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DAVIS v. INCA COMPANIA NAVIERA S.A.

September 28, 1977

James A. DAVIS, Plaintiff,
v.
INCA COMPANIA NAVIERA S.A., a corporation, Defendant



The opinion of the court was delivered by: BEEKS

 This is an action instituted pursuant to § 905(b) *fn1" of the 1972 Amendments to the Longshoremen's and Harbor Workers' Act, 33 U.S.C. §§ 901 et seq., *fn2" (LHWCA) in which plaintiff longshoreman seeks to recover damages for personal injuries sustained on January 12, 1975 as a result of the alleged negligence of defendant.

 Defendant is the owner of the Japanese built steam tanker ARCHON, a flush deck vessel of Liberian registry, 866.17 feet in length, 124.67 feet in breadth with her superstructure and engine located aft.

 Her entire main deck, which has a camber of one meter from the centerline to the sheer strake, was painted with a non-abrasive paint from the forward end of the main house to the after end of the forecastle head. However, two "non-skid" walkways, one the centerline catwalk running fore and aft the length of the deck, the other running athwartships from the gangway on each side and intersecting the fore and aft walkway at right angles, were provided by using an abrasive additive to the deck paint.

 On the morning of January 12, 1975, ARCHON, then in the course of her maiden voyage, was berthed at Pier 1, Tacoma, Washington, the United Grain Terminal. She had been loading bulk wheat destined for Karachi, Pakistan, for five days. During this period grain kernels and wheat chaff had accumulated on the deck, effectively blanketing the entire area. Such accumulation is characteristic of grain loading operations where, as here, the wheat is gravity fed through spouts extending from the silo into butterworth openings in the deck and the downward force of the grain agitating the wheat in the tank creates a back pressure which sprays some of the kernels and dust up onto the deck. Thus, the gathering of wheat dust on deck is inherent in the operation. It is customary, undoubtedly for reasons of economy, not to sweep or otherwise clean the deck after each day of loading operations, but rather to wait until the vessel commences her voyage and allow the accumulated residue to be washed away by the sea as it breaks over the vessel's low freeboard. Apparently this was the course of conduct defendant intended to pursue, because from the time of arrival in Tacoma, there had been no attempt to clean the deck, and the chaff had continued to pile up. Moreover, it had been raining during the night of January 11 or the following morning before loading resumed, and consequently, the grain residue was wet and the deck exceptionally slippery.

 At approximately 0800, plaintiff, who had never previously been on ARCHON, reported for work and was assigned a work station near the No. 1 butterworth situated forward close to the break bulkhead of the forecastle. He then proceeded up the gangway. Reaching the top of the gangway, plaintiff could see the grain and wheat dust and knew the substance was slick, but he could not see the "non-skid" passageways. They were obscured. In order to reach his work station, he turned left and began to walk cautiously forward on the deck between the centerline and the port side. After he had taken approximately ten steps, he slipped on an accumulation of wet wheat dust and kernels covering the smooth steel deck and fell.

 The Court is satisfied that the deck area where plaintiff fell was extremely hazardous, not only because of the wheat residue but also because of the downward and outward slope of the deck resulting from the camber, and possibly a port list.

 Counsel for both parties have urged that this case requires the Court to determine the nature and scope of a vessel owner's duty of care under the 1972 Amendments. Plaintiff contends that maritime principles of negligence are applicable; that defendant breached a duty of reasonable care to provide a reasonably safe place to work and was negligent in failing to correct the hazardous deck condition. Defendant, on the other hand, argues that LHWCA as amended requires application of common law negligence standards, invoking, inter alia, those formulated in Restatement (Second) of Torts (1965) §§ 343 and 343A, relating to the duties of land occupiers to invitees with respect to conditions on their premises.

 The 1972 Amendments are silent with respect to the applicable standard of care. Accordingly, the legal waters surrounding the question of the proper standard have swirled turgidly with confusion and controversy. *fn3" Notwithstanding the urging of counsel, I do not believe the instant action involving a vessel owner with actual knowledge of a perceptibly dangerous condition requires me to plunge into the jurisprudential maelstrom, for I conclude that under any of the standards which can be authoritatively urged *fn4" plaintiff would be entitled to prevail.

 
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 ...

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