Nice v. Chesapeake and Ohio Railway Company

• Citation: 305 F. Supp. 1167
• Decision Date: 26 September 1969
• Docket Number: Civ. A. No. 5475.
• Parties: Louis A. NICE, Claimant, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

305 F. Supp. 1167

Louis A. NICE, Claimant, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, a Virginia corporation, Defendant.

Civ. A. No. 5475.

United States District Court W. D. Michigan, S. D.

September 26, 1969.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, Mich., Robert J. VanLeuven, Muskegon, Mich., of counsel, for claimant.

Paul O. Strawhecker, Grand Rapids, Mich., for defendant.

OPINION

FOX, District Judge.

This opinion will deal in depth with two aspects of this somewhat complicated seaman's injury action. First, defendant's motion for a new trial following an unfavorable jury verdict will be examined. The second part of the opinion addresses plaintiff's position that a jury impaneled under 28 U.S.C.A. § 1873 is advisory only.

Defendant's motion for a new trial.

After trial of this seaman's injury action to a jury, pursuant to Title 28 U.S. C.A. § 1873, the jury found against the defendant on a number of issues. The verdict was in the nature of a special verdict supported by specific interrogatories which confirmed the factual findings which were made.

The special interrogatories and answers are set forth herein and made a part hereof:

"The members of the jury must unanimously agree on the answers to the following questions:

1. On what date did or will the plaintiff reach a state of maximum cure?

March 29, 1967 __________________

2. Did the defendant wrongfully fail to pay maintenance and cure to plaintiff?

Yes ___________ Yes or No

3. (Answer only if the answer to question number 2 is `yes.') If the defendant wrongfully failed to pay maintenance and cure to plaintiff, what damages for counsel fees, interest, and other damages, if any, are due to plaintiff?

$23,000 ________________ State the amount

4. Did the accident happen in a manner similar to the way plaintiff described it?

Yes __________ Yes or No

The remaining questions (5-7) should be answered only if the answer to number 4 is `yes.'

5. Was the ship on which plaintiff claims to have sustained his injury unseaworthy in a way which proximately caused his injury?

Yes __________ Yes or No

6. Was defendant negligent in whole or in part in a way which was a proximate cause of the plaintiff's claimed injury?

Yes ___________ Yes or No

7. (This question should be answered only if the answer to either number 5, or number 6, or both, is `yes.') If the answer to either number 5 or number 6, or both, is `yes,' what are the plaintiff's damages?

$150,000 _________________ State the amount"

Defendant moves for a new trial upon a multitude of grounds. A brief review of the facts and defendant's position at trial will facilitate an understanding of the defendant's supporting arguments and the court's rulings.

On April 3, 1966, plaintiff, an oiler on defendant's ship, slipped and fell on an oily, slippery catwalk while performing his duties. As a result of this fall, plaintiff allegedly aggravated a preexisting back injury and became disabled. Although wages, maintenance and cure were due plaintiff until at least March 29, 1967, as calculated by the defendant, plaintiff was paid only $500 nearly five months or more after he sustained the injury. No other sum was paid before or after that date, September 28, 1966. He remains in pain and unable to work.

Plaintiff sued defendant for wages, maintenance and cure, and for damages due to unseaworthiness and negligence. Defendant's basic defense was the claim that the accident did not happen. On this issue, the jury found against the defendant. Defendant claims in the alternative that, if the jury should find the accident did happen, it had the defense that the ship was seaworthy and that the defendant was not negligent. On each of these fact issues the jury found against the defendant.

Defendant failed also to meet its burden of proof on contributory negligence. This failure was clear and obvious. The only evidence as to what actually happened was the testimony of the plaintiff. That testimony was to the effect that he was where he was supposed to be, doing what he was required to do as an oiler. There was no countervailing testimony, nor was there a basis for inference from the plaintiff's testimony that he was in any way negligent as to contribute to the resulting accident and its consequences. On this evidence reasonable men would not differ.

