Arthur v. Flota Mercante Gran Centro Americana, SA

Decision Date02 January 1974
Docket NumberNo. 72-2597.,72-2597.
Citation487 F.2d 561
PartiesGodfrey ARTHUR, Plaintiff-Appellee, v. FLOTA MERCANTE GRAN CENTRO AMERICANA S.A., Defendant-Third Party, Plaintiff-Appellant, National Cargo Bureau, Inc., Third Party Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Clarence A. Frost, New Orleans, La., for plaintiff-appellant.

Clifton S. Carl, Gordon F. Wilson, Jr., New Orleans, La., for plaintiff-appellee.

Before BELL, INGRAHAM and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied January 2, 1974.

INGRAHAM, Circuit Judge:

This controversy arises out of an accident that occurred when plaintiff Godfrey Arthur, an employee of National Cargo Bureau, Inc., boarded the M/V QUETZALTENANGO, a vessel owned by the defendant Flota Mercante Gran Central Americana S.A., in order to inspect the vessel for grain loading. While the ship was docked at New Orleans, the Mississippi River reached a particularly low level and consequently the traditional gangway could not be used for boarding. Instead a brow gangway was placed on the wharf in such a manner that one end extended over the vessel's after bulwark railing. From this brow gangway a short bulwark ladder consisting of four or five steps was connected to the bulwark with the base of the ladder resting on the ship's deck. Because the bulwark ladder was too short, the ladder's steps were not parallel with the ship's deck, but slanted downward towards the deck and away from the bulwark. Although the brow gangway was equipped with hand rails, the bulwark ladder was not so equipped. Also, where the brow gangway intersected with the bulwark ladder, there was an overhang, called a fishplate, extending from the vessel over the bulwark railing that created a limited opening through which the ship was boarded. As this opening was approximately four feet in height, it was necessary to stoop or lean to go through this opening and then step down on the bulwark ladder.

On June 20, 1969, plaintiff Arthur boarded the vessel to inspect the holds for grain loading. When plaintiff crossed the brow gangway, he stepped down on the bulwark ladder, one foot slipped and he fell striking his coccyx on a ladder step.

Arthur subsequently filed suit against defendant Flota Mercante alleging both negligence and unseaworthiness, and Flota Mercante filed a third party claim against Arthur's employer, National Cargo Bureau, for indemnity. At trial the court dismissed the unseaworthiness claim because plaintiff was not performing services normally done by a seaman;1 Flota Mercante's third party claim for indemnity was also dismissed. The case was tried on the negligence issue, and the jury returned a verdict in favor of plaintiff for $25,000. In answer to special interrogatories, the jury found plaintiff ten percent contributorily negligent. The award was reduced accordingly, and judgment was entered for plaintiff in the amount of $22,500. Flota Mercante appeals, urging that it fulfilled its duty of care owed to the plaintiff, that the trial court improperly instructed the jury that a violation of the Safety and Health Regulations was negligence per se, that the court improperly dismissed its third party claim for indemnity, and that the damages were excessive. We find no merit in these contentions and therefore Affirm.

The first question is whether the defendant fulfilled its duty of care owed to the plaintiff. While it is well established that a shipowner owes a duty to provide invitees boarding or leaving the vessel with a reasonably safe means of access, Tullis v. Fidelity & Casualty Co., 397 F.2d 22, 24 (5th Cir., 1968), defendant contends that it satisfied this duty. Because negligence is measured against the surrounding circumstances, Flota Mercante urges that the particularly low level of the Mississippi River justified its using this means of access. Indeed, Flota urges that under these circumstances this was the only method of access available.

A review of the record indicates ample evidence to support the jury's finding that the defendant breached its duty of care and was therefore negligent. Testimony introduced at trial demonstrated that the method of access provided could have been modified so as to furnish a safer means of ingress or egress. Or an entirely different type of access, such as extending a shore gangway from the dock to the ship's weather deck, could have been substituted. In short, the evidence supports the jury's conclusion that the combination of the brow gangway and the bulwark ladder was not the only means of access that could have been furnished under these circumstances, and that the defendant breached its duty of care.

Also in regard to duty of care, defendant argues that it owed no duty to protect the plaintiff from the risk of harm created by the dangerous condition of the vessel because plaintiff, as an experienced seaman, knew or should have known of the dangerous condition. The trial court properly considered this contention as relating to plaintiff's negligence in boarding the vessel in the condition in which it existed. Comparative negligence is the rule to be followed; the negligence of the plaintiff, regardless of how gross, does not preclude recovery, but only mitigates damages. Movible Offshore Co. v. Ousley, 346 F.2d 870, 873 (5th Cir., 1965). The jury found Arthur ten percent negligent, and the court reduced the plaintiff's award of damages accordingly.

The next issue is whether the court erred in instructing the jury that a violation of the Safety and Health Regulations is neglience per se. The regulations provide:

"When the upper end of the means of access rests on or is flush with the top of the bulwark, substantial steps, properly secured and equipped with at least one substantial hand rail approximately 33 inches in height shall be provided between the top of the bulwark and the deck."

29 C.F.R. § 1504.21(f). In accordance with this regulation, the trial court instructed the jury that, when such a ladder arrangement is employed, the steps must be secured and equipped with one substantial handrail. If this statutory duty is not fulfilled, the shipowner is negligent as a matter of law. Defendant contends that this instruction confused the jury in that it conflicted with another charge delineating contributory negligence. More importantly, defendant contends that this regulation applies only where the plaintiff's claim is for unseaworthiness because the instruction imposes too high a standard of care where the only basis of recovery is negligence. We do not agree.

This court was first confronted with the application of safety regulations as a standard for determining negligence in Marshall v. Isthmian Lines, Inc., 334 F.2d 131 (5th Cir., 1964). In Marshall there was a violation of the Coast Guard Regulations relating to the...

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