Hubbard v. Faros Fisheries, Inc.

Decision Date22 July 1980
Docket Number80-1176,Nos. 79-1425,s. 79-1425
Citation626 F.2d 196
PartiesGordon H. HUBBARD and Shirley M. Hubbard, Plaintiffs, Appellees, v. FAROS FISHERIES, INC., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Richard A. Dempsey, Boston, Mass., with whom Leo F. Glynn and Glynn & Dempsey, Boston, Mass., were on brief, for defendant, appellant.

Roger E. Hughes, Jr., Boston, Mass., with whom David J. Ansel and Latti Associates, Boston, Mass., were on brief, for plaintiffs, appellees.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, DAVIS, Judge. *

COFFIN, Chief Judge.

Appellee Gordon Hubbard, a fisherman, brought an action against appellant Faros Fisheries, Inc., seeking damages for a heart attack he suffered while working on appellant's vessel "Ocean". Appellee's complaint sought damages on three theories: (1) negligence under the Jones Act, 46 U.S.C. § 688, (2) unseaworthiness under general maritime law, and (3) maintenance and cure. The first two theories were tried to a jury, while the issue of maintenance and cure was reserved for decision by the court. The jury found for the plaintiff on both the negligence and unseaworthiness counts and awarded damages of $85,000 plus prejudgment interest. The court entered judgment on July 2, 1979, in the amount of $100,010. Defendant filed post-trial motions for judgment notwithstanding the verdict or, in the alternative, a new trial, both of which were denied by the district court. Subsequently, in a memorandum and order issued on November 20, 1979, the court awarded maintenance and cure, at the rate of $7 per day stipulated by the parties, from the date of the plaintiff's heart attack, May 24, 1976, to the date of the jury verdict, June 29, 1979.

In this appeal, appellant argues: (1) that the court erroneously denied its motions for judgment n.o.v. and new trial because the evidence was insufficient to support the jury's findings of unseaworthiness and negligence, (2) that the court failed to instruct the jury, as appellant had requested, with regard to the legal significance of particular facts of the case and to present its theory of the case to the jury, and (3) that the court improperly determined the time period for which maintenance and cure should be paid to the appellee.

At the time of the incident precipitating this lawsuit, appellee was fifty-six years old, was apparently in good health, and had no history of heart trouble. Appellee's usual duty aboard the "Ocean" was to operate the main winch, which was used to retrieve and coil the cable from which the fishing nets are suspended. As winch operator, appellee was required to man the controls for the mechanized winch and also to operate manually a spooling mechanism that guides the cable onto the spool evenly. This manual operation consisted of turning a wheel located behind the winch. Proper functioning of the spooling mechanism is essential to the entire fishing operation.

On the morning of Saturday, May 22, 1976, appellee was operating the portside winch as the nets were being hauled in. He testified that in the course of this operation the spooling mechanism jammed and that he put his shoulder to the wheel and strained to turn it. He then felt a sharp pain in his chest, accompanied by a pain in his arm and cramps in his stomach. He called a fellow crewmember to take over and then went below. Appellee testified that he twice asked the Captain to contact another boat to take him ashore, but the Captain told him this was impossible because the ship's phone was out of order. According to appellee, the Captain also refused to change course to search for another vessel that could take him ashore because he was unwilling to interrupt fishing. Appellee's condition failed to improve, and on Monday the crew contacted the Coast Guard, which dispatched a helicopter to transport him to a hospital. Appellee was treated first as an emergency patient at a Veterans Administration hospital from May 24 to June 14, 1976, and then at the Public Health Service Hospital from June 14 to July 1, 1976. He was diagnosed as suffering from both coronary artery disease, a progressive and permanent condition, and a myocardial infarction, a heart attack. He is now permanently disabled.

The two counts on which the case went to the jury, unseaworthiness and Jones Act negligence, constitute alternative grounds for recovery. McAllister v. Magnolia Petroleum Co., 357 U.S. 221, 222, 78 S.Ct. 1201, 1202, 2 L.Ed.2d 1272 (1958). The jury returned special verdicts finding both that the "Ocean" was unseaworthy and that appellants were negligent for purposes of 46 U.S.C. § 688, and also that appellee was not contributorially negligent with respect to either count. Thus, in order to affirm the jury's award of damages, we need only find that the court's instructions and its denial of appellant's post-trial motions were proper with respect to either of these two substantive grounds for recovery.

