Bozanich v. Jo Ann Fisheries, Inc.
| Decision Date | 26 February 1969 |
| Citation | 270 Cal.App.2d 178,75 Cal.Rptr. 463 |
| Parties | Luka BOZANICH, Plaintiff and Appellant, v. JO ANN FISHERIES, INC., Defendant and Respondent. Civ. 32536. |
| Court | California Court of Appeals Court of Appeals |
Magana, Onley, Levy & Cathcart, Los Angeles, by John A. Marin, for plaintiff and appellant.
Lillick, McHose, Wheat, Adams & Charles, by Francis J. MacLaughlin, Los Angeles, for defendant and respondent.
Plaintiff, a seaman, brought suit against defendant, shipowner, under the Jones Act (46 U.S.C.A. § 688) and general maritime law for damages for injuries alleged to have been sustained while performing duties on defendant's vessel, Jo Ann. Counsel stipulated that the issue of liability would be tried first. The court instructed the jury on the issues of negligence and contributory negligence but refused plaintiff's request to instruct on the issue of unseaworthiness. The jury returned a verdict for the defendant. Plaintiff has appealed from the judgment entered for the defendant, contending that the court erred in refusing to instruct on the issue of unseaworthiness.
The Jo Ann was an 86-foot purse seiner, engaged in commercial fishing off Magdalena Bay, Mexico. Her home port was San Pedro, California. She carried a two-ton skiff, 22 feet along, on her afterdeck, resting on the net. Plaintiff and a Mr. Mardesich were assigned as 'skiffmen.' In the center of the skiff there was a 150-horsepower gasoline engine, covered by a protective housing. Two benches, fore and aft of the housing and attached thereto, ran athwartships. There were also four longitudinal benches, each eight to ten inches high and approximately eight inches wide.
On July 2, 1962 the Jo Ann was cruising at a very slow speed, estimated at two to four knots. The weather was clear, the seas were calm with a slight swell, and there was no wind. The captain was in the crow's nest, serving as a look-out for fish. At 1:00 p.m. the captain spotted a school of tuna and ordered the skiff into the water. The skiffmen and several deck men lowered the skiff, stern first over the Jo Ann's stern until the stern of the skiff was in the water. The bow of the skiff was placed in special grooves on the Jo Ann's stern and was lashed in position with a seven-eighth inch cable. The stern of the Jo Ann had approximately one foot of freeboard under the bow of the skiff. The plaintiff testified that the skiff was sloping downwards at a 35 to 40 degree angle. In carrying out his usual duties as a skiffman, plaintiff then got into the skiff, attached the net line to the bow of the skiff, and was handed a three-quarter inch two cable by the other skiffman from the Jo Ann's afterdeck. There was no testimony as to the length or weight of the cable. It was plaintiff's duty to take this cable around the stern of the skiff and attach it to the towing bit. These were necessary steps to take before the net could be 'set' and made it possible to free the net and skiff together in one operation. As plaintiff started to move astern, he heard the captain give the order, 'full speed ahead, hard left.' Moving astern with the cable, and two to five seconds after the captain's order, plaintiff stepped onto the first bench, fell and allegedly sustained injuries. Plaintiff testified that there was sufficient equipment and personnel aboard the Jo Ann and that neither the skiff nor equipment was defective. Plaintiff denied slipping, stating 'I just lost my balance.'
Plaintiff argues that the captain's order was carelessly given and carelessly executed, there being no warning to plaintiff of the command; that the sudden increase in speed of the propeller and the sharp turn caused the skiff to weave and jerk, thus causing plaintiff to lose his balance.
Since plaintiff contends on appeal that the trial court committed prejudicial error in refusing to instruct the jury on the issue of unseaworthiness, we must make a detailed review of the evidence to determine whether it is sufficient to support an instruction on such issue. The specific instructions requested and refused have not been submitted to us for review. Our opinion is therefore limited to the general question as to whether under the evidence and the law, an instruction on the doctrine of unseaworthiness should have been given, and if so, whether the refusal to give an instruction thereon constituted prejudicial error.
