Miller v. Royal Netherlands S. S. Co.

• Decision Date: 28 February 1975
• Docket Number: No. 74-1237,74-1237
• Parties: Herbert MILLER, Plaintiff-Appellee, v. ROYAL NETHERLANDS STEAMSHIP COMPANY and West of England Shipowners Mutual Protection & Indemnity Association (Luxembourg), Defendants-Third-Party Plaintiffs-Appellants, Strachan Shipping Company, Third-Party-Defendant-Appellee and American Mutual Liability Insurance Company, Intervenor-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1103

508 F.2d 1103

Herbert MILLER, Plaintiff-Appellee, v. ROYAL NETHERLANDS STEAMSHIP COMPANY and West of England

Shipowners Mutual Protection & Indemnity Association

(Luxembourg), Defendants-Third-Party Plaintiffs-Appellants,

Strachan Shipping Company, Third-Party-Defendant-Appellee

and American Mutual Liability Insurance Company, Intervenor-Appellee.

No. 74-1237.

United States Court of Appeals, Fifth Circuit.

Feb. 28, 1975.

George W. Healy III, New Orleans, La., for Royal Netherlands, etc.

William M. Kimball, New York City, for West of England Shipowners, etc.

Stuart A. McClendon, W. Frederick Denkman, Metairie, La., for Strachan Shipping Co. & American Mutual.

Bruce W. Dinwiddie, Stanley J. Jacobs, New Orleans, La., for Miller.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

CLARK, Circuit Judges.

The often lauded special verdict procedure of Fed.R.Civ.P. 49(a) ¹ creates the principal problem in this admiralty appeal. Plaintiff longshoreman, Herbert Miller, sued defendant, Royal Netherlands Steamship Company (Royal Netherlands), owner of the motorship ADONIS for injuries to Miller allegedly caused by Royal Netherlands' negligence and/or unseaworthiness of the ADONIS. Plaintiff also sued Royal Netherlands' insurer, West of England Ship Owners Mutual Protection & Indemnity Association, pursuant to the Louisiana Direct Action Statute. Royal Netherlands in turn filed a third-party complaint against stevedore Strachan Shipping Company (Strachan), Miller's employer and against Strachan's insurer, American Mutual Liability Insurance Company, thus completing the now classic longshoremanshipowner-stevedore triangle. See, Seas Shipping Co., Inc. v. Sieracki, 328 U.S 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); and Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956). ²

Miller sued Royal Netherlands for injuries he sustained aboard the ADONIS on January 10, 1972 while she was docked starboard side to the Washington Avenue Wharf in New Orleans. Miller's gang was loading and stowing pipes in the port and starboard wings of the vessel's No. 2 'tween deck. The 1,850-pound pipes were stowed in tiers and these tiers were stacked to a height of approximately 6 to 8 feet. Following the completion of loading of the pipe, Miller was waiting in the center of the hatch to help off-load a forklift machine which had been used to stow the pipe when 39 pieces of pipe with a combined weight of 72,000 punds suddenly came out of the offshore wing stow and fell into the square of the hatch, crushing off one of Miller's arms and inflicting other serious injuries upon him.

The pivotal issue in the trial of this litigation became whether an inshore list of the ship caused the pipe to fall, or whether the falling pipe caused the ship to list. Miller claimed that the ship was negligently made unstable and unseaworthy by improper loading and distribution of potable water in the No. 4 tank and by improper distribution of cargo, an activity conducted by the ship's crew without the participation or assistance of the stevedore. Miller also claimed that the manner in which the pipe was stowed rendered the ADONIS unseaworthy and negligently unstable because the stow was not properly tiered, chocked, dunnaged and lashed. Royal Netherlands answered first that it was neither negligent nor was the ship unseaworthy, and alternatively, in the event that the jury might determine that the ship was unseaworthy, that such unseaworthiness was caused or brought into play by stevedore Strachan in breach of its implied warranty of workmanlike performance and, therefore, that it was entitled to indemnification from Strachan if it was required to pay damages based upon the ship's unseaworthiness. Strachan countered by asserting that all cargo operations were conducted in a safe and workmanlike manner in compliance with all safety regulations and that the ship's inshore list caused the pipe previously stowed to either break or jurmp over its chocking.

In answers to special interrogatories, the jury found that Royal Netherlands was negligent and that the ADONIS was unseaworthy, but that Royal Netherlands' negligence alone proximately caused Miller's injuries; that the stevedore, Strachan, did not breach its warranty of workmanlike performance to Royal Netherlands, and that Miller's damages were 200,000 dollars. The trial court entered judgment holding Royal Netherlands solely liable in the amount of 200,000 dollars. We affirm.

