Greenwood v. Societe Francaise De

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 92-7224
__________________

C.K. GREENWOOD,

Plaintiff-Appellee,

and

NATIONAL UNION FIRE,

Intervenor-Plaintiff-Appellee,

versus

SOCIETE FRANCAISE DE, ET AL.,

Defendants,

SOCIETE FRANCAISE DE, and
INDIAN OCEAN BOAT CARRIERS,

Defendants-Appellants.

______________________________________________

Appeal from the United States District Court for the
Southern District of Texas
______________________________________________

April 28, 1997

Before JOHNSON, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellee C. K. Greenwood (Greenwood) brought this

suit against defendants-appellants Indian Ocean Bulk Carriers and

Societe Francaise de Transportes Maritime (collectively, the

Shipowners), pursuant to section 5(b) of the Longshore &
Harborworkers Compensation Act (the Act), 33 U.S.C. § 905(b), for

injuries Greenwood received while unloading the Shipowners' vessel.

The jury found in Greenwood's favor, and the magistrate judge

conducting the trial rendered judgment for Greenwood. The

Shipowners now timely appeal, alleging, inter alia, that there was

insufficient evidence to sustain the jury's verdict. We agree and

accordingly reverse the judgment in favor of Greenwood and render

judgment for the Shipowners.

Facts and Proceedings Below

On April 1, 1986, in Corpus Christi, Texas, the Shipowners

turned over their vessel, M/V PENAVAL, to a stevedore which

employed longshoremen to discharge the ship's cargo for that day

and for the next three days. During that first day of operations,

Greenwood worked as a member of a gang of longshoremen who were

assigned to unload a cargo of pipe from a hatch on the deck of the

vessel onto third-party trucks located on the dock. The

longshoremen commenced their cargo operations around 7:00 a.m., and

they used the ship's crane number four (as well as other of its

cranes) to assist in discharging the pipe. The longshoremen had

attached the stevedore's cargo discharging gear to the crane's

hook. This gear consisted of a spreader bar that had cables on

each end equipped with cargo hooks. The longshoremen attached the

cargo hooks to each end of a joint of pipe. Since there were three

cables and hooks on each end of the spreader bar, the longshoremen

could transport three joints of pipe at a time. The spreader bar

also had tag lines, which consisted of lengths of rope that were

used for guiding the joints of pipe to the waiting truck beds. The

2
longshoremen’s utilization of the cranes in the unloading operation

was carried out without any supervision or intervention by the

ship’s crew.

During the morning of April 1, the number four crane was

operated by longshoremen Kenneth Logue (Logue) and Wayne O'Neal

(O'Neal), who worked alternating one-hour shifts. Concerning the

time relevant to this case, Logue worked the first shift from 7:00

a.m. to 8:00 a.m., and he worked the shift from 9:00 a.m. to 10:00

a.m.; O'Neal worked the 8:00 a.m. to 9:00 a.m. shift. A few

minutes after 9:00 a.m., Logue had just unloaded three points of

pipe onto a truck bed and was swinging the crane's boom back over

the ship for another load when one of the tag lines got hung up on

something, apparently the truck. Logue testified that he attempted

to halt the horizontal movement of the crane with the crane's

slewing brake in order to ease the tension in the tag line. He

further testified that the slewing brake——which controls the crane’s

horizontal movement——malfunctioned and the crane continued to move

in a horizontal direction. The tag line then broke, causing the

spreader bar and cargo hooks to swing outward. Greenwood was

struck in the face with one of the swinging cargo hooks. No report

was made to the ship about the accident, and the crane continued to

be used without interruption by the two operators. Then, at

approximately 11:30 a.m., the crane's boom brakeSQwhich controls

the vertical movement of the craneSQbegan to malfunction. The

ship's log indicates that this malfunction was due to a break in

the boom brake’s socket lining that occurred while the crane was in

operation, but it was "[c]aught right in time" and the crane was

3
immediately shut down for repairs. The longshoremen crew received

full compensation during the half hour of their work schedule that

the crane was shut down. After the ship repaired the crane’s boom

brake, it continued to be used without incident that afternoon and

for the remainder of the unloading operations.

