Tittle v. Aldacosta

• Decision Date: 03 January 1977
• Docket Number: No. 75-1119,75-1119
• Citation: 1978 A.M.C. 112,544 F.2d 752
• Parties: In re the Complaint of Robert A. TITTLE for exoneration from or limitation of liability as the owner of the M/V ADIOS, Plaintiff-Appellee, v. Nicholas ALDACOSTA and Brenda Aldacosta, Defendants Third-Party Plaintiffs-Appellants, v. Mike TITTLE, Third-Party Defendant Cross Plaintiff-Appellee, v. NORTHWESTERN NATIONAL INSURANCE CO., Cross Defendant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 752

544 F.2d 752

In re the Complaint of Robert A. TITTLE for exoneration from

or limitation of liability as the owner of the M/V

ADIOS, Plaintiff-Appellee, v. Nicholas ALDACOSTA and Brenda Aldacosta, Defendants Third-Party Plaintiffs-Appellants, v. Mike TITTLE, Third-Party Defendant Cross Plaintiff-Appellee, v. NORTHWESTERN NATIONAL INSURANCE CO., Cross Defendant.

No. 75-1119.

United States Court of Appeals Fifth Circuit.

Jan. 3, 1977.

Edward A. Perse, J. Arthur Hawkesworth, Jr., Miami, Fla., for defendants third-party plaintiffs-appellants.

Mercer K. Clarke, Miami, Fla., for Robert A. Tittle.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and GEE, Circuit Judges.

JOHN R. BROWN, Chief Judge:

Brenda Aldacosta fell as she was disembarking from the M/V ADIOS, a charter boat owned and captained by Robert Tittle (Owner). She sustained severe injuries which included the complete loss of one kidney. Owner under the shipowner's limitation of liability statute 46 U.S.C. § 183 ¹ is seeking a judgment of exoneration from liability or in the alternative to have his liability limited to the value of the vessel at the time of the injury. The Aldacostas filed a claim for their personal injury damages. ²

The case was tried without a jury. See F.R.Civ.P. 38(e). The lower court made its findings of facts and conclusions of law and entered judgment exonerating Owner from all liability and dismissing the damage claim and all the counter claims and third party claims. It concluded that neither Captain Tittle nor anyone acting on his behalf was negligent nor committed any acts which proximately caused the injury to Brenda. Having granted exoneration the Court nevertheless went on to hold that the occurrence was without the privity and knowledge of the owner-captain then on board and in command.

We reverse.

The Standard Of Review

As in other cases, on appeal in admiralty the holding of the lower court is judged by the standard set in F.R.Civ.P. 52(a) which provides that findings of fact "shall not be set aside unless clearly erroneous." McAllister v. U. S., 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Davis v. Parkhill-Goodloe Co. Inc., 5 Cir., 1962, 302 F.2d 489; Noah's Ark v. Bentley & Felton Corp., 5 Cir., 1961, 292 F.2d 437. Recognizing as we long have that our role is quite different from reviewing a jury verdict with its Seventh Amendment strictures, Boeing v. Shipman, 5 Cir., 1969, 411 F.2d 365, if the Court is of the strong impression that the findings are against the truth and right of the case so that an injustice has been wrought, the reviewing court is not bound and the vulnerable findings may, and should be set aside. United States v. U. S. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746; Sanders v. Leech, 5 Cir., 1946, 158 F.2d 486; Galena Oaks v. Scofield, 5 Cir., 1954, 218 F.2d 217; United Geophysical Co. Ins. v. Vela, 5 Cir., 1956, 231 F.2d 816. Wright & Miller, Federal Practice and Procedure, Vol. 9 § 2585 p. 731 (1971).

Slip From Deck To Dock

Although we reject as clearly erroneous the Trial Court's decisive finding conclusion that there was no negligence on the part of Owner, the crew or the vessel we substantially paraphrase its findings with respect to sitting and the occurrence.

The Aldacostas (with their infant child) and another individual, June Thacker, had spent the day of November 6, 1973 aboard M/V ADIOS for sport fishing. The vessel returned to the dock that afternoon. M/V ADIOS was constructed of fiberglass over plywood with the fiberglass being painted with marine paint. Under Owner's practice the mate was to continuously wash the vessel down during the day to keep it clean and remove fish slime and other debris which might cause hazardous footing on the walking surfaces of the vessel. The painted fiberglass when dry formed a smooth, non-slippery surface. When wet, the painted fiberglass was a slightly more slippery surface. Owner had established a procedure under which the mate was to place a towel on the transom to provide a non-skid surface for persons embarking and disembarking by stepping on the transom. In addition to putting the towel in place the mate was to stand on the transom and assist individuals. This procedure was known to the mate and complied with by him on many prior occasions.

