Mock v. Upper Mississippi Towing Company

• Decision Date: 29 December 1971
• Docket Number: Civ. A. No. 67-606.
• Citation: 336 F. Supp. 468
• Parties: Samuel MOCK v. UPPER MISSISSIPPI TOWING COMPANY.
• Court: U.S. District Court — Eastern District of Louisiana

336 F. Supp. 468

Samuel MOCK v. UPPER MISSISSIPPI TOWING COMPANY.

Civ. A. No. 67-606.

United States District Court, E. D. Louisiana, New Orleans Division.

December 29, 1971.

Orlando Bendana, Robert L. McLaughlin, of Bendana & McLaughlin, New Orleans, La., for plaintiff.

Maurice Hebert, H. Martin Hunley, Jr., of Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, New Orleans, La., for defendant.

CHRISTENBERRY, District Judge.

This maritime matter was tried without a jury on March 9, 1970. On September 30, 1970, the court found that the defendant's barge had been unseaworthy and that that unseaworthiness was a proximate cause of plaintiff Mock's injuries. After additional consideration of the question of damages, the court, on September 27, 1971, awarded plaintiff a recovery in the amount of $7,161.95. Out of this amount the court directed that $1,394.21 be paid to the stevedore's casualty insurer, the New Amsterdam Casualty Co. The case is presently before the court on a timely motion for a new trial brought by defendant, Upper Mississippi Towing Co., pursuant to rule 59 of the Federal Rules of Civil Procedure.

The facts in this case are not in controversy, except as to the question of the availability of protective eye equipment. Samuel Mock at the time of the accident on March 6, 1966, was employed by Public Grain Elevator of New Orleans, Inc. As a laborer it was Mock's duty, inter alia, to assist with the discharging of grain from barges at the site of Grain Elevator's operations in New Orleans. The vessel in question, an unmanned hopper barge with steel rolling covers designated the UM-288, was owned by defendant Upper Mississippi Towing Co. and at the time of Mock's injury was under charter to the C. B. Fox Company who was the owner of the cargo of grain on board the barge. Fox made the arrangements with Grain Elevator for the off-loading of the grain and the barge was towed alongside Grain Elevator's wharf on the Mississippi River on March 5, 1966, by a tug belonging to Point Landing, Inc. The arrangements for tug services were also made by Fox.

The unloading operation was conducted entirely by Grain Elevator personnel. The barge was placed under a marine leg and the cargo covers on the barge were rolled back to expose the grain, The marine leg, a mechanical elevator device owned and operated by Grain Elevator, is essentially a conveyor belt to which buckets are attached for the transference of grain from a barge to the elevator. The leg is permanently secured to the wharf and power for operating the leg is provided by shore-based facilities and equipment owned by Grain Elevator. The buckets are connected to the leg by cables and operate on a system of hooks, pulleys, and cables. The cables used to pull the buckets filled with grain from the bottom of the barge up to the leg and the conveyor belt are, in the longshoring vernacular, "pull-in" cables, measuring 5/8 of an inch in diameter. The cables used to return the buckets to the barge for more grain are termed "pull-back" cables, measuring 9/16 of an inch in diameter.

In the early morning of March 6, 1966, at about 3:30 A.M., while working on the wharf in the general operation of unloading the grain cargo of the UM-288, Mock realized that the leg mechanism was malfunctioning due to a cable that was beginning to unravel. After about three minutes, Mock correctly surmised that the other man must be having trouble, and thus Mock boarded the UM-288. Because of difficulty in removing a nut securing the cable, Mock and the other man, in accordance with the foreman's policy, proceeded to attempt to cut some of the worn strands of the frayed cable. The method used was to place the frayed cable, held by Mock, on a two-by-four piece of wood for support. It was while holding the cable with his fellow employee, Phillip Hospedales, using a cable cutter on it that a small silver of the cable flew into the air and lodged in the plaintiff's eye.

