Marshall v. Isthmian Lines, Inc.

• Decision Date: 03 August 1964
• Docket Number: No. 20414.,20414.
• Parties: Oscar J. MARSHALL, Appellant, v. ISTHMIAN LINES, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

334 F.2d 131 (1964)

Oscar J. MARSHALL, Appellant, v. ISTHMIAN LINES, INC., Appellee.

No. 20414.

United States Court of Appeals Fifth Circuit.

July 8, 1964.

Rehearing Denied August 3, 1964.

Arthur J. Mandell, Houston, Tex., for appellant.

John P. Forney, Jr., Houston, Tex., for appellee.

Before HUTCHESON and BROWN, Circuit Judges, and SIMPSON, District Judge.

JOHN R. BROWN, Circuit Judge.

The question presented by this appeal is whether it was error for a District Judge, despite timely requests and objections, to omit entirely from the charge in this maritime negligence action any mention of Coast Guard regulations whose significance both from a factual and a legal standpoint was hotly contested from the time the opening gong sounded until it ended with an adverse jury verdict some 15 rounds later. We hold it was and reverse for a new trial.

The Longshoreman Marshall was injured while stowing cotton in the hold of the SS STEEL SURVEYOR, owned and operated by the Shipowner, Isthmian Lines, Inc. At the time of the injury, the vessel was under time charter to States Marine Lines. But this did not shift any significant responsibilities off the Shipowner. Guzman v. Pichirilo, 1962, 369 U.S. 698, 82 S.Ct. 1095, 8 L. Ed.2d 205, 1962 A.M.C. 1142. Marshall's employer, a stevedoring contractor, had been engaged by States Marine to load cotton aboard the vessel. As one of a 15-man gang of longshoremen, he was working in a hold when the injury occurred.

The theory on which Marshall tried and submitted the case was that he was injured when a couple of defective steel bands binding the cotton bale he and another longshoreman were attempting to stow broke. When the bands broke, his partner's cotton hook slipped causing the bale to roll back on him, pinning him down in a jackknife position and resulting in serious back injuries. These injuries were, on his theory, caused by the negligent failure of the vessel's owner, master, officers, and crew to inspect the cotton before it came aboard to determine whether it was in condition to be stowed with safety.¹

The Shipowner maintained throughout that it was not negligent and that in any event, the accident did not happen as Marshall maintained. Under its theory, the bands were already broken when Marshall and his co-worker attempted to roll the bale, and Marshall just strained his back in so doing.²

The transcript of testimony consumed some 800-odd pages. We need not comment on it except to say that there was evidence which tended to support each theory so that the jury had to choose between irreconcilable stories.

This brings us to the sole contention urged by Marshall in this Court. That contention is that certain Coast Guard regulations were directly relevant as they categorically prescribed that "Bales having damaged bindings shall not be accepted." Consequently he asserts that he was entitled to an instruction by the Court as to the meaning and effect of the regulation, 46 C.F.R. §§ 146.27-25(a), (b) (1).³ The relevance of the regulation to Marshall's defective bale theory is enhanced by the enabling statute authorizing the issuance of the regulations. 46 U.S.C.A. § 170. That statute — regulating the carriage of explosives or dangerous objects — makes it unlawful to knowingly transport, carry, convey, store, stow, or use aboard vessels to which the statute applies certain explosives or "other dangerous articles or substances * * * and hazardous articles * * *, except as permitted by the regulations of the Commandant of the Coast Guard established hereunder."⁴ The regulations authorized by the statute classify cotton as a hazardous article. 46 C.F.R. § 146.27-100.⁵

So here is Marshall's theory. In his view, his injury was caused by a cotton bale having a defective binding. In order to recover against the Shipowner, he must show that the Shipowner was negligent in permitting the defective bale to be brought aboard for stowage. He then asserts that the "negligence" is established by the breach of the regulation. The regulations prohibiting acceptance of cotton bales having damaged bindings define cotton as a hazardous article. That definition is made binding on Shipowner,⁶ and is re-enforced by the criminal provisions of the statute, 46 U.S.C.A. § 170(14), (15). All Marshall need do, he argues, is prove (1) that the bindings were damaged, and (2) that the damaged bindings contributed to his injury. Since, he reasons, the proof of acceptance of damaged bindings is proof of violation of the regulations, the Shipowner is guilty of negligence per se, and liability follows as night unto day. Implicit in all of this is the further contention that, whatever may be the ultimate determination of the per se problem, the regulation establishes a standard of care, and is at least evidence of negligence.

