Carrillo v. Samaeit Westbulk
| Decision Date | 13 March 1974 |
| Docket Number | Civ. No. 401-71. |
| Parties | Carmen CARRILLO vda De Cerich, for herself and on behalf of the infant Maria Del Carmen Escapa James (Cerich), Plaintiffs, v. SAMAEIT WESTBULK and Johan Hagenes, Defendants and Third Party Plaintiffs, v. CARIBE SHIPPING COMPANY, INC., Third Party Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
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Harvey B. Nachman, San Juan, P. R., for plaintiffs.
José Novas Dueño, Harry Anduze Montano, Hato Rey, P. R., for defendants.
After a jury trial, verdicts were rendered in favor of the widow in the amount of $78,300.00, and on behalf of the decedent's adopted daughter, in the amount of $22,500.00. The jury also found in favor of the third party defendant on the indemnity claim. The defendants have filed post-trial motions for judgment notwithstanding the verdicts on both the main action and on the third party complaint. In the alternative, the defendants have moved for a new trial in both the case they were defending and in the case they were prosecuting as third party plaintiffs. The plaintiffs have opposed the motions directed against them and have moved for the imposition of prejudgment interest under both the law of Puerto Rico and the general admiralty law. The third party defendant has also opposed the motions against it and has moved for attorney's fees to be awarded to it for the third party plaintiffs' obstinacy.
The post trial motions have been thoroughly briefed and the Court, after due deliberation, makes the following dispositions:
THE EVIDENCE
The decedent, a longshoreman, was employed by the stevedoring contractor on November 9, 1970, to work aboard the shipowner's vessel. The ship was loaded with automobiles. The decedent had been working since seven o'clock in the morning, when at 2:30 p. m. work was stopped because of rain. The longshoremen were on stand-by which meant, according to the testimony, that they could go to the midship house or stay anywhere aboard the vessel where they would be out of the rain. The decedent elected to get inside one of the automobiles. According to the defendants' and plaintiffs' witnesses, this was not an uncommon practice. Shortly before the end of the shift at 4:00 p. m., a signal was blown to end work. The longshoremen, except for the plaintiffs' decedent, left the vessel and the crew closed the hatches with automatic gear. No evidence was offered to show that the seamen inspected the hatch before closing it. There was neither light nor ventilation in the hold once the hatch covers were shut.
The following morning an inspection of the hold was made prior to the vessel's departure and the decedent's body was found near the ladder at the bottom of the hold some four or five levels below the tweendeck where he had been working and where he had last been seen about one-half hour prior to the whistle. There was no direct access from the tweendecks to the ladder. To reach the ladder from a tweendeck one had to step on a cleat in the escape hatch and then grab the ladder. The space between the tweendecks, which were completely removable, and the cleat was estimated at 2½ to 3 feet and slightly off level. There was evidence that the skull fractures that resulted in death were caused when the decedent fell down the escape hatch, striking his head on the next lower tweendeck.
Experts were called by all sides as to the duty of inspection prior to closing of the hatches. There was ample evidence to show that inspections should always be made prior to the closing of hatches to safeguard the vessel, to protect the cargo or to ascertain that no longshoremen are left below, either ill, asleep (which the defendants' expert said was not uncommon after a standby), or as stowaways. The defendants were thus caught on the horns of a dilemma. If no inspection were conducted they were negligent and if one were conducted even cursorily, the decedent should have been discovered. There was a concession that a vessel's unlighted and unventilated hold is an unseaworthy condition.
The decedent had a working expectancy of 10.5 years and a life expectancy of 20.5 years. Because conscious pain and suffering prior to death would, under the circumstances outlined above, have entailed a considerable amount of speculation, plaintiffs were not permitted to prove such item of damage.
Vis-a-vis the plaintiffs, defendants contend that the decedent was not entitled, under the circumstances described, to the warranty of seaworthiness, and that the duty to inspect the hold was only to prevent damage to the vessel or the cargo. They argue that since the duty did not extend to the longshoremen, they could not have been negligent with respect to Alejandro Cerich, the decedent.
Analogizing from the decision of Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), the defendants contend that whatever duty they may have owed the decedent to supply and maintain a seaworthy vessel, that duty ceased the moment the discharging operations were concluded for the day. The analogy is inapposite. In Law, the issue was whether there was maritime jurisdiction for shore-side accidents, unassociated with ship's gear, merely because the longshoreman was engaged in loading or unloading. The Supreme Court held there was none but it did not dilute the holdings of Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), nor of Gutierrez v. Waterman SS Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963). Mr. Justice White, speaking for the majority said in Victory Carriers, Inc. v. Law, supra, at 404 U.S., pp. 210-211, 92 S.Ct. at p. 424:
"The decision in Gutierrez turned, not on the `function' the stevedore was performing at the time of his injury, but, rather, upon the fact that his injury was caused by an appurtenance of a ship, the defective cargo containers, which the Court held to be an `injury, to person . . . caused by a vessel on navigable waters' which was consummated ashore under 46 U.S.C., Section 740."
Under the Sieracki doctrine, the longshoreman boards the vessel with the same rights of a seaman. He does not suddenly lose those rights if he stays aboard the vessel one minute beyond quitting time. As long as a longshoreman is aboard a vessel at the invitation of the owner, performing services traditionally performed by seamen, and as long as the longshoreman does no act inimical to the relationship, he is entitled to a seaworthy vessel, appliances, gear and crew. A humanitarian doctrine adopted for the protection of life and limb cannot be so abruptly terminated by the niceties of contractual concepts.
The defendants' stevedoring expert conceded that the hold was unseaworthy the moment it was closed — at least insofar as a human being trapped below. The pendulum of rights and duties may swing in a fluid society depending upon the exigencies created by the societal condition. But the defendants have miscalculated the sweep of the arc. Humanitarian rights of workmen are not so easily dissolved.
The defendants' argument that they only owed a duty to inspect the cargo and therefore could not be negligent in failing to inspect for men is based upon foundations equally as flimsy. The defendants state their argument thusly: . Professor Prosser is cited for this proposition but the statement is lifted from the text out of context. Professor Prosser is commenting upon the language adopted by various courts and explains that the word "duty" should never have been used in describing negligence. He says:
"In other words, `duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases the duty is always the same, to conform to a legal standard of reasonable conduct in the light of the apparent risk."
Later, in the same chapter, he makes the following comment:
There was conflicting testimony on the issue of whose duty it was to inspect the hold prior to the closing of the hatch. One of defendants' experts contended that the stevedore should have checked to see that all the men were out of the hold, and that the mates had to inspect only the cargo. Then the defendants produced a witness to prove that the absence of a notation of inspection in the ship's log did not mean that an inspection had not taken place. Thus, the jury could infer that defendants recognized their duty, inspected and conducted an unreasonably poor or negligent inspection. Or, the jury could infer that the defendants did, indeed, have the duty to inspect and negligently failed to do so. As for the contention that their "duty" only was to inspect the cargo and not for men, that is the question of foreseeability. Was there a likelihood that men might still be in the hold? The defendants' witnesses conceded as much. With this knowledge, any failure to inspect constituted negligence. See: Reinstatement of the Law Second, Torts 2d, Section 281, Comments g and j.
The jury was presented with a special verdict form on only one issue — comparative negligence. This singling out of one issue in a case where several issues are to be tried may precondition the jury to make such a finding. The special verdict form was requested by the shipowner and no objections were lodged. Perhaps dutifully, the jury returned a verdict finding the plaintiffs' decedent 10% comparatively negligent and reduced the verdicts in the appropriate...
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