Sylvia Moore, Sylvia Moore v. Angela Mv, Angela Maritime Shipping Ltd., Claimant-Appellant

EMILIO M. GARZA, Circuit Judge,

concurring in part and dissenting in part:

The majority opinion is improperly deferential to the district court’s determination that Angela Maritime (“Angela”) was aware of latent defects that were the cause of the accident and longshoremen Moore’s death, and to its determination that the defects were not open and obvious to Moore’s employer Stevedores, Inc. (“Stevedores”). Although the majority opinion is correct that we review the district court’s findings of fact for clear error, we review the application of those facts to law de novo. Thus, applying the less deferential standard, I believe the district court improperly applied its own factual determinations to controlling legal precedent in sustaining liability against Angela under the “turnover duty.” However, as I believe the district court properly found Angela liable under the “duty to intervene,” I would affirm the judgment, vacate the district court’s allocation of liability, and remand the case for a calculation of fault under the “duty to intervene.” Therefore, I respectfully concur in part and dissent in part.

I

The 1972 amendments to the Harbor Workers’ Compensation Act fundamentally changed both the duties shipowners owe to longshoremen and consequently the scope of the liability to which they are subject. Two Supreme Court cases, Scindia Steam Navigation v. De Los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981), and Howlett v. Birkdale Shipping Co., 512 U.S. 92, 114 S.Ct. 2057, 129 L.Ed.2d 78 (1994), have together outlined the relative duties of shipowners and stevedores to longshoremen, and the circumstances *388where liability against a shipowner can be sustained under 33 U.S.C. § 905(b). The Scindia Court explained that “[a]s a general matter, the shipowner may rely on the stevedore to avoid exposing the longshoremen to unreasonable hazards.... The ship is not the common employer of the longshoremen and owes no such statutory duty to them.” 451 U.S. at 170, 101 S.Ct. at 1623. The Howlett Court emphasized the point explaining that “[t]he design of these changes was to shift more of the responsibility for compensating injured longshoremen to the party best able to prevent injuries: the stevedore employer.” 512 U.S. at 97,114 S.Ct. at 2063.

Nevertheless, a ship owes three duties to longshoremen: 1) the turnover duty; 2) the active control duty; and 3) the duty to intervene. Howlett, 512 U.S. at 98, 114 S.Ct. at 2063. The majority opinion relies solely on the turnover duty to establish liability. “The turnover duty requires the vessel to warn the stevedore ‘of any hazards on the ship or with respect to its equipment,’ so long as the hazards ‘are known to the vessel or should be known to it in the exercise of reasonable care,’ ... and would not be obvious to or anticipated by [the stevedore] if reasonably competent in the performance of his work.” Id. at 98-99, 114 S.Ct. at 2063. Therefore the duty attaches only to latent defects of which the vessel has or should have had knowledge. That duty is extinguished, and in essence shifted to the stevedore, if the stevedore either gains actual knowledge of the defect, or if the stevedore should have anticipated its existence. See id. at 99-100, 114 S.Ct. at 2064. That duty does not shift “if the longshoremen’s only alternatives when facing an open and obvious hazard are unduly impracticable or time consuming.... ” Pimental v. LTD Canadian Pacific Bulk, 965 F.2d 13, 16 (5th Cir.1992).

In addition to establishing a duty owed by the vessel to the deceased, the plaintiff must establish that the latent defect in the crane was the “legal cause” of the accident such that it was a “substantial factor” in the injury. Donaghey v. ODECO, 974 F.2d 646, 649 (5th Cir.1992). Therefore, to sustain liability, Moore must show that Angela had (or should have had) knowledge of a latent defect in the crane which was not, and could not have been, discovered by Stevedores and was a substantial factor in the accident.

We review the district court’s factual findings for clear error; however, we review both questions of law and mixed questions of fact and law de novo. Theriot v. United States, 245 F.3d 388, 394 (5th Cir.1998). The clearly erroneous standard of review does not “apply to decisions made by district court judges when they apply legal principles to essentially undisputed facts.” Walker v. Braus, 995 F.2d 77, 80 (5th Cir.1993).

