source: Caselaw Access Project

author: ALEXANDER HARVEY, II, District Judge.

license: Public Domain

text:
    Henry T. KRZYWICKI and Anna Krzywicki, Plaintiffs, v. TIDEWATER EQUIPMENT COMPANY, INC., Defendant. PRUDENTIAL LINES, INC., Defendant and Third-Party Plaintiff, v. George W. EBERLING, Third-Party Defendant.
    Civ. No. H-82-294.
    United States District Court, D. Maryland.
    Jan. 3, 1985.

      Roger L. Smith, Gerald F. Gay and O’Connor, Preston, Glenn and Smith, P.A., Baltimore, Md., for plaintiffs.
    Manfred W. Leckszas, Peter J. McNamara and Ober, Kaler, Grimes & Shriver, Baltimore, Md., for defendant and third-party plaintiff Prudential Lines, Inc.
    Phillips L. Goldsborough, III, Douglas B. Schoettinger and Smith, Somerville & Case, Baltimore, Md., for defendant Tidewater Equipment Co., Inc. and third-party defendant George W. Eberling.
   ALEXANDER HARVEY, II, District Judge.

This admiralty case was tried by the Court sitting without a jury pursuant to Rule 9(h), F.R.Civ.P. Plaintiff Henry T. Krzywicki, a longshoreman, was seriously injured while he was working on a lash barge owned by defendant Prudential Lines, Inc. (hereinafter “Prudential Lines”). In the early afternoon of September 6, 1980, plaintiff was engaged in loading operations on board the Lash Barge PL-1-0325 when a heavy load of cargo was dropped on him by a crane, crushing him to the deck of the barge and causing substantial injuries.

In this civil action, plaintiff, joined by his wife, seeks substantial damages for the personal injuries and other losses he has sustained. On the day that he was injured, plaintiff was a member of a gang of longshoremen supplied to Prudential Lines by Atlantic and Gulf Stevedores, Inc. (hereinafter “Atlantic and Gulf”). The defendants here are Prudential Lines and Tidewater Equipment Company, Inc. (hereinafter “Tidewater”), the owner of the crane being used in the loading operations on the day in question. Prudential Lines in turn has filed a third-party complaint, naming as third-party defendant George W. Eberling (hereinafter “Eberling”), an employee of Tidewater who was the operator of the crane. Although plaintiffs did not include Eberling as a party defendant in the complaint, they have, after he was joined as a third-party defendant, asserted claims directly against him pursuant to Rule 14(c), F.R.Civ.P. Prudential Lines and Tidewater have each asserted a cross claim against the other, and Eberling has cross claimed against Prudential Lines. Prudential Lines had leased the crane used in the loading operations from Tidewater pursuant to a written agreement. Jocelyn N. Taylor (hereinafter “Taylor”), another longshoreman employed by Atlantic and Gulf, had been serving as the signalman during the loading operations.

Plaintiff alleges that both Prudential Lines and Tidewater were negligent in the operation of the crane and in the loading operations conducted on September 6,1980. Asserting that Eberling was the employee of defendant Tidewater and the borrowed servant of defendant Prudential Lines, plaintiff contends that either Tidewater or Prudential or both are legally responsible for the serious injuries which he sustained as a result of this accident. In the cross claim that each has filed against the other, Prudential Lines and Tidewater each seek indemnity or contribution from the other defendant. In its third-party complaint, Prudential Lines asserts that if the plaintiff was injured as alleged, it was due to the negligence of Eberling, and Prudential Lines seeks a judgment in its favor against Eberling if it is held responsible in damages to the plaintiffs.

Pretrial proceedings in this case have been extensive. Following the completion of discovery, a pretrial conference was held and a Pretrial Order, with later amendments, was entered. As disclosed by the Pretrial Order, the essential issues in this case are as follows: (1) whether the accident was proximately caused by the negligence of Eberling; (2) whether plaintiff was contributorily negligent; (3) whether, if negligent, Eberling was the borrowed servant of defendant Prudential Lines at the time of the accident or whether he was then the agent and employee of Tidewater; (4) whether, if Eberling was negligent and the agent and employee of Tidewater at the time of the accident, Tidewater is entitled to be indemnified under the lease agreement; and (5) the amount of any damages to be awarded to the plaintiffs.

The case came on for trial before the Court sitting without a jury. Numerous witnesses testified, and various exhibits were entered in evidence. As to many of the issues of fact, the evidence was conflicting. In resolving these conflicts, due regard has been given to the credibility of the witnesses and the weight their testimony deserves. Findings of fact and conclusions of law, pursuant to Rule 52(a), F.R. Civ.P., are contained herein, whether or not expressly so stated.

I

The Facts

Defendant Prudential Lines owns and operates vessels which are engaged in a worldwide system of lash barge operations. A lash barge is a steel, box-like, unmanned structure without any motor or propulsion power of its own. Thus, it is necessary that a lash barge be moved by tug boat to a pier for loading. Once loaded, lash barges are then placed aboard a barge carrier or mother vessel for transportation overseas. The barges being loaded by longshoremen supplied by Atlantic and Gulf on September 6, 1980 were destined for the LASH ATLANTICO, a barge carrier owned by Prudential Lines. The lash barge involved in this case was approximately 60 feet long, 30 feet wide and 13 feet deep and contained approximately 20,-000 cubic feet of usable cargo space. Both at the forward and at the aft end of each barge is a rudimentary deck or ledge, some six to seven feet in width.

On September 6, 1980, the Lash Barge PL-1-0325 had been towed to Pier 10, Locust Point Marine Terminal in the Port of Baltimore for loading. Pier 10 was owned by Atlantic and Gulf but had been leased to Prudential Lines. On that date, plaintiff was 60 years of age and had been employed by Atlantic and Gulf for a number of years. A shore-based, mobile crane owned by defendant Tidewater had been furnished to Prudential Lines for the loading operations. The crane in question was supplied to the shipowner pursuant to a written lease agreement between Prudential Lines and Tidewater.

On the day in question, plaintiff was working as an extra man with a gang of longshoremen furnished by Atlantic and Gulf. The gang carrier was Shaw Amos. Loading operations proceeded without incident during the morning of September 6, 1980. There were two crane operators that day, Eberling and Robert Foreman, both of whom were employed by Tidewater. Eberling and Foreman alternated in their operation of the crane; each man would work an hour and then take an hour off. The longshoremen had stopped for lunch between 12:00 noon and 1:00 p.m., when operations were resumed. After lunch, Eberling was the operator of the crane. The cargo then being loaded into the lash barge consisted of heavy wooden boxes containing disassembled automobile parts known as “knock downs.” Each box weighed approximately 2% tons. Different members of the long-shoring gang performed the different loading functions.

After a load had been properly positioned by a forklift tractor, four so-called slingers would attach the cargo to the hook of the Tidewater crane for hoisting from the pier and movement of the load laterally over the barge. On the barge, eight longshoremen would assist in the landing of the drafts of cargo as they came into the barge. Another forklift on the barge would lift and stow each load. Since the crane operator could not see from his position in the crane into the barge, a signalman would station himself on the rudimentary deck of the barge or on the pier so as to be able to look into the barge’s hold to see if a load might be safely landed. Appropriate signals would then be given to the crane operator both for moving the hoisted cargo over the proper spot and for lowering the draft into the hold. Taylor was the longshoreman who had been assigned to act as the signalman during the loading operations of September 6,1980. During the morning hours, he had been positioned on the deck, but he later moved his position off the barge and onto the pier for reasons of safety.

At approximately 1:10 to 1:15 p.m., plaintiff having returned from lunch, descended into the hold of the barge. Shortly after he reached the deck by way of a ladder positioned at the north inshore corner of the barge, he walked across the skin of the barge towards another longshoreman, one Charles Fisher. Plaintiff was then proceeding from the inshore to the offshore side of the hold. Suddenly and without warning a draft of cargo which was then being lowered into the hold, struck plaintiff and crushed him to the deck. At that particular time, Taylor, the assigned signalman, was neither on the barge nor on the pier. He had left his position on the pier and had walked some twenty to thirty feet south on Pier 10 in order to urinate. Eberling had been operating the crane under a system whereby he would move a draft of cargo over the barge and lower it unless he observed a signal to stop. Seeing no such signal and being in a position where he could not see plaintiff in the center of the barge, Eberling dropped the heavy load directly on top of plaintiff.

Plaintiff was promptly moved by ambulance to the so-called Shock Trauma Unit of the University of Maryland Hospital. His injuries were extensive and included multiple fractures and damage to various internal organs. He spent 133 days in the Shock Trauma Unit and another two months in other hospitals. Not including the emergency measures taken on September 6, 1980, there were some five surgical operations between October 9, 1980 and September 14, 1981. Plaintiff has been unable to return to work and is permanently disabled.

