McAlister v. CJ Dick Towing Co., 9815.

• Decision Date: 24 May 1949
• Docket Number: No. 9815.,9815.
• Citation: 175 F.2d 652
• Parties: McALISTER v. C. J. DICK TOWING CO.
• Court: U.S. Court of Appeals — Third Circuit

175 F.2d 652 (1949)

McALISTER v. C. J. DICK TOWING CO.

No. 9815.

United States Court of Appeals Third Circuit.

Argued February 11, 1949.

Decided May 24, 1949.

Hymen Schlesinger, Pittsburgh, Pa., for appellant.

Harland I. Casteel, Pittsburgh, Pa., Campbell, Houck & Thomas, Pittsburgh, Pa., for appellee.

Before BIGGS, Chief Judge, and O'CONNELL and KALODNER, Circuit Judges.

O'CONNELL, Circuit Judge.

Plaintiff was hired by defendant as cook on a motor vessel, the "Dixie", which on the same day, March 2, 1947, began a voyage down the Ohio River. It is undisputed that, subsequent to that embarkation and prior to the arrival of the Dixie at Paducah, Kentucky, on March 14, 1947, plaintiff suffered a painful and debilitating hand injury. His claim for maintenance and cure having been withdrawn prior to trial, plaintiff here sought indemnification by defendant either because the Dixie was negligently operated, or because a part of its equipment — a heavy line of rope — was improper for the purpose to which it was put, and therefore unseaworthy, or because of a combination of those conditions.

Specifically, the version of events which plaintiff's testimony supported was that a barge had run aground, near Paducah; that a heavy rope 4 inches in diameter was attached between the Dixie and that barge, about 100 feet distant; that the Dixie then attempted, by a series of sharp jerks, to dislodge the barge; and that plaintiff, holding the rope in accordance with orders, was struck sharply across his left hand when the rope snapped during this refloating operation. Thus, plaintiff's position was that the injury resulted from a strain which that particular rope could not withstand.

Defendant had a very different explanation for plaintiff's physical impairment. According to defendant, plaintiff had incurred his hand injury in a brawl with another member of the crew, while the two were ashore at Marietta, Ohio, about ten days before the grounding incident.¹ Further, defendant produced testimony that two barges, not one, had become grounded near Paducah; that, while there were lines between the grounded craft and a loaded barge which was at the head of the Dixie to lend weight to the dislodging operation, there was no line between the Dixie and either grounded barge; that the refloating operation was carried out efficiently and without undue strain on the connecting lines; and that there had been no failure of rope or any other equipment.

Obviously, if the jury found that plaintiff incurred the injury while ashore in Marietta, and if the grounding incident had no connection with his injury, there was no question of seaworthiness or negligence for the jury. This contingency the court covered, by an instruction that a verdict be returned for defendant if "plaintiff's injury resulted from his own wilful misconduct while engaged in a private fight, and not on board the vessel."

By the same token, if the jury determined that the injury stemmed from the refloating operation, then the testimony permitted any one of several factual conclusions: viz., (a) plaintiff met the burden of proving both that the Dixie was operated in a negligent manner, and the rope was unseaworthy, (b) plaintiff met the burden of proving only the former, (c) plaintiff met the burden of proving only the latter, or (d) plaintiff met neither burden.

The trial judge correctly analyzed the situation, insofar as negligence was involved, and gave the jury adequate instructions thereon. Unfortunately, however, the district judge overlooked the testimony of plaintiff which raised the inference that a rope structurally inappropriate for the function for which it was being utilized inflicted the damage upon plaintiff. Consequently, when asked to charge concerning seaworthiness, the district judge refused to do so, and the jury was limited to determining whether plaintiff had a right of recovery under the Jones Act, 46 U.S. C.A. § 688.² Under the long-accepted principles of American maritime law, however, and without reference to the Jones Act or to the negligence of a shipowner, a seaman is entitled to indemnity for an injury suffered by reason of an unseaworthy appliance. Mahnich v. Southern S. S. Co., 1944, 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561; and see Seas Shipping Co. v. Sieracki, 1946, 328 U.S. 85, 90, 66 S.Ct. 872, 90 L.Ed. 1099. The jury hearing the testimony in the case at bar could have found that plaintiff did indeed hold a rope, that the Dixie was not operated negligently, that the rope broke, and that the breaking resulted from a defect which a reasonably careful investigation would not have disclosed; but,...