Estate of Larkins by Larkins v. Farrell Lines, Inc.

• Decision Date: 05 December 1986
• Docket Number: No. 83-2162,83-2162
• Citation: 806 F.2d 510
• Parties: , 22 Fed. R. Evid. Serv. 162 ESTATE OF Walter LARKINS, deceased, by his Administratrix, Mabel LARKINS, Appellant, v. FARRELL LINES, INCORPORATED, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 510

806 F.2d 510

1987 A.M.C. 2243, 22 Fed. R. Evid. Serv. 162

ESTATE OF Walter LARKINS, deceased, by his Administratrix,

Mabel LARKINS, Appellant, v. FARRELL LINES, INCORPORATED, Appellee.

No. 83-2162.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 8, 1986.

Decided Dec. 5, 1986.

Robert A. Jenkins (Leonard C. Jaques, Jaques Admiralty Law Firm, P.C., on brief), for appellant.

Randall C. Coleman (Ober, Kaler, Grimes & Shriver, on brief), for appellee.

Before PHILLIPS and WILKINSON, Circuit Judges, and BUTZNER, Senior Circuit Judge.

WILKINSON, Circuit Judge:

Walter Larkins, a merchant sailor employed by Farrell Lines, was lost at sea. His estate brought suit against Farrell Lines alleging that Farrell was negligent under the Jones Act, and that Farrell's vessel, the Austral Pioneer, was unseaworthy under general maritime law. At trial, the jury returned a verdict for defendant. Larkins' estate now makes various assignments of error pertaining primarily to the district court's jury instructions. We do not find these persuasive, and we therefore affirm.

I.

Walter Larkins' duties on the Austral Pioneer consisted of cleaning and maintaining the officers' quarters. Sometime during the night of June 13, 1982, Larkins disappeared from the vessel which was then en route to New Zealand. He was last seen at about 8 p.m. in his room and was reported missing the next morning at 8:30 a.m. when he failed to appear for his duties. During the night the seas were rough, and the ship's captain ordered the crew to clear the deck as a safety measure. After a search of the ship and the surrounding waters, Larkins was presumed lost at sea.

Larkins, fifty-five at the time of his death, took medication to control his epilepsy and high blood pressure. On June 11, two days before his disappearance, he was found unconscious in the chief steward's office. When he revived, Larkins said that he sometimes fainted when he failed to take his blood pressure medicine.

Larkins' widow brought suit under the Jones Act and under general maritime law. She argued at trial that the ship's officers were aware of Larkins' epileptic condition, but negligently failed to provide "special precautions" to protect him. She also asserted that the officers' failure to safeguard her husband rendered the vessel unseaworthy. The jury held for the defendant, returning special verdicts that Farrell was not negligent and that the Austral Pioneer was not unseaworthy. We now consider appellant's various assignments of error in turn.

II.

Appellant's chief complaint is that the trial judge failed to instruct the jury that, under the doctrine of res ipsa loquitur, it could infer appellee's negligence and the vessel's unseaworthiness from the fact of Larkins' disappearance. We do not believe, however, that the disappearance presents circumstances that warrant a charge of inferred negligence or unseaworthiness. We hold, therefore, that the district court's refusal to give the requested instruction was proper.

The Supreme Court has developed a law of res ipsa loquitur in admiralty that permits the trier of fact to draw inferences of negligence from unexplained circumstances. Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (1948). Under the Jones Act, the standard of recovery has not been a strict one, and seamen have been afforded the "judicially developed doctrine of liability granted to railroad workers by the FELA," Kernan v. American Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 401, 2 L.Ed.2d 382 (1958), including its light burden of proof on negligence and causation. While the standard of causation for unseaworthiness is "more demanding," Chisholm v. Sabine Towing & Transportation Co., 679 F.2d 60, 62 (5th Cir.1982), the plaintiff's burden in either case has been characterized as light. Vallot v. Central Gulf Lines, 641 F.2d 347, 350 (5th Cir.1981). The jury's role, moreover, has been an important one in such cases, and doubts have been resolved in favor of submission. G. Gilmore and C. Black, The Law of Admiralty 377 (2d ed. 1975).

In admiralty, res ipsa loquitur may be most relevant in determining which cases of unexplained circumstances should go to the jury. Where "the balance of probabilities" might reasonably be found in favor of negligence, submission is required. The mere happening of an accident, however, does not give rise to a res ipsa inference of negligence or breach of duty under the Jones Act or general maritime law. Kiesel v. American Trading Production Corp., 347 F.Supp. 673, 678-79 (D.Md.1972); Ursich v. da Rosa, 328 F.2d 794 (9th Cir.1964). Where varying explanations are equally probable, res ipsa loquitur cannot apply. W. Prosser and W. Keeton, Law of Torts, 248-49, 257-58 (5th ed. 1984).