II

Negligence

On the record here, this Court finds and concludes that Eberling was negligent in the manner in which he operated the crane on September 6, 1980 and that his negligence was the sole proximate cause of the injuries and other losses sustained by the plaintiffs. Although Eberling was an experienced crane operator, he did not exercise due care when he dropped the load into the hold of the barge without having received any signal at all that it was safe to proceed.

This Court will credit the testimony of Taylor that he was not in a signaling position on the pier or on the barge, when this accident happened. Shortly after lunch, Taylor, who was then stationed on the pier rather than on the barge, walked down the pier to urinate. Even though the assigned signalman was not then on duty, Eberling continued to operate his crane, and observing no signal to stop, lowered this heavy draft of cargo into the barge. Eberling knew that longshoremen whom he could not see were working in the barge. Yet he did not wait for any signal at all from any longshoreman but simply assumed that it was safe to lower the draft in the absence of a signal.

Defendants have introduced evidence indicating that it was the custom of Eberling and of other crane operators in the Port of Baltimore to proceed with loading operations in the absence of a signal. Eberling testified that he did not require an affirmative signal on the part of a deckman before lowering a draft. Rather, he would keep his eyes on the longshoreman assigned to be the signalman, would continue in a rhythmical pattern with the moving and lowering operation and would stop the load during its downward course only if he received an affirmative signal to do so. Whether or not this practice was followed by others in the Port of Baltimore, this Court finds and concludes that it was a negligent method of conducting loading operations of this sort. With six to eight longshoremen stationed in the hold of the barge and with the crane operator positioned in such a way that he could not see where the longshoremen were when he was lowering heavy cargo into' the barge, affirmative signals should have been used before cargo was dropped into the hold. Had Eberling waited for an affirmative signal in this case, no accident would have happened.

Even if the custom and practice relied upon by the defendants might be reasonable under other circumstances, Eberling in any event acted negligently here. Taylor, the signalman who had been on duty all day,' was not in position either on the rudimentary deck of the barge or at the place on the pier where he had located himself before the accident happened. Had' Eberling been paying attention, he would at the time of this occurrence have noticed that the longshoreman who had been assigned to give him signals and who had been on duty that morning was not in view. Rather, Eberling looked up, observed two other longshoremen standing on the deck at the northwest corner of the barge and mistakenly assumed that one of them was the signalman. In making this erroneous assumption, Eberling did not exercise due care. Quite obviously, it is the responsibility of a crane operator to know which longshoreman has been assigned to act as the signalman. No signals were given to Eberling by either one of these other two longshoremen because neither one of them had been assigned by the gang leader to act as signalman. When he saw no signal given by the longshoreman on the deck assumed to be the signalman, Eberling went ahead and blindly dropped the draft of cargo on top of the plaintiff.

Had Eberling followed a proper signaling procedure, this accident would not have happened. Moreover, even if Eberling had adhered to the improper procedures which he testified he followed, the accident would still not have happened had Eberling not negligently failed to recognize the signalman assigned to act on that particular day. The evidencé establishes that in the absence of a signalman in position to give appropriate signals, a crane should not be operated when loads are being carried over longshoremen working in the area. The facts here accordingly show that the negligence of Eberling was the sole proximate cause of the injuries and other losses sustained by the plaintiff on September 6, 1980.

This Court further finds that neither Taylor nor any other employee of Atlantic and Gulf was negligent on the day in question. Taylor, the signalman, did not act negligently when he left his post briefly and walked down the pier to urinate. He was absent for only a short period of time and had every right to assume that Eberling would temporarily suspend operations until Taylor had returned to his assigned position. Taylor’s acts, in any event, were not a proximate or contributing cause of this accident.

Furthermore, neither Frank Cardillo, its terminal manager, nor any other employee of Prudential Lines was negligent on September 6, 1980. Cardillo was not present at the time that the accident occurred. His supervision of the loading operations consisted of an on-site inspection every half hour or so. Eberling was a skilled specialist who was hardly under Cardillo’s control when he acted as he did and blindly lowered the draft of cargo into the hold of the barge.

On the record here, this Court concludes that there was no breach of duty owed by Prudential Lines to plaintiff. The principles to be applied in a case of this sort involving the duty owed by a shipowner to a longshoreman during loading operations were discussed at some length by the Supreme Court in Scindia Steam Navigation Co. v. DeLos Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed.2d 1 (1981). During cargo operations, the shipowner has no duty to inspect equipment or supervise the activities of the stevedore. Id. at 168-169, 101 S.Ct. at 1622-1623. Once cargo operations have begun, the shipowner may rely on the stevedore and other harbor-workers to avoid exposing longshoremen to unreasonable hazards. Id. at 170, 101 S.Ct. at 1623. In this case, there were no “obviously improvident” operations which required the shipowner to intervene. See 451 U.S. at 167, 101 S.Ct. at 1622.. Cardillo had little to do with the signaling procedures followed by Eberling, and could hardly have prevented this skilled crane operator’s unexplained inattention to his assigned duties on the day of the accident. Absent a contractual provision to the contrary, a shipowner has no general duty by way of supervision or inspection to discover dangerous conditions that suddenly develop within the confines of cargo operations. 451 U.S. at 172, 101 S.Ct. at 1624.

Ill

Contributory Negligence

Both Prudential Lines and Tidewater contend that plaintiff himself was contributorily negligent at the time of the accident. On the record here, this Court would disagree. Crediting the testimony of plaintiff Henry Krzywicki, this Court finds that plaintiff was not negligent when he proceeded across the skin or bottom of the barge to speak to another longshoreman. It is accordingly concluded that no negligence of the plaintiff caused or contributed to the injuries which he sustained.

Plaintiff had worked on the barge all morning. He was therefore quite aware of the fact that another longshoreman was on duty as a signalman and that, if a load came over the barge while men were underneath, the signalman would be in a position to give a stop signal and prevent the load from being dropped on top of a longshoreman. The draft which struck plaintiff was the second one being loaded after the luncheon break. As plaintiff was coming down the ladder after lunch, the wire which had been removed from the • first draft was going up. Plaintiff’s testimony indicates that the second draft followed the first in an unusually short period of time.

Plaintiff did not suddenly dart out into the center of the barge’s hold at a time when the draft of cargo was already descending. Rather, he was crossing over to the offshore side of the barge at a normal pace when he was struck. His back was to the crane and the incoming load. As he was proceeding to the other side of the barge, plaintiff had every right to rely on his expectation that another draft was not being loaded so soon after the first one and that even if it was, a signalinan was on duty to prevent the dropping of the load on top of him. The evidence discloses that there was sufficient time for the load to have been stopped before it struck plaintiff if Eberling had been prudent and waited for a signal. Had Eberling exercised due care, the accident would not haye occurred, even though, plaintiff was at the time crossing from one side of the barge to the other.

Under somewhat similar circumstances, the Second Circuit in Falletta v. Costa Armatori, 476 F.2d 316 (2d Cir.1973) held that a longshoreman could not be held to be contributorily negligent because he failed to stand clear of a danger zone during unloading operations. The District Court’s finding to the contrary was reversed. Citing its earlier decision in Sheehan v. Moore-McCormack Lines, Inc., 441 F.2d 360, 363 (2d Cir.1971), the Court recognized in Falletta that a longshoreman has a right reasonably to assume that a warning would be given if he were located in a danger zone and that he was under no obligation to anticipate that there would be a failure to fulfill that duty. Similar principles are applicable to the facts of this case.

Accordingly, the Court finds and concludes that plaintiff was not contributorily negligent in the early afternoon of September 6,1980, and that no negligence of plaintiff’s caused or contributed to his injuries.

IV

The Borrowed Servant Doctrine

The next question presented in this case is whether defendant Prudential Lines or defendant Tidewater is legally responsible for the negligence of Eberling which was the sole proximate cause of plaintiff’s injuries. At the time of this accident, Eberling was employed by Tidewater. However, under the so-called “borrowed servant” doctrine, Prudential Lines would be liable for the tortious conduct of Eberling if Prudential Lines was the special employer of Eberling when the accident happened. See Sea Land Industries, Inc. v. General Ship Repair Corporation, 530 F.Supp. 550 (D.Md.1982).

