Allen v. Seacoast Products, Inc.

• Decision Date: 06 August 1980
• Docket Number: No. 79-3210,79-3210
• Parties: 6 Fed. R. Evid. Serv. 536 Whitney ALLEN, Plaintiff-Appellee, v. SEACOAST PRODUCTS, INC., et al., Defendants-Appellants. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 355

623 F.2d 355

6 Fed. R. Evid. Serv. 536

Whitney ALLEN, Plaintiff-Appellee, v. SEACOAST PRODUCTS, INC., et al., Defendants-Appellants.

No. 79-3210

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Aug. 6, 1980.

Rehearing Denied Sept. 15, 1980.

Stockwell, Sievert, Viccellio, Clements & Shaddock, Robert W. Clements, Lake Charles, La., for defendants-appellants.

J. Minos Simon, Lafayette, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, TJOFLAT and FRANK M. JOHNSON, Jr., Circuit Judges.

JOHN R. BROWN, Circuit Judge:

A tragic maritime accident cost Whitney Allen his right eye. Allen was a seaman board the M/V Louisiana, a Seacoast Products, Inc., vessel. He sued alleging (i) negligence on the part of Seacoast agents and employees under the Jones Act, 46 U.S.C.A. § 688, and (ii) unseaworthiness of the vessel under general maritime law. Seacoast's insurers, ¹ were also named defendants. The defendants asserted that Allen's damages were diminished or barred by his contributory negligence. The case was tried before a jury but at the close of evidence the Trial Judge made a F.R.Civ.P. 50(a) finding that Seacoast was solely liable for Allen's injuries. Following the directed verdict, the jury considered only damages and awarded $240,000. Seacoast appeals, raising unexceptional issues concerning whether unseaworthiness, negligence, and a lack of contributory negligence were adequately shown; and whether the damage award was excessive. To those is added a more interesting one concerning the imputation of liability to Seacoast where the employee-agent causing the accident was allegedly acting outside the scope of his authority. We find no error and affirm.

The Louisiana is a 165-foot seiner "mother" ship. It is specifically designed to net and store up to 1,100,000 pounds of Menhaden fish for transfer to Seacoast fish meal processing plants. Two 36-foot boats, normally carried on either side of the mother ship, are used to spread and control the seine nets. The Louisiana did not cast its nets randomly, however. It was rather one of a 26-ship Seacoast fishing "navy" assisted by a virtual air force of spotter aircraft. Normally the navy lay offshore until the air force spotted schools of Menhaden in the area. The schools' locations would then be radioed to the navy, and any ship in its discretion could attack the schools. The radio transmissions were loosely monitored by shore based Seacoast supervisors.

Well into the June 22, 1977, fishing day, the spotter aircraft had been unable to locate any fishing for the Louisiana. The pilots had, however, spotted a partially sunken vessel nearby. The captain, Clarence Dixon, decided to investigate the salvage possibilities and radioed the pilots for a heading. The Louisiana then set sail for the location, where Dixon discovered the disabled vessel, a 45-foot shrimper with stern floating up in the air. If there was enough buoyancy left in the shrimper, Dixon thought the vessel salvageable.

"Maritime law in every way and in every context encourages the salvor to salve to save." Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1021, 1969 A.M.C. 1513, 1525 (5th Cir. 1969) (Brown, C. J.). Salvors are rewarded most handsomely in admiralty, according to the risk involved, the value of the property saved, and the part played by the individual salvor. G. Gilmore & C. Black, The Law of Admiralty § 8-1, at 532 (2d ed. 1975). This "effective flexible, enforceable reward," 412 F.2d at 1021, 1969 A.M.C. at 1525, is usually apportioned between the owner of the salving vessel, its captain, and crew the owner usually receiving the most substantial portion. 1 M. Norris, The Law of Seaman §§ 188-91 (3d ed. 1970). The admiralty's encouragement of salvage has been traced to the sea codes of the ancient Rhodians and of the Romans ² and is still encouraged by common law, statute ³, and treaty ⁴. "(O)f all branches of jurisprudence, the admiralty must be the one most hospitable to the impulses of man and law to save life and limb and property." Grigsby v. Coastal Marine Service of Texas, Inc., supra, 412 F.2d at 1021, 1969 A.M.C. at 1525. See also Miss. Valley Barge Line Co. v. Indian Towing Co., 232 F.2d 750, 755, 1956 A.M.C. 757, 763-64 (5th Cir. 1956) (Brown, J.); Friedell, Compensation and Reward for Saving Life at Sea, 77 Mich.L.Rev. 1218 (1979).

