Mills v. Mitsubishi Shipping Company
| Decision Date | 20 April 1966 |
| Docket Number | No. 22045.,22045. |
| Citation | 358 F.2d 609 |
| Parties | Louis MILLS, Appellant, v. MITSUBISHI SHIPPING COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Warner F. Brock, David J. Nagle, Houston, Tex., for appellant.
B. D. McKinney, Houston, Tex., Baker, Botts, Shepherd & Coates, Houston, Tex., of counsel, for appellee.
Before BROWN and COLEMAN, Circuit Judges, and MORGAN, District Judge.
Another of the frequent longshoreman personal-injury damage claims against the vessel for unseaworthiness, this case reflects again the great utility of special interrogatories with a general charge under F.R.Civ.P. 49(a).1 The serious question here is whether there was unseaworthiness as a matter of law. Concluding, as we do, that the specific jury finding of seaworthiness cannot be sustained, we are able to bring this case to an end without the waste of another trial. This is because the trial Court carefully constructed a charge with special interrogatories which would resolve the fact issues and thus enable that Court — or now the Appellate Court — by determining the legal significance thereof, to translate the verdict into the appropriate judgment. Had this all been wrapped up in the enigma of a general verdict for the defendant, no one would have been able to divine what — or how many — defensive theories the jury adopted. But as it is, the jury specifically found that plaintiff Mills was injured by the winch handle,2 and that this caused identifiable money damages.3 Since nothing else remains in dispute,4 we reverse with directions to enter judgment.
The setting may be briefly sketched. At the time of the injury the plaintiff Mills was engaged as a longshoreman in loading cotton on the defendant's S.S. VIRGINIA MARU. As usual, he was employed by an independent contracting stevedore.
Mills was operating the high-boom winch. There were, as usual, two winches located on deck for this hatch. The inshore winch served the outrigger boom which was rigged so that it extended over the shipside to pick up cargo from the wharf. The second winch served the high boom, the top of which was over the square of the hatch. The sling of cargo was first lifted vertically by the outrigger winch until it cleared the ship's rail at which time the high-boom winch took in on the cargo fall to pull the cargo sling up and over the hatch. On receiving the proper signal, the operator of the high-boom winch lowered the cargo into the hold.
Although the shipowner seeks to insulate the jury verdict from critical scrutiny by emphasizing the confusion in the testimony of Mills and other non-seagoing witnesses in the description of the winches, its own evidence — and especially the photographs it sponsored and introduced — makes the mechanical setup clear.
The high-boom winch was steam powered. The operator, sitting on a wooden seat behind the winch, faced the hatch. The steam control valve was located on the operator's right, and it was actuated by rotating the horizontal bar handle to raise or lower the vertical screw valve stem. The control lever was on the operator's left. This lever was vertical and could be shifted in an are forward and aft. The function of the lever was to engage and disengage the gears of the winch to select the direction in which the winch drum was to revolve. At its lower end the lever was, of course, connected to the gear mechanism.
Because there was simply no evidence that the winch was being improperly operated and, indeed, Mills was exonerated from charges of negligence (see note 4, supra), we think the exact sequence of operational steps is not significant. In executing this integrated movement of the cargo sling through two planes by means of the sequential and sometime simultaneous movement of both winches, the operator of the high-boom winch did several things. To lift and haul the sling up and over the hatch, the operator, using his right hand, opened the steam valve and with his left hand pushed the gear lever forward. When the load reached the desired height over the hatch, the lever was pulled back and the steam closed off. To lower, apparently the steam remained off and the lever was moved forward. The speed of the descending sling load could be altered by the use of a nearby foot brake or by opening the steam, or both.
Although Mills' credibility was badly shaken as to the exact mechanism of the bodily injuries, their disabling consequence, and the extent of his money loss, the fact of the occurrence — as the shipowner categorically concedes — is judicially established. (See notes 2 and 7, supra.) More than that, it was established without substantial contradiction from the testimony of numerous persons having the status of disinterested witnesses.
On Mills' testimony this was his version. He had taken a sling of three bales of cotton from the inshore winch and had squared them over the hatch. When he closed off the steam to lower them into the hold, the load immediately fell. At the same time he was jerked forward off the seat by the sudden movement of the brake lever which he had in his left hand. In attempting to pull the lever back, he was struck three or four times on the neck and chest by the lever as it whipped back and forth.5 The lever in some way made two sharp cuts in the chest area of the sweat shirt he was wearing. Mills ended up sprawled on the deck.
This occurrence was corroborated in several ways. Fellow longshoremen in the lower hold, naturally apprehensive when the three bales of cotton came crashing down, went topside, some in time to see that Mills had been injured and some in time to see the ship's crew working on the winch. Lee Hutton, the walking foreman near the hatch, was positive that he saw the load drop. Moreover, he immediately tried to operate the winch to ascertain the trouble. In so doing the lever also jerked and struck him in the shoulder though he suffered no serious injury. This testimony as to the occurrence was not eradicated by the unsuccessful efforts on cross-examination to get Hutton to equate this jerking with normal vibration of the lever handle,6 nor by the impeachment as to the lever striking him.7
More important, the cause of the malfunction was soon discovered. Gardner, operating the outrigger winch, saw Mills fall back and exclaim about being hurt. After a member of the ship's crew was summoned, Gardner found a cotter key. Within a short time a work party from the ship's crew began working on the winch. By use of heavy hammers and other tools, this key was re-seated. However, it came out again and the repair crew redid the job. All of this we regard as established beyond question. The most that can be read into the deposition testimony of the Japanese Master, chief officer, and third mate is that they had no recollection of any such occurrence being reported or repair work being done.8
We think that the uncontradicted testimony showing the missing key, the replacement of it, the malfunction when it slipped out again, the second replacement of the key, and the untoward operation of the winch thereafter all adds up to failure from an identifiable cause of ship's gear during normal expected operations. But the result is the same even if, for want of adequate connecting evidence, the key is disregarded as the causative factor. In either case, the winch while under normal, expected use, with no proof that it was either being mishandled, abused or operated improperly, failed to perform the function for which it existed.
This is the classic case of unseaworthiness, a concept which has been phrased in a number of ways. Thus, in a marine insurance situation we stated: "Of course, a defect in machinery or a defect in a hull means that the vessel is thereby unseaworthy since, with such defect, the machinery or hull, cannot comply with the classic definition of `reasonably suitable' for the purposes intended." Tropical Marine Prod., Inc. v. Birmingham Fire Ins. Co., 5 Cir., 1957, 247 F.2d 116, 120. In a death-injury situation we spelled it out in terms of matching operating proficiency against anticipated operating conditions:
Walker v. Harris, 5 Cir., 1964, 335 F.2d 185, 191, cert. denied, 379 U.S. 930, 85 S.Ct. 326, 13 L.Ed.2d 342.
Along the same line is Ferrante v. Swedish Am. Lines, 3 Cir., 1964, 331 F.2d 571, 576, cert. dism'd, 379 U.S. 801, 85 S.Ct. 10, 13 L.Ed.2d 20. So, too, is the Supreme Court's recent reiteration in a Ryan Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 indemnity situation of the principle that the "shipowner is liable to the employees of the stevedore company as well as its employees for failing to supply a vessel and equipment free of defects." Italia Societa, etc. v. Oregon Stevedoring Co., 1964, 376 U.S. 315, 324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732, 740.
Of course, Trawler Racer disclaims any purpose "* * * to suggest that the owner is obligated to furnish an accident-free ship." Rather, the Court goes on to emphasize:
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