Greenwood subsequently brought this suit against the

Shipowners for the injuries he suffered as a result of being struck

by the swinging cargo hook. At trial, the evidence revealed that

all of the cranes' brakes were inspected on March 20, 1986. A

report from that inspection showed that one of the slewing brakes

on crane number four had been replaced with a part that was "not

recommended." The operating condition of the crane's other slewing

brake was described as being in "slight doubt."1 The Shipowners

did not inform the stevedore that anything might be wrong with the

number four crane when they relinquished control of the vessel.

Logue, who was Greenwood’s first witness, testified on direct

examination that at the time of the accident he had been a

longshoreman for thirty-two years and had operated cranes for

twenty-five or twenty-six years. He stated that when he first

started operating the crane at 7:00 a.m., he immediately realized

that as to the horizontal or slewing motion it was "a little jerky"

1
Greenwood also presented the Shipowners' journal entries
describing the poor condition of the crane's roller electric cable,
and the fact that "[f]rom beginning of work of cranes in Corpus
Christi the socket of boom brake on crane 4 was not functioning
properly." There is no evidence that any of these defects were
related to the allegedly malfunctioning slewing brake which is
claimed to have caused Greenwood's injuries. Logue testified there
was no problem with the boom brake during the period of his
operation described in his testimony.

4
and "when you did start slewing, you put it back in neutral, it

would continuously kept slewing for a little ways."2 He explained,

"If it keeps slewing, then you have got to try to adjust for it,"

and, "If it's not functioning properly then you try to allow

yourself for thatSQfor whatever might be wrong with it." He agreed

that a crane operator, in his experience, can operate a crane even

though it has a defect unless "it is too rough, if it's too bad .

. . then you're going to get off of that crane. I know I'm going

to do it." Logue testified that at 8:00 a.m. he reported the

slewing-brake defect to his gang foreman, Quincy V. Guilford

(Guilford), but made no other report concerning the crane. There is

no evidence to suggest that the Shipowners were ever notified about

the problem with the slewing brake’s operation.3 After the

accident, Logue continued to use the crane although the slewing

brake was not then or thereafter repaired.

At the close of Greenwood's case, the Shipowners made a motion

for directed verdict on the basis, among others, that they had no

duty to warn of dangers with regard to the slewing brake, because

the stevedore and longshoremen tested the ship's crane before using

it in unloading and knew of the slewing brake's defect, and there

was no evidence the Shipowners had actual knowledge that the crane

2
George Polinard (Polinard) corroborated this testimony.
Polinard, another longshoreman who had frequently served as a crane
operator, testified that he "observed that all of the cranes were
not smooth at all, very jerky in their motions."
3
This view is supported by Guilford who testified that he did
not remember Logue informing him about the defective slewing brake
(or any defect in the crane). He stated that he did not know about
the defective slewing brake and did not inform his superior (the
walking foreman) or the Shipowners about it.

5
was malfunctioning to such an extent that the stevedore's decision

to continue using it was obviously improvident. The magistrate

judge denied the Shipowners' motion for a directed verdict.

The Shipowners then presented their evidence and Greenwood

offered his rebuttal evidence. The Shipowners did not renew their

motion for directed verdict at the close of all the evidence. They

did, however, timely object to the proposed jury charge based on

the same grounds of insufficient evidence. This objection was also

overruled.4 Subsequently, the jury returned its verdict finding

4
Specifically, after the magistrate judge had completed
preparation of the proposed charge, and before it was read to the
jury, the following colloquy occurred between Mr. Meyer (the
Shipowners' attorney) and the court:

"Mr. Meyer: . . . I feel compelled, because I have
raised a motion to dismiss and a motion for a directed
verdict, I must also ask the Court to not submit the
issues asking whether there was a reasonably dangerous
condition, Issue No. 1. Whether the plaintiffs knew or
should have discovered that the crane was unreasonably
dangerous, Issue 2. Issue No. 3 as the Court has set it
out. And Issue No. 4, negligence as to the defendants.
On the grounds that there is no evidence or insufficient
evidence to justify submission of those issues to the
jury.

The Court: All right. Anything else?

