Old Dominion Stevedoring Corp. v. Polskie Linie Oceaniczne

• Decision Date: 02 August 1967
• Docket Number: No. 10102,10103.,10102
• Citation: 386 F.2d 193
• Parties: OLD DOMINION STEVEDORING CORPORATION, Appellant, v. POLSKIE LINIE OCEANICZNE, Appellee. John H. NEWBY, Appellant, v. POLSKIE LINIE OCEANICZNE, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

386 F.2d 193 (1967)

OLD DOMINION STEVEDORING CORPORATION, Appellant, v. POLSKIE LINIE OCEANICZNE, Appellee.

John H. NEWBY, Appellant, v. POLSKIE LINIE OCEANICZNE, Appellee.

Nos. 10102, 10103.

United States Court of Appeals Fourth Circuit.

Argued December 9, 1965.

Decided August 2, 1967.

Rehearing Denied December 18, 1967.

Walter B. Martin, Jr., Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellant in No. 10,102.

C. Arthur Rutter, Jr., Norfolk, Va. (Amato, Babalas, Breit, Cohen, Rutter & Friedman, Norfolk, Va., on brief), for appellant in No. 10,103.

A. Jackson Timms and Charles R. Dalton, Jr., Norfolk, Va. (Harry E. McCoy and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellee.

Before BOREMAN and BRYAN, Circuit Judges, and MAXWELL, District Judge.

Rehearing Denied in No. 10103 December 18, 1967.

BOREMAN, Circuit Judge.

Plaintiff John Newby brought a civil action against Polskie Linie Oceaniczne for damages for personal injuries sustained by him while working as a longshoreman aboard the defendant's vessel M/V LELEWEL. Jurisdiction was grounded on diversity of citizenship and amount involved. The complaint was based on unseaworthiness and negligence. Defendant shipowner impleaded Newby's employer, Old Dominion Stevedoring Corporation, seeking complete indemnity, costs, and attorneys' fees. Plaintiff's negligence count was dismissed on his own motion. The case was submitted to a jury on the unseaworthiness count and the jury rendered a verdict against the shipowner in the amount of $4,000.00. Plaintiff appeals on the ground that the verdict was grossly inadequate and seeks a new trial on the sole issue of damages.

The impleader action was not submitted to the jury. Instead the court directed a verdict on motion of shipowner against Old Dominion for indemnification, holding that if the shipowner were found liable to plaintiff it followed as a matter of law on the evidence here that Old Dominion should indemnify the shipowner. Judgment was entered on the jury's verdict and the court then entered judgment for the shipowner against the stevedore in the amount of $7,320.39 — $4,000.00 representing plaintiff's verdict and $3,320.39 representing costs and attorneys' fees. Old Dominion appeals from this decision. We affirm.

On February 1, 1964, longshoreman Newby was a "gang-header," in charge of a group of eight longshoremen assigned to unload cargo from the vessel, LELEWEL, docked in Norfolk. They were to begin by unloading an automobile and two large cartons from No. 2 'tween-deck and then to discharge cargo from No. 2 lower hold. A shipment of large drums of syrup had been discharged from this No. 2 'tween-deck when the vessel was in New York and during that operation one drum which had been damaged in passage spilled syrup on the 'tween-deck. The vessel's crew had attempted to clean this area and to cover any slippery spots with sawdust. However, the substance had accumulated under the cargo remaining to be discharged and was not discovered until Newby and his co-workers began unloading operations. The "hatchboss" in charge of all longshoremen assigned to the No. 2 hatch was Worth Wilson. The "foreman" in charge of all longshoremen then working the vessel was Aubrey Holland.

Newby, hatch-boss Wilson, and another longshoreman, Sam Scott, Jr., testified that they noticed a slippery substance on the 'tween-deck when they began the unloading operation. They stated that the longshoremen were slipping in it and had discussed the situation among themselves. Newby testified that upon noticing the substance he complained to Wilson. However, the work was not stopped because, in Wilson's opinion, it did not seem to present a situation of danger. Wilson also stated that, since only a few pieces of cargo had to be unloaded from that area, he did not think it was necessary to stop the work and request the shipowner to remove the substance. However, foreman Holland stated that he did not enter or make any inspection in No. 2 hatch prior to Newby's accident, but that if he had been aware of the presence of the syrup he would have stopped the operation and ordered its removal. In addition, Wilson admitted that he had authority to order that the unloading operation be stopped and that the syrupy substance be removed.

