Greene v. Vantage Steamship Corporation

• Citation: 466 F.2d 159
• Decision Date: 29 August 1972
• Docket Number: No. 72-1035,72-1036.,72-1035
• Parties: Mrs. Geraldine W. GREENE, Administratrix of the Estate of Robert Greene, Deceased, Appellee, v. VANTAGE STEAMSHIP CORPORATION, Appellant. VANTAGE STEAMSHIP CORPORATION, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

466 F.2d 159 (1972)

Mrs. Geraldine W. GREENE, Administratrix of the Estate of Robert Greene, Deceased, Appellee, v. VANTAGE STEAMSHIP CORPORATION, Appellant.

VANTAGE STEAMSHIP CORPORATION, Appellant, v. UNITED STATES of America, Appellee.

Nos. 72-1035, 72-1036.

United States Court of Appeals, Fourth Circuit.

Argued May 10, 1972.

Decided August 29, 1972.

COPYRIGHT MATERIAL OMITTED

Carter B. S. Furr, Norfolk, Va. (Jett, Berkley, Furr & Heilig, Norfolk, Va., on brief), for appellant in No. 72-1035 and No. 72-1036.

Sidney H. Kelsey, Norfolk, Va. (Kelsey & Kelsey, Norfolk, Va., on brief), for appellee in No. 72-1035.

William D. Appler, Atty., Department of Justice (L. Patrick Gray, III, Asst. Atty. Gen., and Morton Hollander, Atty., Department of Justice, and Brian P. Gettings, U. S. Atty., on brief), for appellee in No. 72-1036.

Before WINTER and FIELD, Circuit Judges, and BLATT, District Judge.

WINTER, Circuit Judge:

Robert Greene, a longshoreman employed by the United States at the Naval Supply Center, Norfolk, Virginia, was fatally injured when a hatch board on the SS RACHEL V gave way, causing him to fall to the deck below. The decedent's wife, as administratrix of his estate, instituted this action against Vantage Steamship Corporation (Vantage), owner of the RACHEL V, claiming that Vantage had breached its duty to provide a seaworthy vessel. Vantage then filed a third party action against the stevedore, the United States, alleging that it had breached its implied warranty of workmanlike performance. The district court directed a verdict in favor of the plaintiff on the issue of unseaworthiness and submitted only the question of damages to the jury. It returned a verdict of $100,000. In the third party action, the district court, sitting without a jury, held that the United States had not breached its implied warranty and gave judgment against Vantage. Vantage appeals from the final orders in both causes of action.

I

On March 19, 1971, Vantage contracted to charter the RACHEL V to the Military Sealift Command.¹ Prior to the delivery of the RACHEL V to the MSC, a joint survey of the ship was conducted.² The survey revealed that in the No. 1 hold four hatch boards on the upper 'tween deck were broken, one hatch beam was bowed, and two hatch beams had their underside flanges toed up. After the survey, the ship sailed from Bayonne, New Jersey, to the Naval Supply Center in Norfolk, Virginia, to take on government cargo.

The No. 1 hold of the RACHEL V consists of an upper 'tween deck, a lower 'tween deck, and a lower hold. The 'tween deck hatch squares contained the standard type of hatch boards laid over hatch beams. The hatch beams run athwartship and the hatch boards fit between the beams, resting on a three to four inch lip of the beam. The district court did not make a specific finding with reference to the number of hatch beams, noting only that it "appears there were five or six hatch beams and six or seven rows of hatch boards."

On the morning of April 3, 1971, Robert Greene was a member of a long-shoreman gang assigned to prepare the RACHEL V to take on cargo in her No. 1 hold. His immediate supervisor was Chambers, the gang boss, who, in turn, was under the supervision of Nesbit, the stevedore supervisor. The cargo was to be loaded into the lower hold, and therefore it was necessary to open the hatch squares on the two upper decks. After the main deck hatch cover was removed, Nesbit and Chambers examined the hatch boards on the upper 'tween deck. Some of the hatch boards in the forward end of the hatch were in disarray and some were missing. The boards in the aft end, however, appeared to be in proper order; and since this was the area in which the men were scheduled to work, the order to proceed was given.

The decedent and his co-worker, Avery, descended to the upper 'tween deck to remove the hatch boards. As was their custom, the men began removing the hatch boards from the middle part of the hatch. Greene walked to the middle of the row, picked up a hatch board, turned to carry it to the edge or crowl of the ship, when the board on which he was standing gave way causing him to fall to the lower 'tween deck. As the result of his fall, Greene suffered severe injuries from which he died thirty-six hours later.