Acting on this impulse so encouraged by the admiralty, Captain Dixon attempted to salvage. He decided to attach the lifting cables of the davits used for the 36-foot boats and then pull the shrimper into shallow waters. There, the partially sunken vessel could be dragged ashore by land-based winches. But all of this depended on bringing the Louisiana alongside and on there being some flotation remaining in the shrimper (since the Louisiana 's lifting cables were not capable of raising such a large, partially sunken vessel out of the water). So to test the shrimper's buoyancy and then to bring the Louisiana close enough to attach the lifting cables, Captain Dixon took out one of the 36-foot boats and strung two 50-foot mooring lines between the stern of the shrimper and the bow of the Louisiana. The lines were strung in a separated configuration, from the side of one vessel to the side of the other, and were not "doubled up." The lines used were one and a quarter inch diameter nylon lines, normally used in a doubled up manner for tying the Louisiana to a dock. Captain Dixon then returned to the bridge of the Louisiana. Allen noticed that the captain had cut his legs when coming back aboard and followed him to the bridge.

Captain Dixon then had the pilot back the Louisiana away from the shrimper, pulling on the lines, "to see if the shrimp boat was still . . . partially floating." Nothing happened until the captain decided to stop backing the Louisiana. At that point the sea surged and one of the already taut lines parted. Like a rubber band, the line flew back and hit Allen as he stood on the bridge, causing the eventual loss of his eye.

At the close of the essentially undisputed evidence, the Trial Judge granted Allen's motion for a directed verdict on liability, stating that "there's no way that a jury composed of reasonable people could reach a different conclusion on the facts of this case. . . ." The Judge found the Louisiana unseaworthy because use of the inadequate mooring lines created a hazardous condition. Alternatively, he found the action of backing the Louisiana, putting tension on the line, was clearly negligent. And the vessel's unseaworthiness and the captain's negligence could be imputed to Seacoast because salvage operations, though unusual, were clearly within the discretion given by Seacoast to Captain Dixon. Finally, he found that Allen was not contributorily negligent. Accordingly, only the issue of damages was considered by the jury. They awarded Allen $240,000.

Standard Of Review

In order to review the Trial Judge's directed verdict, we must first identify the standard used to test whether there was sufficient evidence to submit the liability issue to the jury. The Trial Judge plainly applied the "reasonable man" standard (except possibly as to his finding of no contributory negligence) articulated in Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc):

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence not just that evidence which supports the non-mover's case but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury. The motions for directed verdict and judgment n. o. v. should not be decided by which side has the better of the case, nor should they be granted only when there is a complete absence of probative facts to support a jury verdict. There must be a conflict in substantial evidence to create a jury question. However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

The Boeing (reasonable man) standard is the one used by a trial court in its initial ruling and by this Court on appeal for all but a few types of claims. It is, for example, used for unseaworthiness claims. Claborn v. Star Fish & Oyster Co., 578 F.2d 983, 987, 1979 A.M.C. 636, 642 (5th Cir. 1978); Robertson v. Douglas S.S. Co., 510 F.2d 829, 833, 1975 A.M.C. 1021, 1028 (5th Cir. 1975); Shephard v. S/S Nopal Progress, 497 F.2d 963, 967 (5th Cir. 1974). But Boeing specifically recognized that its standard did not apply to Jones Act claims. ⁵ In Jones Act cases the more severe FELA standard ⁶ was held appropriate: a directed verdict is possible "only when there is a complete absence of probative facts" supporting the nonmovant's position. 411 F.2d at 370. Boeing reasoned that directed verdicts should be disfavored in Jones Act cases because (i) the Jones Act was to be interpreted liberally in the seaman's favor; (ii) the seaman had only to prove "slight negligence," which could be accomplished by very little evidence; and (iii) adjudication by a presumably seaman-sympathetic jury in Jones Act cases was congressionally intended to provide "part of the remedy." 411 F.2d at 371. Boeing therefore...