Ezekiel v. Volusia Steamship Co.

• Decision Date: 15 December 1961
• Docket Number: No. 44,Docket 26937.,44
• Citation: 297 F.2d 215
• Parties: George EZEKIEL, Plaintiff-Appellant, v. VOLUSIA STEAMSHIP CO. and Suwanee Steamship Co., Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

297 F.2d 215 (1961)

George EZEKIEL, Plaintiff-Appellant, v. VOLUSIA STEAMSHIP CO. and Suwanee Steamship Co., Defendants-Appellees.

No. 44, Docket 26937.

United States Court of Appeals Second Circuit.

Argued October 31, 1961.

Decided December 15, 1961.

Theodore H. Friedman, Jacob Rassner, New York City, for plaintiff-appellant.

Arthur M. Boal, Jr., Boal, McQuade & Fitzpatrick, New York City, for defendant-appellees.

Before CLARK, HINCKS and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

Plaintiff, a Honduran seaman, brought this action in 1957, in the District Court for the Southern District of New York, against a Liberian corporation¹ for an injury to his eye suffered while he was chipping rust aboard M/V Arctic Reefer, a Liberian vessel, in Guatemalan waters. The action was brought on the "law" side, and a jury trial was demanded. In the spring of 1961, plaintiff consented to a transfer to the "admiralty" side, withdrew the claims asserted for maintenance and cure and for negligence under the Jones Act, 46 U.S.C.A. § 688, and agreed to proceed solely on a theory of unseaworthiness. It was stipulated that liability was governed by Liberian law and that Liberia has adopted the nonstatutory general maritime law of the United States.

Plaintiff's evidence on the issue of liability consisted of his own deposition and the testimony of a Captain Mandrill, called as an expert. Shortly after 8 A.M. on May 19, 1956, plaintiff began to chip rust, with a hammer, from a blower on top of the deck above the engine room. About an hour later a piece of rust flew off and hit his right eye. He was not wearing goggles. He claimed that he had none, that the boatswain kept them, that he had asked the boatswain for some before starting work, and that the boatswain claimed to have no more. He was unable to recall the name of the boatswain, although he had been on the ship for almost a year. Mandrill testified it was bad practice for a boatswain to allow a seaman to chip rust without wearing goggles.

Defendant introduced the deposition of Bodden, the Arctic Reefer's chief officer. His testimony was that each of the seven members of the deck crew, including Ezekiel, had been issued a pair of goggles in March and had been informed that if "at any time the goggles should be lost or injured it was their duty to report in order for replacement of a new pair"; that a notice was posted to this effect, stating also that replacements were to be obtained from the chief officer; that, pursuant to a written order from the company, he kept six spare sets of goggles in a locker in his office; that it was the custom on the ship for men to come to him for supplies so maintained; but that Ezekiel had never sought a replacement for his goggles. Bodden testified also that, on two previous occasions, one about a month and the other about a week before the injury, he saw Ezekiel chipping rust with goggles around the neck but not on the eyes, and remonstrated about this; Ezekiel promised to be careful on the first occasion and made no answer on the second. After the accident Bodden asked Ezekiel whether he had his goggles on; Ezekiel answered "No." Bodden asked why, but got no reply.

In giving judgment for the defendant, Judge Holland found, in an opinion delivered at the close of the trial, "that goggles for the prevention of injuries to the eye to be used by a crew member in the chipping of rust were a part of the maintenance of the vessel in question required by the standard of seaworthiness," "that in connection with the performance of a chipping of rust operation, seaworthiness requires the making of goggles available to the crew member who is ordered to perform such an operation," and "that the evidence in the case demonstrates that both of those duties which I have outlined heretofore as to seaworthiness have been met by the respondent." The judge declined a request by plaintiff's counsel to consider more detailed findings and conclusions which counsel wished to prepare.