We consider first the unseaworthiness count. Both parties agree that a shipowner has an absolute duty to provide to every member of his crew "a vessel and appurtenances reasonably fit for their intended use." Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960). This duty includes maintaining the ship's equipment in proper operating condition, Mahnich v. Southern Steamship Co., 321 U.S. 96, 104, 64 S.Ct. 455, 459, 88 L.Ed. 561 (1944), and it is breached by transitory as well as permanent defects in such equipment, Mitchell v. Trawler Racer, Inc., supra, 362 U.S. at 549, 80 S.Ct. at 932. Even a temporary and unforeseeable malfunction or failure of a piece of equipment under proper and expected use is sufficient to establish a claim of damages for unseaworthiness, see Usner v. Lukenbach Overseas Corp., 400 U.S. 494, 499, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971), provided the unseaworthy condition is the proximate cause of the harm suffered by the seaman.

Appellant's chief argument for judgment n.o.v. or new trial relief from the jury's finding of unseaworthiness is that the winch operated by appellee was "reasonably fit" for its intended purpose. Citing testimony elicited at trial, appellant asserts that the winch could have been operated safely by two winchmen working together, and in fact had been so operated on those infrequent occasions when it had malfunctioned. Alternatively, appellant argues that appellee could have used a bar located beside the winch as a lever to turn the wheel on the spooling mechanism without undue exertion. Thus, the argument goes, because the winch could have been safely operated in spite of the malfunctioning spooling mechanism by either of the above two methods, no unseaworthy condition existed. Furthermore, appellant asserts, any harm suffered by appellee was attributable to his own unwillingness to avail himself of a safe method for operating the winch. Finally, appellant appears to argue that the malfunctioning winch was not the proximate cause of appellee's injury. Instead, appellant asserts that since other seamen aboard the "Ocean" had operated this equipment and had "met the strength demands of the task within the available procedures" in the past, appellant's disabling injury was caused by his underlying coronary artery disease.

The standard for granting judgment n.o.v. in this circuit is well settled. Such a motion should be granted only upon a determination that the evidence could lead reasonable men to but one conclusion, a determination made without evaluating the credibility of witnesses or the weight of the evidence at trial. DeMars v. The Equitable Life Assurance Society of the United States, 610 F.2d 55, 57 (1st Cir. 1979). Thus, however plausible appellant's view of the case may be, in determining whether the district judge properly denied the motion we are bound to review the evidence and the inferences to be drawn therefrom in the light most favorable to appellee. Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989 (1st Cir. 1978).

Appellant's motion for new trial based on insufficient evidence is subject to a similarly strict standard of review. Although a district judge may order a new trial even though there may be substantial evidence to support the verdict, see generally 11 C. Wright & A. Miller, Federal Practice and Procedure § 2806 (1973), where the trial judge has denied such a new trial motion it is "only in a very unusual case that we will reverse such a ruling as an abuse of discretion", Sears v. Pauly, 261 F.2d 304, 309 (1st Cir. 1958). In order to award a new trial in this case, we must find that the jury's verdict was so clearly against the weight of the evidence as to constitute a manifest miscarriage of justice.

The cases relied on by appellant, apparently for the proposition that the vessel was seaworthy as a matter of law, are inappropriate. In most of the cited cases, the appellate court merely declined to reverse the conclusion of the fact finder that the vessel in question was not unseaworthy. See Little v. Green, 428 F.2d 1061 (5th Cir. 1970); Haskell v. Boat Clinton-Serafina, Inc., 412 F.2d 896 (1st Cir. 1969); Friend v. Tropis Co., 382 F.2d 633 (4th Cir. 1967); Benton v. United Towing Co., 224 F.2d 558 (9th Cir. 1955). In none of the cases did the appellate court award judgment n.o.v. or new trial after a jury had found unseaworthiness. Upon reviewing the evidence adduced at trial, we conclude that in this case reasonable minds could well differ in determining whether the malfunction of the winch constituted an unseaworthy condition on the vessel. There was sufficient evidence for the jury to conclude that the winch's spooling mechanism malfunctioned: appellee testified that he was unable to operate it as intended by turning the wheel and also introduced testimony that prior to his heart attack both he and another crew member had reported to the ship's officers that the...

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