The district court determined that “erratic motions such as [the] jerking of the crane caused the T-bar to fall from the load.” It additionally concluded the jerking was due to a latent hydraulics problem of which Angela was aware, and of which Stevedores was oblivious. It relied on the expert testimony of Edward Webster to establish, as a general matter, “that a hydraulics problem worsens as the hydraulics heat up, which can be caused by the excessive weight of the loads lifted,” and on the testimony of Coastal Cargo (“Coastal”) employee Rene Falgoust to establish that the crane was experiencing hydraulics problems. While Webster’s testimony is hypothetical and does not establish that the crane was suffering from a hydraulics problem at the time of the accident, Fal-goust’s testimony only refers to hydraulics problems the crane was experiencing while under Coastal’s control, days before turn*389over, and not while it was under Stevedores’ employ when the accident occurred.1

Strangely, the district court also adopted the testimony of marine surveyor Ben Haveman who testified that his post-accident inspection of the crane “revealed evidence of hydraulic oil leakage that did not affect the operation of the crane, but that old cranes leak hydraulic fuel.” It also adopted the testimony of Edward Roy, an expert in crane operations and inspections, who concluded, after his post-accident inspection, that the crane had “no structural deficiencies, only cosmetic problems.” Finally, it concluded that “time was spent on repairs on April 27-28, 2000,” days before turnover to Stevedores, by Angela in an effort to fix whatever problems the crane was experiencing while under Coastal’s control.

Cumulatively, these findings of fact suggest that the crane had no latent hydraulics defect at the time of turnover, and that its jerking at the time of the accident must have had an alternate cause. It also establishes that, even if there were latent defects, Angela had no knowledge of them, as it believed that it had repaired whatever problems the crane was experiencing by the time of turnover. Vessel liability cannot be sustained if either there were no latent defects or the vessel did not have knowledge of the defects. See Howlett, 512 U.S. at 98-99, 114 S.Ct. at 2063. Thus the district court’s finding that Angela had knowledge of a latent hydraulics defect at the time of turnover is insupportable by its own factual conclusions.

Even if there was a hydraulics problem, the real cause of the accident, as established by the district court, was the jerking of the crane. The district court merely assumes the jerking was caused by a hydraulics problem. This jerking, whatever its cause, by Stevedores’ own admission, was quite apparent to them. The district court in its factual findings determined that the Stevedores’ crane operator had “a critical problem with the operation of the crane when he first used it.” It also cited additional testimony from Stevedores’ employees Henry Gaston, John Dunham, and Willie Davis establishing that the crane was operating erratically and was clearly malfunctioning. Thus, based on the district court’s factual findings, it was clear to Stevedores that the crane was malfunctioning, and more importantly that it was jerking in a manner that eventually led to the accident.

The defect in the crane that is the stated cause of the accident was open and obvious to Stevedores. Even assuming the crane had a latent hydraulics defect, of which Stevedores was unaware, it was certainly aware of the jerking and erratic movements that were a clear manifestation, if not of a hydraulics problem, of a malfunctioning crane. Any longshoremen there, “if reasonably competent in the performance of his work,” should have realized what would have been obvious to any laymen, that the crane was malfunctioning and was a danger to everyone around it. See Howlett, 512 U.S. at 98-99, 114 S.Ct. at 2063.

The majority opinion affirms the district court’s conclusion that, even if the defects were open and obvious, there were no viable alternatives to using the malfunctioning crane because: 1) using a different crane would have been unduly time consuming; 2) in the past, Angela had not accepted responsibility for stand-by time *390of stevedores refusing to unload cargo due to repair; and, 3) Stevedores would lose future business. Applying the incorrect standard of review, the majority opinion further concludes that “when there are two permissible views of the evidence” there can be no clear error.

The district court’s view of the evidence is impermissible under our precedent. In Greenwood v. Societe Franchise De, 111 F.3d 1239, 1248 (5th Cir.1997), we did not apply the “no viable alternative” exception when a stevedore used a crane despite its open and obvious defects because “[the stevedore] presented no evidence that [the crane operator] was instructed to continue to use the crane despite the defect or that he would face trouble for delaying the work.” Id. (internal quotations omitted). We relied on the fact that the vessel was never informed of the problem, id. at 1243, and that the crane operator knew immediately that the crane was not operating properly, id. at 1246-47, to absolve the vessel of liability.

Applying Greenwood, I believe the “no viable alternative” exception should not be applied in this case. There is no evidence showing that Stevedores requested the crane be fixed or that operations cease until repairs were made. According to the district court, the crane operator knew immediately that the crane was having problems. He complained to Angela about the crane’s jerking and was advised to “slam the stick” to stop the jerking. Either the crane operator found the advise satisfactory or he made the decision not to inform Angela that the problem was more substantial and required more thoughtful attention. Further, there is no evidence Angela informed Stevedores that it would not make needed repairs, or that there would be reprisals for requesting repairs.

The only evidence suggesting that a dispute as to payment for down time during repairs might ensue was Coastal’s records evidencing its dispute with Angela over such payment. There, however, is no evidence demonstrating Stevedores had access to those documents or otherwise had knowledge of that dispute prior to discovery in this case. Consequently, it could not have been deterred by knowledge of that dispute at the time it decided to not request repairs.

