Cox v. Esso Shipping Company

• Decision Date: 08 August 1957
• Docket Number: No. 16382.,16382.
• Citation: 247 F.2d 629
• Parties: Laurice V. COX, Appellant, v. ESSO SHIPPING COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

247 F.2d 629 (1957)

Laurice V. COX, Appellant, v. ESSO SHIPPING COMPANY, Appellee.

No. 16382.

United States Court of Appeals Fifth Circuit.

August 8, 1957.

Arthur J. Mandell, Mandell & Wright, Houston, Tex., for appellant.

J. M. Cunningham, New York City, James K. Nance, Baker, Botts, Andrews & Shepherd, Houston, Tex., Kirlin Campbell & Keating, Vernon S. Jones, New York City, for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This appeal by Cox from an unsatisfactory judgment for damages under the maritime law for unseaworthiness and under the Jones Act, 46 U.S.C.A. § 688, for negligence and for maintenance and cure presents primarily procedural errors in the exclusion of evidence and in instructions of the Court to the jury. For the reasons given we conclude that the main cause must be remanded for a new trial. Little save the existence of the parties, the name and size of the vessel, and the fact of injury was admitted. In this climate of controversy, discussion of the facts is therefore usually a recital of evidence from which the asserted favorable inferences could be drawn.

Cox, an experienced seafarer, holding a Chief Officer's license, was serving aboard Esso's vessel MS Esso Augusta as an able-bodied seaman. He received substantial injuries April 22, 1953, when he fell some twenty-five feet to the deck from the floodlight crossarm standard of the foremast while he was engaged in the work of rigging a bosun's chair for later use by the electrician.

Although he protested against its use, Cox was required to use the gear which the bosun selected from the ship's locker. This comprised a block with open hook instead of a shackle, a piece of marlin mousing, a 100-foot gantline, a short endless rope strap, and a bosun chair with bridle. He complained principally of the block with an open hook, but, so he says, dutifully obeying the order of his superior, the bosun, when his complaint was ignored or overruled, he proceeded up the mast to do the job.

Once aloft his position was awkward, if not precarious, as the light standard cross tree was an inverted T bar upon which he had to sit. While thus perched, he passed the strap over the crossarm and put the hook of the block through its bight. He then put a marlin "mousing" across the open hook. The purpose of this was to keep the strap from coming out of the hook or the hook being pulled off the strap. After passing one end of the gantline through the block, he made it fast to the bridle. To test the rigging, with his feet on the bosun chair and while gripping tightly (marrying) the standing and free part of the gantline, he put his weight on it. It cocked suddenly toward the left (port), and down came Cox, the strap, the block, gantline and bosun chair. The mousing was off the hook.

In his double-barreled attack of unseaworthiness and negligence, Cox' principal claim was that the compulsory use of an open hook block when a shackle type block was available constituted an unseaworthy condition or appliance imposing the absolute liability of that doctrine, and if not that, at least this conduct was negligent. As might be expected, in this battle each had its protagonists, lay and expert, the one claiming, the other disputing. By a special interrogatory under Fed.Rules Civ.Proc. rule 49(a), 28 U.S.C.A. and the accompanying instruction, the Court, over the strenuous objection of Cox as to their sufficiency, submitted the question of seaworthiness merely in terms of the reasonable suitability of the gear. The jury declared this open hook block reasonably suitable, i. e., seaworthy. Other special issues submitted the question of Esso's negligence. The Trial Court, briefly summarizing a few of Cox' charges of fault and expressly leaving the rest to the recollection of the jury, followed an unusual method. This was undoubtedly meant to eliminate needless listing of the charges of negligence, only one or two of which the jury would likely consider seriously. Undoubtedly, it was also thought that this would further insulate the jury from a conscious appreciation of the legal significance of their findings. In determining "In what manner and respect was the defendant negligent", the verdict form left it to the jury to write in the particulars in their own words. To this the jury found and wrote (Issues 3 and 4) that Esso was negligent in "Improper supervision."

In the same fashion the Court submitted the question of Cox' contributory negligence.¹ By the several issues the jury found, under the Jones Act comparative negligence concept, that Cox' negligence contributed 75% to his injuries. In response to the special interrogatory, "In what manner and respect was the plaintiff negligent," the jury's freehand answer (Issue No. Seven) was:

"Not determining gear to be used was both adequate and properly secured before attempting to enter boatswain\'s chair."

