Archey v. Nederlandsch-Amerikaansche Stoomvaart Maatschappij (Holland-America Line)

• Decision Date: 13 February 1962
• Docket Number: NEDERLANDSCH-AMERIKAAANSCHE,HOLLAND-AMERICA,No. 7370,7370
• Citation: 354 S.W.2d 688
• Parties: Freedom ARCHEY, Appellant, v.STOOMVAART MAATSCHAPPIJ (LINE), Appellee.
• Court: Texas Court of Appeals

Page 688

354 S.W.2d 688

Freedom ARCHEY, Appellant, v. NEDERLANDSCH-AMERIKAAANSCHE STOOMVAART MAATSCHAPPIJ (HOLLAND-AMERICA LINE), Appellee.

No. 7370.

Court of Civil Appeals of Texas, Texarkana.

Feb. 13, 1962.

Rehearing Denied March 13, 1962.

Mandell & Wright, Houston, for appellant.

Fulbright, Crooker, Freeman, Bates & Jaworski, Ed Bluestein, Jr., S. G. Kolius, Houston, for appellee.

CHADICK, Chief Justice.

This action for damages was brought by stevedore injured while storing cargo in a wharfed vessel. A take nothing judgment is affirmed.

The appellant, Freedom Archey, brought this suit as plaintiff against the Nederlandsch-Amerikaansche Stoomvaart Maatschappij (Holland-America Line) as defendant in a district court of Harris County, to recover damages for an injury received while working on board the S. S. Alblasserdyk, the defendant's vessel engaged in the transportation of cargo in interstate and foreign commerce. Archey was not an employee of the defendant, hereafter referred to as appellee or Holland-America Line, nor a member of the vessel's crew. Holland-America Line contracted with a firm named Port Arthur Stevedores to stow cargo on the vessel. In accordance with customary practice the stevedoring firm called upon the longshoremen's union for stevedores to load the vessel.

A longshoreman gang, including Archey, was dispatched to perform the work. Archey was employed and assigned with seven others to load steel drums filled with oil in the No. 2 hatch of the vessel. Hatch covers were removed and the ship's booms lowered the drums into the hatch. The drums were released from the boom slings and moved to the deck storage area in the ship's hold by the longshoremen. A drum would be rolled on the deck floor to a point near the place it was to be upended and stowed. At this point two men would raise the drum on its rim to a balanced position; one man would then maneuver it into place while the other returned for another drum. Raising the barrel from its side to stand on its end is called 'heading' the drum by stevedores.

On the morning of September 19, 1956, before the stowing operation began, dunnage (planks of rough wood used as flooring) was laid on the steel deck floor. To properly serve its purpose dunnage must be in good condition, laid straight and smooth to make a secure footing for the stowed cargo as well as for the men working on it. One of the longshoremen laid some dunnage that he found in the hatch, and Archey with another of his fellow workers began stowing the drums.

After the elapse of some time while doing this work Archey and his work partner were heading a two to three hundred pound drum when Archey's partner released his hold on the drum to go back for another. The drum suddenly fell over as Archey attempted to maneuver it, jerking him downward and causing injury. Archey was hospitalized and treated.

Archey's pleading in the trial court alleged that the negligence of the ship line, the unseaworthiness of the vessel, or both, proximately caused his injuries. The jury answered special issues establishing the following facts: (1) Warped dunnage was used to floor the deck where Archey worked at the time of his injury; (2) the warped condition of the dunnage was not the proximate cause of Archey's injury; (3) Holland-America furnished unwarped dunnage for the storage deck floor; (6) the length of the dunnage furnished was sufficient for dunnage purposes; (8) Archey could, with safety, work upon dunnage of the length furnished; (11) the deck flooring where Archey was working made the area an unsafe place to work at the time of his injury; (12) working on the unsafe floor was not the proximate cause of Archey's injury; (13) Archey did not exercise reasonable care to ascertain that the steel drum was in a position to be safely headed at the time of his injury; (14) the proximate cause of the accident in which Archey was injured was failure to use ordinary care to ascertain the steel drum he was stowing was in a position to be safely headed; (15) Archey removed his hands from the drum as soon as a person in the exercise of ordinary care would have done so; (17) Archey was not stowing a drum on warped dunnage at the time the accident occurred; (20) Archey failed to use ordinary care to procure other dunnage to be used in stowing the drums; (21) the failure to procure other dunnage was not the proximate cause of the accident; (22) the conduct of Archey was 50% the proximate cause of the accident. The jury answered all issues the court's instruction required to be answered. Only the numbers of the issues answered are indicated. A take nothing judgment was entered on the basis of the jury's answers.

The appellant's brief finds no fault with the submission of the negligence theory of the case or to jury answers to issues propounded thereunder. The attack on the judgment is directed to the submission of the action on the unseaworthiness theory. Briefed as error is the trial judge's action in refusing after timely written request to instruct the jury as follows:

'You are instructed that the applicable law imposes an absolute duty upon Defendant to furnish dunnage in the hatch where it was to be used that was reasonably suitable for the purpose of stowing the steel drums with safety. Defendant cannot delegate such duty to any stevedoring company nor can it contract such duty away to any other party.'

The appellant's somewhat informal and unorthodox brief marshals in support of his complaint four general lines of argument. The condensed version that follows loses much of the intricate quality and power of the argument but space limitation prohibits more detail. In general outline the argument is that the requested instruction should have been given because:

(1) The substantive and procedural rights of the appellant must be determined by maritime tort law; and as a corollary, the procedural rules of state courts cannot be invoked to deprive the appellant of substantive rights and remedies accorded him by maritime tort law or any applicable Federal enactment.

(2) The definition of 'proximate cause' given in the charge to the jury, to-wit,

'By the term 'proximate cause' as used in this charge is meant a cause which in a natural and continued sequence produces an event and without which the event would not have occurred, and to be a proximate cause of an event it should have been reasonably anticipated and foreseen by a person of ordinary care and prudence in the exercise of ordinary care that the event or some similar event would occur as a natural and probable consequence. There may be more than one proximate cause,'

contained the language emphasized, thus, as a prerequisite to recovery under the seaworthiness theory, imposing more onerous conditions than the law prescribes absent the requested instruction.

(3) Admission of evidence that Holland-America Line contracted with the stevedoring firm to supply and lay dunnage was prejudicial, as admission thereof allowed the jury to reason or assume that duty in this respect shifted from the ship line to the stevedoring firm, in the absence of the requested instruction.

(4) The right of recovery under the doctrine of unseaworthiness was effectively denied the appellant by refusal to give the requested instruction.

The first line of argument as a legal proposition requires but little discussion other than to mention that no rule of procedure associated alone with maritime tort actions or a Federal enactment involved in this case is claimed to have been violated. Both parties seem to be in agreement that as a general statement of law applicable to cases of this nature the argument is correct. Such case as Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 McAllister v. Magnolia...