In Standard Oil Company v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909), the Supreme Court outlined the principles applicable in a case involving the borrowed servant doctrine. In that case, the Supreme Court said the following at pages 221-222:

It sometimes happens that one wishes a certain work to be done for his benefit, and neither has persons in his employ who can do it nor is willing to take such persons into his general service. He may then enter into an agreement with another. If that other furnishes him with men to do the work, and places them under his exclusive control in the performance of it, those men become pro hac vice the servants of him to whom they are furnished. But, on the other hand, one may prefer to enter into an agreement with another that that other, for a consideration, shall himself perform the work through servants of his own selection, retaining the direction and control of them. In the first case, he to whom the workmen are furnished is responsible for their negligence in the conduct of the work, because the work is his work, and they are, for the time, his workmen. In the second case, he who agrees to furnish the completed work through servants over whom he retains control is responsible for their negligence in the conduct of it, because, though it is done for the ultimate benefit of the other, it is still, in its doing, his own work. To determine whether a given case falls within the one class or the other, we must inquire whose is the work being performed — a question which is usually answered by ascertaining who has the power to control and direct the servants in the performance of their work. Here we must carefully distinguish between authoritative direction and control, and mere suggestion as to details or the necessary cooperation, where the work furnished is part of a larger undertaking.

In Tidewater’s pleadings and pretrial briefs and also in the Pretrial Order, Tidewater asserted that Prudential Lines was at the time of the accident the special employer of Eberling and that Prudential Lines was therefore legally responsible for any tortious acts of Eberling. However, in final argument after all the evidence had been presented at the trial, Tidewater’s counsel conceded that Tidewater was the general employer of Eberling. In Tidewater’s Proposed Findings, its counsel reiterated this changed position and proposed that the Court find that “George Eberling was the general employee of Tidewater.”

Although this concession is not necessarily binding on the plaintiffs, it is a significant fact to be considered by the Court in deciding the borrowed servant issue. Tidewater and Prudential Lines now both agree that the lease agreement is not to be interpreted as disclosing any intention of the parties that the crane operator supplied by Tidewater would be the special employee of Prudential Lines. One of the factors to be examined by a court in addressing the borrowed servant issue is whether there was any understanding or meeting of the minds between the original and the borrowing employer as to the status of the employee in question during the period of the employment. Gaudet v. Exxon Corp., 562 F.2d 351, 355 (5th Cir.1977), cert. denied 436 U.S. 913, 98 S.Ct. 2254, 56 L.Ed.2d 414 (1978). That case was cited with approval by the Fourth Circuit in Huff v. Marine Tank Testing Corp., 631 F.2d 1140, 1143 n. 1 (4th Cir.1980).

On the record here, this Court finds that Eberling was the servant of his general employer Tidewater at the time of the accident and that Tidewater is therefore legally responsible for Eberling’s negligent acts. Eberling was paid by Tidewater, which had the right to discharge him. Eberling had been employed by Tidewater over a considerable length of time, and he had been selected by Tidewater for this particular job. It was Tidewater’s crane which was used in the performance of the agreement between Prudential Lines and Tidewater. The employment in question was for a short period of time. Although it was the work of Prudential Lines that was being performed, the latter did not have the power of control over the crane operations itself. Although Frank Cardillo, the terminal manager of Prudential Lines, generally supervised the loading operations of the lash barge on the day in question, Eberling, a skilled crane operator, remained free to operate the crane in accordance with his own judgment when necessary.

As mentioned hereinabove, an important factor to consider in deciding a borrowed servant issue is whether there was an agreement between the parties concerning the status of the employee in question. Under both federal and Maryland law, whatever the status of an employee under the “borrowed servant” doctrine, the parties may allocate between themselves the risk of any loss resulting from the employee’s negligent acts. Sea Land Industries, Inc., supra at 563. In this connection, one of the facts which must be considered is whether one or both parties carried liability insurance which would cover the risk of loss. In this particular case, although both Prudential Lines and Tidewater carry such liability insurance, these parties have agreed that the crane operator Eberling was, during crane operations, to remain the servant of Tidewater, the general employer.

In Roderick v. Bugge, 584 F.Supp. 626 (D.Mass 1984), the court had occasion to consider the borrowed servant doctrine in a case in which a longshoreman was injured during the loading of a vessel by a crane. In that case, the crane had been leased to the stevedore pursuant to a written agreement which included the same indemnification clause which is involved here. After weighing all the applicable factors, the Court concluded that the crane operator was not the borrowed servant of the stevedore but was the servant of his employer, the owner of the crane. The Court noted that the vast majority of courts which have evaluated the status of crane operators in analogous circumstances have either ruled that no borrowed servant relationship existed or have reversed directed verdicts that were premised on a finding that such a relationship necessarily existed. 584 F.Supp. 629-630.

Under all the circumstances here, this Court finds and concludes that Eberling was not at the time of the accident the borrowed servant of defendant Prudential Lines, but rather that a master and servant relationship then existed between Eberling and defendant Tidewater. The intention of the parties was that Eberling would remain the servant of Tidewater during the time that the agreement was in existence. This intention is supported by other facts in evidence. Accordingly, Tidewater must be held responsible for the negligent acts of Eberling which caused the injuries sustained by the plaintiff.

V

Tidewater’s Right to Indemnification

Relying on the lease agreement entered into with Prudential Lines, Tidewater asserts that if Eberling was negligent and if Tidewater is legally responsible for his negligence, then Prudential Lines is required by the agreement to indemnify it for any loss sustained. To decide this question, the Court is here called upon to interpret the provisions of the written agreement between the parties.

Among the terms and conditions applicable to the leasing by Prudential Lines of a Tidewater crane on September 6, 1980, is the following:

2. Indemnification: Lessee agrees that the equipment, and all persons operating such equipment, including Lessor’s employees, are under Lessee’s exclusive jurisdiction, supervision and control and agrees to indemnify and save Lessor, its employees and agents harmless from all claims for death or injury to persons, including Lessor’s employees, and from all loss, damage or injury to property, or its loss of use including the equipment, arising in any manner out of Lessee’s operation. Lessee’s duty to indemnify hereunder shall include all costs or expenses arising out of all claims specified herein, including all court and/or arbitration costs, filing fees, attorneys’ fees and costs of settlement. Lessee shall not be required to indemnify Lessor for its sole negligence except for loss of use, but, Lessor’s liability for damage caused by the sole negligence of Lessor, its agents and employees, hereunder shall be limited to the amount of Lessor’s liability insurance.

The interpretation of an indemnity clause as part of a maritime contract is a matter governed by federal maritime law. Navieros Oceanikos, S.A. v. S.T. Mobil Trader, 554 F.2d 43, 47 (2d Cir.1977). The evidence here discloses that the printed portions of this agreement were prepared by Tidewater. The traditional rule of construction applied in admiralty cases is that where a contract is ambiguous and susceptible to reasonable and practical interpretations, the language must be construed most strongly against its drafter. Navieros Oeeanikos, supra at 47; American Export Isbrandsten Lines, Inc. v. United States, 390 F.Supp. 63, 66 (S.D.N.Y.1975).

That there are inconsistencies in the language of this indemnification clause is apparent. In the first sentence, Prudential Lines agrees to indemnify and hold Tidewater harmless “from all claims for death or injury to persons, ... arising in any manner out of [Prudential Lines’] operation.” However, the third sentence contains limiting language. Pursuant to the third sentence, Prudential Lines “shall not be required to indemnify [Tidewater] for its sole negligence ..., but, [Tidewater’s] liability for damage caused by the sole negligence of [Tidewater], its agents and employees hereunder shall be limited to the amount of [Tidewater’s] liability insurance.” Tidewater places heavy reliance on the broad language of the first sentence in arguing that Prudential Lines is here required to indemnify it for any liability found by this Court to exist because of the negligence of Eberling. Prudential Lines in turn argues that if the loss here was caused by the sole negligence of Eberling, Tidewater’s employee, the third sentence is controlling, and that since Tidewater has sufficient liability insurance, it must be held responsible for the damage caused by Eberling’s negligent acts.

Based on the findings made herein, this Court concludes that Prudential Lines is not required by the indemnification clause of the lease agreement to indemnify Tidewater for the loss resulting from Eberling’s negligence. As the Court has found, it was Eberling’s sole negligence which was the proximate cause of plaintiff’s injuries. Plaintiff himself was not contributorily negligent nor did any negligence of Taylor or Prudential Lines contribute to this accident. The broad language of the first sentence of the indemnification clause is limited by the third sentence which clearly indicates that Prudential Lines would not be required to indemnify Tidewater if Tidewater’s sole negligence caused the loss.

