D/S Ove Skou v. Hebert

Citation1966 AMC 2223,365 F.2d 341
Decision Date19 August 1966
Docket NumberNo. 22205.,22205.
PartiesD/S OVE SKOU, Appellant, v. James B. HEBERT et al., Appellees. PORT ARTHUR SHIPPING CORPORATION, Appellant, v. D/S OVE SKOU et al., Appellees. SOUTHERN STEVEDORING & CONTRACTING COMPANY, Appellant, v. D/S OVE SKOU and United Fruit Company, Appellees. James B. HEBERT, Appellant, v. D/S OVE SKOU and United Fruit Company, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

COPYRIGHT MATERIAL OMITTED

B. D. McKinney, Dale Harvill, Houston, Tex., for D/S Ove Skou, Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel.

Mayo J. Thompson, Houston, Tex., Royston, Rayzor & Cook, Houston, Tex., of counsel, for Southern Stevedoring & Contracting Co.

L. Dixie Smith, Houston, Tex., Louis V. Nelson, Beaumont, Tex., S. G. Kolius, Houston, Tex., for Port Arthur Shipping Corp.

John N. Barnhart, Houston, Tex., for J. B. Hebert.

J. P. Forney, Eastham, Watson, Dale & Forney, Houston, Tex., for United Fruit Co.

Before JONES and BROWN, Circuit Judges, and DYER, District Judge.

JOHN R. BROWN, Circuit Judge:

This is another of the growing number of multi-party Donnybrook Fairs in which like Kilkenny cats, American Fidelity & Casualty Co. v. Pennsylvania Threshermen's Casualty Ins. Co., 5 Cir., 1960, 280 F.2d 453, 455, 456, all lash out against each other in the hope that someway from someone, somehow all or part of the Sieracki-Ryan-Yaka-Italia1 fallout can be visited on another. Here the new twist, if not a wrinkle, Mike Hooks, Inc. v. Pena, 5 Cir., 1963, 313 F. 2d 696, 1963, is a sort of sea-going solomonic distribution through percentage reduction of the injured worker's recovery and a three-way split of the remainder as between the Shipowner and to separate Stevedores. Noah's Ark v. Bentley and Felton Corp., 5 Cir., 1961, 292 F.2d 437, 438, 1961. From the wings, the Time Charterer, exonerated of all primary or secondary liability, comes in to collect its counsel fees and expenses.

All but forgotten in this welter of charge, countercharge, replication, impleader crossclaim and demand for indemnity is the injury sustained by the maritime worker. And yet, despite all of its apparent complexities, this is the key which unlocks the puzzle leading to our affirmance on substantive principles with some adjustments. For once the parties face up to one of the perils of our juridical system in which the event comes finally to be, not so much what it actually was, as what it has been judicially declared to be, this is the key to the riddle. For then it becomes the simple case of a hatch board that is too short.

The Libellant, Hebert, a longshoreman employed by Port Arthur Stevedore,2 was injured aboard Shipowner's3 vessel M/V JYETTE SKOU when, in the course of opening up No. 1 hatch at Port Arthur shortly after arrival of the vessel from Houston, a hatch board up-ended causing his foot and leg to drop into the opening producing serious injuries to his back. But that simple occurrence, so simply described, was not long to remain simple.

As Hatch No. 1 had been opened, cargo worked, and reclosed February 27, 1960, at Houston by Houston Stevedore,4 Shipowner impleaded it, and later Port Arthur Stevedore on the now familiar breach of the implied warranty of workmanlike performance. Likewise, it impleaded Time Charterer,5 who, in the spirit of the times, in turn impleaded Houston Stevedore and Port Arthur Stevedore on the dual theory of an express contractual indemnity contract and breach of the Ryan warranty and the Shipowner for breach of the implied warranty of seaworthiness under the charter party.

Despite these ramifications, the respective theories were also quite simple. Hebert, almost content with the prospect of a decree against a single, solvent respondent, Shipowner, nevertheless sued Time Charterer as well asserting that a vessel with a too-short hatch board was unseaworthy and the owner and Time Charterer were negligent. Shipowner, first denying the occurrence, charged that Houston Stevedore, in knowingly using a too-short hatch board on closing of the hold a few hours before, had breached its WWLP.6 It charged that Port Arthur Stevedore had done likewise in failing properly to make inspection and discovery of this hazard preparatory to opening the hatch. Against Time Charterer, indemnity was sought because the Charterer was to load and stow the cargo (see note 5, supra). Time Charterer asserted both breach of the WWLP and an express indemnity against Houston Stevedore and Port Arthur Stevedore.7

