Davis v. Parkhill-Goodloe Company

• Decision Date: 05 June 1962
• Docket Number: No. 19294.,19294.
• Citation: 302 F.2d 489
• Parties: Mrs. Julian Lamar DAVIS, Temporary Administratrix of the Estate of Charles Edward Davis, Deceased, Appellant, v. PARKHILL-GOODLOE COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

302 F.2d 489 (1962)

Mrs. Julian Lamar DAVIS, Temporary Administratrix of the Estate of Charles Edward Davis, Deceased, Appellant, v. PARKHILL-GOODLOE COMPANY, Inc., Appellee.

No. 19294.

United States Court of Appeals Fifth Circuit.

May 2, 1962.

Rehearing Denied June 5, 1962.

Joseph B. Bergen, Savannah, Ga., for appellant.

Harry T. Gray, Jacksonville, Fla., for appellee.

Before TUTTLE, Chief Judge, and BROWN and BELL, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question presented is whether the trial Court erred in entering judgment for the shipowner in this Jones Act case for damages sustained by the seaman and his survivors by reason of his death suffered in line of duty.¹ We hold that it did and reverse. The case was brought as a Civil Action rather than as a libel in admiralty. But the standard of review is now substantially the same since after formal demand for a jury trial, F.R.Civ.P. 38(b), 28 U.S.C.A., the parties expressly consented to a trial by the Court. This brings into play then F. R.Civ.P. 52(a) and the concept of "clearly erroneous" now incorporated into admiralty causes. Myles v. Quinn Menhaden Fisheries, 5 Cir., 1962, 302 F.2d 146; O/Y Finlayson-Forssa A/B v. Pan Atlantic S. S. Corp., 5 Cir., 1958, 259 F. 2d 11, 13, 1958 A.M.C. 2070. Here the most critical aspect of that standard of review is that findings induced by or resulting from, a misapprehension of controlling substantive principles lose the insulation of F.R.Civ.P. 52(a) and a judgment based thereon cannot stand. McGowan v. United States, 5 Cir., 1961, 296 F.2d 252, 254.

Charles Edward Davis, the decedent, was a young 24-year-old Georgia farm boy. His nautical career began on the Dredge Ideal then working in the Savannah River. Ten days later it ended with his death. He was a robust, healthy young man of good traits and mentality and had taken considerable college work in the agricultural sciences to fit him, so his parents stated without contradiction, for the life of a Georgia farmer. This is important, not alone on the damage question, but more so from the standpoint of the duty owed by the ship to this untutored, inexperienced, green-hand.

The Ideal was engaged in sweeping out a slip near the north bank of the River. As a hydraulic cutter dredge, she was equipped with the typical discharge line made up of sections of 16" pipe. The 16" discharge line was mounted on metal drum-like pontoons. The discharge line led aft (westerly) for about 100 feet from the dredge's stern and then made a substantial right angle turn to the south running approximately 600 feet to the south shore. From there, the line led ashore several hundred additional feet into the spill area. A narrow 10" plank ran along the top of the discharge line to provide a walkway. A single hand rail on vertical stanchions paralleled the pipe. Where the pipe sections joined, there was a rubber joint. This left a space, however, of two to three feet between the ends of the walkway planks.

On the afternoon of November 27, 1957, a bright, warm, sunshiny day, Davis was last seen walking toward the shore 100 feet or so shoreward from the elbow. Some time the next day his body was found floating in the water in this same general vicinity. Save for the inexplainable absence of his low cut shoes which he had been wearing, the body bore no signs of any unusual nature. The prosecutor's autopsy report and testimony concluded the death was due to drowning.

At the time he was last seen, Davis was where he was supposed to be, doing what he was supposed to do. In accordance with authoritative instructions, he was returning to the shore to assist another crew member in repair of a leaking joint in the discharge line at a point near the spill area on land. He and others had been doing this repair work during the morning and had returned to the dredge via the walkway for the noonday meal.

The plaintiff did not claim that this unexplained disappearance of Davis while in the course of his duty using facilities provided for just such purpose gave rise to any presumptions as such. The claim was urged, and properly so, Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668, 1956 A.M.C. 737, that circumstantial evidence warranted inferences of negligent breach of duty proximately causing death by drowning.

