Jong Hee Park v. United States Lines, Inc.

³⁹¹ Morton, J., delivered the opinion of the Court. This appeal presents for resolution a question of first impression in this State. We must decide whether a vessel berthed in port and a stevedoring concern employed to unload it have a duty to warn land-based longshoremen of bad weather which might render hazardous unloading operations, and to suspend unloading operations until such unsafe conditions no longer exist. It appears that on March 21,1976, two container ships, the S.S. American Legend and the S.S. Albert Maersk, were berthed or in the process of being berthed in adjacent slips at the Maryland Port Administration’s (hereinafter M.P.A.) facility in Dundalk, Maryland, and were in the process of being or were about to be unloaded through the use of M.P.A.’s container handling cranes.

At approximately 1:15 p.m. on that day two cranes assigned to the S.S. American Legend were blown off the pier and into the water by gusting high winds. Chang Lim Park and Earl Wayne Bridges, the two M.P.A. employees manning the cranes, were killed. A second amended declaration was filed by the personal representatives of the estates of Park and Bridges by their surviving spouses; and for the benefit of their surviving children and for the State Accident Fund. The named defendants were United States Lines, Inc., and United States Lines Company (hereinafter U. S. Lines), owners and/or agents for the owners of the S. S. American Legend (hereinafter American Legend) over which vessel the decedents were positioning their cranes when the accident occurred; I. T. O. Corporation of Baltimore (hereinafter I.T.O.), a stevedoring concern employed by U. S. Lines to unload cargo from the American Legend; A/S D/S Svendborg; D/S af A/S; Quivira Shipping Company Ltd.; Maersk Line Agency, Inc., owners and/or agents of the owners of the S. S. Albert Maersk (hereinafter Albert Maersk), the vessel berthed next to the American Legend at the time of the accident; Moller Steamship Company, Inc., which employed stevedores to unload the Albert Maersk; and John T. Clark and Son of Maryland, Inc. (hereinafter ³⁹² Clark & Son), stevedores employed to unload the Albert Maersk.

The facts as finally alleged, after demands for particulars, are not complex. The declaration alleged, in pertinent part: "On or about March 21, 1976, the SS ALBERT MAERSK was berthed at Berth 11 of the Dundalk Marine Terminal and the S. S. AMERICAN LEGEND was berthed at Berth 12 at the Dundalk Marine Terminal. The owners of the respective vessels, and/or the agents of the owners contracted with the Maryland Port Administration for use of the respective berths and the equipment and facilities appurtenant thereto for the unloading and loading of the vessels, including the rental and use of container handling cranes. Crane numbers 4621 and 4622 operated and manned by the Plaintiffs’ Decedents, Chang Lim Park and Earl Wayne Bridges, were assigned to the S. S. AMERICAN LEGEND beginning at 12 noon on March 21,1976.

Crane numbers 4619 and 4620 were assigned to the SS ALBERT MAERSK beginning at 8:00 a.m. on March 21, 1976. At approximately 1:15 p.m. on March 21,1976, while assigned to operate and man the cranes used for the loading/unloading operations for the respective vessels, crane numbers 4621 and 4622 were caused to fall off the pier and into the water adjacent to Berth #12 as a result of the fact that crane numbers 4619 and 4620 were caused to move from their positions where they were operating, causing crane number 4619 to strike the mast of the SS ALBERT MAERSK and crane number 4620 to strike the mast of the S. S. AMERICAN LEGEND and further resulting in crane 4619 and/or crane 4620 striking the crane in which Earl Bridges was the operator causing same to fall off the pier and into the water. As a result, the Plaintiffs’ decedents, Chang Lim Park and Earl Wayne Bridges were killed. ³⁹³ That at the time of the happening of this occurrence, the decedents, Chang Lim Park and Earl Wayne Bridges were employed by the Maryland Port Administration as crane operators. ... That the [owners and/or agents of the American Legend], through their agents, officers and servants, supervised and had control over the loading and unloading of cargo with respect to ... the American Legend ..that [they] supervised and controlled the work being performed by Plaintiffs’ decedents; that [they] knew, or by the exercise of reasonable care should have known of the dangerous wind and weather conditions in the vicinity of the Maryland Port Administration facilities at the time of the occurrence; that said Defendants, knowing of the weather conditions existing at the time, and knowing that such conditions presented a hazard and a danger to persons operating under their control and supervision, including the Plaintiffs’ decedents, had the duty and responsibility to suspend the operations then and there being performed; that despite the aforesaid knowledge, the said Defendants continued to perform work and operations and failed to warn the Plaintiffs’ decedents of the impending danger and failed to shut down or suspend the work and operations then being performed.

