Dixon v. United States

• Citation: 219 F.2d 10
• Decision Date: 07 February 1955
• Docket Number: No. 100,Docket 23255.,100
• Parties: George W. DIXON, Libelant-Appellee, v. UNITED STATES of America, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

219 F.2d 10 (1955)

George W. DIXON, Libelant-Appellee, v. UNITED STATES of America, Respondent-Appellant.

No. 100, Docket 23255.

United States Court of Appeals, Second Circuit.

Argued October 15, 1954.

Decided February 7, 1955.

Jacob Rassner, New York City, for libelant.

J. Edward Lumbard, U. S. Atty., New York City, Kirlin, Campbell & Keating, Vernon S. Jones, New York City, and Theodore P. Daly, Long Island City, of counsel, for respondent-appellant.

Before CHASE, MEDINA and HARLAN, Circuit Judges.

HARLAN, Circuit Judge.

The appellant's steamship Halton R. Carey sailed from New York in all respects seaworthy and was in that condition upon her arrival at Aalborg, Denmark, in November 1951. While she was discharging coal at that port stevedores accidentally broke out one of the three bottom rungs of the aft ladder in the No. 2 hatch and bent the other two. The appellee Dixon, who was the chief officer of the ship, discovered this damage and reported it both to the master and to the ship's agent ashore. The repair of the damage was promptly ordered and was undertaken by shore repairmen on the next afternoon. Before repairs were made, Dixon on that day had occasion to descend the ladder twice without mishap, and then shortly after two o'clock went ashore leaving the second mate, Nasta, on watch. He returned to the ship about half past four that afternoon and afterward had dinner with the master and Nasta. Meanwhile the repairmen had worked on the ladder and their foreman had reported to Nasta that the three rungs at the bottom of the ladder had been repaired. He had also told Nasta that other unidentified rungs were in need of some sort of unspecified repair, and had been told by Nasta to do whatever was necessary to put the ladder in seaworthy condition.

While at dinner, Dixon asked Nasta if the ladder had been repaired. Nasta testified that he told him the substance of his conversation with the foreman, adding that he did not know whether the additional rungs had been repaired. Dixon testified that he recalled nothing being said about other rungs needing repair, but that he would not deny Nasta's contrary version of the conversation, which was supported by the master's testimony. The trial Court found the conversation to have been as Nasta testified. The master, who had been present throughout the conversation, then told Dixon to "check" the ladder, but said nothing more to indicate how it should be done, and Dixon received no warning either from the master or Nasta that it might be dangerous for him to descend the ladder.

Dixon testified as follows in response to questions as to what he understood was the meaning of the word "check," as used by the master: "The word `check' means to go down and see whether it was fixed or not; whether it was in seaworthy condition; to find out whether it was fixed and ready to go to sea; whether the ladder had been repaired and repaired right." And also, "Test it in ways, go down it, inspect the rungs and see that none of them was loose or so forth; to see that maybe — sometimes they weld one side and just leave the other side unwelded. I have seen them do that and checked it and found that lots of times." He also testified that what he thought the master meant was to check the three bottom rungs, and he added: "That is the only thing I had in mind in going down to see that they put those rungs in and put them in right."

Dixon could have gone down into the hold by using another ladder and begun his inspection at the lower end of the damaged ladder, but instead he chose to go down the ladder he was to check. When he was part way down, a rung on which he stepped gave way. Then a higher one on which he was holding with his hands was pulled out, and four or five other rungs gave way as he fell to the bottom, where he was severely injured.

The libel, as originally filed, sought recovery on the ground of liability for negligence under the Jones Act, 46 U.S.C.A. § 688, or alternatively on the ground of liability for unseaworthiness; but at the beginning of the trial all liability under the Jones Act was disclaimed and the appellee limited his cause of action to unseaworthiness. An additional claim for maintenance and cure has been satisfied and is no longer in issue.

As we read the record, the libelant pitched his claim entirely on the ground that the shipowner's warranty of seaworthiness — see Carlisle Packing Co. v. Sandanger, 1922, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Mahnich v. Southern Steamship Co., 1944, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099; Pope & Talbot, Inc., v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 — applies to conditions arising after, as well as before, the voyage has commenced, so that the respondent here was liable for the admittedly unseaworthy condition of the ladder, whether or not any negligence for which it was chargeable was proved. The District Court appears to have accepted this approach. Overruling the defense of assumption of risk — and, amounting to the same thing, the contentions (a) that since it was Dixon's duty to ascertain whether the ladder was in seaworthy condition he could not recover for injuries sustained in discharging that duty, and (b) that the master's ordering of Dixon to "check" the ladder must be deemed to be a temporary withdrawal of it from Dixon's use — the Court found Dixon not to have been guilty of contributory negligence, and held the respondent fully liable. While the Court's opinion does not expressly consider whether a shipowner's warranty of seaworthiness extends to conditions arising after the ship has commenced her voyage, it seems implicit in the decision that the Court thought it did, or at least that it extended to conditions arising at ports of call.