After a trial in which nearly all of the testimony was heard in open court, the admiralty Judge found the ship unseaworthy, Shipowner negligent, Libellant contributorily negligent by 20%, Houston Stevedore breached the WWLP for "placing the hatch board in question * * * and in not observing that it was short * * *," Port Arthur Stevedore breached its WWLP by "removing the hatch board * * * and in not observing that it was short * * *," but that since Shipowner "created the unseaworthy condition of the vessel * * * by equipping her with a short hatch board * * *." it is entitled "to only fifty (50%) per cent indemnity from" Houston Stevedore, and Port Arthur Stevedore "* * * in equal amounts of twenty-five (25%) per cent each, based on their equal failure to perform * * * the stevedoring work in a safe and workmanlike manner * * *." Time Charterer was also allowed to recover its counsel fees and expenses subsequently fixed by the Court from Shipowner and Houston Stevedore and Port Arthur Stevedore.8

No one is happy and all appeal.9 Libellant seeks reversal of the 20% finding of contributory negligence. Shipowner seeks reversal as to the indemnity award against it for 50% of Time Charterer's counsel fees and to secure full, not 50% indemnity from the Stevedores and Time Charterer and to increase the finding of contributory negligence from 20% to 50%. The Stevedores seek reversal of the 50% indemnity award against them (25% each) and as to the award of counsel fees to Time Charterer. Finally, Houston Stevedore seeks reversal of denial of indemnity against Port Arthur Stevedore.

But despite all of these intervening complications, the case is simple when we return to its simplicity. The case begins and remains a simple one if — and, of course, the if is a big one — the incident took place as Hebert contends and there was in fact a hatch board that was too short.

The No. 1 hatch had the customary hatch beams, King and Queen, with three sections of hatch boards. Following the regular practice after the battens were removed, Hebert and several other fellow workers rolled back the tarpaulin which exposed all of the hatch boards. Apparently working in the center section first and in the center of the hatch, Hebert's fellow worker removed the first hatch board. Hebert came in from behind him to get the adjoining board and had to stand on another one. As he looked at its surface, it looked ordinary. But all of a sudden, the end of the board on which he was standing tipped upward and, so he described it, it came up "like a seesaw" and one of his legs slipped full length into the hole.

Libellant was subjected to pressing cross examination both on pretrial depositions, which were frequently quoted, and in open court. He was substantially corroborated in his explanation of the injury and the occurrence by the walking foreman of Port Arthur Stevedore. This took two turns. One was a report by him at some time to the Ship's mate as to the occurrence, and a report of the injury to his employer and the insurer under the Longshoreman and Harbor Worker's Compensation Act. More important, and more direct, was that from the walking foreman, who was standing nearby hatch 1 superintending some other rigging operation. Although he does not undertake to say that he saw Hebert in the moment of the accident, he did observe him on the hatch with one leg substantially through the open space. The walking foreman was quite positive that one of the hatch boards was too short.

Of course it was not all one way. There was, first, the predicament facing any damage claimant in walking that narrow line between a thing that is bad but not too bad as to be obvious. Libellant continues this course with some difficulty in his attack on the 20% reduction for contributory negligence. For he insists that the hatch boards looked to be in order and while they varied in width and length as was usual, it was not such as to be spectacular. The question then is: what caused the board to up-end or seesaw? Likewise, there is the mystery about what happened to the board. If, as the theory envisages, it was so short that it did not overlap the lip of the King beam it would seem that if it upended causing Hebert to fall down part way through the space, the board would have fallen into the hold, but it did not do so.

But these are the stuff of which lawsuits are made. Accidents do happen that simply cannot occur. Otis Elevator Co. v. Robinson, 5 Cir., 1961, 287 F.2d 62, 64. Ships still collide, although at the moment of impact, each is going full astern through the water.

Whatever our misgivings about what we would decide were that committed to us, we know that if "we were to approach it as simply a question — how should this case be decided? — we would effectually bypass a trial court." For a "* * * trial of a hotly contested, sharply disputed case is the task of a trial court. * * * and Whether formulated in the mold of `clearly erroneous' or followed intuitively as a measure, reviewing courts, even in admiralty * * should be slow to overturn fact decisions made by the judge before whom the facts are annealed through the hammering, heating process of vigorous, running advocacy." Ohio Barge Line v. Oil Transport Company, 5 Cir., 1960, 280 F.2d 448, 449. And certainly there was, below and here, advocacy of the most intense nature. Indeed, natural self-interest in fleeing before Ryan is a sharp reminder...

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