Neal v. Saga Shipping Co., SA
| Citation | 407 F.2d 481 |
| Decision Date | 23 June 1969 |
| Docket Number | No. 24908.,24908. |
| Parties | Mrs. Mae Frances NEAL, Individually and the minors, James Neal, Jr., et al., etc., Appellants, v. SAGA SHIPPING CO., S. A., et al., Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
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Arthur J. Mandell, Houston, Tex., for appellants.
Theodore Goller, E. D. Vickery, Houston, Tex., for appellees.
Before COLEMAN and GODBOLD, Circuit Judges, and RUBIN, District Judge.
Certiorari Denied June 23, 1969. See 89 S.Ct. 2143.
This action for death of a longshoreman caused by unseaworthiness of the vessel aboard which he was loading cargo was tried to the court without a jury. The experienced trial judge rendered judgment for the widow and children of the decedent. He computed the damages at $107,173.94, found the decedent to have been contributorily negligent to the extent of 50%, and therefore reduced the net award to $53,586.67. The plaintiffs appealed, contending that both the trial court's finding of contributory negligence and the manner in which it computed damages were clearly erroneous.
Despite the zeal with which it is contended that the trial judge was mistaken in finding contributory negligence, there is no merit to the appeal from this factual conclusion. The crux of the matter was whether a flagman warned a gang of longshoremen, which included the deceased, that a load of cargo was being lowered into the hold of a vessel. The flagman and one of the gang testified that no warning was given. The winch operator and the working foreman said it was. There was some conflict between a statement given by one of the appellant's witnesses shortly after the accident and his testimony on the stand. Resolution of the issue depended on the credibility of the witnesses. This was clearly a matter within the trial court's province. We may not set the judgment aside unless it is clearly erroneous. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20; Bisso v. Waterways Transportation Co., 5 Cir., 1965, 235 F. 2d 741; Higgins, Inc. v. Hale, 5 Cir., 1968, 251 F.2d 91. We do not find it to be, for we are not "left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L. Ed. 746.
Appellants urge the novel proposition that the decedent could not have been held contributorily negligent unless there was substantial evidence that he actually heard the warning and disregarded it. They argue that a sufficient warning is one that is heard. But it is just as much negligence not to hear what one should have heard as it is not to do what one should have done. The trial court found that adequate warning had been given and that the decedent should have heard it. This was a sufficient basis to support a finding that the decedent was negligent.
A seaman cannot be charged with contributory negligence because he uses an unseaworthy part of a vessel in its defective condition if he has no choice but to use it as it is. San Pedro Compania Armadoras, S.A. v. Yannacopoulos, 5 Cir., 1966, 357 F.2d 737. Our reasoning in Armadoras was that to consider such conduct contributory negligence would be to "permit the rejected doctrine of assumption of risk to be applied under the label of contributory negligence." 357 F.2d at 741. But here there was ample opportunity for the decedent to move aside to a safe place after the warning was given.
There was testimony sufficient to establish contributory negligence by a preponderance of the evidence.1 This was not tantamount to a finding of assumption of risk. Neither a blue water seaman nor a Sieracki-sailor-longshoreman assumes any risk of unseaworthiness.2 But the contributory negligence of the seaman is to be considered in reduction of damages occasioned by the owner's failure to provide a seaworthy vessel.3
Appellants contend that the unseaworthiness of the SS ELLIN was brought about by a violation of the "Safety and Health Regulations for Longshoremen," that these were enacted pursuant to a statute and have the force of law, and that the defense of contributory negligence is therefore not available for such a violation.
The conduit for this argument is the Jones Act.4 The Jones Act creates an action for personal injury or death of seamen occasioned by the shipowner's negligence and affords seamen the same additional rights against their employer as those enjoyed by railroad employees under the Federal Employers' Liability Act (FELA)5 and other federal statutes in personal injury and death actions. Section 51 of FELA imposes liability on the employer for injury or death resulting from the negligence of an officer, agent, or employee, "or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment." As a further measure of enforcement Section 53 of FELA provides that an employee shall not be held guilty of contributory negligence and shall not suffer diminution of damages, "in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."
The Safety Appliances Act, 27 Stat. 531, as amended, 45 U.S.C. §§ 1-16, prescribes safety requirements for railroad appliances and equipment. It was enacted to reduce the hazards to railway employees and passengers and to impose a penalty for violations.6 Hence, there is liability without diminution for contributory negligence if an employee subject to FELA is injured or killed as a result of a violation of the Safety Appliances Act. See, e. g., San Antonio & A.P.R. Co. v. Wagner, 1916, 241 U.S. 476, 36 S.Ct. 626, 60 L.Ed. 1110.
By virtue of the Jones Act, Section 53 of the FELA has been applied to violations of maritime safety statutes analogous to the Safety Appliances Act. The leading case is Kernan v. American Dredging Co., 1958, 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382, where violation of a Coast Guard navigational rule was held to result in an unseaworthy condition and preclude a finding of contributory negligence "without regard to whether the injury flowing from the breach was the injury the statute sought to prevent." 355 U.S. at 433, 78 S.Ct. at 398, 2 L.Ed.2d at 392.
The appellants' argument is based on the hypothesis that the Jones Act applies to longshoremen and the resultant conclusion that they are entitled to the protection of the Federal Employers' Liability Act. But the premise itself is faulty: on the very day the Supreme Court recognized in Sieracki7 that the vessel owner owes a warranty of seaworthiness to longshoremen because the duty to provide a seaworthy vessel extends to all who perform the ship's services, it held in Swanson v. Marra Brothers8 that a longshoreman cannot recover under the Jones Act from his employer, the stevedore, for injuries occurring while working on a pier.9 The rationale of Swanson went beyond its precise holding: "We must take it that the effect of these provisions of the Longshoremen's Act is to confine the benefits of the Jones Act to the members of the crew of a vessel plying in navigable waters and to substitute for the right of recovery recognized by the Haverty case only such rights to compensation as are given by the Longshoremen's Act." 328 U.S. at 7, 66 S. Ct. at 872.
Longshoremen are entitled to the warranty of seaworthiness. They are not entitled to the statutory remedy provided by the Jones Act because they do not meet the requirements of that Act. "Sieracki does not abrogate the rule that the Jones Act applies only where the relationship of employer and employee exists."10
The kingpin having been removed from the argument, the whole structure falls. An extension of the Jones Act requires a legislative change, and this assuredly is the prerogative of the Congress.11
There is little about the way the trial court computed damages that the appellants do not consider erroneous. The trial court first determined the decedent's work-life expectancy to have been 18 years. (Appellants say this is wrong: it should have been 21). He then found the decedent's average earnings to have been $7,750. He then reduced the annual gross income by 30% for cost of the decedent's "union dues, taxes, social security, and other personal expenses." (Appellants say this was wrong: there should have been no deduction for "taxes" and that it would therefore be "fair" to change the reduction to 15%).
The remainder of the computation is shown in the left hand column. The appellant's suggestions of error are set forth to the right of each item.
DAMAGES ALLEGED ERROR
Loss of Contribution Erroneously computed for the
To Wife $32,984 reasons set forth above
To Children 32,944
Loss of Retirement None
Benefits 3,257
Pain and suffering "Grossly inadequate and therefore
from the date of clearly erroneous."
injury to the date
of death, February
11, 1966 to March
4, 1966 (21 days). 5,000
Loss of services "Grossly inadequate and therefore
rendered by deceased clearly erroneous."
to the widow 2,547
Loss of nurture "Grossly inadequate and therefore
and guidance at the clearly erroneous."
rate of $360 per
year to each of the
seven children 25,978
Medical and
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