Mr. Meyer: I would alsoSQno, Your Honor.

The Court: Very Well. The defendant's objections are
overruled and request for additional instructions
denied."

Issues One and Two inquired whether the crane was unreasonably
dangerous when the Shipowners turned it over to the stevedore, and
whether the Shipowners knew or should have known that. Issue Three
asked if the hazard was one which was likely to be encountered by
the stevedore. Issue Four inquired whether the Shipowners'
negligence, if any, proximately caused Greenwood's injuries. These
were the only liability issues; all were answered favorably to
Greenwood.

6
the Shipowners were negligent and $3,234,984 in damages. The

magistrate judge ultimately remitted $144,891 of this amount,

resulting in a final judgment of $3,090,093. Following the

verdict, the Shipowners filed a motion for judgment notwithstanding

the verdict (JNOV),5 raising the same arguments as they had

presented in their motion for directed verdict that there was

insufficient evidence that they had breached their duties of care

to Greenwood. The magistrate judge denied this motion as well.

The Shipowners now timely appeal, arguing, inter alia, that the

magistrate judge erred in not granting their motions based on the

insufficiency of the evidence.

Discussion

I. Motion for Directed Verdict

Greenwood argues that although the Shipowners made a motion

for directed verdictSQwhich was deniedSQat the close of the

plaintiff's case, they failed to reurge the motion at the close of

all of the evidence. Therefore, he contends that under Federal

Rule of Civil Procedure 50(b), the Shipowners' insufficient-

evidence claims cannot be reviewed on appeal.

"It is well-established law that the sufficiency of the

evidence is not reviewable on appeal unless a motion for directed

verdict was made in the trial court at the conclusion of all the

evidence." McCann v. Texas City Refining, Inc., 984 F.2d 667, 671

5
Effective December 1, 1991, Rule 50 of the Federal Rules of
Civil Procedure was amended. Under the thus amended Rule 50, the
"motion for directed verdict" and "motion for JNOV" are called
"motions for judgment as a matter of law." The trial in this case
took place before the effective date of that amendment.

7
(5th Cir. 1993) (citing Hall v. Crown Zellerbach, 715 F.2d 983, 986

(5th Cir. 1983)). "Where this prerequisite has not been satisfied,

a party cannot later challenge the sufficiency of the evidence

either through a j.n.o.v. motion or on appeal." Bohrer v. Hanes

Corp., 715 F.2d 213, 216 (5th Cir. 1983), cert. denied, 104 S.Ct.

1284 (1984).6

However, this Court has not required strict compliance with

Rule 50(b) and has excused technical noncompliance where the

purposes of the requirement have been satisfied. See, e.g.,

Adjusters Replace-A-Car, Inc. v. Agency Rent-A-Car, Inc., 735 F.2d

884, 888 n.3 (5th Cir. 1984), cert. denied, 105 S.Ct. 910 (1985);

Villanueva v. McInnis, 723 F.2d 414, 417-18 (5th Cir. 1984);

Bohrer, 715 F.2d at 216-17; Quinn v. Southwest Wood Products, Inc.,

597 F.2d 1018, 1025 (5th Cir. 1979); Jack Cole Co. v. Hudson, 409

F.2d 188, 191 (5th Cir. 1969); Roberts v. Pierce, 398 F.2d 954, 956

(5th Cir. 1968). As noted in Bohrer:

"'It is certainly the better and safer practice to renew
the motion for directed verdict at the close of all the
evidence, [however,] the application of Rule 50(b) . . .
should be examined in the light of the accomplishment of
its particular purposes as well as in the general context

6
This requirement serves two purposes: (1) "to ensure that the
trial court is invited to reexamine only the question raised by the
motion for a direct verdictSQwhether the evidence is sufficient as
a matter of lawSQand not to reexamine the facts properly found by
the jury"; and (2) "to avoid making a trap of the judgment n.o.v.
when the defendant's nonrenewal [of its directed verdict motion] is
designed to avoid pointing out the defects in the plaintiff's
proof, especially defects exposed by the defendant's case-in-chief,
which the plaintiff might cure before the case is submitted to the
jury." Miller v. Rowan Cos., 815 F.2d 1021, 1025 (5th Cir. 1987);
see also Seidman v. American Airlines, Inc., 923 F.2d 1134, 1137
(5th Cir. 1991); Merwine v. Board of Trustees, 754 F.2d 631, 634
(5th Cir.), cert. denied, 106 S.Ct. 76 (1985); Bohrer, 715 F.2d at
217.

