Bryant v. Partenreederei-Ernest Russ

• Citation: 330 F.2d 185
• Decision Date: 01 April 1964
• Docket Number: No. 9168.,9168.
• Parties: Thomas B. BRYANT, to his own use and to the use of Liberty Mutual Insurance Company, Appellant, v. PARTENREEDEREI-ERNEST RUSS, Appellee. PARTENREEDEREI-ERNEST RUSS, Appellant, v. ORIOLE SHIP CEILING CO., Inc., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

330 F.2d 185 (1964)

Thomas B. BRYANT, to his own use and to the use of Liberty Mutual Insurance Company, Appellant, v. PARTENREEDEREI-ERNEST RUSS, Appellee.

PARTENREEDEREI-ERNEST RUSS, Appellant, v. ORIOLE SHIP CEILING CO., Inc., Appellee.

No. 9168.

United States Court of Appeals Fourth Circuit.

Argued January 9, 1964.

Decided April 1, 1964.

Maurice J. Pressman, Baltimore, Md., for appellant Thomas B. Bryant, and another.

Southgate L. Morison, Baltimore, Md., (Ober, Williams, Grimes & Stinson, Baltimore, Md., on brief), for appellee and appellant Partenreederei-Ernest Russ.

Peter Parker, Baltimore, Md., (David R. Owen and Semmes, Bowen & Semmes, Baltimore, Md., on brief), for appellee Oriole Ship Ceiling Co., Inc.

Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge:

Appellant, Thomas B. Bryant, a ship ceiler, appeals from a district court judgment exonerating appellee, Partenreederei-Ernest Russ hereinafter Partenreederei of liability for injuries sustained by Bryant while engaged in constructing a grain feeder box aboard Partenreederei's vessel, the S. S. Christian Russ. The district court, sitting without a jury, held that the vessel was seaworthy and that the injuries sustained by Bryant were not caused by negligence on the part of the vessel's owners or crew.¹ We reverse the district court since, in our view, its judgment rested on a misapprehension of the legal standards of seaworthiness, as fashioned by recent Supreme Court and inferior federal court decisions.

The background facts are uncontradicted and quickly stated. On November 24, 1960, Bryant and several co-workers were assigned by their employer, Oriole Ship Ceiling Company, Inc. hereinafter Oriole, which was under contract with Partenreederei, to prepare hatch No. six of the S. S. Christian Russ for the storage of grain. This was to be accomplished by erecting a grain feeder box in the square of the hatch, extending from the 'tween deck up to the main deck.

Unlike most American built ships, the German built S. S. Christian Russ retained on board precut boards with which to construct the feeder box, obviating the necessity of ship ceilers having to cut lumber to size and nail the boards together. By utilizing precut boards of a standard 8' × 6" × 3" size, ship ceilers could insert these boards horizontally into slots on stanchions placed on the 'tween deck and gradually build up the four sides of the box until they extended up to the main deck.

Work began around 8:00 A.M. on the day of the accident. Bryant and one Brooks Austin were assigned to work on the main deck. It was their duty to pass the precut boards down to other ship ceilers stationed on the 'tween deck who would then insert the boards into the stanchion slots. After the men on the 'tween deck had built a side up to a height of six or seven feet, they could no longer reach high enough to continue inserting the boards from below. At that point, Bryant and Austin would commence placing the boards in the stanchion slots by leaning over the hatch coaming and inserting them from above.

At the time of Bryant's accident, around 11:00 A.M., three sides of the feeder box had been substantially completed; only the starboard side remained to be done in its entirety. Bryant's accident occurred while he and Austin were engaged in completing the aft side of the box. When only a few boards remained to be inserted to finish that side, they discovered that one end of a board would not readily drop flush onto the preceding board and thus become firmly seated in its proper position. Austin thereupon picked up a small board, leaned over the hatch coaming, and attempted to tamp the balky end into place. Austin's efforts were unavailing, and Bryant decided to try his hand. For leverage Bryant stepped up on the foot wide hatch coaming, and, using a larger and heavier board, attempted to drive the stuck end down. After observing that his blows were having the desired effect, Bryant lifted the driving board over his head with intention of striking one final blow. With his arms extended upward, however, Bryant became "overbalanced," and finding himself unable to regain his balance, tossed the driving board into the lower hold and jumped onto the 'tween deck in order to avoid plummeting into the lower hold himself. As a result of the fall, Bryant sustained serious injuries to both feet, required hospitalization and extensive medical care, and was unable to return to work for over a year.

