ON APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS C.A. No. 78-0057
Before Adams, Maris and Sloviter, Circuit Judges.
Lawrence A. Sarauw, an employee of Hess Oil Virgin Islands Corporation (Hess), commenced this action in the District Court of the Virgin Islands against Oceanic Navigation Corporation (Oceanic), the owner of the vessel VLCC ANDROS ATLAS, pursuant to § 18(a) of the Longshoremen's and Harbor Workers' Compensation Act Amendments of 1972 (1972 Amendments), 33 U.S.C. § 905(b).*fn1 Sarauw sought damages for injuries sustained on November 15, 1977, allegedly as a result of the negligence of Oceanic and Hess, when the gangway to the ANDROS ATLAS fell while he was ascending it.
Following a four day trial, the case was submitted to the jury on special interrogatories. In answering these interrogatories the jury found (1) that Oceanic was negligent and its negligence was the proximate cause of Sarauw's injuries; (2) that Sarauw himself was negligent and was 25% at fault; (3) that Hess, the stevedore-employer, was negligent and its percentage of fault was 25%; and (4) that Sarauw's total damages were $190,800.00.*fn2 Judgment was entered for Sarauw, but the court reduced the damage calculation by 25% for Sarauw's negligence,*fn3 and by another 25% for the negligence of Hess.
Both parties appealed. Sarauw claims that the 25% reduction because of the negligence of Hess is error. Oceanic contends that it was error to deny its post-trial motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Oceanic asserts in support of its appeal from the denial of its motion for judgment n. o. v. that no duty of care was owed by it to Sarauw to provide a safe gangway and that, even assuming such a duty, there was insufficient evidence to establish a breach of that duty. In support of the appeal from the denial of the new trial motion, Oceanic contends that the trial court incorrectly instructed the jury on the duty of care, and that the listing of pain and suffering, disfigurement, and loss of life's pleasures as separate components of damages in the special interrogatories was plain error.
We reject each of Oceanic's contentions and, accordingly, affirm the denial of its post-trial motions. Sarauw's appeal, though, is, as Oceanic concedes, clearly meritorious on the basis of Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S. Ct. 2753, 61 L. Ed. 2d 521 (1979), handed down after entry of judgment in this case by the district court. We shall therefore vacate the judgment and remand with instructions to restore that portion of the verdict that was decreased because of Hess's negligence.
Sarauw was employed as a dock helper for Hess, which had the responsibility of unloading the ANDROS ATLAS. The vessel had arrived at Hess's No. 3 dock at St. Croix, U. S. Virgin Islands, to discharge a cargo of crude oil. When the vessel first arrived, a small gangway going from the ship to the dock was put in place by Hess personnel. At about 2:30 a.m. on November 15, 1977, Sarauw observed that the tanker had risen in the water to a point where the small gangway had to be replaced with a longer one. While operating the pier-side crane to swing the longer gangway into position, Sarauw observed that a chain railing was in place on the edge of the vessel's deck where he wanted to secure the head of the longer gangway. After failing to attract the attention of anyone aboard the ship, Sarauw descended from the crane and started up the small gangway which had not yet been removed from the ship's side. When he was part of the way up, the small gangway suddenly came loose from the tanker's side; Sarauw and the gangway fell to the dock, and he was seriously injured.
The small gangway, owned by Hess, has a four inch angle iron welded to its underside. The angle iron fits over a lip at the edge of the ship's deck. This interlocking arrangement was designed to prevent the gangway from rolling away as the vessel rises in the water. Additionally, the head of the gangway is equipped with chains and ropes that are tied to stanchions or padeyes on the deck in order to secure the gangway in the event the angle iron interlock becomes dislodged. It was undisputed that the gangway was not, at the time it fell, fastened to any stanchions or padeyes.
A. The Denial of its Motion for Judgment Notwithstanding The Verdict.
1. The Existence of a Duty.
Oceanic maintains that under the controlling principles of vessel liability to longshoremen under the 1972 Amendments, as enunciated in three recent decisions of this Court, it owed no duty to Sarauw as to the safety of the gangway. See Hurst v. Triad Shipping Co., 554 F.2d 1237 (3d Cir.), cert. denied, 434 U.S. 861, 98 S. Ct. 188, 54 L. Ed. 2d 134 (1977); Rich v. United States Lines, Inc., 596 ...