That it was the duty and responsibility of the Defendants individually, and jointly, to safely and properly perform loading and unloading operations at said location and to further suspend and/or terminate said work and/or operations if weather conditions were of such a character so as to endanger life or property including cranes 4621 and 4622, which were manned by the decedents and which were intimately involved in the work and operations then being performed, and to warn or otherwise notify the decedents, their supervisors and/or employer of the weather danger which they ³⁹⁴ knew or should have known was approaching, and to safely, properly and correctly monitor the weather conditions in the area of the occurrence where cranes 4621 and 4622 were being operated for the safety of their property and of the lives of all persons engaged in the performance of work in the vicinity of the cranes #4621 and 4622. The deaths ... were caused by the negligence of the Defendants ... their agents, servants and employees in causing and permitting the Plaintiffs’ decedents to man said cranes under the conditions then and there existing, and as a result of [their] negligence ... in failing to shut down and/ or terminate loading and/or unloading operations ... [and] in failing to warn the Plaintiffs’ decedents of the dangerous conditions... [and] in failing to heed the warnings of dangerous weather conditions which were likely to exist ... and [in failing] to restrict access to the cranes by all personnel until such time as it would be safe to man same; and ... in causing and permitting the SS AMERICAN LEGEND and SS ALBERT MAERSK to be berthed and located in said locations under the then existing circumstances ....” The declaration alleged the same control and duties on the part of: I.T.O. by virtue of the fact that it "was responsible for the loading and unloading of cargo on the American Legend”; the owners and agents of the Albert Maersk by virtue of the fact that they had similar "control over the loading and unloading of cargo with respect to the vessel S.S. Albert Maersk”; and Clark & Son by virtue of the fact that it "was responsible for the loading and unloading of cargo on the SS Albert Maersk.” By way of demurrer each defendant challenged the legal sufficiency of the claims, stating that the declaration as amended failed to allege a cognizable duty of care. The Superior Court of Baltimore City (Bothe, J.), in finding the correlative rights and duties no more apparent in the second ³⁹⁵ amended declaration than the two which preceded it, concluded that the plaintiffs failed to state a cause of action and sustained the demurrers without leave to amend. It is first to be noted that the trial judge in ruling on the demurrers had to assume the facts were as the plaintiffs alleged.

Plaintiffs conceded at oral argument, however, that although the declaration indicated that the American Legend was already berthed and being unloaded at the time of the accident, in fact the vessel was just coming into port and the unloading operations had not yet begun. As modified by this concession then, the facts are simply these: Park and Bridges were in the process of postitioning M.P.A.-owned, pier-based cranes over the American Legend, which cranes were then to be manned by employees of the stevedoring concern employed by the vessel to unload it, when the cranes were blown off the pier and into the water by gusting winds causing the deaths of Park and Bridges; and that no one in the employ of either the American Legend, the ship berthed at an adjoining berth, or the stevedoring companies employed to unload either vessel warned either Park, Bridges, or the M.P.A. of the dangerous weather conditions or suspended the hazardous unloading operations. Assuming the facts to be true, the question for our consideration is whether they form the basis for a cause of action upon which relief may be granted. Jurisdiction of Admiralty Before we can answer the question posed, we must address the threshold issue of whether or not the appellees’ alleged negligence constitutes a maritime tort so as to require the application of maritime law.

Almost uniformly, the courts look to the situs of the injury in determining whether to invoke admiralty jurisdiction in matters of tort. See Moore’s, Federal Practice, Vol. 7A, Admiralty, pp. 3501-3601. However, the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740 , under which ³⁹⁶ the plaintiffs seek to invoke maritime jurisdiction, provides for admiralty jurisdiction in "all cases of damage or injury, to person or property caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” (Emphasis added.) Although earlier decisions disagreed on whether the Extension of Admiralty Jurisdiction Act applied to damage not directly and physically produced on the land by a vessel, see, e.g., Hovland v. Fearnley & Eger, 110 F.Supp. 657, 658 (E.D.Pa. 1952), Clinton v. Joshua Hendy Corp., 285 F.2d 199, 201-202 (9th Cir. 1960), cert. denied, 366 U.S. 932 (1960); the Supreme Court has interpreted the Act as extending jurisdiction to cases where an injury on land is caused by, among other things, the ship’s crew. Gutierrez v. Waterman S. S. Corp., 373 U.S. 206 (1963).

The Supreme Court stated in Gutierrez , at 209-210: "There is no distinction in admiralty between torts committed by the ship itself and by the ship’s personnel while operating it, any more than there is between torts 'committed’ by a corporation and by its employees.... [T]he case is within the maritime jurisdiction under 46 U.S.C. § 740 when, as here, it is alleged that the shipowner commits a tort while or before the ship is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act.” (Footnote omitted.) In Canadian Aviator, Ltd. v. U. S., 324 U.S. 215, 224 (1945), it was stated: "The use of the phrase 'caused by a ... vessel’ constitutes an adoption by Congress of the customary legal terminology of the admiralty law which refers to the vessel as causing the harm although the actual cause is the negligence of the personnel [through their acts and omissions] in the operation of the ship.” Because the plaintiffs allege that the deaths were caused, at least in part, by the negligence of personnel of the ³⁹⁷ American Legend and the Albert Maersk, the action against the various owners and agents of the vessels is within the admiralty jurisdiction by virtue of the Extension of Admiralty Jurisdiction Act. With regard to the claim for negligence against the stevedoring companies — I.T.O. and Clark & Son — the United States District Court of Maryland’s decision in Maryland Port Administration v. S. S. American Legend, 453 F. Supp. 584 (1978), provides guidance. In that case which involved a claim for property damage brought by the M.P.A. for the very same incident that forms the basis of the instant action, Judge Harvey, for the Court, quoted the Fifth Circuit in Gebhard v. S. S. Hawaiian Legislator, 425 F.2d 1303, 1306-07 (9th Cir. 1970), at 588: "[T]he question is whether the Extension Act, in giving jurisdiction over claims for injury 'caused by a vessel,’ is restricted to jurisdiction over suits against the person responsible for the vessel’s torts or whether it extends to all claims arising out of a vessel-caused injury, regardless of the parties sought to be charged. We think the latter is the proper construction.