8
 of securing a fair trial for all concerned in the quest
for truth.'" 715 F.2d at 217 (alterations in original
omitted) (quoting Bonner v. Coughlin, 657 F.2d 931, 939
(7th Cir. 1981)).

These purposes are met when the court and the plaintiff are alerted

to the grounds on which the defendant contends the evidence is

insufficient prior to the submission of the case to the jury. See

Miller, 815 F.2d at 1025; Merwine, 754 F.2d at 635.7

Our cases stand for the proposition that where a defendant has

made a motion for directed verdict at the close of the plaintiff's

case for insufficient evidence on specified grounds, and objects on

those same grounds to the jury charge, this suffices to support a

JNOV motion based on those same grounds.8 Therefore, we hold that

7
Although we will allow an objection or combination of
objections to the charge to serve as the functional equivalent of
a formal motion for directed verdict, see Wells v. Hico ISD, 736
F.2d 243, 251-52 (5th Cir. 1984), cert. dismissed, 106 S.Ct. 11
(1985), that functional equivalent must still satisfy our
requirement that "a party may not base a motion for judgment n.o.v.
on a ground that was not included in a prior motion for directed
verdict." Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397,
1401 (5th Cir. 1986) (citing Sulmeyer v. Coca Cola Co., 515 F.2d
835 (5th Cir. 1975), cert. denied, 96 S.Ct. 1148 (1976)).
Therefore, the grounds that a defendant urges in its JNOV motion
and on appeal as a basis for its contention that it is entitled to
judgment as matter of law must be presented in the defendant's
functional equivalent of a motion for directed verdict. See
Hinojosa v. City of Terrell, 834 F.2d 1223, 1228 (5th Cir. 1988),
cert. denied, 110 S.Ct. 80 (1989). The issues concerning duty of
care which were raised in the Shipowners' directed-verdict motion
were also raised in their objections to the jury interrogatories,
and in their JNOV motion.
8
We do not suggest that this is the only procedure that will
serve as the functional equivalent of a proper motion for directed
verdict. Other procedures may also be acceptable as long as they
fulfill the purposes behind Rule 50(b). See, e.g., Wells v. Hico
ISD, 736 F.2d 243, 251-52 (5th Cir. 1984), cert. dismissed, 106
S.Ct. 11 (1985) (reviewing insufficiency of the evidence where
defendant only objected to the submission of the interrogatory as
not supported by the evidence, but made no motion for directed
verdict); Villanueva, 723 F.2d at 418. However, one essential

9
the Shipowners' objections to the charge "were a sufficient

approximation of a renewed motion for directed verdict to support

[their] later motion for judgment notwithstanding the verdict. To

deny entertainment of [their] motion would be to 'succumb to a

nominalism and a rigid trial scenario as equally at variance as

ambush with the spirit of our rules.'" Villanueva, 723 F.2d at 418

(quoting Quinn, 597 F.2d at 1025).

II. The Shipowners' Duties

The Shipowners' argument hinges on Scindia Steam Navigation

Co. v. De Los Santos, 101 S.Ct. 1614 (1981). The Scindia court

articulated the scope of a vessel's duty under section 5(b). "The

basic principle which emerges from Scindia is that the primary

responsibility for the safety of the longshoremen rests upon the

stevedore." Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir. 1990).

However, vessel liability may still arise in three instances:

"1) if the vessel owner fails to warn on turning over
the ship of hidden defects of which he should have
known.

2) for injury caused by hazards under the control of
the ship.

