Clevenger v. Star Fish & Oyster Company

• Decision Date: 06 December 1963
• Docket Number: No. 20232.,20232.
• Citation: 325 F.2d 397
• Parties: Floyd Wesley CLEVENGER, Appellant, v. STAR FISH & OYSTER COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

325 F.2d 397 (1963)

Floyd Wesley CLEVENGER, Appellant, v. STAR FISH & OYSTER COMPANY, Inc., Appellee.

No. 20232.

United States Court of Appeals Fifth Circuit.

December 6, 1963.

Edgar N. Quillin, Arabi, La., Maury Friedlander, Mobile, Ala., for appellant.

Thomas M. Galloway, Mobile, Ala., for appellee, Collins, Galloway & Murphy, Mobile, Ala., of counsel.

Before CAMERON, WISDOM and GEWIN, Circuit Judges.

WISDOM, Circuit Judge.

Floyd Clevenger, the libellant, was a fisherman and deck hand on the Star Queen, a small fishing vessel owned by the respondent, the Star Fish & Oyster Company, Inc. On the evening of July 14, 1961, after a three weeks voyage, the Star Queen put into its home port, Mobile, Alabama, and docked at the Star Fish dock. The following morning Clevenger, who had gone ashore the night before, returned to the ship about nine o'clock to help unload the catch. The unloading had started about two hours earlier. The Captain of the ship was not present, and John Whitaker, the first mate, was in charge. Whitaker was in the hold loading fish into tubs which were raised by machinery to the deck. Clevenger was on the deck near the hatch. His duty was to unload the tubs onto the dock and return the empty tubs to the hold. According to the trial judge's finding, a delay occurred because of trouble with the lifting machinery. Whitaker and Clevenger exchanged seamen's unpleasantries. Then, without word or warning, Whitaker climbed a ladder to the deck at a time when Clevenger was facing the other way and drove a "devil's fork" deep into Clevenger's back. A devil's fork is an ice chisel. This one was a steel bar, one inch thick, four feet long, ground to a sharp point at one end. It severed two of Clevenger's ribs and punctured a lung. He pitched head forward down the hold onto iced fish eight feet below.

Clevenger brought this libel in admiralty against the shipowner, Star Fish & Oyster Company, Inc., alleging the unseaworthiness of the ship and the shipowner's negligence under the Jones Act, 41 Stat. 1007 (1920), 46 U.S.C.A. § 688, and asking for maintenance and cure. The district judge held that the libellant had not sustained the burden of proving negligence or unseaworthiness, and denied recovery for maintenance and cure. In his findings and conclusions as to unseaworthiness the district judge stated:

"The fishing excursion had been concluded insofar as the catching of fish was concerned. * * * Insofar as fishing operations are concerned, the members of the crew, including Captain Holst and including the first mate, Whitaker, were members of a joint enterprise. * * * I find that what was being done at the Port of Mobile, in connection with the unloading of the fish, and all that occurred at the time on the morning of July 15th, 1961, was work in connection with the unloading of the fish, and was not connected with the duties of any members of the crew in connection with seamanship, so far as navigation and operation of the vessel are concerned. * * * Because of the finding heretofore made, the Court finds that nothing that was done at the time when Libelant was struck by Whitaker had any connection with a furtherance of the work of the vessel from the standpoint of navigation or operation of the vessel, but, on the other hand, such work that did occur in connection with the unloading of the fish on the date in question were operations in connection with the unloading of the fish and all duties and all work done by all members of the crew at that time were operations not in furtherance of the duties of the vessel only from the seamanship standpoint, but they were duties performed by the individual members of the crew as joint venturers. * * * Libelee did not have imposed upon it a duty to inquire into the type of men engaged by Holst, the captain, to make up the crew. There was a duty on Holst\'s part, as an employee of the Libelee, to use reasonable care and caution in the employment of individuals to make up the crew. * * * I hold that the duty to use reasonable care and caution by an employee of the owner of the vessel to select a crew to go on a fishing excursion was performed in this case, and I find that the Libelant has failed in regard to showing negligence in this regard. * * * There is no evidence in this case that this vessel was not seaworthy as such. I have given full consideration to the aspect of seaworthiness, as to the duty of the vessel, through its agents, servants or employees, in the selection of a crew, to use care and caution of a reasonable nature, and I have held and do now re-affirm that holding that in this regard the Libelee is not shown to have been derelict in this duty. * * * The duties incident to the seamanship are distinguished from a fishing operation. * * * So, the distinction, as I am commenting upon in these remarks, is that the injury suffered by Plaisance who was injured by a defective winch, Southern Shell Fish Co. v. Plaisance, 5 Cir. 1952, 196 F.2d 312 was on account of the seaworthiness of the vessel, and not in regard to an unloading operation of the fish, which I have held was distinctly a part of the fishing operation and not of the navigation of the vessel."

