Parker v. S/S DOROTHE OLENDORFF

Decision Date08 November 1973
Docket NumberNo. 72-2112.,72-2112.
Citation483 F.2d 375
PartiesEdward PARKER, Plaintiff-Appellee-Cross Appellant, v. S/S DOROTHE OLENDORFF, Defendant-Cross Appellee, Egon Olendorff, Defendant-Third Party Plaintiff-Appellant-Cross Appellee. HOLLAND-AMERICA LINES, INC., Defendant-Third Party Plaintiff-Appellant-Cross Appellee, v. J. P. FLORIO & COMPANY, Third Party Defendant-Fourth Party Plaintiff-Appellee, International Paper Company, Fourth Party Defendant.
CourtU.S. Court of Appeals — Fifth Circuit

COPYRIGHT MATERIAL OMITTED

John A. Bolles, Francis Emmett, New Orleans, La., for Egon Oldendorff.

Robert C. Leininger, Jr., George B. Matthews, New Orleans, La., for Holland America.

Walter F. Gemeinhardt, New Orleans, La., for Parker.

George W. Healy, III, James Hanemann, Jr., New Orleans, La., for Florio.

Before AINSWORTH, GODBOLD and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied November 8, 1973.

CLARK, Circuit Judge:

Edward Parker was injured while loading cargo on board the S/S DOROTHE OLDENDORFF.1 The injury occurred when a wire band broke as a fellow longshoreman attempted to lift a bale of pulp paper by means of pulling against the band with a hand-held metal J-hook. The loose bale fell on Parker's leg. Seeking third party damages in addition to longshoremen's compensation, Parker sued the vessel, its owner (Egon Oldendorff), and the time charterer (Holland-America Line). The three primary defendants completed the usual triangle by joining as a third-party J. P. Florio & Co., the stevedore contractor which employed the plaintiff. Florio thereupon brought in as a fourth-party defendant International Paper Company, the packager of the bale of pulp paper which struck the plaintiff.

Parker's claims against the three primary defendants, based on negligence and unseaworthiness, were tried to a jury. The third party actions for indemnity were reserved for the court sitting without a jury. At the end of the plaintiff's case the court granted the motion of Holland-America Line for directed verdict. The plaintiff's remaining claims against the vessel and its owner were submitted to the jury which found for the defendants. Subsequently, the court held that neither Florio nor International Paper had breached any warranty owed to the primary defendants and denied all claims for indemnity.

Parker appeals from (1) the directed verdict granted to Holland-America Line and (2) the jury verdict in favor of the vessel and its owner. We affirm the directed verdict for Holland-America Line, but reverse the jury verdict for the other defendants. The vessel, its owner, and Holland-America appeal from the denial of indemnity against Florio. We affirm this ruling.

I.

As pointed out above, the motion for a directed verdict made by the time charterer, Holland-America Line, was granted at the conclusion of the plaintiff's case.2 To this point in the trial, there was absolutely no evidence upon which a jury might find Holland-America liable for operational negligence. None of the plaintiff's witnesses offered testimony which showed that Holland-America or its agents exercised control over the methods employed in loading the pulp bales. In view of the complete absence of evidence of operational negligence by Holland-America, a directed verdict at the close of the plaintiff's case was proper.3 See, e. g., Louisville & N. Ry. v. Chatters, 279 U.S. 320, 329-33, 49 S.Ct. 329, 332-33, 73 L.Ed. 711 (1929); 5A Moore, Federal Practice § 50.02(1), n. 7.

II.

Parker seeks reversal of the jury verdict for the vessel and its owner for failure to properly instruct the jury in regard to the application of the warranty of seaworthiness to the wire bands which bound the bales of pulp paper. In response to separate interrogatories the jury found that the ship was not unseaworthy and that the shipowner, through its officers and employees, was not negligent. The adverse finding on negligence is not contested on appeal. Because the charge taken as a whole failed to give the jury adequate guidance for the resolution of the factual issues presented by the evidence, we reverse the judgment entered for the defendants on the finding of seaworthiness.

The mechanics of Parker's injury are undisputed. A fellow longshoreman had placed his J-hook under the band around a 500-pound bale of pulp paper and pulled the bale off of a pallet. The band broke causing the heavy bale to tumble down on Parker's leg. Parker claimed that the band which broke was inadequate for its use in moving the bale during loading and that this constituted an unseaworthy condition for which the vessel owner was liable. The vessel owner offered no evidence indicating that the wire band was adequate for this purpose, its defense being directed almost exclusively to establishing its own right of indemnity against the stevedore contractor who was in immediate control of the loading operation.

At the pre-argument conference, Parker requested the following jury charge:

If you find the wire with which the bales were bound was too light for one of its purposes, namely its use in dragging the bales of wood pulp after longshoremen\'s hooks had been connected therewith, that this wiring would be defective and defective wiring would constitute unseaworthiness.

The defendants did not object to the form or substance of the requested instruction and the trial court informed counsel for Parker that this requested charge would be given. However, after counsel had argued, the court omitted the proposed instruction from its charge to the jury. When Parker took exception to the failure to give the instruction, the court stated that it had decided that the requested charge "was not a correct statement of the law" and therefore would not be given.