The central and completely undisputed fact in this case is that the board that Bryant was trying to drive into position was warped and for this reason would not slide easily into position. It was Bryant's contention at the trial that because of this acknowledged fact, the ship was rendered pro tanto unseaworthy, and since his injuries proximately resulted from an unseaworthy condition, the shipowner should be held liable. Partenreederei strenuously contested Bryant's assertion that the warped board rendered the ship unseaworthy. Partenreederei first pointed out that Bryant had several other alternatives available; e. g., that he might have removed the warped board upon realizing its condition and have chosen another, or that he might have obtained permission from the First Mate and have shaved the balky end to make it fit.² Partenreederei further maintained that this particular warped board was no different from those regularly encountered in the ship ceiling trade and that the method chosen by Bryant to force the board into position was customary and proper under the circumstances. Thus, Partenreederei argued that the vessel was seaworthy and Bryant's only cause of action was against Oriole for compensation.

In support of its position, Partenreederei elicited testimony from several of Bryant's co-workers that the ship ceiling trade was by its nature a very rough and hazardous calling. These men admitted that ship ceilers must expect to deal with such contingencies as warped boards in the regular performance of their duties.³ Each recalled several instances when he had been required to deal with similarly warped boards on other vessels. The First Mate testified that warping was inevitable since there was no feasible way to store these precut boards so as to avoid the deleterious effects of damp weather. Finally, several witnesses testified that the method chosen by Bryant to position the board was proper, and indeed, the most satisfactory method under the circumstances.

The trial court was obviously persuaded to Partenreederei's view:

"The ship\'s duty is only to have the equipment reasonably safe for the purpose for which it was intended. There is ample testimony to the effect, by all concerned, that the condition, as far as the board was concerned, was a customary and usual one and that it was normal to fit the boards which stuck in this manner by tamping or ramming them into place while standing on the hatch coaming.

* * * * * *

"So, the court does not find that the ship was unseaworthy in any way whatsoever."

In finding the S.S. Christian Russ to be seaworthy, the trial court heavily relied on language in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960):

"What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336 75 S. Ct. 382, 99 L.Ed. 354."

We think the trial court read too much into the Mitchell case. The clearcut holding of that case is that a shipowner's liability for a temporary unseaworthy condition is equally as great as his liability for a permanent unseaworthy condition. The Court added as a caveat the above quoted language to make it clear that a shipowner is not obligated to furnish an accident free ship, but only one reasonably fit for its intended service. It should be noted, however, that the requirement of reasonable fitness is absolute and not subject to implied limitations. We think that the trial court attempted to dilute the standard of reasonable fitness by reading into it two unwarranted limitations, and thus failed to fully appreciate its affirmative aspects. Compare Ballwanz v. Isthmian Lines, Inc., 319 F.2d 457 (4 Cir. 1963).

First, we think that the trial court attempted to reintroduce into general admiralty law the now discredited doctrine of assumption of risk. The Supreme Court in Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265 (1939), held that a seaman's claim for damages in a Jones Act proceeding was not barred by his deliberate choice of an unsafe appliance. A seaman's conduct may constitute contributory negligence and the shipowner's liability may be thereby mitigated, but the Court there announced that the doctrine of assumption of risk would no longer completely defeat a seaman's recovery. Although Socony-Vacuum Oil Co. v. Smith, supra, was concerned with a seaman's action for negligence under the Jones Act, later decisions have demonstrated that its reasoning and conclusions extend with equal force to seamen's actions for unseaworthiness. See, e. g., Dixon v. United States, ...