Bernardini v. Rederi A/B Saturnus

• Decision Date: 11 March 1975
• Docket Number: No. 113,D,113
• Citation: 512 F.2d 660
• Parties: Frank BERNARDINI, Plaintiff-Appellee, v. and International Terminal Operating Co., Inc., Third-Party Defendant-Appellee. ocket 74-1404.
• Court: U.S. Court of Appeals — Second Circuit

Page 660

512 F.2d 660

Frank BERNARDINI, Plaintiff-Appellee, v. and International Terminal Operating Co., Inc., Third-Party Defendant-Appellee.

No. 113, Docket 74-1404.

United States Court of Appeals Second Circuit.

Argued Jan. 16, 1975.

Decided March 11, 1975.

Joseph T. Stearns, New York City (Haight, Gardner, Poor & Havens, New York City, of counsel), for defendant and third-party plaintiff-appellant.

James D. Auslander, New York City (Zimmerman & Zimmerman, New York City, of counsel), for plaintiff-appellee Bernardini.

Albert V. Testa, New York City (Alexander, Ash, Schwartz & Cohen, New York City, of counsel), for third-party defendant-appellee International Terminal Operating Co., Inc.

Before WATERMAN, FRIENDLY and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

This is an appeal by the defendant and third-party plaintiff Rederi A/B Saturnus ("Shipowner") from a judgment rendered against it after trial before the Honorable Robert J. Ward and a jury. Plaintiff-appellee, a longshoreman, brought suit to recover damages on his claim of negligence and unseaworthiness for an injury to his right shoulder, which he alleged he sustained on October 28, 1969 aboard the Shipowner's M/S SVENSKSUND (the "Vessel") at Pier 21, Brooklyn, New York. At the time, plaintiff was employed by third-party defendant-appellee International Terminal Operating Co., Inc. (the "Stevedore").

After trial, the jury returned a special verdict, pursuant to F.R.Civ.P. 49(a), finding defendant liable in negligence and awarding plaintiff $10,000 in damages. The jury also found, however, that plaintiff had not proven that the Vessel was in an unseaworthy condition which proximately caused plaintiff's injury. The special verdict also indicated the jury's conclusion that plaintiff had not been contributorily negligent and that the Stevedore had not breached its warranty of workmanlike performance.

The Shipowner moved for judgment n. o. v. and for a new trial on all the issues of the case, which motion was denied by the trial judge. The serious issue raised on appeal is whether or not the jury's special verdict that the Shipowner was negligent is consistent with its special verdict that the Vessel was not unseaworthy, a problem with which we would not be concerned in the case of a general verdict.

The facts viewed most favorably to the plaintiff are as follows. Plaintiff, a longshoreman, was sent from the hiring hall to work aboard the Vessel, which he had never before seen or worked upon. At the dock, he was told by the timekeeper, an agent of the Stevedore, to report in the hold of the number 4 hatch. Upon boarding the Vessel, which was moored starboard side to the pier, he walked aft to the forward part of the number 4 hatch. There he looked for the hatch ladder and when he could not find it, walked to the offshore side where he sought directions from another longshoreman who was pulling on wires as he rerigged the boom. Directed to the aft and inshore side of the hatch, plaintiff walked aft around the hatch and forward on the inshore side.

At this point, plaintiff's attention was momentarily diverted upward by a cracking noise in the rigging, so he paused and looked up to assure himself that nothing untoward was happening. He then proceeded forward and without warning came upon spots of light colored oil or grease on the gray, dirty deck. Plaintiff attempted to avoid stepping on the grease, but nonetheless slipped, lost his balance, and then tripped over a two-high pile of pallets which were stacked across the deck from the hatch coaming to the deck rail. He fell in twisting motion and struck his right shoulder on the coaming flange, which protruded about four inches from the coaming and was three to four feet above the deck. He landed on his back. After the accident, plaintiff reported to the timekeeper that he had tripped over the pallets, but did not mention the slippery deck. The plaintiff testified that after the fall he saw heel and scuff marks through the various spots of oil or grease. There was no other evidence that there had been oil or grease on the deck.