3) if the vessel owner fails to intervene in the
stevedore's operations when he has actual knowledge both
of the hazard and that the stevedore, in the
exercise of 'obviously improvident' judgment, means to
work on in the face of it and therefore cannot be relied
on to remedy it." Pimental v. LTD Canadian Pacific BUL,
965 F.2d 13, 15 (5th Cir. 1992) (citing Masinter v.
Tenneco Oil Co., 867 F.2d 892, 897 (5th Cir. 1989))

aspect of any procedure is that at some time prior to the
submission of the jury charge and the start of the jury's
deliberations, the opposing party and the court are adequately
notified of the objections of the party who subsequently challenges
the verdict. See McCann, 984 F.2d at 672; Seidman, 923 F.2d at
1137-38.

10
 (emphasis added).

The Shipowners contend that the magistrate judge erred in denying

their motions for directed verdict and JNOV because Greenwood did

not present sufficient evidence from which a reasonable jury could

find the Shipowners liable under Scindia.

In reviewing the sufficiency of the evidence, we "consider all

of the evidenceSQnot just that evidence which supports the

nonmovant's caseSQbut in the light and with all reasonable

inferences most favorable to the party opposed to the motion."

Maxey v. Freightliner Corp., 665 F.2d 1367, 1371 (5th Cir. 1982)

(en banc). The jury's verdict must be upheld unless "the facts and

inferences point so strongly and overwhelmingly in favor of" the

movant for directed verdict "that the Court believes that

reasonable men could not arrive" at a verdict against the movant.

Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc).

"A mere scintilla of evidence is insufficient to present a question

for the jury." Id. However, "If there is substantial evidence .

. . of such quality and weight that reasonable and fairminded

persons in the exercise of impartial judgment might reach different

conclusions" then a directed verdict is not proper. Maxey, 665

F.2d at 1371.

The Shipowners argue, among other things, that there is

insufficient evidence to support the jury's verdict that the defect

in the crane's slewing brake was hidden, thus negating their first

duty under Scindia. The Supreme Court held that the first duty

extends to:

"[E]xercising ordinary care under the circumstances to

11
 have the ship and its equipment in such condition that an
expert and experienced stevedore will be able by the
exercise of reasonable care to carry on its cargo
operations with reasonable safety to persons and
property, and to warning the stevedore of any hazards on
the ship or with respect to its equipment that are known
to the vessel or should be known to it in the exercise of
reasonable care, that would likely be encountered by the
stevedore in the course of his cargo operations and that
are not known by the stevedore and would not be obvious
to or anticipated by him if reasonably competent in the
performance of his work. The shipowner thus has a duty
with respect to the condition of the ship's gear,
equipment, tools, and work space to be used in the
stevedoring operations; and if he fails at least to warn
the stevedore of hidden dangers which would have been
known to him in the exercise of reasonable care, he has
breached his duty and is liable if his negligence causes
injury to a longshoreman." Scindia, 101 S.Ct. at 1622
(emphasis added).

Under this duty, a plaintiff must first show that the vessel owner

had actual knowledge of the defect. However, "If the condition

existed from the outset, the shipowner is charged with actual

knowledge of the dangerous condition." Hernandez v. M/V Rajaan,

841 F.2d 582, 586 (5th Cir. 1988) (citing Harris v. Flota Mercante

Grancolombiana, S.A., 730 F.2d 296, 299 (5th Cir. 1984)); see also

Pimental, 965 F.2d at 17 n.4. Logue testified that he noticed the

defect in the slewing brake as soon as he began operating the

crane, and this, arguably enhanced slightly by the ship’s log’s

listing of the slewing brake as being in “slight doubt,”

constituted substantial evidence that the defect in the slewing

brake existed before the stevedore received custody of the ship.

On this basis, it could be found that the Shipowners were charged

with knowledge of the defect. However, the mere fact that the

Shipowners may be chargeable with knowledge of the defect does not

end our inquiry under the first duty.

12
 "[T]he defendant has not breached its duty to turn over a safe

vessel if the defect causing the injury is open and obvious and one

that the longshoreman should have seen." Pimental, 965 F.2d at 16;

see also Polizzi v. M/V Zephros II Monrovia, 860 F.2d 147, 149 (5th

Cir. 1988); Morris v. Compagnie Maritime Des Chargeurs Reunis,

S.A., 832 F.2d 67, 71 (5th Cir. 1987), cert. denied, 108 S.Ct. 1576

(1988). If the longshoreman knew of the defect, then it is

considered open and obvious. Pimental, 965 F.2d at 16 (finding

that the defects were obvious based on the testimony of two crane

operators who stated that the defects were immediately noticeable).

