Manning v. M/V" SEA ROAD"

Citation417 F.2d 603
Decision Date16 October 1969
Docket NumberNo. 24300.,24300.
PartiesR. H. MANNING, Appellant, v. M/V "SEA ROAD", her engines, etc., and Sea Road Shipping Company, Inc., Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Arthur Roth, Miami, Fla., for appellant.

G. Morton Good, Miami, Fla., for appellees.

Before JOHN R. BROWN, Chief Judge, and COLEMAN and SIMPSON, Circuit Judges.

JOHN R. BROWN, Chief Judge:

This is the second time around for these parties. This in rem libel by Longshoreman-strawboss Manning against the M/V Sea Road, owned by his employer, for Yaka-Jackson1 recovery was heard and decided in the fall of 1964. After initial affirmance the judgment of the District Court was vacated on rehearing and the cause remanded. Manning v. M/V Sea Road, 5 Cir., 1965, 358 F.2d 615, 1966 A.M.C. 591. With great tenacity the case now comes before us again on the employee's appeal from a final adverse judgment in the case on remand.

The question presented for our determination is whether Shipowner's violation of a safety regulation for longshoring which resulted in unseaworthiness of the vessel was the proximate cause of Manning's injury. We hold that it clearly was and send the case back for redetermination.

The facts of the case are simple. The Sea Road, a converted Navy World War II stern ramp loader (a landing craft type vessel used during the war for invasion purposes), is a small one-hold vessel, and is loaded by driving vehicles up the ramp into the hold. Her cargo space is long and narrow, approximately 62 feet by 20 feet beam. The cause in fact — although so far determined to be no cause in law — for this case was a manhole approximately 3 feet in diameter the outboard edge of which was about 2 or 3 feet from the starboard side plates and 10 to 20 feet from the square stern. The manhole cover had rusted so that it would not seat properly to support weight.

On an evening in September, 1963 the longshore crew of which Manning was the strawboss was loading a cargo of cement blocks stowed on pallets. The pallets were carried aboard the vessel by fork-lift and stowed four abreast athwartships from port to starboard. The pallet load was 4 feet wide and about 4 to 5 feet high. The fork-lift was 12 feet long and was maneuvered by its tiller-like single rear wheel.

Sometime between 6:00 and 7:00 p. m. a longshoreman, with the unlikely name Sam Smith, stepped on the manhole cover but the rim was wasted away and Smith fell into the hole.

Fred Craft, one of the owners of the employer company and of M/V Sea Road, investigated the accident and went to find some plywood to provide a temporary cover, but he gave up on that sometime between the time Smith was injured and 8:00 p.m.

Sometime about 8:00 o'clock Manning was walking backwards directing a forklift over the ramp along the starboard side in the hold to fill out a line of pallets. There were three pallets stowed abreast and this load was to fit in the space of 4½ to 5 feet remaining on the starboard side. There was approximately 15 to 20 feet between the forward lip of the manhole and the after side of the cargo. As he was holding the cement blocks, he stepped backwards onto the replaced rusted-rimmed manhole cover and fell into the manhole — obviously a misnomer because it is a hole where men don't really belong. As a result of the fall Manning injured his left knee.

On the initial trial Shipowner conceded, with no real concession at all, that the defective manhole cover rendered M/V Sea Road unseaworthy. It took the bold course, which so far has maintained its buoyancy, that the whole thing was due to the flagrant carelessness of Manning so that the misfortune of the 100 percent contributorily negligent Manning was not proximately caused by this flagrant unseaworthiness.

This was the conclusion of the Trial Judge. It was based upon a permissible credibility choice, 52(a) F.R.Civ.P., that Manning knew of Sam Smith's earlier injury and management's abortive efforts toward temporary repair.

On the first appeal this Court affirmed the finding that Manning knew of the accident and of the unseaworthy condition on the basis that it was not clearly erroneous. The Court affirmed the finding that Manning was negligent in that there was a safe route available and there was more than mere knowledge on Manning's part of the unseaworthy condition. After pointing out that assumption of risk concepts could not be applied to defeat recovery and that mitigation of damages for contributory negligence was the most that could result, we distinguished one case on the ground that "there was no alternative safe route available and the court specifically noted that this might have given rise to a contributory negligence situation." We then went on to characterize the instant case.

