Hall v. American S. S. Co., 80-3815

• Decision Date: 06 October 1982
• Docket Number: No. 80-3815,80-3815
• Citation: 688 F.2d 1062
• Parties: 11 Fed. R. Evid. Serv. 933 Timothy L. HALL, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1062

688 F.2d 1062

11 Fed. R. Evid. Serv. 933

Timothy L. HALL, Plaintiff-Appellee, v. AMERICAN STEAMSHIP COMPANY, Defendant-Appellant.

No. 80-3815.

United States Court of Appeals Sixth Circuit.

Argued April 22, 1982.

Decided Aug. 30, 1982.

Rehearing Denied Oct. 6, 1982.

Paul D. Galea, Foster, Meadows & Billard, Detroit, Mich., Douglas N. Barr, Thompson, Hine & Flory, Cleveland, Ohio, for defendant-appellant.

Leonard C. Jaques, The Jaques Admiralty Law Office, Detroit, Mich., for plaintiff-appellee.

Before ENGEL, Circuit Judge, CELEBREZZE and BROWN, ^* Senior Circuit Judges.

BAILEY BROWN, Senior Circuit Judge.

Timothy Hall, appellee, filed an action against American Steamship Company for injuries sustained while serving aboard the CHARLES E. WILSON, a vessel owned and operated by American Steamship. The action was based on two separate grounds for recovery: a negligence claim based on the Merchant Marine Act, 46 U.S.C. § 688 et seq. (1976) (Jones Act), and a claim under the doctrine of unseaworthiness, which imposes upon every shipowner a nondelegable duty to keep and maintain the ship in a seaworthy condition at all times. After a jury trial Hall received a verdict and judgment of $300,000 and costs. For the reasons stated herein, we vacate and remand for a new trial.

The injury occurred on May 17, 1979 during a trip from Escanaba, Michigan on Lake Michigan to Trenton, Michigan near Detroit. The CHARLES E. WILSON had been loaded with taconite (iron ore round pellets), and some spilled pellets remained on the deck of the vessel. If the pellets were not removed, they would have caused hazardous walking conditions. Consequently, the first mate, Vincent Smith, as was the practice, ordered wheelsman Dennis Beaudre and a deckhand to hose down the deck. Smith also told Beaudre that, if the seas became too rough, Beaudre was to "get off the deck" but did not admonish him to pass along this order to his relief. The weather was stormy and spray was coming over the side and on the deck.

Hall relieved Beaudre at the end of his watch and the work had not been completed. The instructions of the first mate to hose the deck were passed on to Hall, but Beaudre did not pass the word to leave the deck if the weather became too rough. The weather conditions continued to be rough with spray coming up and over on the starboard side and the vessel was rolling in the wind. The injury to Hall occurred when a large wave washed over the side and knocked Hall against a hatch cover and onto the deck. Hall suffered a serious injury.

On August 25, 1980, immediately prior to trial, Hall moved in limine to strike American Steamship's affirmative defense of contributory negligence. ¹ The defendant's position was that Hall was an experienced seaman who knew the risk involved in remaining on deck in such weather conditions and who had the opportunity to request relief from his duties. Hall's argument in support of his motion was that a seaman may not be contributorily negligent for carrying out orders that result in his own injuries, even if he recognizes possible danger. The court agreed with Hall and granted the motion in limine.

During the plaintiff's proof at trial American Steamship objected to a question presented to witness Beaudre concerning the change of procedure following Hall's injuries regarding the hosing of the deck:

Q: Do you recall, did the hosing after the incident to Tim occurred, did it continue or was it ceased?

MR. HAMILTON: Objection.

THE COURT: Approach the bench.

(Discussion ensued off the record at side bar.)

THE COURT: There is an objection to the question. State the basis.

MR. HAMILTON: The basis to my objection is, if I understand counsel, he intends to have the witness testify that after the injury to Mr. Hall there was a change in the hosing procedure, and it is my position that it is improper to show subsequent changes.

MR. JAQUES: Your Honor, I predicate my position on Rule 407 of the Federal Rules of Evidence. I do not offer this testimony to prove negligence. I offer subsequent remedial measures, changes, to show unseaworthiness as it relates to the condition at the time of the incident of accident. And I would expect, of course, that the Court instruct the jury at the appropriate time as to the limited purpose of such testimony.

THE COURT: Well, Rule 407 deals specifically with whether or not remedial or corrective measures taken after an accident or an incident is admissible to establish the probable negligence of a defendant. It may be offered, however, for other reasons other than for establishing probable negligence. And if this is the basis on which this question is put to this witness, it's an exception to Rule 407 and I'll permit it.

