Jimenez v. Tuna Vessel Granada, 80-5748

• Decision Date: 20 July 1981
• Docket Number: No. 80-5748,80-5748
• Citation: 652 F.2d 415
• Parties: Gilberto JIMENEZ, Plaintiff-Appellee, v. The TUNA VESSEL "GRANADA," her engines, boilers, tackle, etc., Defendant-Appellant. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 415

652 F.2d 415

Gilberto JIMENEZ, Plaintiff-Appellee, v. The TUNA VESSEL "GRANADA," her engines, boilers, tackle etc., Defendant-Appellant.

No. 80-5748

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

July 20, 1981.

Lillick, McHose & Charles, Robert G. Dyer, San Diego, Cal., Woodrow De Castro, Panama City, Republic of Panama, for defendant-appellant.

David J. Kiyonaga, Balboa, Republic of Panama, for plaintiff-appellee.

Appeal from the United States District Court for the District of the Canal Zone.

Before GEE, RUBIN and RANDALL, Circuit Judges.

GEE, Circuit Judge:

Strict enforcement of a pretrial order, combined with decision of the issue of unseaworthiness on unpleaded grounds, denied procedural due process to the appellant in this case. Though it comes on in the twilight of our jurisdiction over the Canal Zone, we must reverse and remand for further proceedings.

Plaintiff Jimenez filed this action in rem on the admiralty side demanding recovery for back injuries claimed to have been sustained on the T/V GRANADA, a tuna boat. His pleadings generally alleged unseaworthiness, but his stated sole theory of recovery, set out in the court's pretrial order of December 19, 1979, and reiterated in On or about August, 1976, the T/V "GRANADA" was engaging in fishing operations in the Pacific Ocean off the coast of Mexico. The vessel was bringing in the fishing net through a powerblock controlled by the navigator. The net would go through the powerblock above and descend on the deck in two "bunches", one a net pile and the other a cork pile. The plaintiff was standing on top of the cork pile and separated the corks from the net as the net descended. The cork pile would become higher as the operation progressed. Some 20-30 minutes into the operation, the weather became rough with 15-20 knot winds and white caps. The vessel began rocking. The navigator has been erratically and repeatedly reversing the powerblock throughout the operation; this was his pattern of working the powerblock in order not to slow the operation. The navigator engaged this custom when he boarded the T/V "GRANADA" in December, 1975, and continued the custom during the voyage the plaintiff was injured and thereafter. About 40 minutes into the operation and as the plaintiff was standing on the cork pile that was now approximately ten feet high, the plaintiff's hand became entangled in the net as the vessel rocked and his balance and stability were impaired. ² While the plaintiff's hand was entangled, the navigator suddenly reversed the net pulling the net upward, and the plaintiff was lifted into the air. The plaintiff and other seamen yelled warnings to the navigator. Instead of slowly lowering the net and the plaintiff in a safe manner, the navigator rapidly dropped the net by again reversing the powerblock, causing the plaintiff to suddenly fall down approximately 10 feet where he struck the bulwark of the vessel then flipped over into the sea in a(n) unconscious state. Shortly after the incident, the plaintiff began experiencing pain and discomfort in his lower back and neck.

his proposed findings of fact filed on May 6, 1980, ¹ was:

In January, following the entry of the pretrial order, the defendant filed a list of witnesses to be called by it, as required by the court's pretrial notice. That notice specified that witnesses could be added to the order up to but not after ten full work days before trial, exempting "rebuttal witnesses whose necessity cannot be reasonably anticipated." ³ In the interim between the entry of the pretrial order and trial on May 7, both parties took depositions, recognizing that many of the witnesses tuna fishermen often absent for months on fishing voyages might not be available to testify at trial. Among those deposed was one Marquez, a fisherman who had been assisting plaintiff Jimenez with the recovery of the large tuna net at the time of his injury. Marquez, an all but embarrassingly enthusiastic witness in Mr. Jimenez' behalf, supported his version of the accident, quoted above, in toto. In his deposition, taken about five weeks before trial, Marquez enlarged on the navigator's faulty performance in reversing the winch powerblock, described the weather at the time of the injury as "very, very bad," and linked the resulting rough seas to the plaintiff's version of the accident and theory of recovery quoted above:

Q. Now, can you tell us what you saw when the accident occurred, what happened.

A. At a given moment when the net was rolling aboard all of a sudden I saw that the net went to the other side. I released the net and I looked at the man because he went up a little because he was holding on to the net. All of a sudden the net came back to its position inside but ....

the man was no longer there. In other words, the navigator is in charge of the control of putting the net up aboard. He made a mistake and he rolled it to the other side making this man causing to lift this man up and since it was rough he lost his balance and went out.