The Act by its terms applies to 'all cases’ where the injury is 'caused by a vessel on navigable water.’ It imposes no other requirements. On its face, therefore, the Act seems to base jurisdiction not on the character of the parties, as in diversity, but on the nature of the facts giving rise to the cause. And in view of the savings in time and money — both to litigants and to the courts — that result from consolidation in one action of all claims arising out of a single injury, we see no reason why we should depart from the literal meaning of the Act.” We are satisfied that the tort action against the remaining appellees is also within the admiralty jurisdiction by virtue of the Admiralty Extension Act. Article 28 of the United States Code, § 1333, reads: "The district courts shall have original jurisdiction, exclusive of ³⁹⁸ the courts of the States, of. . . any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” The "saving to suitors” clause has been interpreted to mean that maritime law can be applied in state court, see Romero v. International Term.

Co., 358 U.S. 354, 362-63 (1959), and where the action is brought in state court, maritime law must be applied. See Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259 (1922). Thus, although the plaintiffs have decided to proceed outside the admiralty of the United States District Courts, they take with them the features peculiar to admiralty law. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-10 (1953), including the doctrine of comparative negligence.

The Vessel Owners’ Standard of Care Under Maritime Law General maritime law, a judicially formulated common law of admiralty recognized as "self-evident” at the time of the adoption of the United States Constitution and adopted by the United States maritime courts, 1 has traditionally afforded longshoremen a cause of action against allegedly negligent shipowners for injuries caused by a vessel. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52 (1914); Sieracki v. Seas Shipping Co., 149 F.2d 98 (3rd Cir. 1945), aff'd. 328 U.S. 85 (1946). The early cases involved longshoremen injured while working on the vessel. See, e.g., Leathers v. Blessing, 105 U.S. 626 (1881).

It is from this general maritime law, combined with applicable acts of Congress such as the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §2 901 et seq., that the definition of maritime negligence is derived. In 1927 Congress enacted the Longshoremen’s and Harbor Worker’s Compensation Act 2 which provided the injured ³⁹⁹ longshoreman, or his estate, with the exclusive remedy against his employer, preserving meanwhile the right to bring an action against any third party who may have caused the injury. 3 Negligence had been the primary basis for such actions under the Act (except for the period between 1946 and 1972 when the basis of such recovery was "unseaworthiness” 4 ) and is now the only basis for recovery under the Act. Section 905 (b), as amended by the 1972 Amendments to the Act, provides: "In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. 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.

If such person was employed ⁴⁰⁰ by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.” We recognize that the Act and cases decided under it are not binding under the circumstances here in that the Act does not cover "a[n] officer or employee of the United States or any agency thereof or of any State or foreign governments or of any political subdivision thereof.” We note, however, that the reason for this exception was the doctrine of sovereign immunity and, as such, should have no effect on such third party suits as here where appellants are attempting to recover damages, not from the state agency which employed the decedents, but rather from the allegedly negligent vessel owners and stevedoring companies. For this reason, we find the post amendment cases proceeding under § 905 persuasive authority for our purposes — defining negligence.

Although § 905 clearly preserves the injured longshoreman’s third party action against the vessel for negligence, the Act itself does not specify the appropriate standard of care owned by the vessel owner to a longshoreman involved in the process of loading or unloading cargo. While the legislative history of the Act is replete with references to "land-based” standards, 5 the treaties differ as to what standard should be applied. 6 ⁴⁰¹ Several circuits have decided in favor of land-based principles. The Courts of Appeals of the Second, Fourth, and Fifth Circuits 7 have defined negligence under § 905 (b) in terms of the Restatement (Second) of Torts. In Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143 (D.Md. 1975), aff'd. 540 F.2d 757 (1976), cert. denied, 429 U.S. 1098 (1977), a longshoreman was injured when a beam which supported a hatch cover was dislodged during unloading operations and fell on him.

The hatch cover was supported by four beams which were usually locked into place by a series of pins, but on this occasion they were not. The longshoreman knew that the pins were unfastened and informed his foreman to this effect. He was told to go back to work, that it would be corrected. The Fourth Circuit held for the defendant shipowner once it had found that the danger was open and obvious to the longshoreman and that the vessel owner could reasonably have anticipated that the