In his opinion the Judge said as a matter of law the ship is not required to provide an immaculate working place, see Giglio v. Farrell Lines [ 613 F.2d 429 (2d Cir. 1980)]; Hickman v. Jugoslavenska Linijsk [Linijska] Plovidba Rigcka, Zvir, 570 F.2d 449 (2d Cir. 1978), and if there is ever anything to be expected aboard a vessel, it is a line. There is simply no basis in fact upon which a jury could conclude that the cut line was a dangerous condition that the ship could reasonably conclude could not be avoided, particularly since Albergo had in fact avoided it once.
Evans, following earlier cases decided by this Court, held that "a vessel is not liable for injuries resulting from known or obvious dangers unless the shipowner should anticipate the harm despite the obviousness of the danger," 639 F.2d at 855; the " sine qua non of a ship's liability for an obviously dangerous condition arising during the process of loading or unloading is reasonable anticipation that the longshoreman will not be able to avoid it." Id. at 856, quoting Giglio v. Farrell Lines, Inc., 613 F.2d 429, 432-33 (2d Cir. 1980). "If a charge were given to the jury along the guidelines of the Evans case," Hellenic argues in its brief, "the verdict may have been for the shipowner rather than the plaintiff."
See, e.g., Cox v. Flota Mercante Grancolombiana, supra, 577 F.2d at 801-05; Hickman v. Jugoslavenska Linijska Plovidba Rijeka, Zvir, 570 F.2d 449, 451-52 (2d Cir. 1978) (per curiam). Recognizing that district courts can "scarcely be expected to function with so discordant a chorus on this court," Canizzo v. Farrell Lines, Inc., supra, 579 F.2d at 690 (Friendly, J., dissenting), and acknowledging that the "uniform" interpretation sought by Congress has hardly been achieved, we feel it is appropriate to canvass the various judicial approaches to this problem and to explain why we remain convinced that the application of ยง 343A set forth in Giglio v. Farrell Lines, Inc., 613 F.2d 429, 431-35 (2d Cir. 1980), represents the best approach for determining vessel liability under ยง 905(b) of the Act. The legislative history makes clear that Congress intended a uniform negligence standard to apply:
This circuit has also considered under what circumstances a shipowner has a duty to correct dangerous conditions facing longshoremen. E.g., Lieggi v. Maritime Co. of the Philippines, "M/V Philippine Rizal", 667 F.2d 324 (2d Cir. 1981); Evans v. Transportacion Maritime Mexicana SS "Campeche", 639 F.2d 848 (2d Cir. 1981); Mattivi v. South African Marine Corp. "Huguenot", 618 F.2d 163 (2d Cir. 1980); Giglio v. Farrell Lines, Inc., 613 F.2d 429 (2d Cir. 1980). Following the principle of ยง 343A of the Restatement (Second) of Torts, which exempts a possessor of land from liability to an invitee for harm caused by known or obvious hazards "unless the possessor should anticipate the harm despite such knowledge or obviousness", we have concluded that "if the shipowner knows of the dangerous condition and should anticipate that, even if the condition is obvious, the stevedore will not or cannot correct it and the longshoremen will not or cannot avoid it, the shipowner has a duty to take reasonable steps to eliminate or correct the condition."
The pre-1972 statutory scheme, and the changes instituted by the 1972 amendments, have been thoroughly discussed in the cases. See, e.g., Scindia Steam Navigation Co. v. De Los Santos, supra, 101 S.Ct. at 1620-21; Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 259-62, 99 S.Ct. 2753, 2756-58, 61 L.Ed.2d 521 (1979); Evans v. Transportacion Maritime Mexicana SS "Campeche", 639 F.2d 848, 851-52 (2d Cir. 1981); Giglio v. Farrell Lines Inc., 613 F.2d 429, 431 (2d Cir. 1980); Munoz v. Flota Merchante Grancolombiana, S.A., 553 F.2d 837, 839-40 (2d Cir. 1977); Napoli v. Hellenic Lines, Ltd., 536 F.2d 505, 506-07 (2d Cir. 1976). In 1972, Congress amended the LHWCA, significantly altering the longshoreman's avenues to recovery.
At 42.Moore cites Giglio v. Farrell Lines, Inc., 613 F.2d 429, 433 (2d Cir. 1980) for the proposition: "`The sine qua non of a ship's liability for an obviously dangerous condition arising during the process of loading or unloading is reasonable anticipation that the longshoremen will not be able to avoid it.'"
In abolishing the doctrine of unseaworthiness under the Act, "Congress made clear its intent that the courts discard such concepts as no-fault liability and the non-delegable duty to provide a safe work-place and substitute traditional, land-based principles of negligence." ( Giglio v. Farrell Lines, 613 F.2d 429, 431.) Thus, under the amendments, it is the stevedore, the longshoreman's employer, and not the shipowner, who is required "to provide a `reasonably safe' place to work and to take such [precautions] with respect to equipment and working conditions as the Secretary of Labor may determine to be necessary to avoid injury to [the] longshoremen."
Ruffino v. Scinda Steam Navigation Co., 559 F.2d 861 (2d Cir. 1977), held that a shipowner cannot be ruled liable for a dangerous condition created by an independent contractor unless the shipowner has actual or constructive knowledge the condition exists. Giglio v. Farrell Lines, Inc., 613 F.2d 429 (2 Cir. 1980), recently applied the standard of care embodied in ยง 343A of the Restatement of Torts 2d to a LHWCA claim, holding that a shipowner is not liable to invitees for physical harm caused by an obvious condition unless the shipowner could have anticipated the harm despite the obviousness. In Mattivi's case, there was no evidence establishing that he notified the ship of the drops of oil (he never ascertained the identity of the three men or established by whom they were employed). Furthermore, even if the shipowner had been notified of the condition there was no showing that there was any reason why the shipowner should have anticipated Mattivi would be injured by it or be unable to avoid it.
Lieggi, 667 F.2d at 328 (citing Evans v. Transportacion Maritime Mexicana S.S. "Campeche", 639 F.2d 848, 855-56 (2d Cir. 1981)) (emphasis added). See Moore v. M.P. Howlett, Inc., 704 F.2d 39, 42 (2d Cir. 1983) ("`The sine qua non of a ship's liability for an obviously dangerous condition arising during the process of loading or unloading is reasonable anticipation that the longshoremen will not be able to avoid it'") (quoting Giglio v. Farrell Lines, Inc., 613 F.2d 429, 432-33 (2d Cir. 1980)). 2.
"The sin qua non of a ship's liability for an obviously dangerous condition arising during the process of loading and unloading is reasonable anticipation that the longshoremen will not be able to avoid it." Giglio v. Farrell Lines Inc., 613 F.2d 429, 432-33 (2d Cir. 1980) (citations omitted). During the loading and unloading of cargo, the stevedore bears primary responsibility to correct a dangerous condition, and the shipowner ordinarily is entitled to rely on the stevedore to do so.