We cannot agree with the court below that Parker's requested instruction misstates the applicable law. The proposed charge has two distinct purposes. First, it directs the jury's attention to the legal principle, recognized by the Supreme Court in Atlantic & Gulf Stevedores v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962), that a vessel's warranty of seaworthiness extends to the containers in which cargo is stored. As the Court explained in Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213-214, 83 S.Ct. 1185, 1190, 10 L.Ed.2d 297 (1963), Ellerman and prior cases establish

. . . . that things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used. . . . When the ship owner accepts a cargo in a faulty container . . . he assumes the responsibility for injury that this may cause to seamen or their substitutes on or about the ship.

See Lucas, Flood Tide: Some Irrelevant History of the Admiralty, 1964 S.Ct. Rev. 249, 250-56. After Ellerman and Gutierrez, there is no doubt that an inadequate or defective cargo container renders a vessel unseaworthy as a matter of law. See Noble v. Lehigh Valley Railroad Co., 388 F.2d 532 (2d Cir. 1968). Second, the requested charge instructs the jury that one of the intended purposes of the band which broke was to serve as a point of attachment for longshoremen's hooks during loading. This part of the instruction is crucial because it establishes the legal standard by which the strength of the bands is to be judged. While a vessel warrants that every cargo container is adequate to protect the cargo and to prevent spillage, common sense indicates that a shipowner does not warrant every part of any cargo container is strong enough to serve as a point of attachment for longshoremen's hooks or other lifting devices. Thus, the vessel owner is not an insurer against accidents resulting from lifting cargo by metal straps which are not intended for such use. Reed v. M. V. Foylebank, 415 F.2d 838 (5th Cir. 1969), cert. denied, 397 U.S. 910, 90 S.Ct. 909, 25 L.Ed.2d 91 (1970). On the other hand, with some types of cargo the use of bale bands for lifting and dragging may be an operating condition which should be reasonably anticipated. If it is, the vessel as a matter of law warrants the bands sufficiently strong for this purpose. See Marshall v. Ove Skou Rederi A/S, 378 F.2d 193, 197-198 (5th Cir.), cert. denied, 389 U.S. 828, 88 S.Ct. 86, 19 L.Ed.2d 84 (1967); Mills v. Mitsubishi Shipping Co., 358 F.2d 609, 612-613 (5th Cir. 1966), cert. denied, 386 U.S. 1036, 87 S.Ct. 1474, 18 L.Ed.2d 600 (1967); Walker v. Harris, 335 F.2d 185, 191 (5th Cir.), cert denied, 397 U.S. 930, 85 S.Ct. 326, 13 L.Ed.2d 342 (1964). The evidence before the trial court, including the testimony of expert stevedores called by the defendants, showed that as a matter of long standing custom the normal method by which paper pulp bales are moved during final stowage is by inserting longshoremen's hooks under the bale bands. Pulp bales cannot be manhandled without hooks because the exterior is slick and smooth. The alternative of inserting J-hooks directly in the bales damages the cargo and is universally considered unacceptable by shippers. Since undisputed testimony showed that it was reasonably foreseeable that the bands would be used as points of attachment for longshoremen's hooks, the plaintiff was entitled to a limited peremptory instruction that the shipowner warranted the bands to be safe as appliances for handling the bales. See United States Lines Co. v. King, 363 F.2d 658, 660-661 (4th Cir. 1966).

The court's last minute change of heart not only denied the plaintiff a correct charge which he reasonably expected to be given and upon which he based his argument to the jury, see F. R.Civ.P. 51, it also left the jury unguided on a very crucial point of their deliberations — the known or intended use of the bands. Since intended purpose establishes the standard by which warranty of seaworthiness is to be judged, instructions on this issue were...

To continue reading

Request your trial
6 cases
  • Edynak v. Atlantic Shipping Inc. Cie. Chambon Maclovia S. A.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 15 Agosto 1977
    ...not render the vessel unseaworthy. Robinson v. Showa Kaiun K.K., 451 F.2d 688, 690 (5th Cir. 1971). Accord, Parker v. S/S Dorothe Olendorff, 483 F.2d 375, 381 n. 4 (5th Cir. 1973), cert. denied, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 In the instant case, the Usner issue was fully litig......
  • Allen v. Seacoast Products, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 6 Agosto 1980
    ...Consequently, separate findings of unseaworthiness and Jones Act liability are appropriate. Parker v. S/S Dorothe Olendorff, 483 F.2d 375, 381 n.4, 1973 A.M.C. 1619, 1625-26 n.4 (5th Cir.), cert. denied, 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 (1973); Edynak v. Atlantic Shipping Inc., 5......
  • SC Loveland, Inc. v. East West Towing, Inc.
    • United States
    • U.S. District Court — Southern District of Florida
    • 21 Mayo 1976
    ...297 (1963). A vessel's purpose establishes the standard by which the warranty of seaworthiness must be judged. Parker v. S/S Dorothe Olendorff, 483 F.2d 375 (5th Cir. 1971), cert. den. 416 U.S. 905, 94 S.Ct. 1609, 40 L.Ed.2d 110 (1974). The barge was an unmanned vessel; while under the excl......
  • U.S. v. Olmstead, 86-1773
    • United States
    • U.S. Court of Appeals — First Circuit
    • 29 Octubre 1987
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT