Blier v. United States Lines Company

• Decision Date: 17 February 1961
• Docket Number: No. 187,Docket 26357.,187
• Citation: 286 F.2d 920
• Parties: Benjamin BLIER, Plaintiff-Appellant, v. UNITED STATES LINES COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

286 F.2d 920 (1961)

Benjamin BLIER, Plaintiff-Appellant, v. UNITED STATES LINES COMPANY, Defendant-Appellee.

No. 187, Docket 26357.

United States Court of Appeals Second Circuit.

Argued January 19, 1961.

Decided February 17, 1961.

Kenneth Heller, New York City, for plaintiff-appellant.

William R. Mackey, New York City (Louis J. Gusmano, and Kirlin, Campbell & Keating, New York City, on the brief), for defendant-appellee.

Before MEDINA, FRIENDLY and SMITH, Circuit Judges.

MEDINA, Circuit Judge.

Benjamin Blier was employed as a seaman purser on the vessel SS American Leader, owned by defendant United States Lines Company, and he was injured on May 31, 1957 as he was boarding the vessel on his return from shore leave. The American Leader, having arrived from a foreign port, was at anchor in the Port of New York, at the Stapleton anchorage. Blier's version of the accident was that the third section of a three-piece gangway, rigged into place by a shore gang employed by defendant, provided a series of five wooden steps leading from the top of the bulwarks of the vessel to the main deck, and that as he came down these steps he slipped "on a large smear of grease on the second or third steps and skidded down the gangway twisting his right ankle." The claim for recovery was based on the familiar double aspect of unseaworthiness under the general maritime law and negligence under the Jones Act, 46 U.S.C.A. § 688. The proofs adduced by the shipowner tended to establish that there was no grease on the steps and that the shipowner had no notice of the presence of any grease on the steps. The case was submitted to the jury, in a charge to which plaintiff's counsel took no exceptions and with respect to which he expressed satisfaction, except that he expressed the thought that it might be helpful to the jury if the trial judge saw fit to give the jury some examples of unseaworthiness. No exception or objection was noted when the trial judge refused to do this, and the jury rendered a general verdict for defendant. Plaintiff appeals.

We are urged to reverse on the ground that Judge Dimock is said to have instructed the jury that "a vessel does not become unseaworthy because of a temporary condition of unseaworthiness"; that his instructions were such as to require a finding for defendant on the unseaworthiness count, unless the jury found defendant had notice of the existence of such a "temporary unseaworthy condition"; that the rule thus alleged to have been applied by Judge Dimock had been "closely adhered to by this circuit right down to and including the case of Poignant v. United States, 1955, 225 F.2d 595," and the dictum of Judge Byers in Pierce v. Erie R. Co. et al., 2 Cir., 1959, 264 F.2d 136, at page 139; and that this rule had been overturned and repudiated as bad law by the Supreme Court in its recent decision in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941, decided on May 16, 1960, just twelve days after the rendition of the verdict in this case. If these assertions were correct we might well have given serious consideration to appellant's contention that the trial judge had committed "fundamental error." In such a case we clearly have power to decide on the whole trial record whether the likelihood of a miscarriage of justice is such as to warrant a review of the "error," even in the absence of objection or exception at the trial. See Hormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S.Ct. 719, 85 L.Ed. 1037; Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 1956, 234 F.2d 253; Thorp v. American Aviation and General Ins. Co., 3 Cir., 1954, 212 F.2d 821, 824-825; Massachusetts Bonding & Ins. Co. v. Ray Dilschneider, Inc., 8 Cir., 1953, 203 F.2d 556, 560; Smith v. Welch, 10 Cir., 1951, 189 F.2d 832, 836-837; Dowell, Inc. v. Jowers, 5 Cir., 1948, 166 F.2d 214, 2 A.L.R.2d 442; Shokuwan Shimabukuro v. Higeyoshi Nagayama, 1944, 78 U.S. App.D.C. 271, 140 F.2d 13; 5 Moore, Federal Practice, Para. 5104, at 2503-04.

