269 F.2d 317 (4th Cir. 1959), 7822, Holley v. Manfred Stansfield

Docket Nº:7822.
Citation:269 F.2d 317
Party Name:Ruth HOLLEY, Administratrix of the Estate of Edward J. Holley, deceased, Appellant, v. THE Steamship MANFRED STANSFIELD, her engines, boilers, etc., in rem and Reederei Blumenfeld, G.M.B.H., in personam, Appellees.
Case Date:July 09, 1959
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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269 F.2d 317 (4th Cir. 1959)

Ruth HOLLEY, Administratrix of the Estate of Edward J. Holley, deceased, Appellant,

v.

THE Steamship MANFRED STANSFIELD, her engines, boilers, etc., in rem and Reederei Blumenfeld, G.M.B.H., in personam, Appellees.

No. 7822.

United States Court of Appeals, Fourth Circuit.

July 9, 1959

Argued April 10, 1959.

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Howard I. Legum, Norfolk, Va. (Fine, Fine, Legum, Weinberg & Schwan, Norfolk, Va., on brief), for appellant.

Walter B. Martin, Jr., Norfolk, Va. (Vandeventer, Black & Meredith, Norfolk, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and THOMPSON, District Judge.

SOBELOFF, Chief Judge.

While helping to unload the German SS Manfred Stansfield in South Norfolk, Virginia, Edward J. Holley, a longshoreman, was killed. His widow, as administratrix of his estate, filed a libel against the vessel and its owner charging that Holley's death resulted from the unseaworthiness of the ship and the failure to furnish the decedent a safe place to work. The District Court dismissed the libel on the ground that Holley had been guilty of contributory negligence which was held to be an absolute bar to recovery under the Virginia Code provision governing Death by Wrongful Act. 1 This appeal challenges both the court's finding of fact and its conclusion of law.

The ship docked at South Norfolk on September 13, 1956, to discharge potash which it had brought from Hamburg,

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Germany. At an earlier stop in Baltimore, a substantial portion of the cargo of potash had been removed from the square of number 2 hatch. When the ship arrived in South Norfolk it was noted that the cargo had not been trimmed or leveled in Baltimore. While the square of the hatch was relatively clear, the remaining potash, both fore and aft and in the wings, had been left piled 12 to 20 feet high.

By reason of its hydroscopic nature, the potash had solidified during the voyage, and in places was extremely hard, like concrete. Recognizing the difficulties and dangers involved in discharging this type of cargo, the stevedore's superintendent requested permission to use small charges of dynamite to loosen the potash-- a method sometimes resorted to in such circumstances. When this request was refused by the ship's officers, it was decided to employ air hammers, picks and shovels for the loosening operation.

As the potash had earlier been substantially removed from the square of the hatch, 'payloaders' were lowered into the ship and Holley was assigned to operate one of them. A 'payloader' is a small bulldozer with a scoop on the front which is used to bring loose cargo to the square of the hatch so that it may be loaded into the clam shell or grab of the crane. In addition to collecting loose cargo, 'payloader' operators often use their scoops to assist in breaking the mass at the floor level. Holley used his scoop in this manner. While there was evidence that this is a usual method-- some said the only possible method-- there was other testimony, offered by the ship, to show that the practice followed by Holley is frowned upon by experienced stevedores because cutting away at the base of a bulk cargo creates the danger of an 'overhang.' There was no evidence that when he was assigned to the hold the deceased was given any specific instructions, and the testimony as to instructions on other occasions is not clear. However, it was plainly established that he was an experienced 'payloader' operator.

Holley met his death when an overhanging block of potash, described as about the size of the court-room desk, fell on him and overturned the machine. The accident happened at a point where the potash was from 12 to 15 feet high. He was not at the moment actually digging or hitting the potash with his machine, and no other men were then working in the area, either on the top side of the cargo or at the floor level, picking at the potash or applying air hammers to loosen it.

Without ruling on the question of unseaworthiness or the failure to provide a safe place to work, the District Court held that the decedent's 'failure to take reasonable precautions for his own safety undeniably contributed to the accident.' For this reason the court dismissed the libel, 165 F.Supp. 660, 664.

It plainly appears that there was a cave in the potash at the point where the decedent was working when he was fatally injured. There is no description of the cave as to size, and it was not established clearly when and by whom the cave and the overhang were made. There was evidence that the cave might have been created the day before, either by Holley or by someone else. There was, on the other hand, some evidence that he was digging in the cave shortly before the accident. The testimony is not altogether satisfactory for, as the District Judge commented, it is difficult to assess how much of the witnesses; recitals on the stand was based on actual observation and how much on inferences which they drew from having seen the decedent working in or near the cave before the accident. However, the problem while not free from difficulty, is not unusual and latitude must be allowed the trier of fact who heard and observed the witnesses. We are not prepared to say that it was clearly erroneous to find that the decedent's conduct constituted 'a proximate cause of the accident, ' contributing in some degree, in conjunction with the condition of the cargo, to its collapse

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and the accident which followed. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; United States v. Ladd, 4 Cir., 1952, 193 F.2d 929.

We turn to the question of the legal effect of the finding of contributory negligence-- whether it constitutes an absolute bar as at common law, or brings into operation the maritime rule of comparative...

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