Indeed, Tidewater has not seriously challenged this construction of the indemnification clause of the agreement. In one of its briefs, Tidewater asserts that the third sentence was “obviously inserted into the clause” to comply with the provision of Maryland law which renders void and unenforceable any indemnity provision in a construction contract which purports to indemnify the indemnitee against liability for damages arising out of bodily injury resulting from the indemnitee’s sole negligence. See Annotated Code of Maryland, § 5-305, Cts. & Jud.Proc. Art. Tidewater argues that, if Eberling is found to have been negligent, it is entitled to indemnification from Prudential Lines because it was not Eberling’s sole negligence which caused the accident. Tidewater contends that if negligence of any other party contributed to the accident, then it is entitled under this agreement to full indemnity from Prudential Lines.

Although not necessary under the facts of this case to reach this issue, the Court cannot agree that any degree of negligence on the part of plaintiff or on the part of another longshoreman would shift total responsibility for the loss to Prudential Lines. Rather, under the indemnification clause, if Tidewater’s sole negligence caused a loss during crane operations, Prudential Lines would be relieved of its duty to indemnify Tidewater which would then be responsible to the limits of its liability insurance. If negligence of Prudential Lines contributed to such a loss and if Tidewater were held legally responsible in whole or in part, then Prudential Lines would be required to indemnify Tidewater for the entire amount of the loss sustained whether or not Tidewater was also negligent. Here there was no negligence of Prudential Lines which caused or contributed to the accident. Moreover, there was no negligence of plaintiff or any other longshoreman which caused or contributed to the loss. Since Tidewater’s sole negligence was the proximate cause of the loss and since Tidewater’s liability insurance coverage is sufficient to pay the entire amount of the award to the plaintiffs in this case, Tidewater is not entitled to indemnification from Prudential under the terms of the agreement between the parties.

VI

Damages

That plaintiff’s injuries were extensive is clear. Indeed, it is something of a minor miracle that he is still alive after being crushed by the weight of the heavy load which was dropped on him while he was working on this lash barge on September 6, 1980. When the draft of cargo was lifted from his body, plaintiff became blue and was gasping for breath. He was removed by a basket and taken by ambulance to the Shock Trauma Unit of the University of Maryland Hospital. He spent some 133 days in the Shock Trauma Unit before being removed to North Charles General Hospital. Since the accident occurred, plaintiff has been hospitalized in all for some 200 days.

An emergency team of surgeons worked on plaintiff when he was first brought to the Shock Trauma Unit. There were multiple rib fractures and a fractured sternum, and his right lung had collapsed. He had suffered a fractured pelvis and his urethra was ruptured. Because of these multiple injuries, he was in shock when the Shock Trauma team worked on him. Emergency procedures were undertaken, with success, to keep plaintiff alive.

In the days after the accident when his condition had been stabilized, there were numerous complications. Plaintiff suffered from renal and pulmonary failure; he also had gastro intestinal bleeding. Numerous surgical procedures were necessary, including stabilization of his pelvic fracture and the insertion of Hoffmann pins, removal of his gall bladder, a bronchoscopy, and the opening of a pericardial window below the rib cage. During the time that plaintiff was confined in the Shock Trauma Unit, he was a critically ill person, and his hospital course was complicated. According to the hospital notes, plaintiff did make a remarkable recovery insofar as his renal failure and coagulopathy were concerned. Finally, after extensive treatment, he was discharged on January 17, 1981 and transferred to North Charles General Hospital for intensive physical therapy.

At North Charles General, plaintiff was treated by Dr. Joel Cherry for his urinary problems and by other physicians for abdominal, tracheal, cardiac and orthopedic complaints. As a result of the accident, plaintiff was rendered impotent. Because of his pelvic fracture and the tearing of his urethra, a massive abscess developed in his bladder, and he was incontinent. According to Dr. Cherry, his impotency is permanent. However, plaintiff was treated with some success for his incontinency. Because of intermittent bowel obstruction, an abdominal operation was performed, and he underwent removal of a cyst and the lysis of adhesions. On March 14, 1981, plaintiff was discharged from North Charles General Hospital.

Since March of 1981, plaintiff has undergone a program of rehabilitation under the treatment of Dr. Norman Rosen. Among other complications noted by Dr. Rosen was generalized thickening and enlargement of plaintiffs vocal cords. On September 13, 1981, plaintiff was admitted to Greater Baltimore Medical Center. He was operated on by Dr. Ury Kallayee, who excised a nodule from plaintiff’s right vocal cord and later performed nasal surgery for a deviated septum. Plaintiff was discharged from that hospital on September 30, 1981. Since the accident, plaintiff has been extremely hoarse, and his hoarseness was quite evident when he testified at the trial. Dr. Rosen also treated plaintiff for persistent back pain and for pain in his chest wall, shoulder and abdominal region. Treatment consisted of massage, injections and medication. In spite of this lengthy program of rehabilitation and counseling, plaintiff experienced periods of depression. His impotency was particularly frustrating to him.

On March 1, 1983, plaintiff was once again admitted to North Charles General • Hospital. According to the hospital notes, he had been relatively well since his discharge in January of 1981 but was re-admitted because of complaints of chest, hip and lower back pain as well as bladder and groin pain. His treatment consisted of medical and physical therapy, and he was discharged on March 12, 1983.

Plaintiff was born in Poland and came to the United States in 1950. His left arm, which had been broken before he came to this country, was somewhat deformed. Nevertheless, plaintiff had been actively employed all of his life. He began working as a longshoreman in 1962, and he had averaged approximately 2,000 hours of work a year. In 1979, he strained his back while working and missed some 6 to 7 weeks. Also, in that year he was out of work for a period of time because of pneumonia. In 1980, he was injured when struck by a tractor driver and suffered a permanent partial disability to his right foot. On this occasion, he was off work for some 6 to 7 weeks.

Before the accident of September 1980, plaintiff had worked around the house and done minor repairs. Since his discharge from North Charles General Hospital in 1981, plaintiff has not been able to work around the house at all. Plaintiff uses a cane when walking and moves very slowly. According to his son, Richard Krzywicki, plaintiff has since the accident been very moody and depressed.

The life expectancy of a white male born on September 15, 1919 is 14 years. Plaintiff is permanently disabled from any work in the future. Moreover, his injuries are permanent and his physical condition will probably not improve during the remaining years of his life. Allowable medical expenses in this case are $237,963. In addition, plaintiff is entitled to lost earnings until age 62. The evidence discloses that when the accident occurred on September 6, 1980, it was plaintiffs intention to work only until he was 62 years of age. His testimony at trial that he had now changed his mind and would have worked until age 65 will not be accepted by the Court. The amount allowed for his lost earnings is therefore $31,000. No amount will be awarded for future medical expenses. The proof has not been sufficiently particularized to establish plaintiffs entitlement to this item of damages.

The most substantial item of damages claimed by plaintiff in this case is the recovery he seeks for past and future pain, suffering and emotional distress. On the one hand, this Court must consider the many hospitalizations, operations and medical treatment that plaintiff has endured over the past four years since the accident. During the periods of his hospitalizations, treatments and rehabilitation and since he has returned to his home, plaintiff has undoubtedly experienced considerable pain and mental anguish. He walks with some difficulty, and it is not expected that his physical condition will improve in the future.

On the other hand, plaintiff, at age 60, was no longer a young man and would have stopped working in any event in September of 1982. In light of the severity of his multiple injuries, plaintiffs recovery, resulting obviously from modern medical techniques of treatment, has been remarkable. Even before this accident occurred, plaintiff had a deformed left arm, and he had suffered earlier employment injuries, including a permanent partial disability to his right foot.

On the record here, this Court is satisfied that plaintiff is entitled to a substantial award for pain and suffering. When all the factors here are weighed, the Court finds and concludes that an appropriate award for plaintiffs past and future pain, suffering and emotional distress and for his permanent disability is $600,000. The total award to plaintiff individually is therefore $868,963.

Finally, there is a joint claim asserted in this case on behalf of plaintiff and his wife for loss of consortium. As a result of the accident, plaintiff is now impotent. However, he is now 65 years of age and he has declined to submit to an operation which would provide him with a penile implant. Were he to consent to such a procedure, he would be able to resume sexual relations with his wife. In view of plaintiffs age and in view of the fact that he has declined to take steps necessary for a resumption of reasonably normal sexual relations, this Court concludes that an appropriate award in this case for past and future loss of consortium is $25,000.

