Bates v. Merritt Seafood, Inc.

• Citation: 663 F. Supp. 915
• Decision Date: 30 June 1987
• Docket Number: Civ. A. No. 2:85-1826-1,2:86-1646-1.
• Court: U.S. District Court — District of South Carolina
• Parties: Phillip W. BATES, Jr., Plaintiff, v. MERRITT SEAFOOD, INC. and Full House Enterprises, Defendants. Fay Marie BATES, Plaintiff, v. MERRITT SEAFOOD, INC. and Full House Enterprises, Defendants.

663 F. Supp. 915

Phillip W. BATES, Jr., Plaintiff, v. MERRITT SEAFOOD, INC. and Full House Enterprises, Defendants.

Fay Marie BATES, Plaintiff, v. MERRITT SEAFOOD, INC. and Full House Enterprises, Defendants.

Civ. A. Nos. 2:85-1826-1, 2:86-1646-1.

United States District Court, D. South Carolina, Charleston Division.

June 30, 1987.

Lionel S. Lofton and Mark C. Tanenbaum, Charleston, S.C., for plaintiffs.

Michael T. Cole and Bonum S. Wilson, III, Charleston, S.C., for Merritt Seafood.

Antony M. Merck, Charleston, S.C. for Full House Enterprises.

ORDER AND JUDGMENT

HAWKINS, District Judge.

These are consolidated admiralty actions initiated by Phillip W. Bates, Jr., a marine electronics technician, and Fay Marie Bates, his wife, against Merritt Seafood, Inc. (hereinafter "Merritt Seafood") and Full House Enterprises, Inc. (hereinafter "Full House"), as a result of a fall by Mr. Bates while working onboard the fishing vessel OUTLAW on July 3, 1984. Plaintiff Phillip Bates' action is brought pursuant to Section 5(b) of the Longshore and Harbor Workers' Compensation Act, as amended in 1972 (hereinafter "LHWCA"), 33 U.S.C. § 905(b). Plaintiff Fay Bates' derivative action is brought under the general maritime law as authorized by the United States Supreme Court in American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). The plaintiffs seek damages for personal injuries and loss of consortium. Defendant Full House has answered, denying liability, alleging contributory negligence on the part of the plaintiff Phillip Bates, and seeking to limit its liability pursuant to the Limitation of Liability Act (hereinafter "LLA" or "the Act"), 46 U.S.C. § 181 et seq. Defendant Merritt Seafood has also answered, denying liability, alleging contributory negligence on Mr. Bates' part, and seeking to limit its liability pursuant to the LLA.

The case was tried before the court, sitting without a jury, commencing on the 18th day of February 1987, and concluding on February 23, 1987. The court having considered the testimony, exhibits, and briefs of all parties, makes the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a), Federal Rules of Civil Procedure.

LIABILITY

FINDINGS OF FACT AS TO LIABILITY

1. Plaintiff Phillip W. Bates, Jr. (hereinafter referred to in this portion of the court's order as "plaintiff" or "Bates") is a highly skilled marine electronics technician and was employed by Maricom Electronics, Inc. (hereinafter "Maricom") on July 3, 1984. He had been so employed as of that date for thirteen years.

2. Maricom is an expert and experienced electronic repair company engaged in the business of repairing electronic equipment aboard marine vessels.

3. On July 2, 1984, after nearly a week of fishing at sea, the F/V OUTLAW docked at Moultrie Fisheries, Inc. (hereinafter "Moultrie Fisheries") on Shem Creek, a navigable stream, in Mount Pleasant, South Carolina. The OUTLAW is a fiberglass hull vessel, documented by the United States Coast Guard as being 47.9 feet in length. The documented owner of the vessel is defendant Full House. Sometime during the morning of July 2, 1984, the OUTLAW off-loaded its catch of swordfish and tuna.

4. The catch on the OUTLAW that day was a small catch, comprised of only eleven fish having a total weight of 461 pounds. Included in this catch were ten swordfish and one tuna.

5. Captain Peter Bradley (hereinafter "Captain Bradley" or "Bradley"), the captain of the OUTLAW, testified that whenever the vessel was docked she was always moored to the port side and her catch was always unloaded across her port rail onto the dock. Directly contrary to this testimony, however, are certain photo exhibits showing the vessel moored to its starboard side at other ports of call where fish were unloaded from the OUTLAW.

6. Hugh "Red" Simmons (hereinafter "Red Simmons" or "Simmons"), the owner of Moultrie Fisheries, testified that the OUTLAW is normally moored port side to and discharged right in front of the fish-house under the "unloading boom" whenever said vessel unloads its catch at Moultrie Fisheries. However, Red Simmons also testified that since the catch on the OUTLAW on July 2, 1984, was a small catch, he did not want to shuffle the boats docked for unloading at Moultrie Fisheries and, therefore, had the OUTLAW unloaded where it was docked near the Trawler restaurant rather than under his shed.

