Holmes v. Mississippi Shipping Company

• Decision Date: 22 May 1962
• Docket Number: No. 18968.,18968.
• Citation: 301 F.2d 474
• Parties: Herman J. HOLMES, Appellant, v. MISSISSIPPI SHIPPING COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

301 F.2d 474 (1962)

Herman J. HOLMES, Appellant, v. MISSISSIPPI SHIPPING COMPANY, Inc., Appellee.

No. 18968.

United States Court of Appeals Fifth Circuit.

March 30, 1962.

Rehearing Denied May 22, 1962.

Samuel C. Gainsburgh, Raymond H. Kierr, New Orleans, La., for appellant.

Walter Carroll, Jr., Andrew R. Martinez, New Orleans, La., for appellee, Mississippi Shipping Co., Inc; Terriberry, Rault, Carroll, Martinez & Yancey, New Orleans, La., of counsel.

Before RIVES, CAMERON and BELL, Circuit Judges.

CAMERON, Circuit Judge.

Holmes, the libelant-appellant (hereinafter sometimes called Holmes), appeals from the order of the court below maintaining exceptions filed by respondent-appellee, Mississippi Shipping Company, Inc. (hereinafter sometimes called Mississippi), on the ground that the claim for damages contained in the amended libel did not aver facts sufficient to constitute a cause of action. Holmes states in his brief that the single question of law presented is: "Is a seaman entitled to recover damages for injuries caused by unseaworthiness of his former vessel, if the seaman himself constitutes the unseaworthiness?"

The libel originally filed asked for maintenance only, following Holmes' amputation of his right hand. After Mississippi had answered, an amended libel was filed supplementing the averments of the original libel and demanding damages in addition to maintenance. The ruling of the court below was based entirely upon these averments, pertinent portions of which are copied in the margin.¹

Holmes caused to be placed in the record a statement purporting to be that of William Cornforth, Master of M/V Del Rio, dated December 10, 1954, portions of which are copied in the margin.² The statement was not attached as an exhibit to either libel, was not offered in evidence, and it is difficult to perceive any reason for its consideration by the court below in passing on the exception to the libels. No point is made of the matter by Mississippi, however, and we will give it such consideration as it deserves in passing upon the legal questions involved.

Appellant does not rely upon any legal precedent for the contention that self-inflicted injuries should be held to be the product of unseaworthiness of the vessel. Reliance is placed instead on what appellant refers to as "the underlying considerations and the philosophy of the maritime doctrine of seaworthiness of which Holmes seeks to avail himself." While he mentions a number of cases by the Supreme Court in which a tendency has been shown to expand the humanitarian doctrine of absolute liability in case of unseaworthiness, appellant relies chiefly upon the case of Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354. Appellant conceives that the Supreme Court there affirmed liability for injuries inflicted on another seaman caused by personality deficiencies of a crew member, and plainly held that there should be no distinction between the warranty of seaworthiness covering hull and gear and the warranty covering the men who handle both.

Appellant's attitude is epitomized in his brief in the quotations therefrom copied in the margin.³ This frank expression by appellant's spokesman of his true attitude as well as his statement in oral argument that Holmes is now back at work as a seaman is commendable, but as far as we can see, his conclusion has no basis in either convincing authority or reason. A brief examination of the rationale of Boudoin will demonstrate that its holdings, while revolutionary were not without limitations. The District Court⁴ concluded that the master and officers of the vessel there involved were negligent under the Jones Act in failing to anticipate that a drinking spree in the boatswain's forecastle might lead to an assault by one seaman on another. That court also held that the shipowner's warranty of seaworthiness covers the competence of the crew, as well as the integrity of the vessel, limiting the warranty, however, by these words borrowed from Judge Hand's decision in Keen v. Overseas Tankship Corp., 2 Cir., 1952, 194 F.2d 515: "Applied to a seaman, such a warranty is, not that the seaman is competent to meet all contingencies; but that he is equal in disposition and seamanship to the ordinary men in the calling."

