Graham v. A. Lusi, Limited

• Decision Date: 30 June 1953
• Docket Number: No. 14147.,14147.
• Citation: 206 F.2d 223
• Parties: GRAHAM v. A. LUSI, Limited. THE NOVARCHOS KOUNDOURIOTIS.
• Court: U.S. Court of Appeals — Fifth Circuit

206 F.2d 223 (1953)

GRAHAM v. A. LUSI, Limited.

THE NOVARCHOS KOUNDOURIOTIS.

No. 14147.

United States Court of Appeals Fifth Circuit.

June 30, 1953.

Chester Bedell, Jack F. Wayman and W. A. Cleveland, Jr., Jacksonville, Fla., for appellant.

Harold B. Wahl and Scott M. Loftin, Jacksonville, Fla., for appellee.

Before BORAH, RUSSELL and STRUM, Circuit Judges.

BORAH, Circuit Judge.

Reta Belle Graham, as widow of Howard Graham, filed in admiralty her libel in rem against the Steamship Novarchos Koundouriotis, to recover damages for the wrongful killing of her longshoreman husband on the ship. The vessel was claimed by the owner, A. Lusi, Limited, who defended it. After first disposing of some preliminary matters a trial was had on the merits, following which the court made full and definite findings of fact and conclusions of law. Specifically the court found that the cause of the accident was the negligence of the stevedore crew, including the deceased hatch tender who was directing the winches. It also found that if there had been any negligence on the part of the vessel, which there was not, the action was barred by the decedent's own contributory negligence. Having so found, the libel was dismissed, and the libellant has appealed.

The Novarchos Koundouriotis was chartered by the Strachan Shipping Company to carry a part cargo of steel bars to Jacksonville, Florida; cargo to be discharged by charterer with the use of the vessel's gins, falls, tackles, and winches, with power necessary to operate them. After a voyage from the immediate prior port of Savannah, Georgia, the vessel arrived at Jacksonville and notified the charterer that it was ready to discharge cargo. Thereupon the charterer's employees, including the deceased, came aboard the ship under the direction of their foreman, and not under the supervision of the vessel's officers or crew, and proceeded to rig the booms in proper position over the holds to work cargo. Graham in the performance of his duties as a hatch tender was in charge of the booms at No. 2 hatch. When they were adjusted to his satisfaction unloading began and he took his station at the hatch coaming observing the activities in the hold and directing the winchmen when a load was to be raised. In the course of lifting a load of steel with the starboard cargo boom a defectively welded link in the span chain supporting the weight of the boom and cargo parted and the boom fell, striking the intestate and causing his instant death.

This suit was brought under the Florida Death by Wrongful Act Statute, section 768.01, F.S.A., which gives to the widow the right to sue in rem for death occasioned by the wrongful act, negligence, carelessness or default of any ship, vessel or boat or person employed thereon. Taking the position that unseaworthiness is a wrongful act, neglect or default under the Florida statute, libellant alleged that the death of her husband resulted proximately from the unseaworthiness of the vessel and from the negligence of the vessel's owner and operator in providing unsafe equipment. On exceptions to the libel and to the defenses raised in the pleadings, the District Court held¹ that unseaworthiness alone, without negligence, would not afford libellant a right of action; that due care on the part of the owner and contributory negligence on the part of the decedent would constitute complete defenses to libellant's action for wrongful death; and that the libellant would be limited on the trial to her asserted cause of action based on negligence. At the conclusion of the trial which ensued, the court further held that the defect in the chain was a latent one not discoverable by reasonable care and inspection and that the respondent was not negligent in failing to discover the defect but did all that a reasonably careful and prudent owner could have been expected to do under the circumstances. Further, that the cause of the accident was the putting of great and unnecessary strain on the lifting gear, causing the chain to break, and that deceased contributed thereto since he was in charge of the winchmen. The question here is whether there is substantial support in the evidence for the Trial Judge's findings and whether his legal conclusions were properly applied to the facts that he found.

We are in no doubt that appellant's right of action under section 768.01, F.S.A., like other rights of action arising in admiralty under Lord Campbell's act and similar acts, is to be enforced according to the principles of the common law and contributory negligence and the exercise of due care are absolute defenses thereunder. Without this statute, the appellant could not maintain her libel because the prior maritime law conferred no right upon the personal representatives of a deceased maritime employee to recover indemnity for his death. Cf. Lindgren v. United States, 281 U.S. 38, 47, 50 S.Ct. 207, 211, 74 L.Ed. 686. The statute must be applied in admiralty just as if the suit had been brought in the state courts, and any defenses which are open to the appellee under the jurisprudence of the state, if successfully maintained, will bar recovery under the libel. The Corsair, 145 U.S. 335, 12 S.Ct. 949, 36 L.Ed. 727; The Alaska, 130 U.S. 201, 9 S.Ct. 461, 32 L.Ed. 923; The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; United States v. Waterman Steamship Corporation, 5 Cir., 190 F.2d 499; Mejia v. United States, 5 Cir., 152 F.2d 686; The Ellenor, D.C., 39 F.Supp. 576, affirmed 5 Cir., 125 F.2d 774; Warnken v. Moody, 5 Cir., 22 F.2d 960; Truelson v. Whitney & Bodden Shipping Co., 5 Cir., 10 F.2d 412; Mooney v. Carter, 5 Cir., 152 F. 147; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A.,N.S., 303. In The Ellenor, supra, it was held that...