Donovan v. Esso Shipping Company, 12424.

Citation259 F.2d 65
Decision Date07 August 1958
Docket NumberNo. 12424.,12424.
PartiesDaniel J. DONOVAN, Appellant, v. ESSO SHIPPING COMPANY.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Francis M. McInerney, Jersey City, N. J., for appellant.

Walter X. Connor, New York City (Stryker, Tams & Horner, Newark, N. J., Kirlin, Campbell & Keating, New York City, on the brief), for appellee.

Before GOODRICH, McLAUGHLIN and STALEY, Circuit Judges.

STALEY, Circuit Judge.

The strait of Kill van Kull separates Staten Island from the mainland. In navigable waters in or near that strait, appellant seaman Daniel J. Donovan was seriously injured on the morning of February 5, 1954, while working aboard the tanker Esso Binghamton. The vessel was owned by appellee Esso Shipping Company, a Delaware corporation. Appellant Donovan was a resident of New Jersey.

The first issue is whether appellant's injuries were caused solely by his own negligence; the second issue is whether this court has jurisdiction to review the judgment of the district court dismissing the maintenance and cure cause of action where the notice of appeal specifically disclaimed appeal from that portion of the judgment.

The complaint of appellant Donovan contained allegations of negligence under the Jones Act, 46 U.S.C.A. § 688 et seq., and of unseaworthiness, along with a count for maintenance and cure. At the end of plaintiff's evidence, the district court dismissed the causes of action as to negligence and unseaworthiness. It found that the injuries inflicted upon appellant were solely the result of his own negligence and that the tanker was in no way unseaworthy. Its conclusions were based upon the following facts.

Appellant Donovan was an ordinary seaman aboard the Esso Binghamton. He had worked since August, 1951, on various vessels owned by defendant.

On the morning of February 5, 1954, employees of an independent contractor, Butterworth System, Inc., were aboard the Esso Binghamton in order to hoist certain machinery from a launch onto the deck. For this purpose, the employees topped one of the ship's booms. The boatswain ordered appellant and a seaman named Graveley to top the boom, apparently unaware of the fact that the Butterworth personnel had already done so. The boom was held in its upright position by a topping lift fastened to cleats on the kingpost. Several figure eight turns of the topping lift were taken around the cleats of the kingpost, and finally two half hitches. The boom was thus securely held in its upright position.

According to Donovan's testimony at the trial, after the boatswain had ordered the boom topped, Donovan began walking over to the kingpost. He said he noticed that the boom was already topped. Having decided to report to the boatswain that the boom was already topped, he moved away from the base of the kingpost and paused for a short time near the rail. While he was there, the boom fell and struck him, inflicting serious injuries.1

The district court correctly pointed out that this version of the accident might have brought into play the doctrine of res ipsa loquitur. But plaintiff did not stop here. He introduced further evidence by testimony and exhibits which attempted to explain why the boom fell. Unfortunately for appellant, this evidence showed clearly that the boom fell because appellant had loosened one or two of the figure eight convolutions of the topping lift from the kingpost.

Allen Graveley, fellow seaman of appellant Donovan, gave his testimony by deposition. According to his version of the accident, Donovan had intended to loosen the guy lines to move the boom over to a catwalk or flying bridge. Evidently thinking that the guy lines were fastened to the cleats on the kingpost, Donovan removed one or two of the figure eights of the topping lift by mistake. Graveley shouted to Donovan, "Not that — the guys." Graveley said he did not see Donovan put the topping lift figure eights back onto the kingpost cleats. Donovan then left the area of the base of the kingpost and walked toward the rail. The boom there fell and injured him.

Certain statements introduced by plaintiff corroborate Graveley's testimony. The pharmacist mate stated that immediately after Donovan was injured he heard him admit, "I let go of the wrong line." The testimony of an employee of Butterworth, also introduced by plaintiff, was substantially similar to Graveley's deposition.

Taken together, all of the evidence points to one inevitable conclusion: the injuries plaintiff sustained were the result of his own negligence.

Appellant's claim of unseaworthiness was initially limited to the alleged faulty supervision of the boatswain in giving Donovan the order to top the boom, it being agreed that the gear was not defective. The district court was correct in finding that the evidence did not sustain liability on this theory.

Now for the first time, appellant advances a rather novel theory of unseaworthiness. He argues that loosening the topping lift made the boom unseaworthy, and that a seaman may recover even though the unseaworthy condition is created solely by his own act. He cites Grillea v. United States, 2 Cir., 1956, 232 F.2d 919, to support his theory. From our reading of the Grillea case, however, we do not see that it stands for this proposition. The cogent argument of appellee adequately answers appellant's contention. The appellee points out that an unseaworthiness recovery is mitigated to the extent of the seaman's own negligence. See Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 94, 66 S.Ct. 872, 90 L.Ed. 1099 note 11. If the injury is caused exclusively by the seaman's negligence, there can be no recovery at all. It is therefore a hollow thing to say that a seaman has a cause of action for a condition created solely by him, but that he cannot recover damages.

Furthermore, there was no showing that the boom was unseaworthy either before or after the act of Donovan in loosening the topping lift. It functioned normally; i. e., upon the loosening of the topping lift, the boom descended. Nor could it be said that the topping lift itself was defective because it did not hold the boom and prevent its fall. There is no evidence that the rope was in any way defective, and the topping lift of course functioned normally when it slipped around the cleat after having been loosened by appellant. Thus, the district court properly dismissed the unseaworthiness cause of action.

We pass now to the separate count on maintenance and cure. Appellee raises the serious question of whether this court has jurisdiction to review the judgment of the district court on this phase of the case. It is appellee's position that appellant lost his right to have us review the maintenance and cure decision by his notice of appeal, which reads:

"Notice is hereby given that the plaintiff above-named, hereby appeals to the

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