The Shipowner defended on two alternative bases-first, that the accident was faked by plaintiff and, second, that if the accident did occur, the injuries sustained by plaintiff were minor and not permanent. The second argument has not been pressed on appeal. The Shipowner, however, does pursue the first argument vigorously here, relying primarily on the testimony of the Vessel's First Officer, Rune Stahl. Stahl testified that he observed the plaintiff when the plaintiff first came aboard at 8:45 a. m., spoke briefly to him, and then watched him cross in front of the forward part of No. 4 hatch to the offshore side. Thirty seconds to a minute later, Stahl said, he saw the plaintiff come around the end of the Vessel and start forward on the inshore side alongside the No. 4 hatch. Stahl testified that he kept the plaintiff continuously in view. When the plaintiff was some 30 feet from him, he saw the plaintiff, who was walking toward him, stop, look around, and then proceed to kneel down and then to lie down on the pallets that were stacked two high and extended across the deck from the ship's rail to the hatch coaming. The plaintiff then began to scream and, when Stahl approached him, claimed unsafe passage. The Shipowner offered evidence that there was no oil or grease on the deck.

The Shipowner contends that the court erred in denying the Shipowner's motion to dismiss at the close of the plaintiff's case and improperly denied the motions for judgment n. o. v. and for a new trial on the ground that plaintiff's testimony was incredible and the accident physically impossible.

The appellant's case is arguable, but the simple answer is that there was enough conflicting evidence for the matter to be submitted to the jury and we hold that Judge Ward was right in so doing:

"Whether the motion is one to direct a verdict or to set aside a verdict which the jury has returned, the test applied by the court is the same. The evidence must be viewed in the light most favorable to the party other than the movant. The motion will be granted only if (1) there is a complete absence of probative evidence to support a verdict for the nonmovant or (2) the evidence is so strongly and overwhelmingly in favor of the movant that reasonable and fair minded men in the exercise of impartial judgment could not arrive at a verdict against him. 5 J. Moore, Federal Practice, P 50.; 2(1) (2d ed.); F. James, Civil Procedure, § 7.11 pp. 277-278 (1965)." Armstrong v. Commerce Tankers Corp., 423 F.2d 957, 959 (2 Cir.), cert. denied, 400 U.S. 833, 91 S.Ct. 67, 27 L.Ed.2d 65 (1970).

In this instance, plaintiff produced just enough evidence by his own testimony to warrant the District Court's denial of the Shipowner's motions in spite of strong evidence by the Shipowner that the accident is not likely to have happened the way the plaintiff described it.

The more difficult question facing us on this appeal is whether or not the special verdicts rendered by the jury pursuant to Rule 49(a) can be made consistent with one another. The Supreme Court has said that the Seventh Amendment requires a court to adopt that view of a case under which a jury's special verdicts may be seen as consistent. Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962). ¹ However, when special verdicts cannot be reconciled, or when a jury's answers to interrogatories cannot be reconciled with its verdict, the court may not enter a judgment. Royal Netherlands S.S. Co. v. Strachan Shipping Co., 362 F.2d 691 (5 Cir. 1966), cert. denied, 385 U.S. 1004, 87 S.Ct. 708, 17 L.Ed.2d 543 (1967); Martin v. Gulf States Utilities Co., 344 F.2d 34 (5 Cir. 1965). See Turchio v. D/S A/S Den Norske Africa, 509 F.2d 101 (2 Cir. 1974). If judgment has been entered inappropriately, the proper appellate remedy is to remand for a new trial. Turchio, supra, at 106.

Where a finding of unseaworthiness will make a finding of negligence unnecessary, the special verdict is a good device. See John R. Brown, Federal Special Verdicts, 44 F.R.D. 338 (1967). And, of course, when liability follows from a holding of unseaworthiness as a matter of law, "the exculpatory finding of no negligence becomes immaterial." See Mills v. Mitsubishi Shipping Company 358 F.2d 609, 614, n. 10 (5 Cir. 1966). It is when the jury finds that the vessel was not unseaworthy but that the shipowner was, nevertheless, guilty of negligence, as here, that the difficulty arises. ² As this court has noted: "It is hard to imagine, especially on the facts of this case, how an owner could be negligent, if the ship was not unseaworthy." Spano v. Koninklijke Rotterdamsche Lloyd, 472 F.2d 33, 35 n. 1 (2 Cir. 1973). ³

In this case the trial judge recognized in his charge that a finding of unseaworthiness was a precondition to a finding of negligence. ⁴ The evidence presented no issue of operative negligence aside from the breach of duty reasonably to provide a safe place to work. The submission of the special verdict form might well have been accompanied by a charge or other direction that, in the circumstances of this case, the jury could not find negligence if they failed to find unseaworthiness. ⁵

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