Farnarjian v. American Export Isbrandtsen Lines, Inc., 437

• Decision Date: 20 February 1973
• Docket Number: No. 437,Docket 72-1598.,437
• Citation: 474 F.2d 361
• Parties: Martin FARNARJIAN, Plaintiff-Appellant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

474 F.2d 361 (1973)

Martin FARNARJIAN, Plaintiff-Appellant, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant-Appellee.

No. 437, Docket 72-1598.

United States Court of Appeals, Second Circuit.

Argued January 29, 1973.

Decided February 20, 1973.

Edward M. Katz, New York City (Abraham E. Freedman, New York City, on the brief), for plaintiff-appellant.

Stephen K. Carr, New York City (Haight, Gardner, Poor & Havens, Stephen C. Pascal, New York City, on the brief), for defendant-appellee.

Before ANDERSON, FEINBERG and MULLIGAN, Circuit Judges.

FEINBERG, Circuit Judge:

Plaintiff Martin Farnarjian appeals from a judgment for defendant American Export Isbrandtsen Lines, Inc. after a trial in the United States District Court for the Southern District of New York before a jury and Judge Richard H. Levet. Refreshingly, Farnarjian raises only one point on appeal, that the district court erred in charging the jury on proximate cause. Although the charge was incorrect, we find that the error did not prejudice plaintiff's substantial rights. Accordingly, we affirm the judgment of the district court.

I

Plaintiff's action joined in familiar fashion a negligence claim under the Jones Act, 46 U.S.C. § 688, and a claim of unseaworthiness under general maritime law. Plaintiff had been employed aboard defendant's vessel as a saloon messman. On November 7, 1968, he slipped and fell on a soapy deck in the officers' messroom while walking to the pantry to get hot water to clean the deck. The theory of plaintiff's case was that the action of his superior, the Chief Steward, in unnecessarily spreading soapy water over the entire messroom deck was negligent and also rendered that part of the ship unseaworthy. Defendant claimed that it was plaintiff's duty to keep the deck clean and dry, that plaintiff had failed to do his own job properly, that the Chief Steward had spread the soapy water on only part of the deck to demonstrate how the job should be done, and that he had exercised due care in so doing.

The trial was on the liability issue only. The key issues concerned what the Chief Steward had done: In his effort to instruct plaintiff by example, had he covered the entire deck with soapy water, as plaintiff claimed, or only a part of it, as defendant claimed; was the Chief Steward negligent, and was the ship unseaworthy because of an unreasonable accumulation of soapy water? There was no issue as to whether and how plaintiff had fallen. The question was whether this was the fault of defendant or of plaintiff, or of no one at all.

The issue regarding the judge's charge arose in the following way. Plaintiff requested the court to charge that plaintiff's burden was to prove that defendant's negligence "played some part, however slight, in causing the occurrence in which plaintiff was injured." For that proposition, plaintiff cited Rogers v. Missouri Pacific R. R., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957), and DeLima v. Trinidad Corp., 302 F.2d 585 (2d Cir. 1962). The judge did use the "however slight" language once in his charge, though not in reference to causation,¹ and five times said, in effect, that defendant would be liable if its negligence or the unseaworthiness of the vessel was a proximate cause, in whole or in part, of plaintiff's fall. The "in whole or in part" language also appeared in two interrogatories submitted to the jury, which are reproduced in the margin.² However, in the course of explaining various legal terms, the court charged as follows:

Now what is a proximate cause?³ An act or an omission to act is a proximate cause of an event that is a substantial factor in bringing about that event. Thus, if you find that the plaintiff has proved by a fair preponderance of the credible evidence that the defendant\'s acts or omissions were a substantial factor in bringing about the plaintiff\'s alleged accident, the requirement of a proximate cause is satisfied. However, a showing of negligence, without proof of a proximate cause, is, as I have attempted to show you, insufficient.

Stating it in another way, a proximate cause is that cause which in a natural and continuous sequence, unbroken by any efficient intervening cause, is a substantial factor in bringing about the injury. Emphasis added.

Proximate cause was not otherwise defined, although, as indicated above, it was frequently qualified by the "in whole or in part" language.

At the conclusion of the charge, and outside the presence of the jury, counsel for plaintiff excepted to the court's charge, stating:

MR. KATZ: Your Honor defined proximate cause as an act or omission constituting a substantial factor in causing the injury. I am not a hundred per cent sure, but I think that the charge should have been whether it played a part, however small, in causing the injury, not —

THE COURT: We considered that. I had my clerk check it just before we started out today. I can\'t agree with you. All right. I deny the application. That\'s all.

The jury was then given special interrogatories. See note 2 supra. The first question combined proximate causation with the issue of negligence, and the second joined it with the issue of unseaworthiness. The jury answered both questions in the negative, returned a general verdict for defendant and was not required to answer the remaining questions, dealing with contributory negligence.

II

Relying on the authorities cited above, plaintiff argues that the court's definition of proximate cause in this case was wrong. We agree with plaintiff. There is simply no place in a Jones Act charge for the "substantial factor" language in defining proximate cause, however sensible that phrase may be in other contexts.⁴ The Jones Act incorporates by reference the language of the Federal Employers' Liability Act, which makes an employer liable in damages for injury to an employee "resulting in whole or in part from" the employer's negligence. 45 U.S.C. § 51. The cases have emphasized this language in a variety of contexts. See, e. g., Rogers v. Missouri Pacific R. R., supra, 352 U.S. at 506, 77 S. Ct. at 448 (inquiry, on sufficiency issue, whether "employer negligence played any part, even the slightest," in the injury); DeLima v. Trinidad Corp., supra, 302 F.2d at 587-588, (error to refuse to charge that employer is liable if his negligence "played any part, even the slightest, in producing an injury to plaintiff"); accord, Ammar v. American Export Lines, Inc., 326 F.2d 955, 958-959 (2d Cir.), cert. denied, 379 U.S. 824, 85 S.Ct. 48...