The plaintiff made out a rather formidable showing. The witnesses presented included the inspector of the company for whom the dredging work was being done by the defendant shipowner, several persons who had long experience as safety engineers on dredging operations, and some others who had observed the condition of the walkway, guard rail, etc. on the pontoon discharge line. The most significant, however, was the Master of the dredge, called properly as an adverse witness, F.R.Civ.P. 43(b), and whose testimony was not binding² but which, as we see it, left the shipowner's liability defense in imminent peril of foundering by establishing at least one breach of duty as a matter of law.

Much of the evidence concentrated on the condition of the walkway, the sufficiency of the width of the plank, its general condition, the presence of ropes, lines, and wires strewn across the walkway from place to place, the location, the angle and sufficiency of the single hand rail, and the like.³ Despite this testimony, the Court chose generally to credit the controverting evidence from the shipowner. For our present purposes, we accept this under F.R.Civ.P. 52(a). In doing so, however, we do not ignore, indeed we emphasize, the undisputed physical nature, and the unusual hazardous condition, of this facility.

It was this actual setting, even though described in terms most favorable to the shipowner's cause, which made the testimony of the dredge Master so decisive. It is at one in committing the shipowner to negligence as a matter of law, and in demonstrating that the trial Judge was laboring under a significant misapprehension of legal principles.

This testimony was that relating to the availability and use of life vests and the instructions to the crew concerning their use. It does not turn on the actual availability since it is undisputed that life vests were available in sufficient quantities. But indulging in favor of the shipowner every variation in the Master's testimony, it revealed that whether this essential lifesaving equipment was to be used while working on the pontoon discharge walkway was left to the sole judgment of the particular seaman at the time. Only one qualification to this policy was acknowledged: one who could not swim would be compelled to wear or use them. Otherwise it was for the seaman to determine whether such safety equipment was needed. Repeated and repeated were statements by the Master, "Well, we don't require a man to wear one if he doesn't want to * * *"; "* * * It is up to the individual himself if he wants to wear" them; life jackets are "* * * there for him to wear if he wants to. It is up to the man * * *"; as the "* * * instructions are to wear them * * * if they feel they need to wear them * * *."

But such a practice was to fly in the face of the accumulated experience of mankind in the struggle against the hazards of the cruel sea. Cf. Pure Oil Co. v. Snipes, 5 Cir., 1961, 293 F.2d 60, 65, 66, n. 6 and 9; Grimes v. Raymond Concrete Pile Co., 1958, 356 U.S. 252, 78 S.Ct. 687, 2 L.Ed.2d 737, 1958 A.M.C. 1014. Moreover, it ignored this shipowner's own affirmation that this nautical wisdom required, at the very minimum, a stringent mandate to use life vests and an adequate program of enforcement to secure compliance. Posted conspicuously in the pilot house for the guidance of all officers was a formal printed "Accident Prevention Plan." Paragraph 1 expressly stated that the "Corps of Engineers' Handbook Requirements, the Associated General Contractors' Manual of Accident Prevention and other recognized standards will be used as guide in making safety inspections." And Paragraph 5 brought this down to the plainest terms. "The use of personal protective equipment such as goggles, welders' hoods, gloves, respirators and life preserver work vests will be enforced when and where required for the protection of workmen." And the standards thereby adopted by reference made equally plain what was meant by the words of Paragraph 5, "when and where required for the protection of workmen."⁴

Of course this was not offered, nor is it used by us, to establish a private standard of care as though the suit was for breach of the implied agreement to carry out these precautions. It was offered, and it is considered by us, as spectacular proof of industry-wide acceptance of the need for extraordinary care in protecting against the very hazards here prevailing. Custom and practice, especially of prudence, is, of course, relevant and significant in equating conduct with that of the law's fictional ordinarily careful shipowner. Schlichter v. Port Arthur Towing Co., 5 Cir., 1961, 288 F.2d 801, 1961 A.M.C. 1164; June T., Inc. v. King, 5 Cir., 1961, 290 F.2d 404, 1961 A.M.C. 1431; Gleason v. Title Guarantee Co., 5 Cir., 1962, 300 F.2d 813.

The shipowner's excuse, echoed by its Master, for not issuing positive instructions to an inexperienced seaman requiring compliance with this perfectly obvious safety requirement is twofold and too weak. First, it says these precautions were required on Government jobs only, and second, life vests are not needed if a man can swim. As to the first, the perils of the seas are the respecter of no person, whether sovereign or citizen. The hazard arises from the operation, not the status of the one who ultimately pays the freight. As to the second, the capacity to swim is a safeguard only so long as the unpredictable occurrence does not render the victim incapable of swimming, or this capability is inadequate to overcome the violent forces at work. The life vest, on the other hand, as the Vice President and...