Glapion v. MS JOURNALIST, No. 72-3067.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtTHORNBERRY, SIMPSON and CLARK, Circuit
Citation487 F.2d 1252
PartiesWalter A. GLAPION, Sr., Plaintiff-Appellant, v. The MS JOURNALIST, her engines, tackle, furniture and apparel, and Charente Steamship Co., Ltd., Defendants-Appellees.
Decision Date12 December 1973
Docket NumberNo. 72-3067.

487 F.2d 1252 (1973)

Walter A. GLAPION, Sr., Plaintiff-Appellant,
v.
The MS JOURNALIST, her engines, tackle, furniture and apparel, and Charente Steamship Co., Ltd., Defendants-Appellees.

No. 72-3067.

United States Court of Appeals, Fifth Circuit.

December 12, 1973.


487 F.2d 1253

William S. Vincent, Jr., Clifton S. Carl, New Orleans, La., for plaintiff-appellant.

M. D. Yager, Bert M. Cass, Jr., Frank A. Courtenay, Jr., New Orleans, La., for defendants-appellees.

Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellant Walter A. Glapion, a longshoreman, filed suit against the MS Journalist and her owner1 to recover damages for personal injuries sustained on board the vessel during loading of cargo at New Orleans. The United States District Court for the Eastern District of Louisiana found that the accident which caused appellant's injury was proximately caused by the individual negligent acts of appellant's fellow longshoremen and not by any unseaworthy condition of the ship, its equipment, or its crew.

On this appeal, appellant contends (1) that the trial court's findings on proximate cause are clearly erroneous, and (2) that the vessel owner's cargo loading operation violated certain safety regulations, thus rendering the vessel unseaworthy as a matter of law. We hold that the district court's findings on proximate cause are not clearly erroneous. Nevertheless, we vacate and remand to the district court for findings on the applicability and possible violation of 29 C.F.R. §§ 1918.81(c), 1918.81(f), and 1918.82(a)2 as we more fully detail below.

The District Court's Findings

The relevant facts are generally undisputed. On the day of the accident, Glapion and his fellow longshoremen were loading heavy aluminum ingots into two deep tanks of the vessel. The aluminum ingots were banded together in bundles about two feet wide and about two and one-half feet tall, weighing approximately 1,500 pounds. Each bundle was banded to a small skid.

Each draft, consisting of two bundles, one on top of the other, was lowered by a winch into the tank in a two-wire sling, with a wire under either side of the skid of the bottom bundle and around both bundles. Only the weight of the bundles held them in the sling; the bundles could come out of the sling when the weight slackened. In the normal operation, the draft was lowered to about eight to ten inches from the floor of the tank; there a lift truck took hold and moved the two bundles to their position of stow.

By the end of the day, the deep tank was so filled with bundles of ingots that

487 F.2d 1254
the lift truck could no longer be operated. The truck was thus removed and a new loading operation was instituted. Pursuant to this new operation, the winch was used to lower the draft into the hold to a point where it would hang suspended eight or ten inches above the floor. Four longeshoremen would then guide the draft manually over to the area where it was to be stowed, at which point the winch would lower the draft until it was securely stowed

By the time only two drafts of ingots remained to be loaded, the longshoremen were working on a floor composed almost entirely of bundles. This floor was not completely even since all the bundles were not of uniform size. After the next-to-last draft had been lowered to eight to ten inches above the floor of bundles but before the draft had been securely stowed—during the time the longshoremen were in manual contact with the draft—the top bundle came loose and began to roll forward. Glapion, standing in front of the draft, was injured when the bundle pinned his hand against one of the ship's ribs.

The district judge concluded that none of the witnesses who testified could fully explain why the top bundle came loose. The court found that the top bundle slid either because two of appellant's fellow longshoremen continued to push against it after the winch had set the draft down or because the men guided the draft so that it was lowered onto an uneven part of the floor, causing the whole draft to tilt and allowing the top bundle to slide. In either case, the court concluded, negligence on the part of the longshoremen rather than any unseaworthy condition of the ship was the proximate cause of the injury. Appellant disputes the district court's findings on proximate cause and contends that the uneven floor created by the bundles produced an...