The above provides a rough framework for the defendant's present motion for a new trial. In evaluating defendant's assertions supporting this motion, certain clearly enunciated rules of law of the Supreme Court of the United States should be kept in mind. Focus here will be on wages, maintenance and cure, unseaworthiness, and Jones Act liability. These will be quoted at length to demonstrate the unquestioned clarity of most of the law which defendant seeks to challenge in its sixty-odd objections.

A. Admiralty actions are essentially equitable in nature.

In Seas Shipping Co. v. Sieracki, infra, footnote 5, page 89 of 328 U.S., page 875 of 66 S.Ct. page 1103 of 90 L.Ed., it is stated:

"`When a cause of action in admiralty is asserted in a court of law its substance is unchanged.' Panama Agencies Co. v. Franco (CCA 5th) 111 F.2d 263, 266."

Equity and justice are thus the foundation and substance of admiralty law. Admiralty courts, and law courts sitting in admiralty, follow principles of equity and natural justice and are not bound by common law rules. The J. Oswald Boyd, 53 F.Supp. 103 (E.D.Mich.1943); The Dixie, 1940 A.M. C. 28 (E.D.Pa.). See 2 Benedict, Admiralty, Section 223, Page 30, Note 8.

B. Wages, maintenance and cure.

With respect to wages, maintenance and cure:

"Among the most persuasive incidents of the responsibility anciently imposed upon a shipowner for the health and security of sailors was liability for the maintenance and cure of seamen becoming ill or injured during the period of their service. * * * Whether by traditional standards he is or is not responsible for the injury or sickness, he is liable for the expense of curing it as an incident of marine employer-employee relationship. So broad is the shipowner's obligation that negligence or acts short of culpable misconduct on the seaman's part will not relieve him of the responsibility. * * * Conceptions of contributory negligence, the fellow-servant doctrine, and assumption of risk have no place in the liability or defense against it. Only some wilful misbehavior or deliberate act of indiscretion suffices to deprive the seaman of his protection." Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, at 730-731, 63 S.Ct. 930, at 933, 87 L.Ed. 1107 (1924). (Citations and footnotes omitted.)

C. Warranty of Seaworthiness doctrine.

In Seas Shipping Co. v. Sieracki, infra, the Supreme Court, in rejecting limitations of contract and common law tort upon the warranty of seaworthiness doctrine, said at page 93 of 328 U.S., page 877 of 66 S.Ct.:

"That the liability may not be either so founded or so limited would seem indicated by the stress the cases uniformly place upon its relation, both in character and in scope, to the hazards of marine service which unseaworthiness places on the men who perform it. These, together with their helplessness to ward off such perils and the harshness of forcing them to shoulder alone the resulting personal disability and loss, have been thought to justify and to require putting their burden, in so far as it is measurable in money, upon the owner regardless of his fault. Those risks are avoidable by the owner to the extent that they may result from negligence. And beyond this he is in the position, as the worker is not, to distribute the loss in the shipping community which receives the service and should bear its cost."

Mr. Justice Potter Stewart in Mitchell v. Trawler Racer, infra, made the following cogent and conclusive observation:

"In Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, the Court effectively scotched any doubts that might have lingered after Mahnich as to the nature of the shipowner's duty to provide a seaworthy vessel. The character of the duty, said the Court, is `absolute.' `It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. * * * It is a form of absolute duty owing to all within the range of its humanitarian policy.' * * *

"From that day to this, the decisions of this Court have undeviatingly reflected an understanding that the owner's duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care. * *

"But, in view of the decisions in this Court over the last 15 years, we can find no room for argument as to what the law is. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence. To hold otherwise now would be to erase more than just a page of history.

"What has been said is not to suggest that the owner is obligated to furnish an accident-free ship. The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fitness; not a ship that will weather every conceivable storm or withstand every imaginable peril of the sea, but a vessel reasonably suitable for her intended service. * * *." Mitchell v. Trawler Racer, supra, 362 U.S. 539, 549-550, 80 S.Ct. 926, 932, 4 L.Ed.2d 941 (1960).

It is also clear that a shipowner's actual or constructive knowledge need not be proved. Again, quoting from Mitchell, supra, at page 549 of 362 U.S., at page 932 of 80 S.Ct.:

"Of particular relevance here is Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798, supra. * * * That

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