Lazzari v. States Marine Corp. of Del.

• Decision Date: 24 February 1960
• Citation: 349 P.2d 857,220 Or. 379
• Parties: Torebio A. LAZZARI, Respondent, v. STATES MARINE CORPORATION of Delaware, a corporation, Appellant.
• Court: Oregon Supreme Court

Page 857

349 P.2d 857

220 Or. 379

Torebio A. LAZZARI, Respondent, v. STATES MARINE CORPORATION of Delaware, a corporation, Appellant.

Supreme Court of Oregon, Department 2.

Argued Jan. 13, 1960.

Decided Feb. 24, 1960.

William F. White, Portland, argued the cause for appellant. With him on the brief were White, Sutherland & White, Portland, and Graham, James & Rolph, San Francisco, Cal.

Nels Peterson, Portland, argued the cause for respondent. With him on the brief were Philip A. Levin and Peterson, Pozzi & Lent, Portland.

Before McALLISTER, C. J., and WARNER, SLOAN and DUNCAN, JJ.

SLOAN, Justice.

On June 14, 1955, the defendant corporation's merchant vessel, S. S. Cotton State, was at the dock in the port of Patras, Greece. The plaintiff was employed by defendant as boatswain on the vessel. He had direct supervision of a crew of eleven ordinary and able-bodied seamen. At about 10:30 a. m. of that day plaintiff, with his crew, was engaged in preparing the deep tanks in the No. 4 hold to take on water ballast. At that approximate time the plaintiff received an order from the chief mate, his immediate superior, to 'come up and leave four men down there to finish putting on the gaskets on the deep tanks so they would take water ballast, and take the rest of the men up and secure the ship for sea because we was leaving at 12 o'clock sharp.' This order required plaintiff and the crew to swing in the cargo booms and secure them and to put tarpaulins on the cargo hatches and batten them. In the course of performing these tasks plaintiff received an injury which is the basis of this action. He recovered a verdict and judgment below; defendant appeals.

To visualize the nature of the accident it is necessary to describe as best we can the particular gear that plaintiff was handling and his function with it when the accident, which plaintiff claimed was the cause of his injury, occurred. The plaintiff's activity was demonstrated to the jury, in part, by reference to a ships' model exhibited in the courtroom. No one bothered to put in the record a description of the ships' model. The witnesses and counsel made numerous references to 'here' and 'there,' 'this' and 'that'. The transcript contains many notations by the court reporter that a witness was 'demonstrating'. The result is meaningless to us. The use of demonstrative evidence and exhibits may be excellent to educate a jury but it adds nothing but confusion to a written record unless explanation is made or the exhibit used is presented in evidence and intelligently used.

The vessel had discharged cargo at Patras from four of the vessel's holds. In the process of unloading, dunnage from the holds was scattered about the deck. Some of the dunnage had been placed in a loose pile against the bulwark on the port side of the vessel somewhat forward of the No. 3 hatch. This pile was said to be about 3 or 4 feet high. The No. 3 hatch was immediately forward of the deckhouse. Suspended from one of the booms used at the No. 3 hatch was a 'preventer wire'. There was no adequate definition of a preventer wire nor of the precise purpose it serves. It was described as a wire rope about 7/8ths inches in circumference. At the free end was a 12 foot chain, of unknown size, and a shackle. This wire was hanging from the boom between the ship and the dock. It was necessary that the wire be pulled in and the shackle at the loose end be secured by a padeye on the deck at a point near the pile of dunnage already mentioned. This padeye was about 20 or 30 feet forward of the spot where the wire was hanging. It was estimated that the wire and shackle weighed about 70 to 80 pounds.