MR. CARRIEDO: Dennis, I know you are getting excited. Please try to slow down a little bit.

MR. DYER: It is very hard for the interpreter to keep up with you when you speak very fast and he has a hard time writing everything down too. Let's all try to talk slower.

THE WITNESS: I am sorry. It is just that I remember a lot of accidents I have seen and unfortunately with the same captain and

MR. DYER: I move to strike all that.

BY MR. DYER:

Q. Now, was there anything wrong with the power block? Did the power block function properly at the time of the accident?

A. The power block was normal.

Q. So you are saying the only cause of the accident was the navigator's mistake?

A. Yes, accompanied with the bad weather because possibly maybe the mistake of the navigator wouldn't have been so big if the weather hadn't been so bad, but the main the main cause of that man's accident was the mistake of the navigator. It is not an opinion, it is an honest opinion of my high capacity. I can show you papers of a technical in fishing and I can speak in court as an authority, that was a mistake on the navigation because we all yelled and yelled, "Stop it, stop it," but he didn't stop it. That's more proof that he was not paying attention to his job.

At trial the plaintiff testified in full accord with his theory of liability, as set out in the pretrial order and proposed findings of fact: that his injury was caused solely by catching his hand in the net when the navigator reversed the power block pulling it in, snatching him high in the air and then dropping him precipitately. He specifically denied merely slipping off of the piled net and cork floats and testified explicitly that only catching his hand in the net caused his fall, adding:

Q. Now, Mr. Jimenez, going back just for a second to the time of your accident, did the wind have anything to do with your catching your finger in the net?

A. The wind, no. The one that was at fault was Vitto Alioto, the navigator.

Q. So the only reason your finger got caught in the net was because the navigator reversed the power block; is that right?

A. Yes, sir.

Other witnesses testified on the weather issue, some that the conditions were not severe, that other boats were fishing the area at the time, and that boats routinely fished in worse. There was also testimony that retrieving the nets, with their round cork floats, was a slippery business, with falls onto the piled nets or deck common. The master, the powerblock operator, and others testified by deposition that the plaintiff merely slipped and fell overboard, flatly denying his winch-reversal testimony. Marquez' deposition, supporting it and linking it with the weather conditions, was received in full. Among the evidence received was a short film, offered by defendant, showing net recovery under optimal weather conditions, with several slips and falls among the net-recovery crew even so. At no time was the theory on which plaintiff based his claim of unseaworthiness, stated in the pretrial order, amended, nor was leave sought to do so. At the conclusion of the plaintiff's case, defendant sought to offer live witnesses, but this was denied it.

In sum, a careful reading of the record makes clear that the case was tried on whether plaintiff's powerblock reversal/unseaworthiness Two days following the close of the evidence, the trial judge filed a minute entry, "Reasons for Judgment," in which he entirely rejected the plaintiff's version of the accident. Despite this rejection, however, he found the GRANADA unseaworthy on grounds neither pleaded by Jimenez nor set out in the pretrial order and awarded substantial damages. Pertinent portions of his order follow:

version of the incident was the true one or whether, as defendant contended, plaintiff merely slipped on the retrieving nets and floats and fell overboard. Essentially, plaintiff sought to establish his version of the fall, while defendant sought to show that it took place in some other way.

FINDINGS OF FACT

....

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JOHN FREITAS GOIS, the master of the vessel and fish captain, was a seaman of twenty-four years' tuna fishing experience who himself had served as a cork man for four and a half years. The captain finds the job of cork man hazardous and further testified that it is common for one assigned the task to "slip, lose his balance, or fall, because the corks are round with a hole in the center and a line through it. The cork will spin around this line many times so, in reality, it's rolling under your feet like a pair of skates in some instances." Captain GOIS saw men, including himself, fall while engaged in this duty "hundreds of times." The difficulty of the cork stacking operation on a vessel tied to a dock is graphically illustrated in the motion picture film exhibited by Defendant and it can be plainly seen that men are required to work on an unstable surface substantial...