On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 02-cv-02713) District Judge: Honorable Michael M. Baylson.
The opinion of the court was delivered by: Fisher, Circuit Judge.
Before: RENDELL, FISHER and VAN ANTWERPEN, Circuit Judges.
This is a negligence suit under the Longshore and Harbor Workers Compensation Act ("LHWCA"). An injured longshoreman sued the ship on which he was injured.*fn1 A jury found for the defendant ship, and the plaintiff, assigning several errors in the trial, asks us to vacate the judgment of the District Court and remand for a new trial. For the reasons that follow, we will do so.
Under the LHWCA, injured longshoremen are barred from suing their employers, the stevedoring companies that contract with shipowners for loading and unloading work. 33 U.S.C. § 905(a). Instead, the stevedoring companies pay statutory compensation to injured longshoremen. 33 U.S.C. § 904(a). Longshoremen are, however, permitted to bring negligence actions against the ship on which they were injured. 33 U.S.C. § 905(b).
Plaintiff Cornelius Hill was injured while unloading cargo in the hold of defendants' ship, the Sea Panther, on August 24, 2000. He and another longshoreman, one Dwight Jones, were loosening the steel "lashing rods" which hold the cargo containers in place. While Jones was attempting to loosen a rod, it sprung off its housing and flew through the air, hitting Hill in the head, smashing his hard hat, knocking him unconscious and almost killing him. App. 63-64.
The lashing rods are thin steel rods, threaded at the ends. They are attached to the deck, or to the top of a container (containers are stacked several layers deep), and then to the corners of each container, where they are screwed tightly into turnbuckles. Turnbuckles are threaded cylinders into which the rods are inserted and then tightened with wing nuts. The rods, when tightened, are under enormous tension, and if a turnbuckle or rod is rusty or improperly installed, it can weaken, break or come loose.
Jones testified that the rod, nut, and turnbuckle were rusty and improperly installed, and that the turnbuckle was several inches out of place and was "frozen" on the rod. App. 63, 68-70. Jones said he saw rust on the turnbuckle, and no grease. Properly maintained rods, turnbuckles, and nuts,*fn2 are regularly greased, to prevent rusting. Jones was unable to turn the wing nut, so, in accordance with customary longshoremen's practice, he struck it with his wrench to loosen it. App. 63. When he struck the wing nut, the rod snapped off its housing and flew through the air some thirty-two feet before hitting Hill. App. 64.
While at sea, a ship's crew must continually inspect the lashing assembly, because if cargo containers shift or fall, they can unbalance and even sink the ship. App. 216-17. The ship's captain testified that the crew did so here. App. 295. Upon docking, the crew "turns over" the ship to the stevedoring company for unloading. The ship has a legal duty to turn over the ship to the longshoremen in safe condition for unloading. Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 167 (1981); Kirsch v. Prekookeanska Plovibda, 971 F.2d 1026 (1992). Hill alleged that the lashing assembly that injured him was rusty and improperly installed, and that the ship breached its turnover duty by leaving the rusty, improperly installed lashing in place without repairing it or warning the stevedore.
In response, the ship asserted two theories. First, it contended that if the turnbuckle was rusted, any hazard that it created should have been open and obvious to Jones, and that Jones was negligent in hitting the rusted turnbuckle with his wrench rather than seeking help from his supervisor. Second, the ship's expert hypothesized that the accident had not in fact taken place as Jones testified. Rather, the expert suggested, Jones might have partially loosened the turnbuckle without fully loosening the wingnut, thereby causing the turnbuckle to jam. Then when Jones struck the partially loosened turnbuckle he failed to hold on to the lashing rod, causing the rod to spring free of its casing. Thus, the ship claimed, Jones's actions, not the ship's, were the cause of the accident.
The case went to trial and a jury found in favor of the ship. Hill moved for a new trial, and now appeals from the denial of that motion. He raises three objections to the jury instructions and one to the admission of expert testimony. He argues that the District Court's instruction on superseding cause was in error, that the District Court misstated the law as to the ship's turnover duty, and that he was entitled to a res ipsa loquitur instruction. The testimony to which he objects is that of the defense's expert witness, who testified that it would have been physically impossible for the accident to occur in the way that Jones claimed it did. Hill argues that in so testifying, the expert went outside the bounds of his written report, and that Hill suffered from unfair surprise.
We begin with the ship's "turnover duty." Hill contends that the jury instructions were an inaccurate statement of the duty as explained most recently by this Court in Kirsch, 971 F.2d 1026. Hill requested an instruction that the ship would have a duty to fix or warn about the turnbuckle if the ship should have known that the longshoremen would not be able to ameliorate it by "practical" measures. The District Court declined to give that instruction. Our review of the legal correctness of jury instructions is plenary. Parks v. AlliedSignal, Inc., 113 F.3d 1327, 1330 (3d Cir. 1997).