In seeking a new trial, defendant argues that the court erred in the following particulars: (1) in stating in a minute entry of September 30, 1970, that the unseaworthiness had been "a" proximate cause of plaintiff's injury vice "the" proximate cause; (2) in finding that the warranty of seaworthiness under the general maritime law applied to plaintiff Mock since defendant contends that Mock was serving in the capacity of "repairman" when he was injured; (3) that safety eye goggles were available thus negating unseaworthiness based on an alleged violation of safety regulations; and, finally, (4) that defendant shipowner here does not owe the warranty of seaworthiness to a longshoreman in this situation, i. e., where the Barge UM-288 is in the physical custody and absolute control of the stevedore or independent contractor, such as Grain Elevator, since the condition of unseaworthiness is transitory in nature. For the reasons hereafter assigned, I have decided that the original finding of unseaworthiness was correct and must stand.

In the court's minute entry of September 30, 1970, it was stated that ". . . the Barge UM-288 was unseaworthy and that that unseaworthiness was a proximate cause of the plaintiff's injuries . . . ." Defendant now offers the semantically unsound argument that the court erred in stating that the unseaworthiness was "a" proximate cause rather than "the" proximate cause. There is no basis here for such hair-splitting. The important aspect, assuming unseaworthiness, is whether there was a direct causal connection between the unseaworthy condition and the injury. The Second Circuit Court of Appeals has approved the following explication of the doctrine:

A finding of unseaworthiness of the vessel . . . without more is not enough to hold the defendant liable in damages.

Its liability also depends on whether the unseaworthiness . . . was a proximate cause of injury. To be a proximate cause there must be a direct causal connection between the unseaworthiness . . . and the injury. In other words there must be an unbroken chain of events flowing from the unseaworthiness . . . and leading to the injury. Assuming that you found the vessel unseaworthy . . . you must then decide whether there was this causal connection between the unseaworthiness . . . and injury to the plaintiff.

Blier v. United States Lines Co., 286 F. 2d 920, 925 (2d Cir.), cert. denied, 368 U.S. 836, 82 S.Ct. 32, 7 L.Ed.2d 37 (1961).

It is this court's opinion that the barge was rendered unseaworthy by the defective cable on the marine leg and by the failure to provide in a reasonable manner safety eye goggles. Whether the resulting unseaworthy condition was "a" or "the" proximate cause is immaterial so long as it was one or the other. In this case it is sufficient that the unseaworthy condition was a proximate cause of plaintiff Mock's injury.

The court has carefully studied the opinion of Deffes v. Federal Barge Lines, Inc., 361 F.2d 422 (5th Cir.), cert. denied, Continental Grain Co. v. Deffes, 385 U.S. 969, 87 S.Ct. 503, 17 L. Ed.2d 433 (1966), where the Fifth Circuit exhaustively analyzed the law applicable to a situation almost on all fours with the present case. In Deffes the plaintiff was injured while working as a stevedore unloading grain from a barge which at the time was under charter. The injury was due to an alleged defect in the marine leg which occurred while the plaintiff was in the barge sweeping the remainder of the grain into the leg which at the time was resting on the bottom of the barge. Plaintiff contended that he was injured in the eye by a piece of metal that broke off from a worn bucket. In a suit against the barge owner for unseaworthiness for the defective marine leg and failure to provide safety eye goggles, the Fifth Circuit reversed the district court and held that Deffes was covered by the warranty of seaworthiness. It had been the lower court's opinion that the seaworthiness warranty did not extend to Deffes because the marine leg was not equipment traditionally used in unloading operations and, in addition, that violation of a safety regulation by the stevedoring company, such as failure to provide goggles, would not render the vessel unseaworthy since the barge owner had used reasonable care in hiring a reputable firm to load and unload the barge. Deffes v. Federal Barge Lines, Inc., 229 F.Supp. 719, 721-722 (E.D.La.1964).

The Fifth Circuit held that the barge was unseaworthy because of the defective leg and therefore...