Because of the difficulty of keeping permanent non-skid materials clean in the presence of fish slime walking surfaces would often be more slippery with non-skid materials than without non-skid. During the last fifteen minutes of the movement back to the dock, the mate wiped down the entire cockpit area including the transom with a damp towel. Significantly, the Court found that when "the vessel arrived at the dock, the transom was either dry or slightly damp but not what could be termed 'wet' ". The vessel was docked stern first with a stern approximately 18 inches from the dock after all lines were made fast. With Owner on the flying bridge the mate began tying off the stern lines. During this time Nicholas Aldacosta and June Thacker disembarked by standing on the transom then stepping down to the dock. Neither Owner nor mate were aware the passengers had left. The mate, however now aware of this, saw Brenda Aldacosta approaching the fish box and the transom area with the apparent purpose of leaving the vessel unassisted. The mate immediately stepped up on the transom to assist Brenda. Again, significantly, the Court found the mate "did not have time to procure the towel and put it in place prior to her standing up on the transom".

Brenda who was barefoot and holding wooden sole shoes in her left hand was standing toward the middle of the transom. The step down to the dock was approximately 12 to 18 inches. Despite the mate's assistance Brenda missed the dock with her foot and fell forward striking her side in the area of her right kidney sharply against the edge of the dock.

While all this was taking place Owner was busy on the flying bridge shutting down the console and was personally unaware that Brenda was disembarking from the vessel and that the towel had not been put in place.

The Trial Court concluded that although "customarily a towel was placed on the transom . . . the failure to place the towel over the transom in this instance did not result from fault on the part of (Owner) or the mate, but rather to the haste of the guests in disembarking from the vessel before the vessel was completely secured." He then went on to find that even so "the absence of this towel was not . . . a contributing factor since the transom was in any event dry or virtually so and consequently not unreasonably slippery".

Exoneration

Under this standard for the order of exoneration to survive appellate review Owner, his vessel and crew must be shown to have been free from fault. ³

The lower court found that the duty owed by Owner was one of ordinary care to establish and maintain a reasonably safe means of ingress and egress onto and from the vessel. Although we have pointed out the curious anomoly that a bag of coffee beans fares better than a non-crew member fare paying passenger to whom the warranty of seaworthiness does not run, Gibboney v. Wright, 5 Cir., 1975, 517 F.2d 1054, we agree, as do the parties, on this controlling standard. But we do not accept the finding of the lower court that under the controlling facts Owner met his duty on this occasion.

By his own testimony Owner established that 100% of the charter fishing boats used some precaution for preventing accidents like Brenda's. On his own story one or more of five protective devices were used to prevent skids rubber mats, chrome with rubber, teak strips, tarpaulins or towels. The method he selected was towels.

Affirming the importance in his own mind of this protective procedure Owner emphasized that the mate was given positive instructions to carry it out. So important was it that he had repeatedly told his mate to put down a damp towel for the passengers to step onto when leaving the boat. The towel normally was put in place while the boat was coming in to the dock. Then, after docking, either the mate or the captain would take hold of the passengers' arm or hand to steady them while disembarking. Not only that, the procedure, as the Judge expressly found, "had been carried out on numerous previous occasions." Vol. 1 Record at 462.

But the fact remains that the mate did not put down the towel as instructed. That he was engaged in securing the lines or that two passengers (and the infant) had already gotten onto the dock, did not relieve him of the duty of carrying out the command. This is especially true since, on realizing that the two were on the dock, he saw Brenda walking toward the stern with the obvious purpose of disembarking a subjective conclusion almost simultaneously manifested by his holding her arm. There is no suggestion permissible that things prevented him from then placing the towel on the transom before permitting Brenda to continue the mate-assisted step out and down. All the while, of course, as the Judge found, "the transom was . . . slightly damp" but not, he continued, "what could be termed 'wet' ". ⁴ Vol. 1 Record at 459. On his own industry-wide self-imposed standard of care, June T., Inc. v. King, 5 Cir., 1961, 290 F.2d 404; Schlichter v. Port Arthur Towing Co., 5 Cir., 1961, 288 F.2d 801, we...