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SOLSVIK v. MAREMAR COMPANIA NAVIERA

August 6, 1975

Nils M. SOLSVIK, Plaintiff,
v.
MAREMAR COMPANIA NAVIERA, S.A., a corporation, and Union Commercial Steamship Co., a corporation, Defendants. Clayton R. LaPLANT, Plaintiff, v. MAREMAR COMPANIA NAVIERA, S.A., a corporation, and Union Commercial Steamship Co., a corporation, Defendants



The opinion of the court was delivered by: BEEKS

 BEEKS, Senior District Judge.

 Solsvik and LaPlant are longshoremen in the employ of Rothschild Washington International Stevedoring Co., an independent contractor engaged by defendants to discharge cargo from defendants' vessel M/V AETOS in the Port of Seattle. Plaintiffs allege injuries suffered in the course of discharge operations on January 3 and January 6, 1975, respectively, and contend that the injuries were the proximate result of the negligence of defendants.

 The cases are now before the Court on cross-motions to strike pursuant to Fed.R.Civ.P. 12(b), and, insofar as the two cases involve identical issues of law, they will be treated together.

 Defendants' answers contain affirmative defenses that seek to impose reductions on plaintiffs' potential recoveries by reason of the alleged concurrent negligence of Rothschild. The affirmative defenses seek to reduce each plaintiff's recovery by the combined percentage of contributory negligence of the respective plaintiff and Rothschild, or, in the alternative, by the greater of (1) the amount of benefits recovered by each plaintiff under the Longshoremen's and Harbor Workers' Compensation Act *fn1" or (2) fifty percent.

 Plaintiffs move to strike these affirmative defenses, contending that the law, specifically the 1972 Amendments (which became effective November 26, 1972, and are hereinafter referred to as the "Amendments") *fn2" to the Longshoremen's and Harbor Workers' Compensation Act, does not countenance reduction of plaintiffs' recoveries under any of the theories proposed by defendants. I agree.

 The Amendments manifest the balance achieved by Congress among the competing rights and obligations of shipowners, stevedores and longshoremen. If, indeed, inequities exist under the Congressional scheme, then relief therefrom must be sought through legislation. Halcyon Lines v. Haenn Ship Ceiling and Refitting Corporation, 342 U.S. 282, 72 S. Ct. 277, 96 L. Ed. 318 (1952).

 Accordingly, I choose to follow the reasoning expressed in Lucas v. "Brinknes" Schiffahrts Ges., 379 F. Supp. 759 (E.D.Pa. 1974) *fn3" and hold that defendants are unable to impose the reductions sought against plaintiffs' potential judgments. Plaintiffs' motions to strike affirmative defenses are therefore granted.

 II. DEFENDANTS' MOTIONS TO STRIKE ALLEGATIONS OF THE COMPLAINTS

 The complaint in each case alleges the injury to plaintiff, and asserts that ". . . defendants were negligent and failed to furnish plaintiff with a safe place to work." The complaints further state that plaintiffs suffered damages as a direct and proximate result of the negligence of defendants.

 Defendants contend that the failure to provide a safe place to work is no longer actionable in light of the Amendments, and that each such allegation should be stricken for failure to state a claim upon which relief can be granted.

 There is no doubt but that the Amendments restrict a longshoreman's cause of action against a shipowner to that grounded in negligence:

 
"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 . . . If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. . . . The liability of the vessel under this subsection shall not ...

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