Furka v. Great Lakes Dredge & Dock Co., Inc.

• Decision Date: 26 February 1985
• Docket Number: No. 83-1542,83-1542
• Citation: 755 F.2d 1085
• Parties: Deborah FURKA, Administratrix of the Estate of Paul Furka, deceased, Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1085

755 F.2d 1085

1985 A.M.C. 2914

Deborah FURKA, Administratrix of the Estate of Paul Furka, deceased, Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY, INC., Appellee.

No. 83-1542.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 5, 1984.

Decided Feb. 26, 1985.

Leonard C. Jaques, Detroit, Mich. (Jaques Admiralty Law Firm, P.C., Detroit, Mich., on brief), for appellant.

Warren B. Daly, Jr., Baltimore, Md. (M. Hamilton Whitman, Jr., Ober, Kaler, Grimes & Shriver, Baltimore, Md., on brief), for appellee.

Before RUSSELL, PHILLIPS and WILKINSON, Circuit Judges.

WILKINSON, Circuit Judge:

This is an action brought for negligence under the Jones Act and for unseaworthiness under general maritime law involving an alleged rescue attempt by appellant's decedent of a fellow employee on the Chesapeake Bay. During that attempt, the would-be rescuer was swept by the waves from his boat and drowned. We hold that the trial court's failure to give a proper rescue charge to the jury constitutes plain error and requires reversal despite a failure of counsel to object to the charge in accordance with Fed.R.Civ.P. 51. We remand the case for a new trial in accordance with the guidelines set forth below.

Appellant Deborah Furka is the widow of Paul Furka ("Furka"), who was employed by appellee Great Lakes Dredge and Dock Company ("Great Lakes") as a surveyor on a large marine dike construction project at Hart and Miller Islands in the Chesapeake Bay near Baltimore. In addition to a hydraulic dredge and two crew boats, Great Lakes maintained a number of tugboats, scows, and Boston Whalers to perform various functions on and around the project. Furka was chief-of-party on a surveying team operating on a Boston Whaler.

On January 9, 1982, a day of increasingly rough weather and turbulent seas, one of the tugs, with scow attached, lost its rudder and its power and went adrift in the bay. The captain radioed to base, but exactly what he said is a matter of dispute. According to plaintiff, the message was a call to remove the scowman from his open boat, where he was cold and wet and "freezing to death." Defendant's evidence indicated that the captain suggested no emergency but merely requested assistance with moving the scow. At the time of the call, none of the larger boats was available to go to the disabled craft. Furka took his sixteen-foot Boston Whaler into the rough water to remove the scowman from the cold, but the stranded seaman refused to leave with him. Furka turned toward shore but shortly began taking on water. He radioed for help but was drowned before rescuers could reach him. ¹

Furka's widow brought this action against his employer, alleging negligence under the Jones Act, 46 U.S.C. Sec. 688 (1982) ² and the unseaworthiness of the Boston Whaler under general maritime law. ³ Great Lakes denied any immediacy to the tugboat captain's radio call for help and asserted contributory negligence as a limitation upon complete recovery. ⁴

The jury found Furka to have been a seaman. It returned a verdict in favor of plaintiff on negligence and against plaintiff on the unseaworthiness of the Boston Whaler. It awarded damages for pecuniary loss of $1,200,000, but found Furka to have been 65% contributorily negligent. Judgment was thus entered for plaintiff in the amount of $420,000. From that verdict Mrs. Furka appealed.

I

The submission to the jury of the question of Furka's contributory negligence without reference to the special context of rescue ignored the very premise upon which appellant's case was based. The instruction in this case failed to inform the jury that no contributory negligence may be inferred from a rescue attempt alone and further that no comparative fault may be assessed unless plaintiff's conduct was wanton or reckless. ⁵ As stated long ago by Justice Cardozo, "Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore the reactions of the mind in tracing conduct to its consequences. It recognizes them as normal." Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437 (1921).

The common law doctrine of rescue may be succinctly stated: "[T]he law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness." Scott v. John H. Hampshire, Inc., 246 Md. 171, 227 A.2d 751, 753-754 (1967), quoting Maryland Steel Co. v. Marney, 88 Md. 482, 42 A. 60, 66 (1898). See also Altamuro v. Milner Hotel, Inc., 540 F.Supp. 870 (E.D.Pa.1982); Brown v. National Oil Co., 233 S.C. 345, 105 S.E.2d 81 (1958); Andrews v. Appalachian Electric Power Co., 192 Va. 150, 63 S.E.2d 750 (1951). When confronted with an emergency, a rescuer "should not be charged with the consequences of errors of judgment resulting from the excitement and confusion of the moment...." Corbin v. Philadelphia, 195 Pa. 461, 45 A. 1070, 1074 (1900); see also Rodgers v. Carter, 266 N.C. 564, 146 S.E.2d 806, 810 (1966); Restatement (Second) of Torts Sec. 470(1) (1965). In rescue, promptness may be prudence, and reflex may claim the seat of reason.