VII

The Cross Claim of Prudential Lines Against Tidewater

As a result of this Court’s finding that the sole negligence of Tidewater caused plaintiff’s injuries, one additional issue must be addressed. Asserting that it would be entitled to indemnity if the sole negligence of Tidewater caused this loss, Prudential Lines has cross claimed against Tidewater seeking to recover attorneys' fees and other costs incurred in defending this suit. Relying on Ryan Stevedoring Company v. Pan Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956), Prudential Lines contends that because of. the actions of its employee Eberling, Tidewater breached the implied warranty of workmanlike performance which purportedly arose pursuant to the lease agreement between the parties.

However, as this Court previously- noted in its Memorandum and Order of September 6, 1983, the 1972 Congressional amendments of the Longshoremen’s and Harbor Workers’ Compensation Act, (hereinafter “the Act”), 33- U.S.C. § 901, et seq., prohibited recovery by a shipowner from a stevedore under both a Ryan contract theory of warranty of workmanlike performance and in tort. In that Memorandum and Order, this Court dismissed Tidewater’s third-party claim asserted in this case against plaintiffs employer, Atlantic and Gulf, holding that an indemnity action cannot be brought by a non-vessel against a stevedore.

For similar reasons, this Court concludes that Prudential Lines, a shipowner, is not entitled to seek indemnity from Tidewater, a non-vessel. In its prior ruling in this case, this Court placed heavy reliance on the opinion of Judge Friendly in Zapico v. Bucyrus-Erie Co., 579 F.2d 714 (2d Cir.1978). In concluding that the 1972 amendments to the Act gave shipowners a quid pro quo for the loss of their indemnity rights, the Second Circuit in Zapico said the following (579 F.2d at 731):

The 1972 amendments eliminated the unseaworthiness theory and limited vessel liability to negligence in exchange for the surrender of the vessel’s indemnity rights. See H.R.Rep. No. 1441, supra, 3 Ú.S.Code & Cong. & Admin.News 4698 at 4701-05 (1972)....

This Court concludes that such loss of indemnity rights extends both to claims by a vessel owner against a stevedore and to claims by a vessel owner against an employer of a harborworker like Tidewater. It was the obligation of the shipowner to provide a seaworthy vessel which gave rise to the implied warranty of workmanlike performance recognized in Ryan. In Ryan, the Supreme Court sought to mitigate the severity of the unseaworthiness doctrine, a form of strict liability, by permitting the shipowner to seek indemnity from an independent contractor whose activities may have resulted in the shipowner’s liability to an injured individual. See Stranahan v. A/S Atlantica & Tinfos Papirfabrik, 521 F.2d 700, 703 (9th Cir.1975). Once the unseaworthiness doctrine was eliminated by the 1972 amendments to the Act, there is no longer any reason for allowing the shipowner to seek indemnity, either from the stevedore or from any other employer of a harbor-worker. Accordingly, the cross claim of Prudential Lines asserted against Tidewater must be dismissed.

In any event, even were this Court to conclude that Prudential Lines would be entitled to assert a claim for indemnity against Tidewater, no recovery for attorneys’ fees and costs would be permitted under the facts of this particular case. All, or substantially all, of the expenses incurred by Prudential Lines in this case were devoted to defending against Tidewater’s claim against it for indemnity based on the lease agreement between the parties. Most of the time spent by counsel for Prudential Lines in this case was devoted to defending against the indemnity claim asserted by Tidewater against it. Any remaining time and expense which might be deemed to have been devoted to defending against plaintiffs’ direct claims against Prudential Lines overlapped with that necessary for Prudential Lines to defend against Tidewater’s cross claim. Under the lease agreement, if negligence of Prudential Lines caused or contributed to the accident, then Tidewater would have been entitled to full indemnification, since the loss would then not have been caused by the sole negligence of Tidewater. Whether or not plaintiffs had named Prudential Lines as a defendant in this case, Tidewater would certainly have brought Prudential Lines in as a third-party defendant in view of the indemnification clause in the agreement.

The general rule in the United States is that absent statute or enforceable contract, a litigant must pay its own attorneys’ fees. Alyeska Pipeline Service Co. v. The Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). The facts of this case do not disclose any reason for departing from this well-established principle. Accordingly, Prudential Lines will here be required to pay its own attorneys’ fees and costs.

VIII

Conclusion

For the reasons stated, plaintiff Henry T. Krzyuwicki is entitled to judgment in this case against defendant Tidewater and against third-party defendant Eberling in the amount of $868,963, plus costs. Plaintiffs Henry T. Krzywicki and Anna Krzywicki jointly are entitled to judgment against defendant Tidewater and against third-party defendant Eberling in the amount of $25,000, plus costs. Judgment is hereby entered in favor of defendant Prudential Lines against plaintiffs. The third-party claim of defendant Prudential Lines against defendant Eberling is hereby dismissed as is the cross claim of defendant Prudential Lines against defendant Tidewater. Judgment is hereby entered in favor of defendant Prudential Lines as to the cross claim asserted by defendant Tidewater and also as to the cross claim asserted by third-party defendant Eberling. The Clerk is directed to enter these judgments.

      . In their complaint, plaintiffs prayed for a jury trial. In its Memorandum and Order of April 16, 1984, this Court granted defendants’ joint motion to strike plaintiffs’ jury demand, ruling that the only source of federal jurisdiction in this case was this Court's admiralty jurisdiction and that plaintiffs were therefore not entitled to a jury trial.

      . The complaint was originally filed by plaintiff for the use of Atlantic and Gulf, plaintiffs employer. Atlantic and Gulf was subsequently realigned as a third-party defendant as a result of a third-party complaint filed against it by Tidewater and Eberling. In a Memorandum and Order dated September 6, 1983 and in a later Order dated September 27, 1983, the third-party claims of Tidewater and Eberling against Atlantic and Gulf were dismissed. Thus, Atlantic and Gulf, plaintiffs employer, is no longer a party to this suit.

      . Lash Barge PL-2-0325, named in the original complaint, has been dismissed as a defendant in this case.

      . Taylor was named as a third-party defendant in Prudential Lines' third-party complaint, and cross claims were asserted against him by Tidewater and Eberling. In its Memorandum and Order of September 6, 1983, Taylor's motion for summary judgment as to the third-party claim of Prudential Lines asserted against him was granted, and the cross claims asserted against him by Tidewater and Eberling were likewise dismissed.

      . As used in this Opinion, the term "plaintiff” refers only to Henry T. Krzywicki himself. His wife, Anna Krzywicki, is a plaintiff here only for purposes of the joint claim for loss of consortium which has been asserted.

      . Plaintiff has also asserted that he is the third-party beneficiary of the lease agreement between Prudential Lines and Tidewater. This claim, although of doubtful validity, need not be considered by the Court in view of the Court's rulings on the other issues presented.

      . Following completion of the trial, each of the parties submitted Proposed Findings of Fact.

      . This gang had been supplied to Prudential Lines for the loading operations pursuant to an oral agreement between these parties.

      . Longshoremen also refer to the signalman as the "deckman."

      . The floor or bottom of the barge has been termed the “skin” by some of the witnesses.

      . The more precise name of this Unit is the Maryland Institute for Emergency Medicine.

      . The testimony of Amos, the gang leader, will be rejected. Throughout his testimony, which was introduced by way of deposition, Amos was opinionated, hostile and argumentative. What he said is therefore entitled to little credence.

      . Standard crane signals, approved for use in the industry, require that a crane operator not carry or lower a load over persons in the absence of an affirmative signal. These requirements, designated as U.S.A.S. B 30.5-1968 (the so-called ANSI Standard), were specifically made a part of the agreement between Tidewater and Prudential Lines covering the lease of this crane. See also similar OSHA standards, 29 C.F.R. § 1926.550.

      . The Scindia principles are equally applicable to the activities of other harborworkers like Tidewater.

      . As the Court in the Roderick case pointed out, there would be no need for an indemnification provision in a lease agreement of this sort if the crane operator were intended to be the borrowed servant of the lessee. See 584 F.Supp. at 628.

      . An identical indemnification clause was similarly construed in Roderick v. Bugge, supra at 629.

      . Prudential Lines has also contended that, because of Tidewater’s superior bargaining position, the indemnification clause is void as contrary to public policy. Although the evidence produced at trial indicates that there is little merit to that contention, it is not necessary for the Court to rule on this question.

      . Furthermore, Prudential Lines would not be entitled to seek indemnity from Tidewater under a theory of contract inasmuch as the lease agreement between the parties contained no express provision requiring indemnification of Prudential Lines under circumstances such as those present in this case.


author: GLEN M. WILLIAMS, District Judge.

text:
    MULLINS COAL COMPANY, INC., Plaintiff, v. William CLARK, Secretary, United States Department of the Interior, Defendant.
    Civ. A. No. 84-0452-A.
    United States District Court, W.D. Virginia, Abingdon Division.
    Jan. 3, 1985.