We reverse. The district judge applied erroneous criteria in determining seaworthiness. A seaman such as Whitaker, who may be properly characterized as "defective", because he fails to measure up to the standards of his calling, renders a ship as unseaworthy as a defective winch. Whether Clevenger is regarded as a seaman or a joint venturer on a fishing enterprise, the injury to him which took place while he was unloading the ship comes within the long, protective arms of Sieracki. Sea Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099.

The warranty of seaworthiness extending from the shipowner has its roots deep in maritime history.¹ Dixon v. The Cyrus, D.Penn. 1789, 7 Fed.Cas. 755 (No. 3,930). But "until the 1940s the seaman's right to recover damages for injuries caused by unseaworthiness of the ship was an obscure and little used remedy."² What was originally a justification for sailors' abandoning a ship before the expiration of its tour slowly emerged as a means of recovering for injuries resulting from the operating negligence of the shipowner. Mr. Justice Brown's famous dictum in The Osceola, 1903, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760, 764, that the shipowner is liable to seamen for unseaworthiness, "a failure to supply and keep in order the proper appliances appurtenant to the ship", became law in Carlisle Packing Co. v. Sandanger, 1922, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927. And Carlisle gave a glimmering of things to come.

The notion of liability without fault for unseaworthiness, only hinted at in Carlisle, reappeared full-blown twenty-two years later, in Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 64 S. Ct. 455, 88 L.Ed. 561, in which the Supreme Court held, in effect, that unseaworthiness included "operating negligence". Not long after Mahnich, the Supreme Court, in Sieracki, held a shipowner liable without fault to a stevedore injured while aboard the ship: "Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. * * * It is a form of absolute duty owing to all within the range of its humanitarian policy." This duty is non-delegable and pertains to latent as well as patent defects; neither ignorance nor due diligence will serve as an adequate defense. Thus liability attaches when a vessel, otherwise seaworthy, on her return to port is rendered temporarily unseaworthy during the unloading process. Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941. That important decision in the area of transitory unseaworthiness is consistent with Alaska S.S. Co. v. Petterson, 1954, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, where the Court affirmed a judgment against the shipowner for liability for injuries caused by defective equipment temporarily brought on board by an independent contractor. In short, although a shipowner, as the Court said in Morales v. City of Galveston, 1962, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412, is not an insurer as to all accidents which occur on his ship, he warrants a safe vessel to all persons, including longshoremen and employees of an independent contractor, exposed to the hazards of performing a seaman's service. See also Guitierrez v. Waterman SS Corp., 1963, 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297.

Early cases on seaworthiness established that a "defective" crew renders a vessel unseaworthy as readily as defective equipment or a leaky ship. See McLanahan v. Universal Ins. Co., 1828, 1 Pet. 170, 7 L.Ed. 98; Brown v. The D.S. Cage, E.D.Tex., 1872, 4 Fed.Cas. 367 (No. 2,002); Re Pacific Mail S.S. Co., 9 Cir. 1904, 130 F. 76. This principle extends to unseaworthiness caused by the presence of a vicious and unreasonably belligerent seaman (The Rolph, 9 Cir. 1924, 299 F. 52, cert. den'd, 266 U.S. 614, 45 S. Ct. 96, 69 L.Ed. 468) and applies even when the owners of the vessel have no knowledge of a seaman's dangerous propensities. Keen v. Overseas Tankship Corp., 2 Cir. 1952, 194 F.2d 515, cert. den'd, 343 U.S. 966, 72 S.Ct. 1061, 96 L. Ed. 1363. In Keen one seaman attacked another with a meat cleaver. The district judge instructed the jury that the shipowner was not liable unless he knew or should have known of the attacker's vicious character. The Second Circuit reversed and remanded the case. Judge Hand, for the Court, found that liability for personnel was identical with liability for hull and gear. The warranty of seaworthiness, however, is not one of absolute insurance:

"The warranty of seaworthiness as to hull and gear has never meant that the ship shall withstand every violence of wind and weather; all it means is that she shall be reasonably fit for the

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