Whether or not there was a rescue attempt is, of course, a question for the jury. If the jury finds plaintiff engaged in a rescue, there must be evidence of wanton or reckless behavior on plaintiff's part before any fault may be assigned. This is the standard traditionally applied to the conduct of plaintiffs in rescue situations. See, e.g., Scott v. John H. Hampshire, Inc., (standard of "dangerous but not reckless" behavior), 246 Md. 171, 227 A.2d 751, 753, citing Maryland Steel Co. v. Marney, 42 A.60, 66 ("rashness"); Brown v. National Oil Co. ("wanton or foolhardy"), 233 S.C. 345, 105 S.E.2d 81, 87; Andrews v. Appalachian Electric Power Co. ("rash" or "reckless"), 192 Va. 150, 63 S.E.2d 750, 757; Wagner v. International Ry. ("wanton"), 232 N.Y. 176, 133 N.E. 437, 438; Corbin v. Philadelphia ("rashness and imprudence"), 45 A. 1070, 1073.

We reject appellee's contention that these policies lose their force under the Jones Act, where the doctrine of comparative negligence applies damages proportionately. It is true that the "wanton and reckless" standard developed under the common law, where contributory negligence was a complete bar to recovery. In some comparative negligence jurisdictions not in admiralty, the wanton and reckless standard has thus been diluted. See e.g., Cords v. Anderson, 80 Wis.2d 525, 259 N.W.2d 672, 683 (1977); Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228 (Fla.App.1978). We do not think that is the appropriate course here. Rather, we agree with the Fifth Circuit that "of all branches of jurisprudence, the admiralty must be the one most hospitable to the impulses of man and law to save life and limb and property." Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1021 (5th Cir.1969), cert. dismissed, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531 (1970). See also Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71 (5th Cir.1980); Asaro v. Parisi, 297 F.2d 859 (1st Cir.), cert. denied, 370 U.S. 904, 82 S.Ct. 1250, 8 L.Ed.2d 400 (1962). The best traditions of seafaring men demand that we honor attempts to rescue, unless the rescuer acts beyond the bounds that even the exigencies of the moment would allow. The wanton and reckless standard reflects the value society places upon rescue as much as any desire to avoid a total defeat of recovery under common law. Law must encourage an environment where human instinct is not insular but responds to the plight of another in peril.

This was a rescue attempt that ended in tragedy. Paul Furka died. If Sal Sanzone, the seaman on the open scow, had entered the Boston Whaler with Furka, he might have perished, too. Some rescue attempts will involve the loss both of rescuer and victim. This does not displace the principles herein. Hazard inheres in the enterprise. A jury, assessing the situation at a time and place far removed, must give proper weight to the moment of peril and the humane instincts that prompted the response thereto.

II

Appellee contends that the trial court's contributory negligence charge is not subject to question here because appellant failed to object to the charge as given, pursuant to Fed.R.Civ.P. 51. ⁶ Ordinarily this court will not consider issues not previously raised. United States v. One 1971 Mercedes Benz, 542 F.2d 912 (4th Cir.1976). However, if the error is "plain" and to ignore it would result in a denial of fundamental justice, it should be corrected. United States v. Barge Shamrock, 635 F.2d 1108, 1111 (4th Cir.1980), cert. denied sub nom. Shell Oil Co. v. United States, 454 U.S. 830, 102 S.Ct. 125, 70 L.Ed.2d 107 (1981). "Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy." Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941). See also 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2558 at 672-675 (1971).

In the case before us, the call to rescue and its attendant circumstances were the soul of appellant's case. Her evidence was adduced to show that had it not been for the perceived need for assistance, Furka would never have set out on the turbulent bay in a sixteen-foot boat. Under the rescue doctrine, she was entitled to a special instruction regarding these circumstances. This court has found plain error requiring reversal where an instruction "plainly misstated fundamentally controlling substantive principles governing ... [the] right to recover." Miller v. Premier Corp., 608 F.2d 973, 983 (4th Cir.1979); see also Edwards v. Mayes, 385 F.2d 369 (4th Cir.1967). The trial court's failure to give a special rescue...