It is a well established principle that a party has a right to instructions on his theory of the case, if it is reasonable and finds support in the pleadings and evidence or any inference which may be properly drawn from the evidence. It follows that refusal of proper instructions, if prejudicial, constitutes reversible error. (Rasich v. Gladding McBean & Co., 90 Cal.App.2d 241, 202 P.2d 576.)
The plaintiff called as witnesses in his behalf the other skiffman, Louie Mardesich, and John Klarin, who identified himself as the 'wheelman.' Mr. Klarin testified that in responding to the captain's order, 'full speed ahead, hard left' he 'pushed the lever full speed and started turning the wheel left.' He stated that he had served as a skiffman for approximately one year. When the speed of the engine is increased, there is some delay before the increase in the vessel's speed is noticed, but there is an immediate response by the propeller. It 'kicks the skiff around a little bit, especially when you make a hard left,' and if the skiffman were standing, it might cause him to lose his balance and fall; 'it all depends how big of a shock it is.' Before the captain goes into a 'set' by releasing the skiff and net, he always asks the crew, 'Are you ready?'
Louie Mardesich, the other skiffman, was standing on the afterdeck of the Jo Ann. Just before the accident he handed plaintiff the end of the net and then the cable with the two line for the net; he then turned around to see if the net was clear, at which time he heard plaintiff yell that he had fallen. He did not see plaintiff fall. The defendant sought to impeach Mr. Mardesich by a written statement given shortly after the accident in which he stated that plaintiff At the trial Mr. Mardesich said that in making these statements to defendant's investigator, he was 'guessing.' Mr. Mardesich said that it is not customary for the captain to warn the skiffman of changes in speed and course, but that always before going into a 'set,' the captain asks the crew, 'Are you ready?' If the boat had gone into a 'set' at the time of the accident, Mr. Mardesich, at his position on the stern, would have been knocked overboard by the net.
Plaintiff testified that he had been a skiffman for seven or eight months. After Mr. Mardesich handed him the towing cable, he started to take it to the stern of the skiff. He then heard the captain order 'full speed ahead, hard left.' The school of fish were nearby and plaintiff thought the captain was going into a 'set,' although before going into a 'set,' the captain always asks, 'Are you ready?' Carrying the two cable to the stern, plaintiff stepped on the first bench and fell. Plaintiff said that he could have stepped over the bench but that 'it is not easy with cable in hand; the skiff was approximately 35 to 40 degrees.' The increased speed of the propeller caused the skiff to 'go up and then down,' the surge of water 'lifted the skiff,' and caused it to 'wobble.'
Captain Resich testified for the defendant. He stated that he did not look astern immediately before or at the time of giving his order, and that he first learned of plaintiff's fall 'a couple of minutes' after giving the command. The Jo Ann was powered by a diesel engine. A diesel engine does not respond rapidly to speed changes. If the engine was in gear, it would have taken ten to fifteen seconds before an increase in speed would be noticeable; if not in gear, an additional ten to fifteen seconds. With the skiff in the water, it would take two to three minutes to attain full speed. When moving slowly, the turning radius of a 'hard left' turn would be about 400 feet. When near a school of fish and before the net is 'set,' speed is kept low. In order to follow a school of fish, frequent course changes must be made. During these maneuvers, the skiffman is in the skiff, and it is not the custom or practice to warn him of changes in speed or course. While attached to the stern, the movement of the skiff is from side to side.
An expert defense witness testified that it was not the custom to ask a skiffman if he was ready every time there was to be a course or speed change because the bow of the skiff is lashed to the stern of the mother ship, becoming almost 'a solid, permanent part' thereof. The general movement of the skiff is 'sort of a little bit up and down.' To avoid noise that will frighten fish, the skiff is launched some distance from the school; as a result you would not expect the net to be 'set' immediately after launching the skiff. A diesel engine does not respond rapidly to desired speed changes.
With the passage of the Jones Act (46 U.S.C.A. § 688), Congress effectively obliterated all distinctions between the kinds of negligence for which the shipowner is liable, as well as limitations imposed by the fellow-servant doctrine, by extending to seamen the remedies made available under the Federal Employers' Liability Act. The action, like that under the Federal Employers' Liability Act, is based on negligence, and there can be no recovery without proof of lack of due care. Plaintiff, here, sought an award on the basis of negligence, the award was denied him by jury verdict, and plaintiff is not seeking a review thereof.
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