Kyzar v. Vale Do Ri Doce Navegacai, SA, 71-2702.

• Decision Date: 11 September 1972
• Docket Number: No. 71-2702.,71-2702.
• Citation: 464 F.2d 285
• Parties: Joseph Henry KYZAR, Plaintiff-Appellant, v. VALE DO RI DOCE NAVEGACAI, S. A., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

464 F.2d 285 (1972)

Joseph Henry KYZAR, Plaintiff-Appellant, v. VALE DO RI DOCE NAVEGACAI, S. A., Defendant-Appellee.

No. 71-2702.

United States Court of Appeals, Fifth Circuit.

July 11, 1972.

Rehearing and Rehearing Denied September 11, 1972.

COPYRIGHT MATERIAL OMITTED

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

Maurice C. Hebert, Jr., Charles E. Lugenbuhl, John A. Bolles, New Orleans, La., for defendant-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 11, 1972.

WISDOM, Circuit Judge:

This longshoreman's suit for personal injuries presents the question whether the district court properly instructed the jury on the difficult matter of operational negligence as unseaworthiness. Second-guessing jury instructions is tricky business, especially when the instructions require exposition of the law on a subject not clearly settled by the Supreme Court and this Court. Still, we feel compelled to hold that the instructions at issue here confused the jury and deprived the plaintiff of a fair chance to persuade the jury of his version of the facts.

I.

On May 5, 1970, the plaintiff Joseph Henry Kyzar and other longshoremen employed by Cooper Stevedoring Company were engaged in unloading sixty foot lengths of structural steel from the M/V JAYME MAIA, owned and operated by the defendant Vale Do Ri Doce Navegacai, S.A. The ship was moored at the Napoleon Avenue Wharf in New Orleans. A shore level crane with a hundred foot boom hoisted the steel beams out of the Number 5 hatch of the JAYME MAIA. A fellow longshoreman of the plaintiff operated the crane. He could not see into the hold of the ship and, in deciding when to "boom up" or "boom down", relied upon hand signals from another longshoreman stationed on the deck of the ship overlooking the hatch.

On signal from this flagman, the crane operator first spotted the boom over the hatch. The crane cable was then hooked to the steel beams in the hold. Because the beams were some fifteen feet longer than the hatch opening, the load was "dipped" to get it clear of the hatch—moved to a catercornered position by the crane operator who would boom up or boom down.

Kyzar was injured while allegedly pushing the steel by hand to guide it out of the hatch. Kyzar testified: "a steel beam had been slung and the gear had begun to lift. The beam began to swing erratically and Kyzar was finally ridden by the beam to the bulwarks where he struck the side of the ship and fell into a hole at the edge of the cargo." The defendant's evidence tended to disprove that Kyzar had pushed the beam. It indicated that Kyzar had negligently failed to heed a warning from the flagman designed to alert longshoreman to possible swings by the cargo as it was lifted.

The crux of Kyzar's legal position in the district court was that the JAYME MAIA was unseaworthy.¹ First, Kyzar argued, no tag lines² were provided to be used during manual guidance of the steel beams, despite a regulation of the Bureau of Labor Standards requiring that "loads requiring continual manual guidance while in motion shall be provided with tag lines."³ Kyzar contended that the failure to provide tag lines violated the regulation and rendered the ship unseaworthy as a matter of law; or, that even if the regulation did not apply, proper equipment for the vessel would have included tag lines for the injury-causing unloading procedure.

Second, Kyzar tried to prove that the boom had been improperly spotted over the hatch and that this improper use of seaworthy equipment by the plaintiff's fellow longshoremen constituted an unseaworthy condition. Finally, Kyzar tried to show that he should have been provided with a "hard hat" during the unloading procedure. He based this contention, like his position on the need for tag lines, on both a BLS regulation⁴ and on the fitness of the ship independently of those regulations.

The chief bone of contention in this Court is the lower court's charge to the jury on operational negligence, directly relevant to the alleged improper spotting of the boom and perhaps relevant to the tag line and hard hat issues as well. The charge was designed to require the jury to distinguish an unsafe condition amounting to unseaworthiness from a single negligent act of the plaintiff's fellow longshoremen:

You must bear in mind that, in order for the ship owner to be liable for the negligent acts of the longshoremen, or for the improper use of seaworthy equipment by the longshoremen, those acts or that use must create an unsafe condition of the ship or her appurtenances which subsequently causes injury. There can be no unseaworthiness if the negligent act or improper use and the resulting injury are simultaneous.