      Dennis Jones, Lebanon, Va., for plaintiff.
    Elizabeth Tonkin, Knoxville, Tenn., for defendant.
   MEMORANDUM OPINION

GLEN M. WILLIAMS, District Judge.

This case is before the court on the plaintiff’s motion for a temporary injunction. The plaintiff seeks to stay the enforcement of Cessation Order Number 84-13-285-4 which was served on December 4, 1984. The effect of the cessation order is to force the plaintiff to cease hauling coal over a haul road from the plaintiff’s mine, located in Buchanan County, Virginia.

The United States Court of Appeals for the Fourth Circuit has clearly set forth the standards by which this court shall enjoin the Secretary under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1252-1272 (Act). In Virginia Surface Mining and Reclamation Association, Inc. v. Andrus, 604 F.2d 312, 315 (1979), the Fourth Circuit held that cessation orders issued by the Secretary shall not be stayed by injunctive relief unless the plaintiff shows the prerequisites for temporarily enjoining any order or decision issued by the Secretary, as set forth in § 526(c) of the Act (30 U.S.C. § 1276(e)). The prerequisites are: (1) that the parties to the proceeding have been given due notice and an opportunity to be heard; (2) that the party requesting the relief must show a substantial likelihood that it will prevail on the merits; and (3) that if relief is granted, it will not adversely affect the public health or safety or cause significant environmental harm to the land, air, or water resources.

There is no question that the first requirement has been met. A hearing was held by the court on December 20, 1984 at which counsel for the defendant appeared, cross-examined witnesses and had an opportunity to present evidence. The matter has since been briefed and the court has directed the parties to furnish additional evidence.

As to the second requirement, the evidence presented to the court shows that the Commonwealth of Virginia has a program for enforcement of the Act which has been accepted by the Department of the Interior, Office of Surface Mining. Land, including the road in question, was duly permitted to the plaintiff by the Commonwealth of Virginia. Undisputed evidence shows that the alleged violation of the Act, a sloughing roadbed, is not located on the property governed by the permit. Two mine inspectors from the Commonwealth of Virginia and the president of the plaintiff corporation testified that the alleged slide was not located on the land permitted to the plaintiff and that the slide existed prior to the time that the permit was issued. Undisputed evidence shows that the plaintiff has operated this coal mine and used this road for more than four years. During this time, there has been no change whatsoever in the slide. The evidence further shows that the surface of the road is adequate, consisting of solid rock which is part of an old mining bench. For these reasons, the court finds a substantial likelihood that the plaintiff will prevail when this case is heard on the merits by an administrative law judge.

The evidence shows that the road slide which caused the cessation order to be entered has been stable for the four years that the plaintiff has used this property, having neither moved nor increased. There is no finding in the cessation order entered by the authorized representative of the United States Department of the Interi- or, David E. Beam, that the slide has caused any adverse effect on the public health or safety or that it poses any risk of significant environmental harm to land, air and water resources. There is no showing of any imminent danger of'harm to the environment. Therefore, the court finds no need for a cessation order.

The Secretary apparently concedes that the evidence in this case entitles the court to issue injunctive relief under Virginia Surface Mining and Reclamation Association, Inc. v. Andrus. The defense of the Secretary is that the plaintiff has failed to properly avail itself of the procedures for administrative relief set forth in the Act. 30 U.S.C. § 1275(c). The Secretary relies on the law set forth in Shawnee Coal Company v. Andrus, 661 F.2d 1083 (6th Cir.1981). The Sixth Circuit held that, before a plaintiff could seek judicial relief from cessation orders issued against its coal company, the company was required to exhaust its administrative remedies. Id. at 1092. However, a well-recognized exception to the doctrine set forth in Shawnee is applicable in this case. There is no need to exhaust a remedy if doing so would be a futile gesture. Porter County Chapter of Izaak Walton League of America, Inc. v. Costle, 571 F.2d 359 (7th Cir.1978) cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 130 (1978). The evidence shows that pursuit of administrative remedies by this plaintiff would be a futile gesture.

There is no question that Section 526(c) of the Act, 30 U.S.C. § 1276(c), authorizes judicial review of a decision by the Secretary which denies temporary relief. When a cessation order is issued after a notice of violation, a party may immediately seek temporary relief from the Secretary. The Secretary must respond to the request within five days after receiving it. The record shows that on December 10, 1984 the defense attorneys appearing before this court were notified by plaintiffs counsel that temporary relief was being requested. The Secretary relies upon the fact that the notice was not received on that date. However, the Secretary’s own records show that seven days later, on December 17, 1984, the notice was received. The Secretary had not taken any action as of today’s date, January 3, 1985. It is obvious that the Secretary has either failed to respond to the request or has denied the request for temporary relief.

The affidavit of Dennis E. Jones, attorney for the plaintiff, shows that he was advised by Administrative Law Judge McGuire that no pleadings had been filed by the Secretary in response to his petition for review as late as January 2, 1985. Jones was further advised that the Secretary had not responded to the request for temporary relief from the cessation order within the required five days. In affidavits filed on behalf of the Secretary by Elizabeth S. Tonkin, Esquire, and in a statement in response to this court’s Order directing additional evidence, the Secretary does not deny he has failed to answer the request for temporary relief. The Secretary does not deny that he has failed to answer the request for review of the underlying notice of violation. Instead, the Secretary claims that the plaintiff has waived its right to a decision regarding temporary relief within five days.

In a memorandum filed with the court, the Secretary states that the plaintiff has failed to comply with 43 C.F.R. § 4.1263, which is the regulation providing temporary relief. The Secretary contends that the plaintiff has not filed (a) a detailed statement setting forth the reasons why relief should be granted; (b) a showing that there is a substantial likelihood that the decision of the administrative law judge will be favorable; and (c) a statement of waiver pursuant to 30 U.S.C. § 1275(c) for denial of the application within five days.

The court has reviewed the application for temporary relief from Cessation Order Number 84-13-285-4 of Mullins Coal Company, Inc. (Defendant’s Exhibit 3). The court is of the opinion that the application for temporary relief complies with 43 C.F.R. § 4.1263. In submitting its application, the plaintiff stated that the (a) “applicant has been forced to cease hauling coal over the haul road; that he has filed an application of review of the underlying Notice of Violation”; (b) “applicant is of the opinion that the decision of the administrative law judge will be favorable to the applicant and that the granting of relief will not adversely affect the public health or safety or cause any significant harm to land, air and water resources”; and (c) the applicant goes on to state that it “does not wish to waive its right to an evidentiary hearing and requests that a formal evidentiary hearing be held in Grundy, Virginia.”

The Secretary contends that counsel for plaintiff originally waived, in a hearing before this court, the five-day requirement for the Secretary-to respond. The record before the court shows that there was an express statement in the written documents that the five-day requirement was not waived. This court must rely upon the record before it.

Contrary to the Secretary’s argument, Defendant’s Exhibit # 3 clearly shows that the plaintiff has not waived its right under the Act. Even if it were true that the application for temporary relief is not technically complete or in precise accord with the regulations, the Secretary nevertheless should have answered the plaintiffs request in writing within five days and formally denied the relief. This court is of the opinion that the requirement for the Secretary to respond within five days is unconditional and that said requirement is not subject to be changed by regulation. If the Secretary has the authority to deny relief solely because an application is not technically complete, he should have informed plaintiff that relief was denied for that reason. The court is of the opinion that the Secretary is being overly technical by reading the waiver into the plaintiff’s petition. Counsel for plaintiff has explained by affidavit that he was constantly in court and encountered unnecessary delays in his effort to comply with the Act. The fact that the Secretary has gone to such lengths to prevent the plaintiff from a having a hearing in this case is almost beyond comprehension in a civilized society and constitutes, in this court’s opinion, a denial of due process of law. Therefore, it is the ORDER of this court that the defendant is enjoined from enforcing its Cessation Order Number 84-13-285-4 until such time as the court has acted upon the permanent injunction.

The Clerk is directed to send certified copies of this Memorandum Opinion to counsel of record.

      . The court also notes that counsel for the Government Elizabeth S. Tonkin, who has signed all legal documents in this case, has not been admitted to practice before this court.

      . The Secretary has imposed upon parties requesting emergency temporary relief regulations that are far, far more stringent, difficult and time-consuming than those required for one to file a civil action in a federal court. Fed.R. Civ.P. Rule 10. It is incomprehensible that a person should be denied relief for technical reasons without even being notified. This court has previously warned that a five-day rule be manipulated when bureaucrats were determined to deny due process of law to an individual. Virginia Surface Mining Association, Inc. v. Andrus, 604 F.2d 312 (4th Cir.1979).


author: LAFFITTE, District Judge.

text:
    Sonia Davila GONZALEZ, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
    Civ. No. 82-2834 HL.
    United States District Court, D. Puerto Rico.
    Jan. 4, 1985.