While his crew was working on the No. 3 hatch cover, plaintiff attempted to bring in and secure the preventer wire. He described his actions in this way:

'A. After I brought the boom in here the wire was hanging down between the ship and the dock with the chain, so I got ahold of it here and walked it up here (demonstrating), because up here was had to make it fast so that it could hold the boom. I walked it up here and then I stood on this pile of dunnage, one foot on the dunnage and one foot on the rail, and started pulling it up here (demonstrating), because that is where I had to make it fast. There was no use pulling it up down here (demonstrating) _____'

* * *

* * * 'A. Well, I got up here (demonstrating), I stood up on this pile of dunnage, one foot on the dunnage and one foot standing on the rail. Then I started to pull the wire up and my left foot slipped off the dunnage, or the dunnage slipped or something, I don't know, I don't remember, and gave me a twist like that (demonstrating), and I got ahold of the rail and let the wire go, I felt this pain in my back; so the fellow that was on the winch there he came over to me and he says, 'What is wrong?' and I told him that my foot slipped off and I hurt my back.'

Other evidence would have permitted the jury to find that it would normally require a full crew of eleven men about three hours to perform the tasks plaintiff and his crew of seven were directed to do in an hour and a half. There was conflict in the evidence as to the time that could be required to perform the necessary work of securing the ship for sea. There was also difference of expert opinion about who had the duty to remove the piled and scattered dunnage. Defendant's witnesses indicated it was plaintiff's duty to dispose of it or remove it without additional orders from his superior. Plaintiff's witnesses testified that it was the responsibility of the chief mate to inspect and order any disposition of the dunnage that may have been necessary to render the deck of the ship seaworthy.

The plaintiff's complaint alleged that the ship was unseaworthy 'in that the deck of said vessel was littered with 'dunnage', rendering said vessel unseaworthy and unsafe for this plaintiff.' He also alleged three specific acts of negligence on the part of defendant:

'1. In failing and neglecting to provide a reasonably safe place for this plaintiff to carry on his work, in that certain pieces and piles of lumber, known as 'dunnage', were allowed and permitted to remain on the deck of said vessel upon and around which plaintiff was required to perform the task aforesaid.

'2. In failing and neglecting to provide a sufficient number of workmen for the task aforesaid, in that two men should have been required to lift and maneuver said 'preventer wire'.

'3. In failing and neglecting to inspect the deck and premises and said 'preventer wife' at and prior to requiring this plaintiff to work in the performance of the task aforesaid.'

Defendant's first assignment is directed at the failure of the trial court to direct a verdict in its favor. If this case were to be decided by common law rules only it would be readily apparent that plaintiff was guilty of contributory negligence and that would be the end of it. But we are governed by the federal law, both as enacted by Congress, 46 U.S.C.A. § 688, and as determined by the federal courts. Allan v. Oceanside Lumber Co., 1958, 214 Or. 27, 34, 328 P.2d 327. Section 688 of Title 46 U.S.C.A., is known as the Jones Act. It incorporates into the maritime law provisions of the Federal Employers' Liability Act (45 U.S.C.A. §§ 51-60). Allan v. Oceanside Lumber Co., supra. The latter act eliminates assumption of risk as a defense and limits contributory negligence to mitigation of damages only. In other words, comparative negligence. If the defendant is guilty of only the 'slightest' negligence it becomes necessary for a jury to weigh the respective failures of the defendant and the injured workman and award damages accordingly. Rogers v. Missouri Pacific R. Co., 1956, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493. In New York, New Haven & Hartford R. Co. v. Henagan, 1 Cir., 1959, 272 F.2d 153, 157, Chief Judge Woodbury discussed the Rogers and similar cases. He concluded 'that only the barest possibility of causation is enough to make out a case for the jury.' He suggested that only the 'faintest scintilla of evidence' is sufficient to deny a directed verdict on the issue of causation.

The same can be said of those cases which apply the test of seaworthiness:

'* * * But the gradual disappearance from the unseaworthiness cases of any requirement of notice, which the Boudoin ¹ opinion highlights by not even discussing the point, suggests strongly that the owner's absolute liability for anything that can be called unseaworthiness, as distinguished from a peril of the sea, will not be affected by the fact that the condition arose during a voyage, whether at a port of call or on the high seas, and whether or not the condition came, or ought to have come, to the attention of the master or an officer before the accident. [...