After the cargo from No. 2 'tween-deck had been discharged, Newby began to descend a vertical ladder to the lower hold. He slipped and fell about fifteen feet, landing upon some logs at the foot of the ladder. Wilson testified that there was a substance on Newby's shoes identical with the slippery substance on the floor of the 'tween-deck. However, foreman Holland and an officer of the vessel testified that they had examined the bottoms of Newby's shoes following his fall and that they were clean; also, that the ladder was clean and dry. Newby suffered fractures of the second, third and fourth lumbar transverse processes on the left side, and a bruised left kidney. He spent twenty-one days in the hospital. In August 1964 he returned to farming which was his usual occupation. Prior to his accident he had worked nine or ten months as a longshoreman, whenever he could obtain such employment, earning $95.23 per week. His medical expenses were stipulated to be $914.40. Asserting that his special damages, including loss of wages, were $3,411.18, he argues that, since he was under a doctor's care for a long period and because he experienced considerable pain and suffering, the sum of $588.82 — the difference between his special damages and the verdict — was grossly inadequate. At trial defendant shipowner disputed the seriousness of Newby's injuries.

In the District Court Newby did not make a motion to have the verdict set aside and for a new trial on the grounds that the verdict was inadequate. He attacks no ruling, action or omission of the District Court and appeals on the sole ground that the jury's verdict was inadequate.

The question of the amount of damages is one of fact to be resolved by the jury and cannot be reexamined in the court of appeals. St. Louis Southwestern Railway Co. v. Ferguson, 182 F.2d 949, 954-956 (8 Cir. 1950); Sanders v. Leech, 158 F.2d 486, 487 (5 Cir. 1946). This is not to say, however, that the jury's determination of the quantum of damages may never be reviewed by the appellate court where the question is properly presented. The jury's authority to fix the amount of damages is not arbitrary or unlimited. DeFoe v. Duhl, 286 F.2d 205, 207 (4 Cir. 1961). Contentions that the jury has abused or exceeded its authority must be addressed to the sound discretion of the trial court upon motion to set aside the verdict and for a new trial. Appeal may be taken after entry of judgment on the ground that the court's disposition of such motion constituted an abuse of discretion.

Since the plaintiff failed to raise the issue properly in the District Court there is no question of law for this court to decide, and the verdict will not be disturbed.

We next consider Old Dominion's appeal from the court's entry of a directed verdict against it on the issue of indemnity. It is the stevedore's contention that the shipowner brought about the defect which caused plaintiff's injury and since it was aware of such defect the stevedore should not be made to indemnify the shipowner. It is also argued that the jury should have passed on the issue of whether the stevedore failed to perform its operation in a workmanlike manner.

In Weyerhaeuser Steamship Co. v. Nacirema Operating Co., 355 U.S. 563, 78 S.Ct. 438, 2 L.Ed.2d 491 (1958), a third-party suit by a shipowner seeking indemnity from a stevedore, the Supreme Court stated that if a stevedore rendered a substandard performance of his contract with the shipowner "the latter was entitled to indemnity absent conduct on its part sufficient to preclude recovery." 355 U.S. at 567, 78 S.Ct. at 441.

In Weyerhaeuser, a longshoreman had recovered against the shipowner for injuries suffered when he was struck by a board which fell into a hold where he was working. The injury occurred in Boston. The board fell from a winch shelter erected by the same stevedore in New York, five days prior to the accident. After the jury had found for the longshoreman the court directed a verdict for the stevedore in the indemnity action. The Supreme Court reversed, stating that the evidence concerning the stevedore's use of the shelter and its failure to inspect it for five days were questions for the jury's determination.

Subsequently, in Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959), the Supreme Court held that a shipowner whose vessel's unseaworthiness had injured a longshoreman was entitled to indemnification by the stevedore if the stevedore's action brought the unseaworthiness into play. 358 U.S. at 429, 79 S.Ct. 445.

This court has followed and applied these decisions. American Export Lines, Inc. v. Atlantic and Gulf Stevedores, Inc., 313 F.2d 414 (4 Cir. 1963); Moore-McCormack Lines, Inc. v. Maryland Ship Ceiling Co., 311 F.2d 663 (4 Cir. 1962); Rederi A/B Dalen v. Maher, 303 F.2d 565, 566 (4 Cir. 1962); Smith v. Jugosalvenska Linijska Plovidea, 278 F.2d 176, 180 (4 Cir. 1960); Calmar Steamship Corp. v. Nacirema Operating Co., 266 F.2d 79, 80 (4 Cir. 1959); American Export Lines, Inc. v. Revel, 266 F.2d 82 (4 Cir. 1959).

In Smith v. Jugosalvenska Linijska Plovidea, supra, the plaintiff, a longshoreman, was thrown from a ladder which had several bolts missing from it. The stevedore's safety man observed that the bolts were missing but thought that the ladder was safe because he had seen other longshoremen use it prior to plaintiff's injury. We there noted that the stevedore's standard of performance was to do the job properly and safely and concluded "this standard is not met when Stevedores' safety man is placed on notice that a bolt type ladder, which is to be used...