The Shipowner responds, first, that the regulation is not violated by acceptance of cotton with damaged bindings. It insists that 46 U.S.C.A. § 170 prohibits only knowing acceptance. Second, it strenuously argues that the regulations are designed to combat the danger of fire and therefore have no application to a personal injury situation like the one here.

The law is well established that violation of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Prosser, Torts § 34, at 161 (2d ed. 1955); Restatement, Torts § 286 (1934). Inherent in this statement of the legal principle are three questions which must be resolved before liability could be imposed in this case on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect longshoremen? Were they intended to protect against the risk of the kind of harm that occurred here — injury from the hook-and-roll loading sequence? And, of course, consideration of all of those questions will illuminate the problem of the extent to which the regulations properly form any part of the jury charge.

First, contrary to the contention of the Shipowner and the basic holding of the Judge, it is clear to us that the regulations proscribe acceptance of bales with damaged bindings, whether "knowingly" or not. The regulations themselves flatly state, "Bales having damaged bindings shall not be accepted." It is true that there is no penalty or other sanction imposed in the regulations themselves, and that the penalty for noncompliance is contained in 46 U.S.C.A. § 170. It is likewise true that in the declaratory proscription of § 170(6) (a) and the punitive provisions, § 170(14), (15), the language clearly speaks in terms of "knowingly" transporting and "knowingly" violating. It is on the basis of this terminology that the Shipowner urges the general proposition that the power to promulgate regulations is derivative so that regulations may not exceed the limits of the authorizing statute,⁷ here stated in terms of "knowingly."

But the inquiry does not end there. The whole statutory scheme is something much more than a set of prohibitions with punitive sanctions. It establishes a standard of care to which all concerned are bound, including those who do, and those who do not, wish to comply. This is made doubly sure by § 170(7) (b)⁸ which declares in positive terms, not conditioned to "knowingly" that "* * * transportation * * stowage, or use of such * * * dangerous articles * * * shall be in accordance with the regulations" prescribed by the Coast Guard pursuant to § 170(7) (a). Thus the legislation followed the typical structure: (a) a declaration of standards, (b) legal sanctions to assure compliance.

Of course, quite different considerations come into play when the sanction takes the form of criminal penalties. Then, both as a matter of legislative policy, and often as a matter of constitutional limitations, criminal accountability requires some purposeful, knowing, that is, intentional, conduct, not an inadvertent careless act. Illustrating this best of all is the recent Fourth Circuit case⁹ involving breach of a regulation promulgated under the Longshoremen's safety statute, 33 U.S.C.A. § 941 (a), and for which criminal penalties are confined to "willful" violations. § 941 (f). This did not prevent the breach of the regulations (and statute) from having decisive civil consequences as unseaworthiness or negligence. Whatever the two terms may mean in criminal prosecutions,¹⁰ "knowingly" is certainly no stronger than "willful."

As did the Fourth Circuit, we hold that the regulation is mandatory to forbid the acceptance of the bales with damaged bindings.

That brings us to the second and third steps. Undoubtedly the regulation was intended to protect longshoremen, or perhaps more broadly all persons who work on or come into relation to the vessel. But what is the risk? It seems fairly clear that as to this regulation, the principal risk is fire, explosion, and related harms.¹¹

As the very bulk of the Coast Guard regulations reflects, literally thousands of commodities are classified with minute special instructions as to labeling, marking, packaging, storing, and the like. It is perfectly obvious, therefore, that we cannot, we do not, undertake to categorize any of the regulations other than this one on cotton bales (46 C.F.R. § 146.27-25(b)) as per se or non-per se.¹² Many commodities, such as acids, poisons, toxic liquids, inflammables, chemicals, and the like pose such dangers to man that regulations designed to avoid such risks, e. g., 46 C.F.R. §§ 146.20-1-300, 146.21-1-100, 146.22-1-100, 146.23-1-100, 146.25-1-400, 146.26-1-100, may well give rise to per se consequences, cf. Green v. Standard Wholesale Phosphate & Acid Works, D.Md., 1928, 29 F.2d 746; Dalehite v. United States, 1953, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427. But all we hold here is that this regulation was not designed to protect against the risk of the harm incurred.

But this...