Royal Netherlands mounts its attack upon the judgment below on the grounds that (1) there is insufficient evidence upon which to warrant a verdict against the shipowner, (2) the jury's answers to the special interrogatories are fatally inconsistent and (3) the charge that Royal Netherlands could recover indemnity from Strachan only if the jury found that unseaworthiness of the ADONIS proximately caused Miller's injury was reversibly erroneous.

A review of the record convinces us that Royal Netherlands' sufficiency of the evidence complaint is without merit. In a lengthy trial all three parties developed extensive proof to construct and reinforce their contradictory conceptions of the events culminating in Miller's injuries. The contradictory proof developed classic jury issues as to cause and effect. Sufficient evidence was adduced to have sustained a verdict based on any party's major premise. ³

Royal Netherlands' more substantial allegation relates to inconsistency in the jury's answers to the special verdict questions submitted pursuant to Rule 49(a) F.R.Civ.P. These questions and the jury's responses are set out in the margin. ⁴

A finding by this court that a critical verdict was inconsistent with another would require a remand for a new trial (e.g., Royal Netherlands S.S. Co. v. Strachan Shipping Co., 362 F.2d 691 (5th Cir. 1966); Missouri Pacific R.R. Co. v. Salazar, 254 F.2d 847 (5th Cir. 1958)) since we could not speculate which inconsistent finding the jury intended to be controlling. However, the determination that an inconsistency exists must be made only after a concerted effort to reconcile every apparent inconsistency. As we stated in Griffin v. Matherne, 471 F.2d 911 (5th Cir. 1973): 'The Seventh Amendment requires that if there is a view of the case which makes the jury's answers consistent, the court must adopt that view and enter judgment accordingly. Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 364, 82 S.Ct. 780, 786, 7 L.Ed.2d 798, 806-807 (1962). This court has stated that the test to be applied in reconciling apparent conflicts between the jury's answers is whether the answers may fairly be said to represent a logical and probable decision on the relevant issues as submitted, . . ..' Id. at 915. 'We therefore must attempt to reconcile the jury's findings, by exegesis, if necessary, . . . before we are free to disregard the jury's verdict and remand the case for a new trial.' Gallick v. B & O R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618 (1963).

The jury found that the defendant Royal Netherlands was negligent (No. 1); that Royal Netherlands' negligence was a proximate cause of plaintiff's injuries (No. 2); that the ADONIS was unseaworthy (No. 3), but that the unseaworthiness of the vessel was not a proximate cause of plaintiff's injuries (No. 4); and that Strachan Shipping Company did not breach its warranty of workmanlike performance to Royal Netherlands (No. 8). Royal Netherlands contends that if the jury found that its negligence caused the ship to become unstable, they were legally bound to find that such instability constituted unseaworthiness. Therefore, Royal Netherlands continues, the jury's proximate cause answers to Nos. 2 and 4 were inconsistent since they would have determined thereby that the same condition both was and was not a proximate cause of Miller's injury.

While ordinarily liability based upon unseaworthiness is wholly distinct from liability based upon negligence, e.g., Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099 (1946), a negligent act or omission in the course of loading which causes a vessel to become unstable also creates an unseaworthy condition. See, e.g., Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499, 91 S.Ct. 514, 518, 27 L.Ed.2d 562 (1971); Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962). However, the sum of these legal theories does not lead to the conclusion that the jury's answers to interrogatories Nos. 2 and 4 must be inconsistent in this case.

It is possible to reconcile the answers by making the plausible assumption that the jury considered only the acts and omissions it thought caused the listing of the ship in answering the negligence question, and separately and distinctly applied its decision on unseaworthiness to the manner of the stowage of the pipe, i.e., they found that the ship's officers' negligence in failing to attend to the vessel's lateral stability and subsequent loading of water in the No. 4 starboard tank caused the ADONIS to list and that the manner of stowing the pipe created an unseaworthy condition. A review of the proof adduced, the conduct of the trial, the trial court's instructions and arguments of counsel demonstrate that this is a logical and probable way to reconciliation of the inconsistency of the answers in point of legal theory.

This pervasive, totality-of-circumstances overview was suggested by this court in McVey v. Phillips Petroleum Co., 288 F.2d 53 (5th Cir. 1961), and confirmed in Griffin v. Matherne, 471 F.2d 911 (5th Cir. 1973). In such a light, the jury could consistently have found that Royal Netherlands' own personnel were negligent in creating and failing to correct the...