Coastal, in contrast, was not deterred by the potential for dispute with Angela. It twice requested that the crane be repaired, and both requests were honored by Angela. The purpose of the “no viable alternative” exception is to sustain liability against the vessel when the shipowner creates conditions where the stevedore feels compelled to face an open and obvious hazard. This exception, however, should not be used to provide stevedores an excuse for not demanding repairs in the face of open and obvious dangers to their longshoremen. This would defeat the intent of the 1972 Amendments to shift responsibility for the safety of the longshoremen from the vessel to the stevedore. See Rowlett, 512 U.S. at 97,114 S.Ct. at 2063.

These policy goals would similarly be defeated by excusing Stevedores’ behavior due to the competitiveness of the industry. Stevedores will be less likely to request repairs if they know they will not be held liable for their failure to do so. OSHA regulations have already recognized this concern and require: “Cranes with a visible or known defect that affects safe operations shall not be used. Defects shall be reported immediately to the officer in charge of the vessel.” 29 C.F.R. § 1918.55(a).2 Shifting liability from the *391stevedore to the vessel would not only defeat the purposes of the 1972 Amendments and OSHA regulations, it would increase the likelihood of tragic accidents such as this one by eliminating the stevedore’s incentive to demand repairs in the face of apparent danger to its employees.

Nothing in the record suggests, and the district court did not find, that Angela communicated to Stevedores that it would either not make repairs, or not compensate the longshoremen if repairs were requested. Nor does the record, or the district court’s findings, suggest that Stevedores requested repairs and was refused. The district court’s conclusion that Stevedores’ alternatives to facing the hazard were unduly impracticable is inconsistent with its own factual findings, the precedent of this Court, and with the policies behind the 1972 Amendments of the Harbor Workers Compensation Act as annunciated by the Supreme Court in Scindia and Rowlett.

Although sustaining liability under the “turnover duty” is inappropriate, the Supreme Court has recognized two other duties shipowners owe to longshoremen: the “active control duty” and the “duty to intervene.” Rowlett, 512 U.S. at 98, 114 S.Ct. at 2063. The district court properly sustained liability under the “duty to intervene.” 3

The shipowner has a “duty to intervene and repair” if it knows of the defect and knows the stevedore’s continued use of the machine “presentís] an unreasonable risk of harm to the longshoremen.... ” Scin-dia, 451 U.S. at 175-76, 101 S.Ct. at 1626. This means that “a vessel has a duty to intervene when it has actual knowledge of a dangerous condition and actual knowledge that the stevedore, in the exercise of ‘obviously improvident judgment, has failed to remedy it.’ ” Greenwood, 111 F.3d at 1248. Additionally, the longshoreman must show that the shipowner: 1) had actual knowledge that the defect posed unreasonable risk of harm; and 2) actual knowledge that it could not rely on the stevedore to protect its employees. Id. As the shipowner defers to the expertise of the stevedore in the operation of the equipment, “[t]he shipowner’s obligation to intervene ... is narrow and requires something more than mere shipowner’s knowledge of a dangerous condition.” Id. at 1249 (internal quotations omitted). Thus, “for the expert stevedore’s judgment to appear ‘obviously improvident,’ that expert stevedore must use an object with a defective condition that is so hazardous that anyone can tell that its continued use creates an unreasonable risk of harm even when the stevedore’s expertise is taken into account.” Id.

The district court found that the crane’s “erratic motions were clearly observable by ship personnel, who alone did or should have recognized the mechanical problems reflected.” Angela argues we should follow our holding in Greenwood where we did not apply the duty to intervene in a similar situation where a longshoremen was injured due to a crane’s erratic jerking, and where the shipowner knew of the crane’s problems and allowed the stevedore to continue to use the crane despite *392this knowledge. See id. However, in that case we relied on the vessel’s lack of “specialized knowledge” to find that it did not know that the crane “posed an unreasonable risk of harm.” Id. That is not the case here. Angela had specialized knowledge that the crane had recently experienced severe hydraulics problems evidenced by jerking and emtic motions. Those problems required shutting down the crane and involved multiple days of repair work. Stevedores informed Angela that the crane was jerking and moving erratically, thus Angela affirmatively knew the crane was malfunctioning as it did under Coastal’s control, and thus was likely a danger to the longshoremen, as it had been the week before.

Angela knew that Coastal, based on its expertise as a stevedore, had demanded the cessation of its use of the crane, at least in part, due to fear of injury to its longshoremen from the crane’s jerking. Thus, after Stevedores informed Angela of the jerking and erratic motions, and did not cease operation of the crane, based on its specialized knowledge, Angela should have known that Stevedores’ decision to continue working was improvident, and should have stopped use of the crane for inspection to determine the cause of the jerking.4 Angela had specialized knowledge not only that the crane had recently malfunctioned, but also that due to that malfunctioning the proceeding stevedore had demanded repairs. This specialized knowledge, coupled with its knowledge that the crane was malfunctioning as it did when Coastal demanded repairs, in a manner that was blatantly dangerous to the longshoremen, demonstrates that Angela was in a position to determine that continued use of the crane “posed an unreasonable risk of harm.”