Here is the relevant instruction:
The defendants do have a duty to warn of latent defects in the cargo stow and cargo area. This duty is a narrow one and attaches only to latent hazards defined as hazards that are not known to the stevedore and that would be neither obvious to nor anticipated by a skilled stevedore in the competent performance of his work. The duty encompasses only those hazards that are known to the vessel or should be known to it in the exercise of reasonable care.
As I mentioned above, the defendants are not liable if the danger that caused Plaintiff Hill's injuries would have been obvious to a reasonably competent stevedore. However, there is an exception to this rule. The defendants may be liable for an obvious hazard because custom, positive law, or contract instructs the ship owner to rectify the particular hazard, regardless of its obviousness.
For example, where a ship owner should know that longshore workers frequently confront rather than avoid a type of obvious hazard, the ship owner may be negligent in not limiting the hazard.
Translating appellate opinions into jury instructions is a notoriously difficult undertaking, and we take note of the fact that the District Court clearly read and attempted to apply Kirsch. Indeed, some of the quoted language is taken almost verbatim from Kirsch, see, e.g., 971 F.2d at 1026 ("On the other hand, customary practice may suggest that the shipowner should know that longshore workers frequently confront rather than avoid a type of obvious hazard. If so, the shipowner may be negligent in not eliminating the hazard . . ."). However, our review of the legal correctness of jury instructions is plenary, and, mindful of the fundamental importance to LHWCA cases of precise articulation of the turnover duty,*fn3 we are compelled to conclude that the instruction given by the District Court did not accurately state the law as set out in Kirsch.
Kirsch's statement of the law is as follows:
[A] shipowner can, ordinarily, reasonably rely on the stevedore (and its longshore employees) to notice obvious hazards and to take steps consistent with its expertise to avoid those hazards where practical to do so. . . . [A] shipowner may be liable for failing to eliminate an eliminable hazard only if it should have expected that its expert stevedore would not avoid the hazard and conduct cargo operations safely.
971 F.2d at 1031, 1033 (emphasis added). The highlighted language is crucial to the instructions here. There are two components to the rule on open and obvious hazards under Kirsch. When a ship is turned over to the stevedore with an open and obvious hazard which injures a longshoreman, the ship will be liable, first, if avoiding the hazard would be impractical for the longshoreman, or second, if the ship should have known that the longshoremen would confront the hazard. The District Court's instruction conveys only the second half of this rule. Thus it does capture the situation we described in Kirsch when we said that
Kirsch would be able to defeat summary judgment if he could offer evidence that, in light of custom . . . at that port or in this industry, [the owner] would have acted unreasonably to assume that [the] workers would avoid the danger, . . . that stevedores and longshore workers frequently proceed with cargo operations in holds despite large oil slicks there, which might imply that [the owner] should have expected that they would do so here.
Just as in Kirsch the shipowner would have had a duty to warn of or mitigate the oil slick if the shipowner reasonably should have known that longshoremen regularly walk through oil slicks, so too, in this case, if the shipowner reasonably should have known that longshoremen regularly confront the hazard of rusty or misaligned turnbuckles, the shipowner would have a duty to mitigate or warn of rusty or misaligned turnbuckles. In this regard the jury was adequately instructed.
While we do not find error in the District Court's instruction on confrontation of hazards, we will note by way of guidance that we find the introductory phrase "for example" confusing as the District Court used it in the instruction, because it implies that the duty to rectify hazards which the shipowner reasonably should know that longshoremen regularly confront is a specific example of the general category of duties in which "custom, positive law, or contract instructs the ship owner to rectify the particular hazard." But the duty to mitigate regularly confronted hazards (reasonably known to be such) is not simply an instance of the duty to mitigate hazards which the shipowner is required to rectify by custom, positive law, or contract. Instead, it is a separate and independent duty, and it is grounded solely in the knowledge that a reasonable shipowner would have about longshoremen's customary practices. This is to say, regardless of what custom, positive law, or contract independently have to say about the ship's duties, our common maritime law finds duties where longshoremen regularly confront hazards and the ship should reasonably be aware of that practice. It is not entirely clear to us that a reasonable jury would so understand the instruction as given.
We do find error in the District Court's refusal to include the requested charge on "practical measures." To be sure, the hazards and habits encompassed by the phrases "frequently confront" and "cannot avoid by practical measures" may overlap to some degree. But they are not identical. A particular rarely-occurring hazard may be impractical to avoid, so that it would not be the case that longshoremen frequently confront it, or that a reasonable shipowner would know that they do. Nonetheless, if the hazard cannot practically be avoided, the shipowner may have a duty under Kirsch to mitigate it. And conversely, as we said in Kirsch, "there may be cases where the shipowner cannot reasonably expect that [longshoremen] will avoid an obvious hazard even when practical to do so." 971 F.2d at 1030-31.