      Domingo Carrasquillo Díaz, Bayamón, P.R., Maximiliano Trujillo González, Hato Rey, P.R., for plaintiff.
    Daniel F. Lopez-Romo, U.S.Atty., Hato Rey, P.R., with whom Francisco A. Besosa and Wanda Rubianes-Collazo, Asst. U.S. Attys., Hato Rey, P.R., were on brief, for defendant.
   OPINION AND ORDER

LAFFITTE, District Judge.

Present before this Court is claimant’s request for “Entry of Judgment” ordering the Secretary to begin payment of benefits to her, based on the Administrative Law Judge (ALJ)’s decision of May 25, 1982. Claimant argues that the Secretary failed to comply with its own rules regarding its “motu propio” review of the ALJ’s decision, and therefore, the ALJ’s decision granting benefits should be considered the final decision of the Secretary.

In her complaint, claimant alleged three causes of action. The first is in the nature of a mandamus, under 28 U.S.C. § 1361, requesting the Court to order the Secretary to carry out its “ministerial duty” of paying benefits to claimant pursuant to the ALJ’s decision.

The second cause of action asks for damages to be assessed as a consequence of the Secretary’s violation of claimant’s constitutional rights, in that the Secretary allegedly deprived claimant of her benefits without due process of law. Finally, the third cause of action is for the judicial review on the merits of the administrative actions pursuant to 42 U.S.C. § 405(g) and (h).

PROCEDURAL BACKGROUND.

Claimant filed her application for disability benefits on September 10, 1981. After initial and reconsidered denials, an AU held a hearing de novo, evaluating all evidence presented, and rendered a decision favorable to claimant, dated and notified on May 25, 1982.

A letter from the Appeals Council, stamp-dated July 23, 1984, but without a certificate or notice of mailing, was filed at the Office of Hearings and Appeals of the Social Security Administration in Bayamón, Puerto Rico. The letter notified the parties of the Appeals Council’s own motion to review the ALJ’s decision, pursuant to 20 CFR 404.969, and its intention to reverse the AU’s decision. On August 10, 1982, claimant filed a motion to dismiss the Appeals Council’s review for lack of jurisdiction, alleging that it was instituted late, and that the ALJ’s decision was therefore to be considered the final decision of the Secretary. On September 7, 1982, claimant filed a motion for Payment of Benefits. On September 15, 1982, the Appeals Council denied the motion to dismiss.

On November 15, 1982, claimant instituted the above encaptioned case in this Court. On December 6, 1982, the Appeals Council issued its decision reversing that of the AU. The decision has a certificate of mailing, dated December 10, 1982.

MANDAMUS AND DUE PROCESS VIOLATIONS.

Claimant’s first and second causes of action, for mandamus and damages for constitutional violations, are based on the argument that the Appeals Council’s letter of July 23, 1982, notifying of its intention to review the ALJ’s decision, was not timely, and therefore, the ALJ’s favorable decision should be considered the final decision of the Secretary. Jurisdiction was properly pled under 28 U.S.C. § 1331 and 28 U.S.C. § 1361. See Ellis v. Blum, 643 F.2d 68 (2d Cir.1981).

The claimant asserts that the Secretary’s regulation at 20 CFR 404.969 must be read and applied in conjunction with 20 CFR 404.614. In other words, claimant argues that not only must the Appeals Council “decide to review” the ALJ within 60 days of AU’s decision, but such “decision to review” must be filed with an authorized employee of the Secretary within 60 days. Claimant argues that since SSI claimants must file all of its papers and motions, pursuant to 20 CFR 404.614, the Secretary should also be so required.

The Secretary, in its brief filed July 10, 1984, takes the position that the Section 404.614, denominated “General Rule” applies only to the filing of an application or other forms or information submitted to the Secretary. It does not create a notice deadline for the “motu propio” review allowed by Section 404.969.

Neither parties have referred this Court to any applicable law concerning the notice and filing requirements of these regulations. It is clear, however, that where rights of individuals are affected, it is incumbent upon administrative agencies to follow their own procedures. Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974). But from the procedure followed in this case, as outlined above, it does not appear to this Court that the Secretary did anything improper, or failed to follow her regulations. Furthermore, the First Circuit has approved the use by the Appeals Council of motu propio review pursuant to 404.969. See Lopez-Cardona v. Secretary, 747 F.2d 1081 (1st Cir.1984).

The clear language of the regulations sets forth the plain meaning of such regulations. The 60 day limitation of Section 404.969 refers only to the Appeals Council’s decision to review. It has been determined that the Secretary’s actual decision on the merits need not be made within those 60 days. Lauritzen v. Weinberger, 374 F.Supp. 301 (D.Mo.1974), rev’d. on other grounds, 514 F.2d 561 (8th Cir. 1975). Furthermore, claimant has cited no authority for the proposition that General Rule of Section 404.614 qualifies the requirements for motu propio review in Section 404.969. The Court does not find that it does. The regulations are separate and distinct, found in different sections of the regulations as a whole. One does not refer to the other in any way. All of the notice and filing limitations are clearly stated. If the Secretary had wanted to require the Appeals Council to file its “decision to review” within 60 days it could have so stated. This Court should not rewrite the administrative regulations, or interpret them, when the meaning of the regulation is clear.

Deference is to be accorded to an agency’s own construction of its regulations. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S.Ct. 792, 801-802, 13 L.Ed.2d 616 (1965). In its letter to claimant on September 15, 1982, in response to claimant’s motion to dismiss, the Appeals Council stated that it had complied with the Secretary’s regulations. “The pertinent notice was mailed to the claimant and counsel on July 23, 1982.” In its decision on the merits of its motu propio review, the Appeals Council again states: “By letter dated July 23, 1982, the claimant and her representative were advised of this action and of her rights with respect thereto.”

The Court can infer from these statements that the Secretary has interpreted Reg. 20 CFR 404.969 to mean that a “decision to review” need not be filed nor received by claimant within 60 days, but only dated and mailed within 60 days. This interpretation is consistent with the ruling in Monferrato v. Schweiker, 700 F.2d 869 (2d Cir.1983), and Dietsch v. Schweiker, 700 F.2d 865 (2d Cir.1983). In these two cases, the Second Circuit held that because the Secretary had told claimant, by letter, that claimant could “file [a] request for review ... by sending a letter, requesting review...” (emphasis in original), the Appeals Council could not refuse to hear a request for review mailed within the 60 day period. Dietsch, supra, 700 F.2d at 868; Monferrato, supra, 700 F.2d at 870.

Claimant argues here, that because no certificate of mailing was attached to Appeals Council’s letter, it cannot be determined when it was mailed. The Court finds that the time between date of the letter and the later receipt of it by the Administration, is not so great as to infer it was not mailed on July 23, 1982. Furthermore, the record does not show when claimant received the notice.

Therefore, since the Appeals Council’s letter is dated July 23, 1982, the Court holds that it complied with the Secretary’s regulation that a “decision to review” was, made within 60 days of the ALJ’s decision. Consequently, claimant’s claim for mandamus and damages for due process violations must be denied.

However, based on the record before this Court, we find that there is not substantial evidence to support the decision of the Appeals Council, which is the final decision of the Secretary. The Appeals Council, on its own motion, as discussed above, reviewed the- decision of the ALJ. The ALJ found the assertions of pain by the claimant to be credible and supported. The Counsel held that “the evidence fails to establish the presence of anatomic changes ... which are the cause of claimant’s symptoms, including pain.”

The Appeals Council should have given some consideration to the ALJ’s findings of disabling pain. See Universal Camera Corp. v. NLRB, 340 U.S. 474, 496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951). Furthermore, the Appeals Council chose to look at only parts of medical reports disregarding other parts. While it is the duty of the Secretary to weigh the evidence, the Appeals Council is not permitted to pick and choose parts of medical reports to rely on to support its conclusion. For example, the Appeals Council discussed Dr. Roura’s report in the record (Exhibit 21), but failed to include the Doctor’s conclusion that the claimant could only stand or walk for three hours in a work day, and could only sit one hour. (See Tr. p. 121.)