7. The plaintiff testified that the OUTLAW was docked on July 3, 1984, at the same location where the vessel was unloaded the day before as testified to by Red Simmons, namely upstream of Moultrie Fisheries near the Trawler restaurant. In addition, plaintiff testified that the vessel was moored starboard side to the dock with the bow facing the Shem Creek bridge. Finally, the record is devoid of any evidence to the effect that the OUTLAW was moved from its mooring at the Moultrie Fisheries dock between the time it was unloaded on July 2, 1984, and the time plaintiff slipped and fell on the vessel's deck on July 3, 1984.

8. In light of the above testimony and the referenced exhibits, the court therefore finds that on July 2, 1984, the OUTLAW was docked by Captain Bradley for purposes of unloading upstream of Moultrie Fisheries near the Trawler restaurant, starboard side to the dock and bow facing the Shem Creek bridge. As a necessary inference therefrom, the court further finds that the OUTLAW off-loaded its catch across the starboard side of the vessel onto the dock at Moultrie Fisheries.

9. Captain Bradley and a crew member, Scott Allen, testified that they were on the boat when the catch of eleven fish was off-loaded on July 2, 1984. The off-loading process involves handing up the fish, which had been gutted on deck at sea at the time they were caught and then packed in ice in the hold, from the hold located near the center of the boat onto the deck of the vessel and then manually unloading them off the side of the vessel onto the dock. The door to the hold is part of the deck located in a passageway that spans the breadth of the vessel.

10. This was the second or third trip on the OUTLAW for its new captain, Bradley, and its new butcher,¹ Scott Allen. Red Simmons testified at his deposition that an inexperienced butcher might leave enough "guts" in the catch when cleaning at sea so as to cause the fish to become "slimey."

11. Captain Bradley testified at trial that, while swordfish may deposit a dark color onto the deck of the boat or clothing of those handling the fish, this is pigmentation from the rough, shark-like skin of the fish and that there is no slime or slippery substance on the outside of the fish. However, while testifying at his deposition, Captain Bradley stated that the fish leave "fish slime," a "slippery" substance, behind on the vessel during unloading operations.

12. Crewmember Scott Allen testified that there is no slime on the outside of a scaleless fish such as a swordfish. He also testified that scaley fish, such as the 90-pound tuna offloaded from the OUTLAW on June 2, 1984, have slime on the outside of their bodies.

13. The court had the opportunity to view a video tape prepared by defendant Merritt Seafood showing the unloading process. Based upon this tape and the testimony of the witnesses, the court finds that the unloading process generates a fair amount of slippery foreign substances on the deck of the vessel which the crewmembers walk through and track around the vessel. Although not shown on the video, on cross examination Captain Bradley admitted that he had had the deck of the OUTLAW washed during the video taping of the unloading, and that this was not a common practice. It is obvious to the court that the captain had this done because the deck had become messy and slippery with foreign substances from the fish being unloaded.

14. In addition to normal cleaning operations when the OUTLAW was at sea, the entire boat was cleaned according to Captain Bradley and Scott Allen after the last fish was landed and they headed for port. The same two witnesses also testified that it is normal procedure to clean the stern deck area with fresh water following the unloading of fish. While the crew testified that they did, in fact, clean the stern deck area after unloading on July 2, 1984, they testified that they normally wash the passageway on the starboard side of the vessel only after gutting the fish at sea and did not clean it after they arrived in port on July 2, 1984, after the unloading.

15. After the unloading operation, Captain Bradley telephoned the plaintiff's employer, Maricom, to request repair of the ship's radar. Neither Captain Bradley nor the crew made any preparations for the plaintiff Bates' arrival on board to make the requested repairs.

16. On July 2, 1984, Captain Bradley advised Roy Merritt, Secretary and Treasurer of Full House, by phone that the radar on the OUTLAW was in need of repair. Merritt did not give Bradley any instructions regarding preparing the vessel for the repairman or request that Bradley or any other crewmember, remain on board the vessel during the repair operation. Neither Full House nor Merritt Seafood had instructed the captains or crewmembers of their boats in procedures to follow in cleaning the vessels after fish off-loading or preparing the vessel for repair operations by repairmen such as Bates.

17. On July 2, 1984, it was cloudy throughout the afternoon. It rained in the morning and there was a thunderstorm in the late afternoon. There was a total of .48 inches of rain that day. The low temperature was 74° and the high was 86°. The relative humidity July 2, 1984, ranged from 94% at approximately 4:00 a.m. to 87% at 7:00 p.m.

18. On July 3, 1984, at 7:00 a.m., the temperature was 70°. At 10:00 a.m. it was 78°. The relative humidity was 87% up to 10:00 a.m. that day when it decreased to 72%.

19. On July 3, 1984, plaintiff Bates reported to work...