See also, e.g., Burchett v. Cargill, Inc., 48 F.3d 173, 179 (5th

Cir. 1995). Here, Logue testified on direct examination, and

reiterated on cross examination, that as soon as he began operating

the crane, he became aware of the defective slewing brake.

Furthermore, Polinard, another longshoreman experienced in crane

operation, testified that he was able to visually observe this

defect in the crane’s functioning. Therefore, whatever latent

characteristics the alleged defect may have had before the

longshoremen began to operate the crane, they became open and

obvious before the end of the first (7:00 to 8:00 a.m.) shift

during which Logue operated the crane. See Scindia, 101 S.Ct. at

1622 (a vessel's duty to warn extends only to defects “that are not

known by the stevedore and which would not be obvious to or

anticipated by him if reasonably competent in the performance of

his work").9

9
In Scindia, a winch was being used to lower cargo from a
pallet into the ship's hold. 101 S.Ct. at 1618. The winch's

13
 The defense did indeed present evidence, in the form of

testimony by O’Neal, Guilford, and others, to the effect that the

crane in question did not malfunction as Logue had claimed and

indicating that the accident was either due to Logue’s improper

operation of it or to the truck in which the tag-line was caught

driving off, causing the line to break, or to some combination of

these. If this defense evidence were credited, however, the

Shipowners would be entitled to judgment. Conversely, Logue’s

testimony was essential to Greenwood’s case, and without it there

would be no substantial evidence that Greenwood’s injury was caused

by a defect in the crane existing when the vessel was turned over

to the stevedore. Greenwood’s counsel has consistently recognized

this and based his case on Logue’s testimony.10 There is really

braking mechanism was defective, and as a result the brakes would
not quickly stop the descent of the winch. Although this defect
was not visibly discernible, it was readily noticeable once the
stevedore began operating the winch. Id. Therefore, the Scindia
court found that the ship had "no duty or responsibility with
respect to the ship's winch, which, if defective, was obviously
so." Id. at 1625.
10
In his opening statement to the jury, Greenwood’s counsel
stated Logue would testify that when he started using the crane at
7:00 a.m. on April 1, “as soon as he began moving the pipe . . .
the brakes on the crane didn’t work” and “you’ll hear from him
[Logue] that this was not a condition that started after they
started unloading the ship. It wasn’t something that broke. It
was that way right from the start of the use of this crane.”
Similarly, in his opening final jury argument, Greenwood’s
counsel relied on Logue’s testimony, stating, inter alia:

“What we know in this case is that, first, the best
person——the person in the best position to know exactly
what happened the day of this accident is Mr. Kenneth
Logue. . . . And what we do know is that Mr. Logue was
very clear and very straight in his testimony, he didn’t
waver at all, that this crane did not work right from the
start, that it never worked right all the way up to the
time of the accident, and that this crane on this ship

14
nothing apart from this. Greenwood’s only meaningful liability

witnesses were Logue and Polinard, whose testimony merely tended to

corroborate Logue’s.11 There was no expert testimony that the

crane’s slewing brake was defective——indeed, there was expert

testimony that it was not——and there was no testimony as to any

examination of the crane reflecting such a defect. There are only

two versions of the condition of the slewing brake and its relation

to the accident: Logue’s version, that the crane’s slewing brake

from the very beginning never functioned properly, and the version

of O’Neal and the defense witnesses that the slewing brake

caused this accident.”

And, Greenwood’s counsel ended his closing final jury argument by
stating “this crane was not safe from the start, Mr. Logue told you
over and over.”
On appeal, Greenwood continues to rely on Logue’s testimony,
stating in his brief in this Court, among other things:

“Kenneth Logue, the crane operator of crane number four
at the time of the accident, was a ‘gold star,’ which is
the highest class ranking among longshoremen. . . . On
the morning of Greenwood’s accident, he began working
crane number four at 7:00 a.m. . . . Immediately, he
noticed that he crane was not functioning properly; it
was ‘jerky,’ and when put into neutral, it would continue
to slew, or drift. . . .

