McConville v. Florida Towing Corporation

• Decision Date: 18 July 1963
• Docket Number: No. 20195.,20195.
• Parties: John J. McCONVILLE, Appellant, v. FLORIDA TOWING CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 162 (1963)

John J. McCONVILLE, Appellant, v. FLORIDA TOWING CORPORATION, Appellee.

No. 20195.

United States Court of Appeals Fifth Circuit.

July 18, 1963.

Arthur Roth, Miami, Fla., S. Eldridge Sampliner, Cleveland, Ohio, for appellant.

Davisson F. Dunlap, Jacksonville, Fla. (Ulmer, Murchison, Kent, Ashby & Ball, Jacksonville, Fla., of counsel), for appellee.

Before JONES, BROWN and LEWIS,^* Circuit Judges.

JOHN R. BROWN, Circuit Judge.

What was hoped to be, but never quite got into the case below has probably turned out to be the only matter of much consequence in this appeal from a decree exonerating a tug owner of all claims for damages as well as maintenance and cure resulting from an assault committed by the cook of the Tug Hercules on the deckhand McConville. The only real surviving issue is whether the Court properly denied leave to amend the libel to set up in Counts Four and Five claims for statutory penalties for unlawful payments of wages of a seaman.

The main appeal may be quickly disposed of. While the Tug Hercules was in the Port of San Juan, P.R., on Christmas Eve (December 24, 1959), McConville was struck by May, the cook, who in the course of the fray armed himself with a piece of iron bearing the unlikely, but presumably nautical, descriptive "dog." The Libelant's theory was, of course, the now familiar concept of Boudoin v. Lykes Bros. Steamship Co., 1953, 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354, 1954 A.M.C. 2231, which could trace its genesis to Keen v. Overseas Tankship Corp., 2 Cir., 1952, 194 F.2d 515, 1952 A.M.C. 241, and its personification of the seaworthiness warranty to crew members who must be "equal in disposition and seamanship to the ordinary men in the calling." His burden, then, was to make out May to be "a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature." 348 U.S. 336, 340, 75 S.Ct. 382, 385, 99 L.Ed. 354. But after a trial and the fresh opportunity of seeing and hearing witnesses, including the Libelant, the trial Judge had quite a different view.

Most charitably to Libelant, the episode might be called a case of holiday spirit, or at least spirits. For the Judge found that McConville, following an afternoon of heavy drinking ashore, "returned to the vessel about 5:30 p. m. in a drunken and intoxicated condition, and without just cause instigated and provoked a quarrel and a fight with the cook, May." This was not their first brush as some nine months before McConville had attacked May, a much smaller man. May tried to avoid the Christmas Eve fight but to no avail. Not without some reason, he used the iron "dog" as an equalizer to bring the fight to an end. Just who said what, or the exact sequence of events concerning where May was sitting, or where McConville was standing is of little consequence. McConville's version was diametrically opposed to that of his shipmate Furman, the Engineer Hearndon as well as May. The Court chose to credit them rather than McConville for more than enough reasons to save the finding under the clearly erroneous test. Ohio Barge Line, Inc. v. Oil Transport Co., 5 Cir., 1960, 280 F.2d 448, 449, 1961 A.M.C. 375.

With this basic resolution of credibility, the Court went on to find that McConville "was the aggressor in the fight and assaulted the cook." The "sole and proximate cause" of the injuries sustained was McConville's "own gross and willful misconduct and vices, namely, his own drunkenness and * * * the fight with the cook, May, in which he was the instigator, provoker and aggressor." As to the other participant, May, the Court found that he tried to avoid the fight, had not been drinking and "was a seaman above average in disposition and seamanship" with no "showing that he had a wicked disposition with dangerous and vicious propensities * * * or had a savage and vicious nature." As the smaller of the two and a second-time victim, the Court gave May a clean bill of health as "a good worker, of calm disposition and nature * * * not quarrelsome nor prone to get into fights with his fellow shipmates."

On these fact findings the Court quite properly concluded that there was no negligence and no unseaworthiness. Denying the claim for damages or indemnity, the Judge also held the injuries were "incurred solely * * * as a result of McConville's own gross and willful misconduct and vices * * *" which "willful misbehavior bars him from any rights to maintenance and cure." The Court did, however, allow recovery of earned wages up to the time of the fight, $269.76, plus unearned wages to the termination of the voyage ($140) for an aggregate of $409.76.¹

McConville's attack on these crucial fact findings is obscure. Though his story was quite different on the trial, his brief now acknowledges that he does "not dispute that he had been celebrating Christmas Eve ashore and had some drinks. He probably was drunk * * *."