While language in some of the cases and texts does seem to reflect the view that the warranty to seamen is limited to conditions existing before the vessel has begun her voyage — liability for unseaworthy conditions coming into existence thereafter being only for failure to exercise due diligence — we are unable to find that any appellate court has squarely held the warranty to be so limited. See Zinnel v. United States Shipping Board Emergency Fleet Corp., 2 Cir., 1925, 10 F.2d 47, 48; Ives v. United States, 2 Cir., 1932, 58 F.2d 201, 202; The H. A. Scandrett, 2 Cir., 1937, 87 F.2d 708; Globe S. S. Co. v. Moss, 6 Cir., 1917, 245 F. 54, 55, certiorari denied 245 U.S. 663, 38 S.Ct. 61, 62 L.Ed. 537; The Rolph, 9 Cir., 1924, 299 F. 52, certiorari denied 266 U.S. 614, 45 S.Ct. 96, 69 L.Ed. 468; The Calvert, 4 Cir., 1931, 51 F.2d 494; Robinson on Admiralty 304 (1939); II Norris, Law of Seamen 242, 254 (1952). Nor have we found any case in which it has been stated that absolute liability would be imposed with respect to unseaworthy conditions arising after the voyage had commenced.

Consequently, the question whether in this circumstance liability for unseaworthiness is absolute, or based on negligence, must be treated as one of first impression. The question is fraught with much difficulty, and since, as will appear later, there exist other grounds which may prove dispositive of the case, we think we should not reach this question until those grounds have been explored and found wanting. We have therefore concluded that our course should be to remand the case, reserving jurisdiction of this appeal in the event that such other grounds fail. Our reasons for this view can best be explained by surveying the historical development of the injured seaman's remedies.

Before 1902 the American admiralty courts had for the most part treated seamen injury cases on the same footing as cases involving injuries to shoreside employees. While the shipowner was under a duty to furnish his seamen with a safe place to work, including safe appliances — The Noddleburn, D.C.D.Or. 1886, 28 F. 855; The Neptuno, D.C.S.D. N.Y.1887, 30 F. 925 — that duty was not an absolute one, but rather one of exercising due care. The France, 2 Cir., 1894, 59 F. 479; The Concord, D.C.S.D. N.Y.1893, 58 F. 913; The Flowergate, D.C.E.D.N.Y.1887, 31 F. 762. But the cases are not clear on whether the owner would be liable to the seaman in all instances where the seaman's injury was attributable to negligence chargeable to the owner. In The City of Alexandria, D.C.S.D.N.Y.1883, 17 F. 390, Addison Brown, the eminent admiralty judge, held upon an extensive review of the ancient admiralty precedents that the shipowner was liable only for such negligence as rendered the ship or her appliances unseaworthy. However, some of the later decisions appear to have held owners liable for negligence, although unseaworthiness, at least in the ordinary sense, had not been shown. The Frank and Willie, D.C.S.D.N.Y. 1891, 45 F. 494; The Edith Godden, D.C.S.D.N.Y.1885, 23 F. 43. But in 1902 the Supreme Court adopted The City of Alexandria rule. The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760. While seamen's rights were thus cut down by removing the basis for a negligence action where unseaworthiness did not exist, there is no indication that it was intended at the same time to enlarge their rights by permitting an action to be maintained without regard to negligence where unseaworthiness did exist. On the contrary, the tenor of The Osceola is that American law on this score was to be the same as the law of England, where the Merchant Shipping Act of 1876 stated the owner's duty towards seamen as requiring only the use of "all reasonable means" to "insure the seaworthiness of the ship."

After 1902 we find a number of cases exonerating shipowners from responsibility for the negligence of their masters or mates, because that negligence had not rendered the vessel unseaworthy. Tropical Fruit S. S. Co. v. Towle, 5 Cir., 1915, 222 F. 867; John A. Roebling's Sons Co. v. Erickson, 2 Cir., 1919, 261 F. 986.

The results of these...