This Court reversed the District Court's finding of negligence and held also that, under the facts of the Boudoin case, the assault committed by the seaman on Boudoin could not be attributed to the unseaworthiness of the vessel, especially since the standard used by the District Judge under the teaching of Keen presented no reliable or workable measure for determining whether the mere presence on board of a particular seaman is a breach of the assumed warranty. We buttressed our conclusion that this was true by the fact that the Court of the Second Circuit — the same Judges sitting — rendered an opinion about one year after Keen, in which it reversed a finding of liability by a District Court based upon warranty of seaworthiness, growing out of facts to us indistinguishable from those presented in the Keen case.⁵

The Supreme Court granted certiorari and reversed our decision in Boudoin. Its basic holding was that there was evidence to support the findings by the District Court of breach of the warranty of seaworthiness. The concluding language of the opinion states some of the ingredients of the personality test expressed as definitely as such a cloudy concept would admit of 348 U.S. pp. 339-340, 75 S.Ct. p. 384, 99 L.Ed. 354:

"The warranty of seaworthiness does not mean that the ship can weather all storms. It merely means that `the vessel is reasonably fit to carry the cargo\'. * * * If it is not, the owner is liable, irrespective of any fault on his part. * * *

"We see no reason to draw a line between the ship and the gear on the one hand and the ship\'s personnel on the other. A seaman with a proclivity for assaulting people may, indeed, be a more deadly risk than a rope with a weak strand or a hull with a latent defect. The problem, as with many aspects of the law, is one of degree. Was the assault within the usual and customary standards of the calling? Or is it a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature? If it is the former, it is one of the risks of the sea that every crew takes. If the seaman has a savage and vicious nature, then the ship becomes a perilous place. A vessel bursting at the seams might well be a safer place than one with a homicidal maniac as a crew member.

"We do not intimate that Gonzales is a maniac nor that that extreme need be reached before liability for unseaworthiness arises. We do think that there was sufficient evidence to justify the District Court in holding that Gonzales had crossed the line, that he had such savage disposition as to endanger the others who worked on the ship. We think the District Court was justified in concluding that Gonzales was not equal in disposition to the ordinary men of that calling and that the crew with Gonzales as a member was not competent to meet the contingencies of the voyage. * * *" Emphasis supplied.

In the case before us, the libels do not show that Holmes had a wicked disposition, a propensity to evil conduct, a savage and vicious nature, or that he was a homicidal maniac. The master's statement which appellant has placed in the record shows that Holmes had, prior to the apparently sudden and unexpected onset of the mental illness, been perfectly normal, performing his work efficiently, even to the day of the self-inflicted wound. The libels aver merely that Holmes was not equal in disposition, personality, and/or temperament to the average man who follows the sea at the time of his mental and emotional breakdown, ostensibly as deducible solely from the fact of his psychotic act.

The Supreme Court has said that the failure of a crewman to measure up to the norm is a problem of degree, and that there is a line which must be crossed in this evanescent zone before a fact finder would be permitted to visit upon a vessel the characterization of unseaworthiness. We think it is quite doubtful if the facts of this case would satisfy the tests adverted to by the Supreme Court in Boudoin even if, as prayed by appellant, we should hold that the ship's liability would be the same when Holmes assaulted himself as it would have been if he had assaulted another member of the crew and inflicted the same injury.

But we do not have to base our decision upon an answer to that question. We do not think that the rule of Boudoin and the others employing like reasoning applies to this case where the appellant amputated his own hand under the circumstances here presented.

Appellant's main reliance is upon what he conceives to be the trend of Supreme Court decisions which he thinks point to the likelihood that recovery by a seaman for injury aboard ship will ultimately be held to be practically automatic. The specific case he cites as supporting his contention is Holley, Administratrix et al. v. The SS Manfred Stansfield, Etc. et al., U.S.D.C.E.D.Va., 1960, 186 F. Supp. 212.⁶

Holley was killed when a large block of solidified muriated potash fell on him as he was operating a payloader in the ship's hull, and his administratrix sued for recovery on the theory both of negligence and unseaworthiness. The first decision in the case was reversed by the Court of Appeals and remanded for application of the rule of comparative negligence and for further application of Virginia law which fixed the rights of the parties, inasmuch as the fatal accident happened in the inland waters of that state.

The District Judge, in trying the case after remand, dealt at some length with recent cases from the Supreme Court⁷ and expressed the opinion that our case of Morales v. City of Galveston, 5 Cir., 275 F.2d 191, was not sound law in the light of the latest Supreme...