This was the classic case of sharply contradictory stories about a classic shipboard fracas. The Court's resolution of the conflict is not undermined by the witness Hearndon's having testified both as a Libelant's and as a Respondent's witness. If Hearndon could be called as an adverse witness, cf. Fall v. Esso Standard Oil Co., 5 Cir., 1961, 297 F.2d 411, 1962 A.M.C. 951, cert. denied, 371 U.S. 814, 83 S.Ct. 24, 9 L.Ed. 2d 55; June T., Inc. v. King, 5 Cir., 1961, 290 F.2d 404, 1961 A.M.C. 1431 — a point we need not determine — no harm is shown since Hearndon testified freely. It is simply a distortion of the long accepted, but much criticized, principle of vouching for one's own witness for Libelant to now urge that the shipowner was "bound" as a matter of a judicial admission by Hearndon's version. While a party may not attack the credibility of its own witness (e. g., by impeachment), it is free to offer contradictory evidence. Degelos v. Fidelity & Casualty Co., 5 Cir., 1963, 313 F.2d 809, 814; McCormick, Evidence § 38 (1954); 3 Wigmore, Evidence §§ 896-918 (1940). Even more important, neither as a matter of fact nor of law did the trial Court have to conclude that Hearndon swore his ship into a case of liability. His version, no less than May's, put the responsibility exactly where the Judge put it — right on McConville, not on May.

With these findings amply sustained, the Court was eminently justified in denying any allowance for maintenance and cure since McConville's injuries were caused by his own affirmative misconduct. Watson v. Joshua Hendy Corp., 2 Cir., 1957, 245 F.2d 463, 464, 1957 A.M.C. 2367; Kable v. United States, 2 Cir., 1948, 169 F.2d 90, 1948 A.M.C. 1595; 1949, 175 F.2d 16, 1949 A.M.C. 1378; Aguilar v. Standard Oil Co. of New Jersey, 1943, 318 U.S. 724, 730-31, 63 S.Ct. 930, 87 L.Ed. 1107, 1943 A.M.C. 451.

This brings us, then, to the more troublesome question of denial of leave to amend the libel to assert statutory penalties for nonpayment, or improper payment, of seaman's wages.

The original libel to recover damages and maintenance and cure, filed on November 21, 1960, was well within the three-year period for a Jones Act and unseaworthiness claim. McAllister v. Magnolia Petroleum Co., 1958, 357 U.S. 221, 78 S.Ct. 1201, 2 L.Ed.2d 1272, 1958 A.M.C. 1754. To the amended libel filed on June 13, 1961, to meet formal exceptions sustained by the Court, the Respondent answered on June 28, 1961. That answer prayed for a set-off. "Libelant owes the respondent the sum of * * * $588.84 * * * which amount was loaned by respondent to libelant and no repayment of principal or interest has been made by libelant, for which sum respondent demands judgment."

Within a few days the Libelant took the pretrial deposition of Mrs. Moore, personnel director of Respondent, who produced books and records as to McConville's wages and the claimed set-off. Based on information developed in Mrs. Moore's deposition, Libelant on July 17, 1961, moved for leave to amend the libel. To this, exceptions pleading laches were sustained with leave to amend further.² A further amendment was proposed October 23, 1961, to which Respondent excepted again on the ground of laches. These exceptions were sustained and the amended libel dismissed with prejudice on April 4, 1962.

In this last amendment the Fourth Count was based on 46 U.S.C.A. §§ 597, 600 and 601 and covered wage payments from 1951 up through the date of his discharge, December 24, 1959. This Count complained of illegal advances made as well as improper deduction of the advances or parts thereof from wages later earned and due. As the excuse for late filing, Libelant asserted he was ignorant of his rights and had relied generally on his employer until the facts were finally revealed in the shipowner's pleaded set-off. Express reference was made to Mrs. Moore's detailed deposition.³

In the Fifth Count, the amendments expressly realleged all of the Fourth Count, including, of course, Paragraph 5 (note 3, supra). It sought statutory penalties of two-for-one under 46 U.S. C.A. § 601. It alleged with factual particularity that on the date of his injuries, December 24, 1959, Libelant had earned wages due him for 11 days, plus time off wages for 3 2/3 days plus an additional two weeks of vacation pay. Nevertheless, the libel continued, Respondent, after demand for payment, had refused to pay Libelant his earned wages.

While the exceptions were sustained on several grounds, none save laches would uphold at this stage the decisive dismissal with prejudice. Imperfect or lacking in factual particularity as they might have been, these allegations were yet enough to satisfy the liberal standards of admiralty pleadings. 2 Benedict, Admiralty § 237 (Knauth ed. 1940).

As asserted here, laches rested on the local Florida statute fixing a one-year statute of limitations for the commencement of "Suits for the recovery of wages, overtime, or damages and penalties accruing under laws respecting the payment of wages and overtime. * * *" ...