Blankenship v. Ellerman's Wilson Line New York, Inc.

• Decision Date: 06 April 1959
• Docket Number: No. 7701.,7701.
• Citation: 265 F.2d 455
• Parties: William Luther BLANKENSHIP, Appellant, v. ELLERMAN'S WILSON LINE NEW YORK, INC., a body corporate, Appellee. ELLERMAN'S WILSON LINE NEW YORK, INC., a body corporate, Appellant, v. ORIOLE SHIP CEILING CO., INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

265 F.2d 455 (1959)

William Luther BLANKENSHIP, Appellant, v. ELLERMAN'S WILSON LINE NEW YORK, INC., a body corporate, Appellee.

ELLERMAN'S WILSON LINE NEW YORK, INC., a body corporate, Appellant, v. ORIOLE SHIP CEILING CO., INC., Appellee.

No. 7701.

United States Court of Appeals Fourth Circuit.

Argued November 4, 1958.

Decided April 6, 1959.

Hyman A. Pressman, Baltimore, Md., for William Luther Blankenship.

Randall C. Coleman, Jr., Baltimore, Md. (Ober, Williams, Grimes & Stinson, and Southgate Morison, Baltimore, Md., on brief), for Ellerman's Wilson Line New York, Inc.

Jeffrey B. Smith, Baltimore, Md. (Clark, Smith & Prendergast, Baltimore, Md., on brief) for Oriole Ship Ceiling Co., Inc.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOPER, Circuit Judge.

This civil action was brought by William Luther Blankenship against Ellerman's Wilson Line New York, Inc., owner of the SS Bassano, for injuries suffered by him on February 26, 1956, in the nighttime, while engaged as a carpenter in repairing and constructing grain fittings in the No. 2 hold of the ship in the Port of Baltimore.

The complainant and nine other carpenters were employed by Oriole Ship Ceiling Co., Inc., the contractor in charge of the work. During the progress of the work the complainant was engaged in nailing a niece of timber to the wall of the hold while standing on a scaffold and the other carpenters in the gang were hoisting excess lumber out of the hold by means of a winch and cable. In so doing the draft of boards came in contact with the scaffold and dislodged it, causing the complainant to fall a distance of 10 feet to the bottom of the hold and to sustain substantial injuries.

The gist of the action is that the accident was due to insufficient lighting in the hold and that the owner of the ship failed in its duty to furnish a seaworthy vessel and also neglected to furnish a safe place for the complainant to work. The owner filed a third-party complaint against Oriole, alleging that the complainant's injuries were due to the negligence of Oriole's employees. Oriole filed an answer and joined issue on this charge.

The evidence on the question of lighting was conflicting. There was testimony that two clusters of lights were furnished by the ship and lowered into the hold by the carpenters; that each cluster consisted of five or six bulbs, of which one-third were burned out; that it was the regular practice to use four clusters, one in each corner of the hold, for such work; and that it was a dark night and the lighting was insufficient. There was also evidence that the carpenters from time to time asked members of the crew for more lights but were told that no more lights were available.

On the other hand there was testimony that three 250-watt electric bulbs, and not clusters of lights, were furnished by the ship and installed in the hold, which afforded adequate light for the purpose — as good as that furnished at any other time — and that no one complained to the foreman of Oriole or asked for additional lights, which Oriole could have furnished if needed.

The case was submitted to the jury on four issues, as follows:

1. Did any unseaworthiness of the SS Bassano cause or contribute to the accident of which the plaintiff complains? Yes ____ No ____

If question 1 is answered "No", it is not necessary to answer the other questions.

2. If question 1 is answered "Yes", was such unseaworthiness caused by any negligence on the part of Oriole Ship Ceiling Company or of any officer or employee of said Company? Yes ____ No ____

3. Did any negligence of the plaintiff cause or contribute to the accident of which he complains? Yes ____ No ____

4. Was the accident of which the plaintiff complains the result of risks or hazards which he voluntarily assumed? Yes ____ No ____

The jury answered the first question "No" in favor of the ship owner so that it was not necessary for them to answer the remaining questions. The court entered judgment on the verdict in favor of the owner of the ship and of the third-party defendant against the complainant for costs and dismissed the third-party complaint without prejudice since it had become moot.

On this appeal it is contended, first, that the judge erred in holding that there was no evidence legally sufficient to prove that the plaintiff was injured by the negligence of the defendant and in refusing to submit a separate question on this subject to the jury. The judge based this ruling on the ground that there was no claim and no evidence that any officer or member of the crew or any agent of the defendant was negligent in any way except insofar as there was evidence of failure on the part of the ship to furnish adequate lighting for the work that was in progress, and that this matter was placed in the light most favorable to the plaintiff in the charge to the jury on the subject of seaworthiness. The jury were told that it was the duty of the owner of the ship to provide a seaworthy ship with appurtenant appliances and equipment, that this duty was absolute and not dependent upon negligence, that it was inalienable and continuing, and that proof of injury caused by the existence of unseaworthiness was all that was necessary to impose liability on the owner of the ship. Under these circumstances there was no error on the part of the judge and no prejudice to the plaintiff.

In the next place, the plaintiff contends that the judge erred in refusing to instruct the jury that the ship owner was not relieved from liability to the plaintiff if he was injured by reason of the unseaworthiness of the ship merely because the unseaworthiness was attributable to the negligence of his fellow employees rather than the negligence of the owner. This argument relates to evidence tending to show that the plaintiff's fellow workmen, in removing the draft of lumber from the hold, negligently displaced the lighting appliances so that they thereupon became inadequate. It is contended that if the jury should find that such a state of affairs existed, then there would be a breach of the duty of the owner to furnish a seaworthy ship with its attendant liability under such decisions as Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, and Petterson v. Alaska S.S. Co., 9 Cir., 205 F.2d 478, affirmed 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798.

We do not think that this position is tenable. The established rule in admiralty in the United States prior to legislative changes was that a seaman could recover damages for unseaworthiness but could not recover damages for the negligence of a ship's officer or member of a crew, The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Mahnich v. Southern S. S. Co., supra, 321 U.S. at page 99, 64 S.Ct. at page 457; and the courts have not as yet generally accepted the view that the obligation of seaworthiness has been so extended that a seaman may now recover damages from the shipowner for injuries caused by the negligence of a stevedoring contractor contemporaneous with the use of seaworthy appliances whereby a condition of unseaworthiness is created. See Freitas v. Pacific-Atlantic S. S. Co., 9 Cir., 218 F.2d 562; Imperial Oil Ltd. v. Drlik, 6 Cir., 234 F.2d 4; Crumady v. The Joachim Hendrik Fisser, 3 Cir., 249 F.2d 818, ...