MR. HAMILTON: May I speak?

THE COURT: You may take your exception.

MR. HAMILTON: All right.

(Thereupon side bar proceedings ended.)

THE COURT: Would you repeat the question, please? (Reporter read back the last question asked of the witness.)

A: It was ceased by the First Mate.

Q: What was his name?

A: Vincent Smith.

Q: With regard to hosing down circumstances of weather conditions as you described, characterized as being nasty, ... would you indicate whether there has been a change in procedure since the incident of accident to Tim in regard to hosing?

A: Yes, there has. We don't hose at night anymore, and when it's bad, they don't have us out there hosing anymore.

During the argument to the jury for the plaintiff, references were made to the post-accident change in the hosing policy. The district court instructed the jury on the issue as follows:

You are instructed that remedial or corrective measures taken after an event which if take previously would have made the event less likely to occur, the subsequent or remedial or corrective measures are not to be considered by you as proving negligence or establishing culpable conduct. You may consider this event or these events only as they may relate to ownership, control or the feasibility of precautionary measures.

American Steamship objected to the instruction on the ground that the evidence of the remedial acts should not have been admitted. Hall objected to the instruction on the ground that it did not state that the evidence could be considered to show an unsafe condition at the time of the incident constituting a breach of warranty by American Steamship to provide a seaworthy vessel. The jury found for Hall and assessed damages in the amount of $300,000. ²

American Steamship thereafter filed a motion pursuant to Rule 59 of the Federal Rules of Civil Procedure for a new trial, alleging inter alia that the district court erred by (1) striking the defendant's affirmative defense of contributory negligence and denying the defendant the opportunity to present evidence with respect to Hall's contributory fault, and (2) permitting Hall to introduce evidence regarding the change in the policy of hosing the deck. The motion for a new trial was denied on November 18, 1980, and this appeal followed.

I.

American Steamship asserts on appeal that the striking of its affirmative defense of contributory negligence prior to trial resulted in substantial prejudice and constituted reversible error. Specifically, American Steamship argues that because of the court's ruling it was not allowed to present evidence and to argue to the jury that: (1) Hall was an experienced seaman, (2) as an experienced seaman Hall knew what his duties and responsibilities were with respect to his own safety, and (3) any order, whether direct or indirect, carries with it a caveat or proviso that if carrying out the order places the seaman in a position of danger, the seaman has a right, and in fact a duty, to register a protest or objection with his superior officer. ³

In Williams v. Brasea, Inc. and Vessel Ciapesc I, 497 F.2d 67 (5th Cir.), cert. denied, 423 U.S. 906, 96 S.Ct. 207, 46 L.Ed.2d 136 (1974), the court said, citing Darlington v. National Bulk Carriers, 157 F.2d 817 (2d Cir. 1946):

Indeed, a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes probable danger.

497 F.2d at 73 (emphasis added). See also Salem v. United States Lines Co., 293 F.2d 121, 125 (2d Cir. 1961), aff'd in part, rev'd in part, 370 U.S. 31, 82 S.Ct. 1119, 8 L.Ed.2d 313 (1962) ("A seaman assumes no risk of employment even of obvious dangers when he acts under the orders of a superior officer"); Pedersen v. Diesel Tankers, IRA S. BUSHEY, Inc., 280 F.Supp. 421, 424 (S.D.N.Y.1967) (plaintiff was not contributorily negligent because in obeying orders he did not assume the risk); Taylor v. Packer Diving and Salvage Co., 342 F.Supp. 365, 371 (E.D.La.1971), aff'd, 457 F.2d 512 (5th Cir. 1972) (table) (a seaman does not assume the risk of lawful order even if it involves risk of injury; nor can defense of assumption of risk be applied under the label of "contributory negligence" in such a situation).

American Steamship contends, however, that the defense upon which it relied and could support was the defense of contributory negligence and not assumption of the risk. In Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193 (6th Cir. 1980), this court examined the distinction between assumption of risk and contributory negligence in the maritime setting. With regard to assumption of risk, the court noted that "(a) seaman may not be denied recovery because he proceeds in an unsafe area of the ship ... in absence of a showing that there was a safe alternative available to him." 618 F.2d at 1195. As for contributory negligence, the court held that "the defense of contributory negligence requires evidence of some negligent act or omission by the plaintiff other than his knowledgeable acceptance of a dangerous condition." Id. at 1196 (citing Rivera v. Farrell Lines, Inc., 474 F.2d 255, 257-58 (2d Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 122, 38 L.Ed.2d 55 (1973)). Accord, Akermanis v. Sea-Land...