II

In plaintiff's case against Vantage, the district court directed a verdict in favor of the plaintiff, holding that as a matter of law, the RACHEL V was unseaworthy. The district court also directed a verdict for the plaintiff on the issue of the decedent's contributory negligence. Vantage contends that there was insufficient evidence to take either of these two questions from the jury. We disagree.

A ship owner has an absolute duty to provide a "vessel and appurtenances reasonably fit for their intended use." Mitchell v. Trawler Racer, 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed.2d 941 (1960). Vantage's duty in this case was therefore to supply hatch boards which would support a man in the process of opening up a hold.³ That Vantage failed to meet its duty is too plain for argument.

Whether an issue of alleged unseaworthiness should be submitted to a jury depends on whether "fair minded men, viewing all the facts and the inferences to be drawn from the facts can differ over whether the ship and its gear are reasonably fit for service . . ." Lundy v. Isthmian Lines, Inc., 423 F.2d 913, 915 (4 Cir. 1970). Here, plaintiff established that the hatch boards in the area where the decedent was working appeared to be in proper order, that there were no visible defects, and that the hatch board on which the decedent was standing slipped off the hatch beams causing him to fall to the lower 'tween deck. Since this evidence was uncontradicted, we agree with the district court that fair minded men viewing the facts and the logical inferences to be drawn from them could only conclude that the vessel was unseaworthy.

Vantage contends, however, that before a case can be taken from the jury, it is necessary for the plaintiff to show how or why the board upended, i. e., that it was too short or that the hatch beam was bowed, etc. Vantage misconstrues the plaintiff's burden of proof on the question of unseaworthiness. In Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2 Cir. 1970), a sliding door held open by a wedge and hook slid shut injuring a seaman's hand. No proof was offered why the door slid shut. On the basis of this evidence, the jury returned a verdict in favor of the ship owner. On appeal the second circuit reversed, holding that the seaman was entitled to a directed verdict despite the fact that he had failed to show why the door slammed shut:

Nothing more need be shown except that the device in question failed under conditions when it should have functioned properly. On the issue of the ship\'s unseaworthiness it is of no moment to speculate as to why the hook and wedge, fittings intended to keep the sliding door open, failed to function.

Id. at 816.

Where an appliance or piece of equipment breaks or fails in the normal course of use, a plaintiff need not show why the failure occurred, but only that it did occur with the resulting injury. See Oliveras v. American Export Isbrandtsen Lines, Inc., supra; Gibbs v. Kiesel, 382 F.2d 917 (5 Cir. 1967); Vega v. The Malula, 291 F.2d 415 (5 Cir. 1961); see also Petterson v. Alaska S.S. Co., 205 F.2d 478 (9 Cir.) aff'd 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954); Satchell v. Svenska Ostasiatiska Kompaniet, 385 F.2d 76 (4 Cir. 1967).

Nor is there merit in Vantage's argument that the issue of contributory negligence should have been permitted to go to the jury. "The admiralty rule is that the defense of contributory negligence must be affirmatively pleaded and proved by the defendant." W. E. Hedger Transp. Corp. v. United Fruit Co., 198 F.2d 376, 379 (2 Cir.) cert. denied 344 U.S. 896, 73 S.Ct. 275, 97 L.Ed. 692 (1952). Vantage offered no evidence to show that the decedent knew or should have known that the hatch boards were unsafe.⁴ Moreover, plaintiff's witnesses, who observed the hatch boards prior to the accident, testified that the boards in the aft end of the upper 'tween deck appeared safe and that there was no space between the boards and the flanges of the hatch beams. In light of the evidence presented by both parties, we conclude that the district court correctly directed a verdict for the plaintiff on the issue of contributory negligence.

III

Vantage seeks to set aside the jury's award of $100,000 on the ground that the district court erred in instructing the jury on the issue of damages. The district court instructed the jury that they could award damages for the plaintiff's pecuniary loss, her grief and mental anguish, the decedent's pain and suffering prior to his death, and funeral expenses. Vantage contends that damages for a wrongful death in general maritime law are limited to pecuniary loss.

In Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L. Ed.2d 339 (1970), the Supreme Court overruled The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886) and held that general maritime law affords a cause of action for wrongful death.⁵ The Court declined to specify the measure of damages in such an action, preferring instead to defer that issue for "further sifting through the lower courts in future litigation." Id. at 408, 90 S.Ct. at 1792. The Court did note, however, that the lower courts would not be without persuasive analogy for guidance. "Both the Death on the High Seas Act and the numerous state wrongful-death acts have been implemented with success for decades." Id.

The basis for Vantage's argument that damages for this new cause of action are limited to pecuniary loss is the principle that general maritime law be uniform. In 1920, Congress passed the Death on the High Seas Act, 46 U.S.C.A. § 761 et seq. hereinafter DOHSA, which provided a cause of action for...