Reading the findings together as we must, the last quoted finding means at least that the judge had determined, as he was amply warranted in doing, that goggles had been issued to plaintiff, that plaintiff had been instructed to come to the chief officer for a replacement if they were lost or damaged, and that replacements were available. It could mean also that the judge completely discredited plaintiff's story about the unsuccessful request to the anonymous boatswain, or even that the judge thought plaintiff had the goggles with him but failed to put them on, as, according to Bodden, he had failed twice before. The judge would have been entitled to come to any of these conclusions although plaintiff was not before him, in view of the contradictions between plaintiff's and Bodden's versions of the goggle situation, see Nolan v. Buffalo Ins. Co., 181 F.2d 735, 738 (8 Cir., 1950). Even if the judge did not intend any finding on the truth of plaintiff's story, we could supplement his findings by ourselves weighing plaintiff's testimony against Bodden's; indeed, we could do this even if this appeal were one governed by the Federal Rules of Civil Procedure rather than by the Admiralty Rules, 28 U.S.C.A., see Westley v. Southern Ry., 250 F.2d 188 (4 Cir., 1957); Burman v. Lenkin Const. Co., 80 U.S. App.D.C. 125, 149 F.2d 827 (1945); cf. 5 Moore, Federal Practice (1951), § 52.04. However, it is unnecessary for us to supply such additional findings or to remand to the district judge, since even without them the judgment must be affirmed.

At the outset, it is clear that a ship is not rendered unseaworthy simply because rust accumulates and has to be removed, see Lind v. American Trading & Production Corp., 294 F.2d 342 (9 Cir., 1961). Nothing was shown to be wrong in the quantity or quality of the ship's gear; we have already noted that the judge's findings, supported by the evidence, mean at least that goggles had been issued and that an adequate number of spares were maintained and were available to the crew for proper purposes. The evidence did not require a finding of a deficiency in the ship's procedure with respect to the use of goggles; the judge was not bound to accept the opinion of plaintiff's expert that good procedure requires that boatswains take affirmative action to see to it that crewmen, who have been furnished goggles and instructed to wear them, do so at all times. Even if plaintiff's testimony were to be taken at face value, it did not compel the judge to find that the single alleged misfeasance by the boatswain made him not "equal in disposition and seamanship to the ordinary men in the calling." Keen v. Overseas Tankship Corp., 194 F.2d 515, 518 (2 Cir.), cert. denied, 343 U.S. 966, 72 S.Ct. 1061, 96 L.Ed. 1363 (1952); Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 94 L.Ed. 354 (1955). The only remaining basis of liability would be the boatswain's alleged action standing by itself. But we have just reaffirmed, without disagreement on that point, that allegedly imprudent action by a seaman's superior is not within the concept of unseaworthiness even though it may be within that of negligence, Pinto v. States Marine Corporation of Delaware, 296 F.2d 1 (2 Cir., 1961), petitions for rehearing and rehearing in banc denied, Nov. 20, 1961, as was held long ago in The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903), and Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 38 S.Ct. 501, 62 L. Ed. 1171 (1918), and recently in Imperial Oil, Ltd. v. Drlik, 234 F.2d 4 (6 Cir., 1956); Penedo Cia Naviera S.A. v. Maniatis, 262 F.2d 284 (4 Cir., 1959); and Lind v. American Trading & Production Corp., supra; see Gilmore & Black, The Law of Admiralty (1957), 320 and Judge Learned Hand's discussion in Grillea v. United States, 232 F.2d 919, 922 (2 Cir., 1956). Liberia has chosen not to adopt United States statutory law making negligence as well as unseaworthiness a ground for recovery; it is not for us to force that upon her. Since the judge below found the claim of unseaworthiness not proved, there was of course no occasion for him to make findings on the issue of contributory negligence or to apportion damages, as would have been required in the event of a contrary conclusion as to unseaworthiness.

Affirmed.

CLARK, Circuit Judge (dissenting).

The undisputed testimony established that plaintiff, an 18-year-old seaman, was chipping rust with a hammer from a blower on the ship's deck; that he was not wearing goggles; and that as a result of this failure a piece of rust hit his right eye. Plaintiff's expert witness, Captain Mandrill, testified that chipping is "hazardous" and that the wearing of goggles is necessary in such an operation. He further stated that a good boatswain who observed a man chipping rust without goggles would make him put them on. At trial,...