In a similar way, the Appeals Council makes no reference at all to the continuing prescriptions of analgesics and muscle relaxants that claimant has been under since 1975. (See Tr. pp. 109, 171-172.) Finally, the Appeals Council has completely ignored the testimony of the disinterested vocational expert, who found that because of claimant’s condition, she was unable to return to her past relevant work, which was skilled and sedentary. This expert testified that the claimant would not be able to perform any other job existent in the national economy.

WHEREFORE, the Court finds that there is not substantial evidence to support the final decision of the Appeals Council, and such decision is hereby REVERSED.

IT IS SO ORDERED.

      . Section 404.969 (formerly 404.678), provides in its pertinent part:
      "Anytime within 60 days after the date of a hearing decision or dismissal, the Appeals Council itself may decide to review the action that was taken. If the Appeals Council does review the hearing decision or dismissal, notice of the action will be mailed to all parties at their last known address.

      . Section 404.614 states:
      "(a) General rule. An application for benefits or a written statement, request or notice is filed on the day it is received by an SSA employee at one of our offices or by an SSA employee who is authorized to receive it at a place other than one of our offices."


author: CURTIS, District Judge.

text:
    Doug ROY, Jr., etc., et al., Plaintiffs, v. VOLKSWAGENWERK AKTIENGESELLSCHAFT, A German Corporation, and Volkswagen of America, Inc., Defendants.
    No. CV 83-5254-JWC.
    United States District Court, C.D. California.
    Jan. 4, 1985.
    David M. Harney, James J. Pagliuso, Los Angeles, Cal., for plaintiffs.
    Robert E. King, Bakersfield, Cal., Michael A. Zuk, Los Angeles, Cal., for defendants.
   MEMORANDUM OPINION

CURTIS, District Judge.

This court has before it defendants’ motion to set aside the jury’s verdict in the above entitled case, awarding plaintiffs, collectively, the sum of $3,000,000.00.

In this products liability case, the plaintiffs have sued the defendants for the defective design of a 1958 Volkswagen. The claim arises from an accident which occurred in February 1982, in which a 1958 Volkswagen van being driven by the plaintiff, Doug Roy, Jr., turned over and caught fire, seriously injuring Doug Roy, III, and to some extent his mother, father and sister.

According to the evidence, the Roy family was on a trip from their California home to home of relatives in Texas, a trip requiring several days travel. Along the way some difficulty arose with respect to the fuel line. Whether it was because the line became clogged with dirt or for some other reason, insufficient fuel was reaching the engine to keep it running properly. In order to remedy this situation, Roy, Jr. removed the cap from the fuel fill pipe and inserted a rubber hose, surrounding it with rags and connecting the other end to the fuel pump, which apparently permitted the engine to perform satisfactorily.

While traveling on a two-lane highway at approximately 55 miles per hour, Roy made an abrupt turn to the left, causing the Volkswagen van to roll over, whereupon it caught fire causing the injuries alleged. This was indeed a tragic accident bringing an end to what had started out to be a happy family excursion. The record is replete with photographs of Roy, III, and the horribly disfiguring scars which his burns caused. It is one which indeed makes most difficult a dispassionate evaluation of the evidence upon a motion for a new trial, but after much careful consideration I can only conclude that the verdict is so contrary to common sense and the overwhelming weight of the evidence that I cannot in good conscience permit it to remain.

The principal thrust of plaintiffs’ case is their contention that the Volkswagen van was defectively designed, in that it had a tendency to roll over in circumstances such as those involved in this case. In the light of the voluminous technical testimony which was received in this case, it appears that the tendency of any vehicle to roll over is the result of the interaction of several factors; such as, the weight of the vehicle, the width of the tread, the center of gravity, the speed of the vehicle, the angle of the turn, and the coefficient of friction between the tires and the pavement. The variation of any one of these factors materially affects the result. The experts further agreed that any vehicle will roll over given the right circumstances. From this, one must conclude that the mere fact that a vehicle rolls over during an accident does not necessarily mean that it is defective, nor does it mean that because one vehicle may have a greater tendency to turn over than another vehicle that the former is defective. The issue then before the jury was, did the fact that the Volkswagen van rolled over under the circumstances presented in this case indicate that the design of the van was defective.

A definition of a defective design was given to the jury in the court’s instruction which read as follows:

A product is defective in design if it fails to perform as safely as an ordinary consumer would expect when used in an intended and reasonably foreseeable manner, or if there is a risk of danger inherent in the design which outweighs the benefits of that design.

The evidence is uncontested that this particular 1958 Volkswagen van performed no differently than that of any other Volkswagen van of the same vintage, or appreciably different from any other Volkswagen van manufactured thereafter.

It is simply inconceivable that a vehicle of this type manufactured and sold by the millions over a period of twenty-five years, a vehicle which has met with phenomenol consumer acceptance can at this late date be found to have failed “to perform as safely as an ordinary consumer would expect.”

The record is replete with video tape demonstrations which showed that the tendency of the Volkswagen van to roll is no greater than, if as great as, that of many American-made vans.

Admittedly, the center of gravity in a van is somewhat higher than that of a so-called “bug,” but this was necessary in the design of the vehicle to accomplish the purposes for which it was manufactured, and the acceptance and use of such a vehicle throughout the world for twenty-five years demonstrates beyond a shadow of a doubt that its usefulness outweighs any slight risk of danger which it causes.

In my view, the verdict which finds the Volkswagen van defectively designed cannot be allowed to stand in the face of the overwhelming evidence to the contrary. Any risk of rolling over which may exist is inherent in the design and is necessary in order to enable the vehicle to perform its intended purpose. The design permits it to be handled as safely and in some instances more safely than other vehicles of similar design which have found universal acceptance in the marketplace even today. The Volkswagen design has remained virtually the same for approximately twenty-five years, during which time it has met with overwhelming consumer acceptance throughout the entire world. To find such a design defective defies common sense.

Another critical issue in this case concerns the circumstances causing the vehicle to roll. Plaintiffs contend that while traveling approximately 55 miles an hour, the driver turned abruptly to the left in order to avoid a dog, and that the vehicle started and ended its roll on the smooth pavement. In fact, the main burden of plaintiffs’ contention is that a vehicle which will roll in an abrupt turn on a smooth pavement under these circumstances would be defective. The defendants, on the other hand, contend that the driver apparently fell asleep and permitted the van to gradually drift off to the right on to the improved shoulder and ultimately beyond on to the unimproved portion of the highway, and then upon suddenly awakening he turned abruptly to the left in an attempt to get back on the highway. In the process the front wheels dug deeply into the dirt, which ruts together with the edge of the pavement to cause the vehicle to trip. Even plaintiffs’ experts have admitted that the fact that a vehicle rolls after being tripped is no indication that the design of the vehicle is defective. It is therefore essential to plaintiffs’ case that the evidence established that the roll commenced on the smooth pavement. On this issue the evidence overwhelmingly supports the defendants’ theory. The pictures taken by the Chief of Police immediately after the accident clearly show the tracks made by the van, traveling precisely as defendants have contended. Although plaintiff speculated that these tracks could have been made by a passing vehicle attempting to avoid the burning van, such a theory is thoroughly inconsistent with the physical evidence. Plaintiff relies on the testimony of two eyewitnesses to support his theory. These witnesses testified that while traveling in the opposite direction some 2,000 feet from the point of the accident, they saw the van turn over and burst into flame while it was traveling on the paved portion of the highway. The accuracy of such testimony is open to question because of the distance from which they observed the accident, and the improbability of them making an accurate observation of such a minor detail when suddenly confronted with a shockingly dramatic, tragic event such as that which appeared before them. Furthermore, video tapes demonstrate clearly that because of the nature of the terrain they would have been unable to judge from their point of observation whether the van commenced its roll on the pavement or off on the shoulder. And, there was no physical evidence of any kind such as marks on the highway to support plaintiffs’ theory.

I think one must conclude from the great weight of evidence in this case that the design of the Volkswagen van was not defective and that, in any event, the roll over here under the circumstances herein-above outlined was not the result of a defective design.

Although the jury should have been aware of these facts and circumstances, they were obviously swayed by emotion and sympathy for the little boy, Roy, III, which was generated by the many graphic and explicit photographs depicting his original burns and the many operations which he was required to endure as well as those yet to come. It is my belief that the emotion which prevaded this case, and which makes this court’s decision a most difficult one, overwhelmed the jury, obscuring the issue of liability. In my view, for these reasons to allow the verdict to stand would constitute a serious miscarriage of justice. The motion to set aside the verdict and for a new trial is hereby granted.

       Some claim was made that the swing axle which was later modified was a contributing factor, but the great weight of the evidence was to the contrary. Furthermore, it appears that the swing axle has been continued in use up until the present in some of the most expensive and well engineered cars on the market.