330 F.2d 554 (5th Cir. 1964), 20734, Clark v. Symonette Shipyards, Limited

Docket Nº:20734.
Citation:330 F.2d 554
Party Name:Lee CLARK, A minor by his father and natural guardian, Carl B. Clark, et al., Appellants, v. SYMONETTE SHIPYARDS, LTD., Appellee. SYMONETTE SHIPYARDS, LTD., Appellant, v. Lee CLARK, A minor by his father and natural guardian, Carl B. Clark, et al., Appellees.
Case Date:March 19, 1964
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 554

330 F.2d 554 (5th Cir. 1964)

Lee CLARK, A minor by his father and natural guardian, Carl B. Clark, et al., Appellants,

v.

SYMONETTE SHIPYARDS, LTD., Appellee.

SYMONETTE SHIPYARDS, LTD., Appellant,

v.

Lee CLARK, A minor by his father and natural guardian, Carl B. Clark, et al., Appellees.

No. 20734.

United States Court of Appeals, Fifth Circuit.

March 19, 1964

Rehearing Denied April 21, 1964.

Arthur Roth, Miami, Fla., for appellants.

W. F. Parker, Miami, Fla., for appellee.

Before TUTTLE, Chief Judge, and PHILLIPS [*] and JONES, Circuit judges.

TUTTLE, Chief Judge.

This is an appeal of the consolidated cases of an injured person and the personal representative of a deceased person from an adverse judgment by the trial

Page 555

court in admiralty holding that the ship on which they were injured was not unseaworthy, and holding further that their injuries were caused solely by their own negligence, and that they were thus not entitled to recover. The trial court allowed the injured person a recovery of $1,000 for maintenance and cure and allowed the personal representative of the deceased person the sum of $1250 for funeral expenses. These allowances are the subject of a cross appeal by the Symonette Shipyards, Ltd.

Although the record, as it comes to us, is greatly complicated by the fact that here were at least three actions by each of two persons on varying theories of liability, and that there were four amended complaints filed before the case terminated, the issues finally come within a fairly simple compass. The issue is: Were these appellants seamen, at least to the extent that they were protected by the doctrine of unseaworthiness, and, if so, was the trial court's finding that the death and injury complained of were solely caused by the negligence of the individuals and not by the events preceding it, which the trial court found to be palpably negligent, clearly erroneous?

The facts necessary to be stated in order to pose the issues accurately are as follows: Lee Clark, a minor, and Albert Zannino were two of six men who were employees of one Wilson who had a contract to erect certain petroleum product tanks in Haiti. Wilson arranged for the transportation of the tanks together with the necessary equipment to be used in their erection on a landing craft owned by Symonette Shipyards, Ltd. As a part of the agreement of transportation Symonette, acting through its proper representative, agreed with Wilson to transport the six men with the understanding that in order to comply with the laws of the Bahamas the men would have to be signed on as if they were members of the crew, although it was agreed that they should perform no duties for the ship. This subterfuge was to obviate the penalty that the ship would be subjected to if it carried passengers, since under the Bahama regulations it was not permitted to land with passengers. Included in the equipment put on board was a large crane, which both Wilson and the ship's captain understood was to be used by Wilson's men, including Zannino and Clark, to unload the ship when it arrived at its destination. Following a stop at Nassau for the unloading of cargo, one Ryder, who had been designated by Wilson as being in charge of the Wilson group, caused several of his group to attach an additional length of boom to the boom of the crane. In order to do this it became necessary for the men to add length to the cable that held up the boom, which, of course, in turn held the cable that would be attached to the cargo for use. In order to lengthen this cable, the men, including Zannino and Clark, under Ryder's supervision, simply placed the ends of the two pieces of cable together and clamped them in a manner that a pull on either end of the cable would tend to cause them to separate. There was no loop made with the brackets or clamps fastened over the turned-back ends of the loop.

All concede, and the trial court found, that the splicing was done in a manner which no one knowing anything about such an operation would countenance. Neither Zannino nor Clark had any special knowledge or skill in splicing cables. Thereafter, after the splice was tested by lifting against a cleat on the deck of the vessel, the crane was used to lift a hand truck. Zannino and Clark were on the deck from which the truck had been lifted and when a part fell off of it they jumped under the truck to recover the part, at which...

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