriate guide in developing a
uniform federal law of negligence. Griffith, 610 F.2d at 126. We need not
decide whether or not separate assessment of the components was error, but
only conclude that under the Restatement and Griffith any error committed
would not be so clear and egregious as to be reviewable.

III. SARAUW'S APPEAL

35

Sarauw contends that it was error for the trial judge to apply the equitable
credit doctrine to reduce the jury verdict by the amount attributed to Hess'
negligence.8 The Supreme Court definitively held in Edmonds v. Compagnie
Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521 (1979),
that the equitable credit doctrine was not an intended part of the statutory
scheme. Accordingly, the 25% reduction in Sarauw's verdict must be restored.

IV. CONCLUSION
36

The portion of the trial court's judgment denying Oceanic's motion for
judgment n.o.v. or for a new trial will be affirmed, the portion denying
Sarauw's motion will be vacated, and the case remanded with instructions to
enter a new judgment restoring the deduction made by the trial judge for Hess's
negligence.

That section provides:

In the event of injury to a person covered under this chapter caused by the
negligence of a vessel, then such person . . . 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 shall be
void.

These damages were also submitted on special interrogatories, and the jury
found as follows:

The trial judge and the parties refer to this reduction as being for "contributory"
negligence, but that term was not used in the interrogatories and it is clear that
"comparative" negligence was meant. Sarauw does not challenge this reduction
for negligence attributed to his own fault. Cf. Rich v. United States Lines, Inc.,
596 F.2d 541, 565 & nn.32-33 (3d Cir. 1979) (Garth, J., concurring)
(suggesting applicability of comparative negligence doctrine); H.R.Rep.No.921441, 92nd Cong., 2d Sess., reprinted in (1972) U.S.Code Cong. &
Admin.News, pp. 4698, 4705 ((T)he Committee intends that the admiralty
concept of comparative negligence, rather than the common law rule as to
contributory negligence, shall apply in cases where the injured employer's own
negligence may have contributed to causing the injury.")

Prior to the 1972 Amendments, courts had established a vessel's absolute duty
of care with regard to the gangway because, as part of the vessel, it was

covered in the warranty of seaworthiness. See e.g., Russell v. City Ice & Fuel
Co., 539 F.2d 1318, 1320 n.2 (4th Cir.1976) (citing cases); Reyes v. Marine
Enterprises, Inc., 494 F.2d 866, 869 (1st Cir.1974) (decided before 1972
amendments were applicable). The abolition of the strict liability concept of
seaworthiness, however, does not necessarily import the elimination of any
duty with respect to the gangway. Reyes explicitly recognized a claim of
negligence against the vessel independent of the warranty of seaworthiness:
Because the means of ingress or egress, by whomever furnished, are an
"appurtenance" of the vessel, the owner has a duty of care regarding them. The
owner is thus liable for a negligent failure to inspect a gangway and to warn
against defects reasonably apparent from inspection or to take steps to repair or
replace it. . . . We hold, therefore, that Romero Reyes was entitled to take his
case to the jury on the issues of both unseaworthiness and negligence.
494 F.2d at 870. The Court of Appeals for the Ninth Circuit recently noted that
"(u)nder the former law, some unsafe conditions which supported an
unseaworthiness action might also have supported a negligence action." Santos
v. Scindia Steam Navigation Co., 598 F.2d 480, 485 (9th Cir.1979). The
congressional committees therefore took care in their reports to head off the
fear that the "abolition of the unseaworthiness action might lead some postAmendment courts to conclude that if a set of facts would have amounted to
unseaworthiness, Congress meant to preclude a recovery based on negligence."
Id.
5

These sections read as follows:

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.
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.
6

The trial judge's instruction paraphrasing 343 was as follows:

A vessel owner is subject to liability for physical harm caused to his invitees
caused by a condition on the vessel if, but only if, the vessel owner knows or by
exercise of reasonable care would discover the condition and would realize it
embodies an unreasonable risk of harm to the invitees and should expect that
the invitee will not discover or realize the danger or will fail to protect himself
against it, and the vessel owner fails to exercise reasonable care to protect
against that danger, to protect that invitee against that danger.
The trial judge's instruction based on 343A was as follows:
A vessel owner is not liable to its invitees for physical harm caused to the
invitee by any condition of the vessel whose danger is known or is obvious to
the invitee unless the owner should have anticipated the harm despite such
knowledge or obviousness of the danger.

These sections read as follows:

905. Compensatory Damages for Nonpecuniary Harm
Compensatory damages that may be awarded without proof of pecuniary loss
include compensation
(a) for bodily harm, and
(b) for emotional distress.
924. Harm to the Person
One whose interests of personality have been tortiously invaded is entitled to
recover damages for past or prospective
(a) bodily harm and emotional distress;
(b) loss or impairment of earning capacity;

(c) reasonable medical and other expenses; and

(d) harm to property or business caused by the invasion.
8

The rationale of the equitable credit doctrine and the reason for the Supreme
Court's rejection of its application in this type of lawsuit are summarized in
Griffith, 610 F.2d at 121-22