When he was relieved from his first shift at 8:00
a.m., Logue informed his gang foreman, Quincy Guilford,
that the crane was not functioning properly. . . . When
he returned to work the 9:00 a.m. shift, however, he
noticed no differnece in the manner in which the crane
was operating. . . .

Logue’s testimony was corroborated by the testimony
of George Polinard, . . . .”
11
Greenwood himself testified, but essentially had no
information concerning the cause of the accident; Armistead, a
rebuttal witness who was working with another gang and had never
operated a crane, gave no significant testimony.

15
functioned acceptably and the accident was due to operator error

and/or the truck’s driving off with the hung up tag line. The

record suggests no third version. Greenwood supported, and

supports, Logue’s version, as he must.12 But under it, the first

Scindia duty does not apply.

Greenwood argues that just because the danger is "obvious"

does not necessarily offer a complete defense to a longshoreman's

suit, and that the shipowner is still liable if the longshoreman's

"only alternatives when facing an open and obvious hazard are

unduly impracticable or time-consuming." Pimental, 965 F.2d at 16

(citing Treadaway v. Societe Anonyme Louis-Dreyfus, 894 F.2d 161,

167 (5th Cir. 1990); Teply v. Mobil Oil Corp., 859 F.2d 375, 378

(5th Cir. 1988)). Greenwood contends that Logue had no alternative

but to continue to use the crane because when machinery breaks

down, as the longshoremen are normally told to "milk it along."

This observation concerning cargo operations in general cannot

substitute for evidence that such was the case in this particular

instance. Greenwood presented no evidence that Logue was

instructed to continue to use the crane despite the defect or that

he would "face trouble for delaying the work." Theriot v. Bay

Drilling Corp., 783 F.2d 527, 535 (5th Cir. 1986) (quoting Stass v.

12
Indeed, Greenwood could not procure a verdict and judgment
thereon on the basis of Logue’s testimony and then on appeal seek
to sustain that verdict and judgment by repudiating that very
testimony. See, e.g., Ergo Science, Inc. v. Martin, 73 F.3d 595,
598 (5th Cir. 1996) (“judicial estoppel prevents a party from
asserting a position in a legal proceeding that is contrary to a
position previously taken in the same . . . proceeding”); In the
Matter of Double D Dredging Co., 467 F.2d 468 (5th Cir. 1972). See
also Scott v. District of Columbia, 1996 WL 695211, 101 F.3d 748
(D.C. Cir. 1996).

16
American Commercial Lines, Inc., 720 F.2d 879, 882 (5th Cir.

1983)). In fact, when the boom brake on the crane later began to

malfunction, the crane was immediately shut down for half an hour

and the longshoremen were paid for that dead time. This tends to

show that when the Shipowners learned of a problem with the crane,

operations would cease until the crane was repaired. Certainly,

that alternative was not impracticable, and even if the repairs

required some time, the longshoremen would be paid for the

resulting down time. See Teply, 859 F.2d at 378 ("Ship owners are

not liable for obvious dangers that injure contractors aboard their

vessels unless the contractors, in order to avoid the danger, would

be forced either to leave the job or to face penalties for causing

delay"). Greenwood has failed to submit sufficient evidence to fit

within the scope of this asserted exception to the general rule.

Finally, the Shipowners contend there is insufficient evidence

that they had actual knowledge of the stevedore's improvident

judgment to continue operating the crane, thereby negating the

third Scindia duty.13 The Scindia court held that this duty arises

when the shipowner knows of the stevedore's "obviously improvident

judgment" based on the fact that the shipowner "knew of the defect

and that [the stevedore] was continuing to use it, [and therefore]

should have realized the [defect] presented an unreasonable risk of

harm to the longshoremen, and that in such circumstances it had a

duty to intervene and repair the [defect]." 101 S.Ct. at 1626. We

have interpreted this language as determining that "a vessel has a

13
Greenwood admits that this case does not implicate the second
Scindia duty, and we agree.

17
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."