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9 practice notes
  • City of Charleston v. A Fisherman's Best, No. 99-1991.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 31, 2002
    ...attention of the trial court. 44 U.S.C. § 1507. See also Golding v. United States, 219 F.2d 109 (4th Cir.1955); Glapion v. MS Journalist, 487 F.2d 1252 (5th Cir.1973). The new FMP became effective July 1, 1999, except for a few regulations that do not relate to this case. Formal adoption on......
  • Poindexter v. U.S., No. 85-4080
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1985
    ...v. Harrison, 651 F.2d 353, 355 (5th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 975, 71 L.Ed.2d 113 (1981); Glapion v. M/S JOURNALIST, 487 F.2d 1252, 1255 (5th Cir.1973). It is true that in the case of the Navy the material considered by the district court went somewhat beyond the express......
  • Lenfest v. Coldwell, FERRO--BET
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 6, 1975
    ...59 (2 Cir. 1946). See also Ford Motor Co. v. N.L.R.B., 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221 (1939); Glapion v. MS. JOURNALIST, 487 F.2d 1252, 1255 (5 Cir. 1973); Watz v. Zapata Off-Shore Co., 431 F.2d 100, 118 (5 Cir. 1970); Manning v. M/V SEA ROAD, 358 F.2d 615, 618 (5 Cir. 1965);......
  • Donovan v. Blue Ridge Pressure Castings, Inc., Civ. No. 81-1260.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 1, 1981
    ...no consequence since this Court may take judicial notice of such validly promulgated federal regulations. See, Glapion v. MS Journalist, 487 F.2d 1252, 1255 (5th Cir. 1973); Hughes v. Gengler, 404 F.2d 229 (9th Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 870, 21 L.Ed.2d 778 B. Probabl......
  • Request a trial to view additional results
9 cases
  • City of Charleston v. A Fisherman's Best, No. 99-1991.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 31, 2002
    ...attention of the trial court. 44 U.S.C. § 1507. See also Golding v. United States, 219 F.2d 109 (4th Cir.1955); Glapion v. MS Journalist, 487 F.2d 1252 (5th Cir.1973). The new FMP became effective July 1, 1999, except for a few regulations that do not relate to this case. Formal adoption on......
  • Poindexter v. U.S., No. 85-4080
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1985
    ...v. Harrison, 651 F.2d 353, 355 (5th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 975, 71 L.Ed.2d 113 (1981); Glapion v. M/S JOURNALIST, 487 F.2d 1252, 1255 (5th Cir.1973). It is true that in the case of the Navy the material considered by the district court went somewhat beyond the express......
  • Lenfest v. Coldwell, FERRO--BET
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 6, 1975
    ...59 (2 Cir. 1946). See also Ford Motor Co. v. N.L.R.B., 305 U.S. 364, 373, 59 S.Ct. 301, 83 L.Ed. 221 (1939); Glapion v. MS. JOURNALIST, 487 F.2d 1252, 1255 (5 Cir. 1973); Watz v. Zapata Off-Shore Co., 431 F.2d 100, 118 (5 Cir. 1970); Manning v. M/V SEA ROAD, 358 F.2d 615, 618 (5 Cir. 1965);......
  • Donovan v. Blue Ridge Pressure Castings, Inc., Civ. No. 81-1260.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • December 1, 1981
    ...no consequence since this Court may take judicial notice of such validly promulgated federal regulations. See, Glapion v. MS Journalist, 487 F.2d 1252, 1255 (5th Cir. 1973); Hughes v. Gengler, 404 F.2d 229 (9th Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 870, 21 L.Ed.2d 778 B. Probabl......
  • Request a trial to view additional results

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