"Here there was a safe route available, and there was more than mere knowledge of the unseaworthy condition. The employee was a part of management and was supervising the loading operation, and it is a fair inference that he could have avoided the danger by discontinuing the work, relocating it, or going around the danger." 358 F.2d at 617.

This had led us earlier to declare in quite sweeping terms that the Governmental Safety Regulations for Longshoring did not change the result because, essentially, they were not applicable.2 We phrased it this way:

"It is not clear that the safety regulation was called to the attention of the District Court; however, we do not think that it precludes the decision of the court. It is not geared to a situation such as was presented here where the seaworthiness went only to a small portion of the vessel. The regulation calls for a work stoppage only when the unseaworthy condition would jeopardize the safety of employees. Here the work could go on provided the longshoremen steered clear of the defective cover. The regulation was not applicable under the facts presented." 358 F.2d at 617.

But all of this was markedly changed on rehearing and it is the fact that this was not discerned or we did not make ourselves clear that led to the error on remand. No longer adhering to the rigid reading of the Regulation that it applied only where the condition would jeopardize safety rather than the risk of likely injury or to the declaration that here "the work could go on provided the longshoremen steered clear of the * * * cover," we announced this change of judicial heart: "Moreover, upon further consideration of the documentary evidence, it is not clear that the work could have safely proceeded in spite of the defective manhole cover." 358 F.2d at 618.3

Although charged by our mandate for full judicial-evidentiary inquiry into the Regulations,4 the District Judge reduced the whole thing to a very simple fact question:

"Did Manning have another available route or course to direct that fork lift in?"

To which he supplied a ready answer:

"If he did and didn\'t take it, the safety regulation is not applicable and couldn\'t possibly have been the proximate cause of his injury."5

There are several things wrong with this conclusion. First, it misread our mandate. Second, declaring that this choice of unsafe over safe route "precluded recovery" (note 5, supra) brought back into the case assumption of risk concepts that we had declared to be proscribed. (see 358 F.2d at 617). Third, this was an erroneous view of the law. Contributory negligence is more than an inquiry into safe versus unsafe routes. It is doubly so where comparative fault ameliorates this type of misconduct. This greatly simplifies our task, for fact, or fact-legal, conclusions induced by an erroneous legal standard do not have the F.R.Civ.P. 52(a) clearly erroneous insulation. United States v. Singer Mfg. Co., 1963, 374 U.S. 174 (note 9, page 194), 83 S.Ct. 1773, 1784, 10 L.Ed. 2d 823, 838; Fulton National Bank v. Tate, 5 Cir., 1966, 363 F.2d 562; Fromberg, Inc. v. Thornhill, 5 Cir., 1963, 315 F.2d 407; Davis v. Parkhill-Goodloe Co., 5 Cir., 1962, 302 F.2d 489; MacMullen v. South Carolina Elec. and Gas Co., 4 Cir., 1963, 312 F.2d 662, cert. denied 373 U.S. 912, 83 S.Ct. 1302, 10 L.Ed.2d 413.

We must, therefore, examine what this record demands concerning the regulations, and the significance of any violation.

There can be no doubt that the Regulations are applicable in a general sense. They bind all employers, such as shipowner here, of longshoring employees. And, promulgated by the Department of Labor with their genesis in the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., imposing stringent sanctions, civil and criminal, they are geared directly to the safety of men, safety of working conditions, elimination of hazards that have long made longshoring one of industry's most crippling vocations.6

This brings into play Marshall v. Isthmian Lines, Inc., 5 Cir., 1964, 334 F.2d 131, 1964 A.M.C. 1686, which dealt with regulations issued by the Coast Guard under 46 U.S.C.A. § 170(7). The applicability and impact of regulations was summed up this way:

"The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Prosser, Torts § 34, at 161 (2d ed. 1955); Restatement, Torts § 286 (1934). Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed * * * on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect longshoremen? Were they intended to protect against the risk of the kind of harm that occurred here * * *?" 334 F.2d at 134.

But, unlike Marshall, where we held that although Longshoremen were within the class of intended beneficiaries, the Regulation was not designed to protect against the kind of hazard there encountered, it is plain here that both the specific regulation7 asserted and...

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