Pimental, 965 F.2d at 17 (citing Randolph, 896 F.2d at 970; Woods

v. Sammisa Co., 873 F.2d 842, 854 (5th Cir. 1989), cert. denied,

110 S.Ct. 853; Helaire v. Mobil Oil Co., 709 F.2d 1031, 1037 (5th

Cir. 1983)). Therefore, in order to prevail under this third duty,

the longshoreman must show not only that the shipowner had actual

knowledge of the defect and of the stevedore's continuing use of

the defective item, but also: "1) it had actual knowledge that the

[defect] posed an unreasonable risk of harm and 2) actual knowledge

that it could not rely on the stevedore to protect its employees

and that if unremedied the condition posed a substantial risk of

injury." Randolph, 896 F.2d at 971.

A difficulty in the above formulation is discerning what must

be shown to demonstrate that a shipowner had actual knowledge of a

stevedore's "obviously improvident judgment" such that the

shipowner "could not rely on the stevedore to protect its

employees." The shipowner’s obligation to intervene under the

third Scindia duty “is narrow and requires ‘something more’ than

mere shipowner knowledge of a dangerous condition.” Singleton v.

Guangzhou Ocean Shipping Co., 79 F.3d 26, 28 (5th Cir. 1996). This

is because, "'The shipowner defers to the qualification of the

stevedoring contractor in the selection and use of equipment and

relies on the competency of the stevedore company.'" Scindia, 101

S.Ct. at 1624 (quoting with approval Italia Societa v. Oregon

Stevedoring Co., 84 S.Ct. 748, 753 (1964)); see also Morris, 832

18
F.2d at 71. Therefore, "It might well be 'reasonable' for the

owner to rely on the stevedore's judgment that the condition,

though dangerous, was safe enough." Helaire, 709 F.2d at 1039

n.12. The question then is when should it become obvious to a

shipowner that a stevedore's judgmentSQbased on its specialized

knowledgeSQis obviously improvident or dangerous. It seems to us

that, consistent with Scindia's basic thrust, in order 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 harmSQ even when the stevedore's expertise

is taken into account. Randolph, 896 F.2d at 971; Woods, 873 F.2d

at 847.

In this case, there exists sufficient evidence that the

Shipowners were charged with knowledge of the defect, and knew of

the stevedore's continued use of the crane. However, there was

insufficient evidence that the Shipowners had the actual knowledge

that the operation of the crane with the doubtful slewing brake

created an unreasonable risk of harm to the expert longshoremen.

See Randolph, 896 F.2d at 971 (holding that although the defendants

knew of the defect, "there was no evidence that the defendants were

actually aware that an unreasonable risk of harm was thereby

created"). Although one not operating the crane could see that it

was “jerky,” its thus observable malfunction was not so severe that

the ShipownersSQwithout any specialized knowledge and who were not

operating itSQwould necessarily have known that it posed an

19
unreasonable risk of harm.14 In fact, after the accident, no report

by either the stevedore, Logue, or the other longshoremen was made

to the ship, and the crane continued to be used, without any

slewing brake incident, for the remaining three days of unloading

operations. There was simply no evidence that the fault in this

slewing brake was such a serious defect that the expert stevedore's

continued knowing use of it would be seen as "obviously

improvident" by the Shipowners.

The evidence does not suffice to establish that the Shipowners

violated any of the Scindia duties.15

Conclusion

For the reasons given, we reverse the judgment for Greenwood

and render judgment for the Shipowners.

REVERSED AND RENDERED

14
We have held a shipowner could properly be found to have had
actual knowledge of an unreasonable risk evidencing the stevedore's
"obviously improvident judgment," where the shipowner knew a
defective winch was working improperly because it would temporarily
repair the winch after each time that the winch "would slow down or
stop unexpectedly causing pallets holding sacks of rice to swing
precariously above the cargo hold." Hernandez, 841 F.2d at 586.
However, in this case, since the Shipowners did not repair the
slewing brake prior to the accident, and they were not made aware
of its precise operational defects through some other form of close
observation, there is no evidence that they had any actual
knowledge that the erratic movement of the crane posed an
unreasonable risk of harm.
15
Because of our conclusion in this respect, we do not reach the
other issues raised by the Shipowners' appeal.

20