Lopoczyk v. Chester A. Poling, Inc.

• Decision Date: 07 December 1945
• Docket Number: No. 93.,93.
• Citation: 152 F.2d 457
• Parties: LOPOCZYK v. CHESTER A. POLING, Inc.
• Court: U.S. Court of Appeals — Second Circuit

152 F.2d 457 (1945)

LOPOCZYK v. CHESTER A. POLING, Inc.

No. 93.

Circuit Court of Appeals, Second Circuit.

December 7, 1945.

Sidney A. Schwartz, of New York City (Alexander & Ash, Joseph M. Meehan, and Edward Ash, all of New York City, on the brief), for defendant-appellant.

Edmund F. Lamb, of New York City (Purdy & Lamb and Thomas J. Irving, all of New York City, on the brief), for plaintiff-appellee.

Before SWAN, CHASE, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

Plaintiff, a mate on defendant's tanker "Poling No. 18," sued by way of civil action in the District Court to recover under the Jones Act, 46 U.S.C.A. § 688, for personal injuries received in the course of his employment. The accident occurred about noon on March 12, 1942, while the tanker was moored to the dock of the Royal Petroleum Company for the discharge of oil from its tanks to pipe lines on the dock. The "Poling No. 18" is a self-propelled, five-tank vessel with a hollow steel mast stepped into the deck between the first and second tanks. Its equipment for the discharge of oil includes a boom which is footed to the mast at a point 4½ to 5 feet above deck level and which is raised and lowered by topping lifts, themselves attached to the mast by means of a welded u-bolt. Suspended from the boom are three falls or tackles with hooks used to pick up and carry the cargo hose. There was no load on the tackle at the time of the accident; but plaintiff, who had been left in control of the discharge operations, was trying to give the vessel a list to port in order completely to empty one of the tanks. He was pulling on the blocks of the falls in that attempt when the boom fell down striking him and causing the injuries in suit.

Plaintiff's theory at trial was that defendant had negligently maintained the u-bolt in an unsafe condition, with the result that it suddenly pulled out of the welding, caused the boom to fall. Defendant, while not questioning the rupture from the welding, attempted to show that plaintiff had been contributorily negligent in putting an undue strain upon the equipment. The jury returned a verdict of $7,500, which the court in a considered opinion refused to set aside, 60 F.Supp. 839; and defendant appeals from the resulting judgment in the District Court, on the ground that the court committed a "fundamental error" in failing to recognize a sharp and basic distinction between the Jones Act and the admiralty law. This "fundamental error," defendant asserts, resulted in specific errors in refusing to take the case from the jury, in the charge, and in the admission of certain evidence.

We disagree with defendant's basic premise of the separation of the Jones Act from the admiralty law. The Act gives an injured seaman an alternative cause of action if the circumstances of his injury bring him within its terms; but the proceeding is to be governed by principles of the familiar in personam admiralty action. "The election is between alternatives accorded by the maritime law as modified, and not between that law and some non-maritime system." Panama R. Co. v. Johnson, 264 U.S. 375, 388, 389, 44 S.Ct. 391, 394, 68 L.Ed. 748. The Supreme Court has repeatedly emphasized that the Act should be interpreted to achieve results which will be consistent with those of the admiralty law. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Panama R. Co. v. Johnson, supra, 264 U. S. 375, 387, 392, 44 S.Ct. 391, 394, 68 L. Ed. 748; The Arizona v. Anelich, 298 U. S. 110, 123, 56 S.Ct. 707, 80 L.Ed. 1075.¹ And in Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 379, 38 S.Ct. 501, 502, 62 L. Ed. 1171, a case arising under the act which was the forerunner of the Jones Act, it quoted with approval the language of our court, 2 Cir., 243 F. 536, 537: "The contract of a seaman is maritime, and has written into it those peculiar features of the maritime law that were considered in the case of The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; and although, because of these peculiarities, such contracts are almost invariably litigated in admiralty courts, still the contract must be the same in every court, maritime or common law."

Under the evidence, it follows from this established policy of construction that there was a question for the jury and the court properly denied defendant's motion for dismissal made at the close of the plaintiff's case. Neither here nor in its charge "that the owner of a vessel is under a duty to provide seamen with safe equipment"² did the court show confusion — as defendant asserts — with respect to the proof of negligence required under the Jones Act. The Federal Employers' Liability Act, 45 U.S.C.A. § 51, incorporated into the Jones Act, makes the shipowner liable for injury "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, * * * or other equipment." Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Kunschman v. United States, 2 Cir., 54 F.2d 987; Thunberg v. Panama R. Co., 2 Cir., 139 F.2d 567; Hiltz v. Atlantic Refining Co., 3 Cir., 151 F.2d 159, 161.

It is true that here, contrary to the admiralty practice, proof that the apparatus was unsafe was not in itself sufficient to warrant a judgment for plaintiff. But defendant made no effort to show either that the apparatus was safe³ or that the defect was one which it could not in the exercise of reasonable care have discovered. It attempted to show that plaintiff put an excessive strain on the boom by hooking one of the tackles into the dock; but the only witness who so testified retracted his statements on cross-examination. The captain and deckhand, both defendant's witnesses, refused to say that they had seen plaintiff do so on previous occasions. Furthermore, even assuming that plaintiff had hooked into the dock, defendant did not show that this was sufficient a strain on the topping lifts to explain the pulling out of the u-bolt. The case was therefore properly submitted to the jury.

Defendant contends, however, that plaintiff made his case of negligence by means of improperly admitted testimony. It objects particularly to the admission of the ship's log showing an entry made by the captain on the day of the accident. The captain of the "Poling No. 18" was ashore at the...