We find, however, that Judge Dimock's instructions to the jury were wholly unexceptionable, that they are in strict conformity with the teaching of Mitchell and that appellant has misunderstood the course of decision in this Circuit concerning the doctrine of seaworthiness as applied to temporary conditions arising after the commencement of the voyage. We shall, accordingly, briefly comment on the point decided in Mitchell, on the effect of this decision on rulings made by us in Poignant and other cases, and on the instructions actually given by Judge Dimock.

The development in this Circuit of principles of law governing the liability of a shipowner for unseaworthiness, caused by a temporary or transitory condition that arose after the commencement of the voyage, is illustrated and illuminated by the fine opinion of our brother, the then Judge Harlan, in Dixon v. United States, 2 Cir., 1955, 219 F.2d 10. Two lines of decisions developed in the course of time relating to slippery conditions on stairways, passageways and other places on shipboard caused by grease, vegetable matter or other similar substances. A common feature of these cases and the one now before us is, there are numerous ways in which the slippery substance might have been placed where it was and very little the shipowner could do about it unless he had some notice of the existence of the condition. The Third Circuit held there was no liability for unseaworthiness caused by such a temporary condition, in the absence of some proof that the shipowner knew of the condition, and had an opportunity to remedy it. Cookingham v. United States, 3 Cir., 1950, 184 F.2d 213. In that case a ship's cook had slipped on some Jello on a stairway. In Poignant, where a stewardess slipped on a piece of apple peel in a passageway leading to the dining room, we held the question of seaworthiness was one of fact to be decided by the trier of the facts, even in the absence of proof that the shipowner had notice of the condition and an opportunity to remedy it, and the Ninth Circuit took the same position in Johnson Line v. Maloney, 1957, 243 F.2d 293. Finally, the view that there could be liability for a temporary condition of unseaworthiness, in the absence of any fault on the part of the shipowner, was "impressively challenged by Chief Judge Magruder's opinion,"¹ writing for the First Circuit in Mitchell, 1959, 265 F.2d 426. There a member of the crew of a fishing trawler slipped on some slime and fish gurry on the rail of the trawler as he was going ashore. The slime and fish gurry had remained on the rail after the earlier unloading of the catch. The record in Mitchell presented in the clearest possible way the question of whether the shipowner could be held liable for damages caused by a temporary condition of unseaworthiness, in the absence of any fault on his part, as the trial judge specifically instructed the jury that they could not find for the plaintiff on the unseaworthiness count unless they also found as a fact "that the slime and gurry had been on the ship's rail for a period of time long enough for the respondent (shipowner) to have learned about it and to have removed it." Exception was taken to this instruction and it was the basis for the reversal by the Supreme Court. Thus the shipowner's liability for unseaworthiness was held not to be limited by concepts of common law negligence. As the Supreme Court has spoken, we need not concern ourselves with the origin or the development of the doctrine of transitory unseaworthiness up to this point. Obviously, the doctrine has grown and prospered since we decided Dixon in 1955. But what of the future? It is not likely the last word has yet been written on the subject of the liability of the shipowner for a temporary condition of unseaworthiness.

Appellant seems to think that all the seaman must establish to warrant a recovery in this case is that there was grease on the gangway and that he slipped on that grease and was injured. In effect he says: grease is slippery, and, if grease was on the gangway and appellant slipped on it, he is ipso facto entitled to recover, as the vessel must have been unseaworthy. But the teaching of Mitchell is merely that there must be and is a "complete divorcement of unseaworthiness liability from concepts of negligence," and that the duty of the shipowner is not "to furnish an accident-free ship," but "only to furnish a vessel and appurtenances reasonably fit for their intended use," and the case was remanded for a new trial on the issue of unseaworthiness on this basis.

Where does Poignant fit into this framework? In Mitchell Mr. Justice Harlan, in his separate dissenting opinion, calls attention to the fact that in Poignant, the vessel lacked garbage chutes and the garbage was pulled, in cans, through the passageway where Poignant fell, to a railing, where it was jettisoned. He adds (362 U.S. at pages 570-571, 80 S.Ct. at page 943):

"The Court of Appeals first expressed the view that any unseaworthy condition

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