Mario Lubrano v. Royal Netherlands Steamship Company , 622 F.2d 29 ( 1980 )

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from a jury verdict in favor of a longshoreman injured while loading drums of tallow on defendant’s ship. It is the second time that this matter has been before this Court. On the first appeal, we reversed a judgment entered upon a directed verdict in favor of the shipowner. See Lubrano v. Royal Netherlands Steamship Co., 572 F.2d 364 (2d Cir. 1978). We reverse again, this time because we believe that the district court did not accurately describe and delimit the duty of care owed by the defendant to the plaintiff.

Because familiarity with this Court’s prior opinion is assumed and there was no substantial change in the proof on retrial, we will not repeat what has already been said. We would only emphasize that the testimony did not disclose any defect in, or dangerous condition of, defendant’s ship, which made it an unsafe place in which to work. The hazard which allegedly caused plaintiff’s injury was created by plaintiff and his fellow employees in the course of and as part of their own work efforts. The question for the jury on retrial was whether the defendant could be held partially responsible for the improper workmanship because it had assumed supervision and control of the stevedore’s operations by directing that the work continue as it did.

Instead of instructing the jury on this limited issue, the district court charged generally that defendant owed plaintiff “a continuing duty to use reasonable care so as to furnish him with a reasonably safe place in which to work and perform his duties”. Under the facts of this case, we believe that charge must have confused the jury as to the exact nature of the obligation owed by the defendant to the plaintiff.

Under land-based principles of negligence, which must be applied here, Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 507 (2d Cir. 1976), an owner who invites an independent contractor upon his premises owes a duty of reasonable care to provide the contractor and the contractor’s employees with a safe place to work. Rusin v. Jackson Heights Shopping Center, Inc., 27 N.Y.2d 103, 106, 313 N.Y.S.2d 715, 717, 261 N.E.2d 635, 636 (1970); 41 Am.Jur.2d Independent Contractors § 27 at 781-83 (1968). However, unless the owner assumes direct supervision and control over the independent contractor’s operations, he is not responsible ordinarily for the manner in which those operations are performed by the contractor or its employees. Employers Mut. Liab. Ins. Co. v. Di Cesare & Monaco Concrete Constr. Corp., 9 App.Div.2d 379, 383, 194 N.Y.S.2d 103, 107 (1959). With certain exceptions not applicable here, he is not responsible for the contractor’s defective machinery, equipment, or methods, or its negligent acts occurring as a detail of the work. Wright v. Belt Associates, 14 N.Y.2d 129, 134, 249 N.Y.S.2d 416, 418, 198 N.E.2d 590, 591 (1964); Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110-11, 242 N.Y.S.2d 205, 208-09, 192 N.E.2d 163, 165-66 (1963); Zucchelli v. City Constr. Co., 4 N.Y.2d 52, 56, 172 N.Y.S.2d 139, 142, 149 N.E.2d 72, 74 (1958); Restatement (Second) of Torts § 426 (1965).

Although this Court has been something less than consistent in its interpretation of the 1972 amendments of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 — 950, we have tended to follow the foregoing land-based rules. We have held that the amendments eliminated the shipowner’s non-delegable duty to provide a safe place to work, Mattivi v. South African Marine Corp., 618 F.2d 163, 168; Napoli v. Hellenic Lines, Ltd., supra, 536 F.2d at 507, and have emphasized repeatedly that the shipowner is not obligated to supervise the details of the work that an independent stevedore has been hired to perform. Cox v. Flota Mercante Grancolombiana, S. A., 577 F.2d 798, 804 (2d Cir.), cert. denied, 439 U.S. 881, 99 S.Ct. 222, 58 L.Ed.2d 195 (1978); Hickman v. Jugoslavenska Linijska Plovidba Rijeka, Zvir, 570 F.2d 449, 451-52 (2d Cir. 1978); Ruffino v. Scindia Steam Navigation Co., 559 F.2d 861, 862-63 (2d Cir. 1977). These holdings would be virtually emasculated if the phrase “safe place to work” were so broadly defined as to make the shipowner responsible for the equipment and work methods of an independent stevedoring company.

When the “safe place to work” charge is given, the jurors should be instructed’as to the legal parameters of the duty owed. They should be told that the doctrine does not make the shipowner responsible for the equipment and work methods of the independent stevedore or the stevedore’s negligent acts occurring as a detail of the work. Cox v. Flota Mercante Grancolombiana, S. A., supra, 577 F.2d at 804; Hickman v. Jugoslavenska Linijska Plovidba Rijeka, Zvir, supra, 570 F.2d at 451-52; Ruffino v. Scindia Steam Navigation Co., supra, 559 F.2d at 862-63. In the absence of evidence that a shipowner has furnished a longshoreman an unsafe place in which to work, it is better not to instruct the jury on that issue at all. See Mandel v. Pennsylvania R. R., 291 F.2d 433, 435 (2d Cir.), cert. denied, 368 U.S. 938, 82 S.Ct. 379, 7 L.Ed.2d 337 (1961).

The shortage of dunnage did not create per se a hazardous condition on defendant’s ship. If the stevedore’s employees stopped loading when they ran out of dunnage, there would have been no accident. The issue for the jury on retrial was whether the defendant “had the men keep working” or “affirmatively joined” in the stevedore’s decision to keep them working. Lubrano v. Royal Netherlands Steamship Co., supra, 572 F.2d at 367 & n.4. This was not how the case was presented to the jury.

Reversed and remanded for a new trial.