The "practical measures" duty has nothing to do with the shipowner's knowledge, or with the frequency of occurrence of the hazard, but simply with "whether, under all the circumstances, safer alternatives were impractical." Id. at 1030. This duty may attach even when there are in fact alternative courses of conduct available. In Kirsch, 971 F.2d at 1030, we quoted with approval the Fifth Circuit's formulation of the ship's duty in Morris:
[T]he longshoreman need not show that he had no possible alternative but to use defective equipment or to work in a dangerous area. The burden is not so heavy. He need show only that the circumstances made safer alternatives unduly impractical or time-consuming.
Morris v. Compagnie Maritime Des Chargeurs Reunis, S.A., 832 F.2d 67, 71 (5th Cir. 1987). Morris, in turn, quoted with approval the Second Circuit's statement that a duty will attach when the longshoreman's "only alternatives would be to leave his job or face trouble for delaying the work." Napoli v. Transpacific Carriers Corp., 536 F.2d 505, 509 (2d Cir. 1976).
If the alternatives to striking a frozen wing nut with a wrench were impractical -- if the longshoreman's only alternatives are to leave the job or face trouble for delaying the work -- then the shipowner had a duty to warn of or mitigate the hazard created by such turnbuckles, even if it was open and obvious. If the evidence could reasonably have supported such a finding, then the instructions should have specified the existence of such a duty.
There was considerable testimony from both parties on longshoremen's options and practices when faced with frozen turnbuckles. That testimony concerned both the frequency and the practicality of various potential responses. For example, the defendant's expert witness, Walter Curran, suggested that Jones should have stopped work when he encountered the frozen turnbuckle and reported it to his superiors. App. 365. Jones, on the other hand, testified that a longshoreman who stopped work to report a frozen turnbuckle to his superiors would be fired as incompetent. App. 66. No other alternatives were proposed, so the jury could reasonably have concluded that reporting a frozen turnbuckle is an impractical way to avoid the risks of hitting the wing nut. Thus evidence was developed at trial which could have established a legal duty, but the jury was not told of the existence of that duty. This was error.
We must accordingly ask whether that error was harmless. "An error will be deemed harmless only if it is 'highly probable' that the error did not affect the outcome of the case." Forrest v. Beloit Corp., 424 F.3d 344, 349 (3d Cir. 2005) (citing McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924 (3d Cir. 1985)). In this case, the jury returned a finding of "no negligence." That finding might have been based on a determination that the ship had no duty to mitigate the hazard created by the frozen turnbuckle. The jury was not told that the impracticality for longshoremen of alternatives to confronting that hazard can create a duty owed by the ship to mitigate it. Given the evidence presented, we cannot say that it was "highly probable" that the result would have been the same had the jury been correctly instructed on the "practical measures" rule.
In McQueeney, we explained the rationale for keeping a relatively tight rein on harmless error determinations:
[B]road institutional concerns militate against increasing the number of errors deemed harmless. Although it is late in the day to pretend that all trials are perfect, perfection should still be our goal. Judge (now Chief Judge) Robinson put the point well: "The justification for harmless-error rules is singleminded; they avoid wasting the time and effort of judges, counsel and other trial participants. Other considerations enter into the picture, however, when we set out to ascertain what is harmless and what is not. Wisdom of the ages counsels against appellate erosion of the stature and function of the trial jury. Societal beliefs about who should bear the risk of error in particular types of proceedings deserve weight in decisions on harmlessness. Respect for the dignity of the individual, as well as for the law and the courts that administer it, may call for rectification of errors not visibly affecting the accuracy of the judicial process. And the prophylactic effect of a reversal occasionally might outweigh the expenditure of effort on a new trial." By maintaining a moderately stringent, though not unreasonably high, standard in civil as well as criminal cases, we preserve a strong incentive for the district courts to minimize their errors, and we thereby bolster the integrity of the federal judicial process.
McQueeney, 779 F.2d at 927 (quoting United States v. Burton, 584 F.2d 485, 512-13 (D.C. Cir. 1978) (Robinson, J., dissenting)).
We are mindful of the respect due to a jury verdict, and of the crowded dockets in our district courts. However, we are also mindful of a litigant's right to have full and accurate legal instructions given to the jury. The instructions here were incomplete, and the omission reasonably could have affected the outcome of the trial. In order to assist future District Courts in crafting turnover duty instructions, therefore, we think it advisable to restate the relevant turnover rules as developed in our caselaw.
1. The ship has a duty to turn the ship over to the longshoremen in safe condition for unloading.
2. That duty includes mitigating open and obvious hazards if the ship reasonably should know that longshoremen either (a) are likely to work through them rather than mitigating them, or (b) are ...