The law generally recognizes that a corporation is liable for the negligence of its employees. Therefore, a ship owner is not liable for the negligent acts of the stevedore\'s employees, that is, the longshoremen, but it becomes liable if the negligent acts of the longshoremen create an unseaworthy condition which subsequently causes injury. The law does not regard that an unsafe condition of the ship of unseaworthiness can be created if the negligent act and injury are simultaneous.

After deliberating for an undisclosed period of time, the jury asked the court for clarification of this part of the charge:

"Judge Cassibry:

We would like a diffinition sic of `simultaneous\' in reference to your charge on unseaworthiness causing an accident. Is it instantaneous or is it one contineous sic action?

GA White

Foreman"

The court recalled the jury and repeated its earlier charge on unseaworthiness without modifying the language defining operational negligence. After the jury asked for clarification of the meaning of "simultaneous", and after the trial court repeated the original language, counsel for the plaintiff specifically objected to the unelaborated charge; counsel for the defendant agreed that the charge was misleading. Even the court itself expressed doubt:

THE COURT:

Are there any objections?

COUNSEL FOR PLAINTIFF:

After hearing that again, something does bother me. It is possible the jury might have gotten the impression negligence of employees simultaneous with injury will not permit recovery. Of course, if this is a condition of failure to supply or some other reason for unseaworthiness, there will be failure—there will be recovery even though the negligence is contemporaneous.

THE COURT:

I don\'t think that came through.

Mr. Lugenbuhl? counsel for defendant

You know, that\'s the reason I\'m not going to change it, because you all will never agree on what I should tell them. And I don\'t blame you because that\'s an area we really need a lot of guidance on.

COUNSEL FOR DEFENDANT:

I don\'t agree with the charge that you gave, Judge.

THE COURT:

All right.

COUNSEL FOR DEFENDANT:

* * * We again suggest to the Court the operation of negligence and the effect of the single act of negligence of fellow longshoremen should have been brought to the jury in light of the special charge that we previously requested. The thing, the crushing dilemma, if it be a dilemma, highlights the needs to properly establish precedent in these charges. We didn\'t think the Court did originally, and we renew our objection.

The charge was not changed, the jury returned a verdict in favor of the defendant in all respects and this appeal followed.

II.

In considering the adequacy of the trial court's instructions to the jury, "we must consider the charge as a whole, in connection with the contentions made by the parties in the trial court, and from the standpoint of the jury. If the charge in general correctly instructs, then even though a portion is technically imperfect, no harmful error is committed." Troutman v. Southern Ry. Co., 5 Cir. 1971, 441 F.2d 586, 590; Webster v. Sea Drilling Corp., 5 Cir. 1969, 411 F.2d 411, 413; Grey v. First National Bank, 5 Cir. 1968, 393 F.2d 371, 387. "Our scrutiny of the district court's instructions must be orbitary and universal, not narrow and monocular." McDaniel v. Slade, 5 Cir. 1968, 404 F.2d 607, 609, and cases cited.

The trial court's charge to the jury cannot stand when, as a whole, the charge leaves us with substantial and ineradicable doubt whether the jury has been properly guided in its deliberations. In the instant case the trial court's charge leaves us with precisely such doubt. We agree with the appellant that, particularly after the jury had indicated its bewilderment with the word "simultaneous" and the appellant had objected to a rerun of the original instruction, it was not enough for the trial judge to repeat the initial instruction on operational negligence.

The court was attempting—quite properly—to convey to the jury that "unseaworthiness is a condition" and that "the isolated, personal negligent act of the plaintiff's fellow longshoreman" through the improper use of nondefective equipment does not render a ship unseaworthy. Usner v. Luckenbach Overseas Corp., 1971, 400 U.S. 494, 500, 91 S.Ct. 514, 518, 27 L.Ed.2d 562, 567.⁵ An army of commentators has wrestled with the Usner distinction and often despaired of understanding its refinements.⁶ Thus the task of charging a jury on the distinction between act and condition is one no trial judge welcomes and no appellate judge envies.

Still, we are of the opinion that the instant instruction embodies a notion of operational negligence which, when interpreted from the jurors' point of view, conflicts with Usner and the developing law of unseaworthiness. In one sense, whether a negligent act or improper use by a fellow longshoreman and the resulting injury are "simultaneous" is relevant to a determination of unseaworthiness. An act of a fellow longshoreman has only an instantaneous duration when it begins or develops, for the first time, contemporaneously with injury to the plaintiff. And—whether for sound policy reasons or not—it appears...