This result is consistent with the purpose of the 1972 Amendments as it allocates a portion of the liability to the vessel when it is in a unique position to prevent the relevant danger. Due to both its specialized knowledge of the crane’s recent maladies, and knowledge of the crane’s obvious malfunctioning while under Stevedores’ control, Angela was in a position to veto Stevedores’ improvident decision. This result, rather than absolving the stevedore of its responsibility for the protection of the longshoremen, as with the majority opinion’s result, simply adds an additional layer of responsibility for their protection, in this case, to the shipowner, when it has “specialized knowledge” of an “unreasonable risk of harm” to the longshoremen.

II

The district court determined that Angela was 65% at fault for the accident, Stevedores was 35% at fault, and that the decedent was 5% at fault. The district court enjoys wide discretion in awarding damages, and its determinations are reviewed for clear error. Trico Marine Assets Inc. v. Diamond B Marine Services Inc., 332 F.3d 779, 791 (5th Cir.2003). Considering, under the “duty to intervene,” the stevedore is primarily at fault for not ceasing use of the machinery, and the shipowner is only secondarily at fault for not vetoing that decision, the district court’s allocation of liability is clearly erroneous because it does not apportion the largest percentage of fault to the party most responsible for *393the accident. Cf. McDermott, Inc. v. Am-Clyde, 511 U.S. 202, 207, 114 S.Ct. 1461, 1465, 128 L.Ed.2d 148 (1994) (citing United States v. Reliable Transfer Co., Inc., 421 U.S. 397, 411, 95 S.Ct. 1708, 1715-16, 44 L.Ed.2d 251 (1975) (“when two or more parties have contributed by their fault to cause ... damage ... [liability] is to be allocated among the parties proportionately to the comparative degree of their fault”)).

While not explaining its reasoning as to its determination of Angela’s particular percentage of fault, the district court appears to have relied primarily on the turnover duty to establish the vessel’s liability.5 As it further concluded that the latent hydraulics defect was the primary cause of the accident, it allocated the lion’s share of fault to Angela.

As explained above, the true cause of the accident was the jerking of the crane, a symptom of either problems with the crane or with its operation by Stevedores. Either way, as the crane was under the full active control of Stevedores, and the turnover duty was not violated, the decision to operate the jerking crane rested with Stevedores, and thus the primary responsibility for the accident also lies with it. Angela did, of course, have both the opportunity and the responsibility to veto Stevedores’ decision; however, as established in Scin-dia and Howlett, the stevedore retains the primary responsibility for the safety of the longshoremen. Scindia, 451 U.S. at 170, 101 S.Ct. at 1623; Howlett, 512 U.S. at 97, 114 S.Ct. at 2063. Thus, the district court’s determination of fault cannot be sustained.

Ill

For the preceding reasons I would affirm the district court’s judgment under the “duty to intervene” only. I would vacate the district court’s allocation of liability and remand for calculation of fault under the “duty to intervene” only. I would lastly affirm both the reduction in the non-pecuniary damages award and the district court’s holding that it lacked authority to increase the security post-judgment. Accordingly, I concur in part and dissent in part.

. Admittedly, while under Coastal control, the crane experienced severe difficulties. The crane was described as "broke down" and at one point it "would not hoist at all.” The problems with the crane were so severe that Coastal twice stopped working and demanded that Angela repair the crane. Angela did so both times.

. It is clear that Stevedores violated this regulation by not refusing to operate the crane once it determined it was malfunctioning.

. Liability cannot be sustained under the "active control duty.” This duly requires the vessel “exercise due care to avoid exposing longshoremen to harm from hazards they may encounter in areas or from equipment under the active control of the vessel during the stevedoring operation.” Scindia, 451 U.S. at 167, 101 S.Ct. at 1622. If the vessel relinquishes control over an area or a piece of equipment to the stevedore the duty is extinguished. See Pimental, 965 F.2d at 16. At the time of turnover, Angela relinquished complete control over the crane to Stevedores. Therefore Angela fully extinguished its "active control duty.”

. Although the crane may not have had a hydraulics problem, something was clearly causing the jerking and erratic motions. That something may, as Angela alleges, have been the way Stevedores was operating the crane. However, knowing the obvious danger the jerking, regardless of its source, posed to the longshoremen, Angela should have stopped use of the crane to determine the problem when Stevedores failed to do so.

. Although the district court established liability under each of the vessel’s duties to longshoremen, it primarily relied on the turnover duty to establish Angela's fault and thus the vessel’s allocation of fault.