While the historic purposes of admiralty law may favor jury resolution of personal injury claims, instructions on res ipsa loquitur should be carefully circumscribed where, as here, a seaman's disappearance is mysterious. Charging the jury to infer negligence or unseaworthiness from the fact of the seaman's disappearance, without more, invites a verdict based on sympathy or speculation. See Swords v. American Sealanes, Inc., 443 F.2d 1324, 1325 (4th Cir.1971). A jury instruction on res ipsa under these circumstances may make the plaintiff's light burden nonexistent, and deprive the jury of its traditional role of assigning fault in negligence actions and assigning weight to circumstantial evidence. Such an instruction, in fact, all but directs a finding of liability where questions both of fault and causation may be much in dispute.

For a res ipsa instruction to be warranted, the plaintiff must establish that "(1) the event is of a type which ordinarily does not happen in the absence of someone's negligence; (2) the instrumentality causing the injury was, at the time of the accident, within the exclusive control of the defendant; (3) the accident was not due to any voluntary action or contribution on the part of the plaintiff." Olsen v. States Line, 378 F.2d 217, 220 (9th Cir.1967); Savard v. Marine Contracting, 471 F.2d 536, 542 (2d Cir.1972).

Here, however, far too little is known of the facts surrounding Larkins' disappearance to "let the thing speak for itself." Because the specific instrumentality that caused Larkins' disappearance is unknown, it is impossible to determine whether that instrumentality was in appellee's exclusive control. While appellee was in control of the Austral Pioneer itself, there is no evidence that the condition of the vessel's gear or appurtenances contributed to the disappearance. Larkins may have been swept overboard by the rough weather when, in spite of the captain's order to the contrary, he went up on deck. He may have committed suicide. An epileptic seizure may have played some part in this sad event, but exactly what part is unclear. The only evidence of negligence presented by the plaintiff--that of the crew's alleged failure to take special precautions for an epileptic seaman--was a matter for the jury under the usual preponderance standard, not under a res ipsa instruction. Because varying explanations of Larkins' disappearance are possible, a res ipsa instruction is inappropriate.

In Swords v. American Sealanes, Inc., 443 F.2d 1324 (4th Cir.1971), this court reversed for lack of evidence a jury verdict on unseaworthiness in a seaman's unwitnessed disappearance from his duty post. Judge Butzner dissented, arguing that a sagging chain guardrail warranted an inference of unseaworthiness sufficient to take the issue to the jury. Id. at 1326.

In the instant case, the trial judge allowed the issue of negligence and unseaworthiness to go to the jury on substantially less than a sagging guardrail. The court instructed the jury "on the 'slight negligence' test to be applied in determining liability under the Jones Act" and on "the absolute duty of the shipowner in respect to unseaworthiness." Rabb v. Canal Barge Company, 428 F.2d 201, 204 (5th Cir.1970). Its treatment of appellant was fair and even generous. Appellant's further request for a res ipsa instruction simply asks too much.

III.

Appellant next contends that the trial court erred in instructing the jury that Larkins had a duty to disclose his epileptic condition during pre-voyage physical examinations and that he could not recover for negligence if he misrepresented his condition. Relying on Still v. Norfolk & Western Railway, 368 U.S. 35, 82 S.Ct. 148, 7 L.Ed.2d 103 (1961), appellant argues that concealment or misrepresentation may not serve to defeat a seaman's recovery for negligence under the Jones Act even when the misrepresentation bears a causal relationship to the injury involved. The instruction as given, however, is consistent with Still.

The trial judge instructed the jury that:

If you find that decedent knowingly misrepresented his physical condition, and, that because of that misrepresentation defendant was justified in not taking special precautions for Larkins' safety, then you may not find the defendant negligent in that regard.

Appellant interprets this instruction to mean that, if Larkins misrepresented his epileptic condition, the jury was precluded from finding appellee negligent in any regard. The trial court's instruction, however, addressed only the failure to take special precautions. Under the Jones Act, a shipowner's duty is to provide seamen with a safe place to work. Michalic v. Cleveland Tankers, 364 U.S. 325, 327-28, 81 S.Ct. 6, 9-10, 5 L.Ed.2d 20 (1960). A shipowner is not obligated to provide any...