Whether the jury, acting here not merely as a scrivener as in the usual case to record its conclusions within the framework carefully prescribed (e. g., general verdict form or specific answers from which to choose), but as its own grammarian and legal lexicographer as well, meant this to be as literally stated is itself a question for later discussion. Cox insists that the jury convicted him of negligence in not determining that the gear was adequate and that such inadequate gear was not properly secured. Esso urges that it is a case of bad grammar and all that is missing is an ly to change adjective to adverb so that it would read "was both adequately and properly secured * * *."

After some post-trial maneuvers a judgment for $16,250 damages ($65,000 reduced 75% for Cox' negligence) and maintenance and cure up to April 1, 1959, as found by the jury, at a stipulated daily rate totaling $9,906 was entered, and the maintenance award was paid and satisfied.²

This is a sufficient portrayal of the atmosphere of this case to indicate that the battle, however stated, was fought largely over Cox' contention that an open hook block was unseaworthy or faulty and Esso's insistence that it was customary, usual and suitable. This is important for it sets the stage for Cox' first, and serious, complaint that an impressive piece of evidence was erroneously excluded. Several types of evidence might or could be used by Cox to establish his position. This included, as used, factual and expert testimony. It also included, here important, the possible availability of evidence, frequently of impressive significance — that of admissions.

For an admission, rightly understood but so often confused, in its classic prototype is merely — but significantly — a position taken by the adversary, either personally or through an authorized agent, which is contrary to and inconsistent with the contention now being made in the litigation. It is that simple. It need not have been, as is so often said, an admission against interest, nor is there a need to lay a predicate for its use. All that is needed is an authoritative statement by the adversary inconsistent with the contemporary litigation position.

Cox insists that what he tendered was just such an admission. For the paper, if not subject to the infirmity thought by the Trial Court to exist, was strong evidence that an open hook block was unsuitable and, on the contrary, a block with shackle was the proper appliance. The precise evidence proffered was a duplicate original report, whose authenticity was expressly stipulated, made by the master of the MS Esso Augusta and signed and filed by him as a part of his official duties.

The report satisfies the authoritative character of an admission made by one on behalf of another, in this case, the employer-shipowner. The master of an American vessel, navigator, business man, fiscal representative, employer of seamen, empowered to sacrifice ship, cargo, or freight in general average or salvage to save the other, to pledge the vessel under bottomry, to claim and release her from legal custody, "* * * lord of his little world * * * master in every sense of the word," United Geophysical Co. v. Vela, 5 Cir., 231 F.2d 816, 819, 1956 A.M.C. 745, 748, is authorized not only to manage and operate the vessel. He is authorized as well to make declarations in her behalf and that of her owners. For as Judge Borah, long experienced in the trial of maritime cases put it, "* * * I take it to be well settled that in admiralty pro hac vice the master is the owner, and any declarations or admissions made by him are admissible as evidence against the owner. The Potomac, 8 Wall. 590, 19 L.Ed. 511; The Rosalie M., 5 Cir., 12 F.2d 970; The City of Rome, D.C., 24 F.2d 729, 1928 A.M.C. 520," The Abangarez (United States v. United Fruit Co.), D.C.La., 60 F.2d 543, 544, 1932 A.M.C. 1247, 1249.

And for this particular evidence, his authority was special and precise. Having put the master in command of an American vessel, his owners knew of, and were equally bound by, authoritative Coast Guard regulations, 46 C.F.R. 35.15, having the force of law, 46 U.S.C.A. § 239(j), compelling him, as master as well as the owners, to file with the Coast Guard a written report on a prescribed form for all defined marine casualties involving property damage, stranding or grounding, loss of life or serious injuries. His act in preparing, signing, transmitting and filing the report was then in the most exact sense performance of duty imposed by the relationship of owner and shipmaster. The making of the declaration was therefore within the scope of the shipmaster's authority and, like any other authorized act, is one made for and on behalf of and is admissible against, the principal. McCormick, Evidence, § 244 (1954); 4 Wigmore, Evidence, § 1078; Restatement, Agency, §§ 286, 288; 20 Am.Jur., Evidence, §§ 544, 596. Authoritative and authenticated as it was, its receipt as an admission is in this case in no way dependent upon the ordinary...