Peterson v. Permanente S. S. Corp.

• Decision Date: 17 December 1954
• Citation: 129 Cal.App.2d 579,277 P.2d 495
• Parties: Henry PETERSON, Plaintiff and Respondent, v. PERMANENTE STEAMSHIP CORPORATION, Defendant and Appellant. Civ. 16034.
• Court: California Court of Appeals Court of Appeals

Page 495

277 P.2d 495

129 Cal.App.2d 579

Henry PETERSON, Plaintiff and Respondent, v. PERMANENTE STEAMSHIP CORPORATION, Defendant and Appellant.

Civ. 16034.

District Court of Appeal, First District, Division 2, California.

Dec. 17, 1954.

As Corrected on Denial of Rehearing Jan. 14, 1955.

Hearing Denied Feb. 10, 1955.

John H. Black, Edward R. Kay, Cyril Appel, Appel, Liebermann & Leonard, San Francisco, for appellant.

Albert Michelson, Newell J. Hooey, San Francisco, for respondent.

NOURSE, Presiding Justice.

This is an action for damages for personal injuries under the Jones Act, 46 U.S.C.A. § 688, which makes available such action at law based on negligence of a seaman injured in the course of his employment. The defendant appeals from a judgment on a verdict of $6,000 for plaintiff.

The complaint alleged in substance that plaintiff on February 28, 1951, when in the course of his employment he was standing lookout watch on the forecastle head of the steamship Permanente Silverbow, owned and operated by defendant, was thrown down and against the forepeak hatch cover of said vessel and injured because of the violent pounding of the ship and the sudden rising and falling of the forecastle. Negligence was predicated on negligently ordering plaintiff to stand lookout watch on the forecastle head under conditions then prevailing and on negligently navigating the vessel.

Appellant urges as grounds of appeal:

(1) The evidence does not sustain the allegations of negligence, a directed verdict should have been granted, and the case should not have gone to the jury.

(2) Erroneous admission of testimony as to opinion, custom and usage that when a ship pitches and pounds the lookout should be stationed on the bridge.

(3) Error in instructing the jury (a) to decide from the conflicting expert testimony what the custom of the sea was as to where the lookout should stand, and to find in favor of the expert testimony entitled to the greater weight; (b) that defendant owed plaintiff the duty of furnishing him a reasonably safe place to work, and (c) that the Jones Act allows recovery for any defect or insufficiency of the employer's appliances, boats or equipment.

These grievances are for a large part based on the contention that under section 62.25(a) of the shipping regulations established by the Commandant of the Coast Guard in effect at the time of the accident (46 C.F.R. 62.25(a)) 'All vessels navigating the ocean during the nighttime shall have a lookout at all times at or near the bow', that said rule is obligatory, that no departure from it is authorized and that compliance with said rule cannot constitute negligence. In Griffin on Collision, p. 262, note, it is said with respect to this provision: 'It would seem that this provision as to lookouts is to be regarded as a regulation of the internal discipline of American vessels rather than as a collision rule governing civil liabilities.' This statement is to some extent borne out by the fact that no case has been cited to us in which this rule is mentioned with respect to liability for not having the required lookout, notwithstanding the fact that the rule has existed at least since 1931, when it was section 25 of Rule V, General Rules and Regulations, Ocean and Coastwise, Board of Supervising Inspectors (Bureau Marine Inspection and Navigation) of March 2, 1931. But even if it is conceded that said regulation has the force of statutory law influencing civil liability as is accepted in Belden v. Chase, 150 U.S. 674, 698, 14 S.Ct. 264, 37 L.Ed. 1218, for navigation rules made by the board of supervising inspectors this would not mean that no departure from this rule can be permitted under special circumstances, even if the right to such departure is not expressly stated. The rule contains a further provision reading: 'Nothing in this section shall exonerate any master or officer in command from the consequences of any neglect to keep a proper lookout or the neglect of any precaution which may be required by the ordinary practice of seamen or by the special circumstances of the case.' However, such a provision, which is also contained in other statutory navigation rules, the International Rules for Navigation at Sea; the Navigation Rules for Harbors, Rivers and Island Waters, etc., the Great Lakes Rules the Western River Rules, (See 33 U.S.C.A. §§ 121, 221, 293 and 351) is construed not as a permit to disregard other express rules, but as requiring under some circumstances additional precaution. The Rules of the Nautical Road, United States Naval Institute, 1954 edition, p. 321; Griffin on Collision, p. 514. The rule which permits such disregarding is in the above statutory rules of navigation expressed as follows (with minor deviation): 'In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.' See 33 U.S.C.A. §§ 112, 212, 292 and 349. No such provision is contained in the regulation here involved. Nevertheless the right and under certain circumstances the duty to depart from it must be read into said section. Appellant concedes that this must be so in extreme situations, e. g., when seawater pouring over the bow would wash a lookout placed there overboard. But there seems no good reason for such extreme restriction. In the Restatement, Torts, sec. 286, Comment C it is said: 'Many statutes and ordinances are so worded as apparently to express a universally obligatory rule of conduct. Such enactments, however, may in view of their purpose and spirit be properly construed as intended to apply only to ordinary situations and to be subject to the qualification that the conduct prohibited thereby is not wrongful if, because of an emergency or the like, the circumstances justify an apparent disobedience to the letter of the enactment. * * * The provisions of statutes, intended to codify and supplement the rules of conduct which are established by a course of judicial decision or by custom, are often construed as subject to the same limitations and exceptions as the rules which they supersede.' We think this manner of construction is the only reasonable one also in the situation before us. Although the statutory rules cited before require only the keeping of a proper lookout, and that only by implication, The Rules of the Nautical Road, supra, p. 357; Griffin on Collision, p. 262, the cases have without reliance on regulation 62.25(a), supra, long since required the lookout to be stationed as far forward and near the water as possible, to wit, at the bow. The Manchioneal, 2 Cir., 243 F. 801, 805; United States v. The Adrastus, 2 Cir., 190 F.2d 883, 886; 15 C.J.S., Collision, § 108 d., pp. 114-115; The Rules of the Nautical Road, supra, p. 365; Griffin on Collision, 271-272. However, this rule is not maintained rigidly, when the weather makes another position more suitable. Oriental Trading & Transport Co. v. Gulf Oil Corp., 2 Cir., 173 F.2d 108, 111. In The Kaiserin Maria Theresa, 2 Cir., 149 F. 97, 99, it was held that the coldness of the spray which flew aboard the steamship to freeze on the forward part of the vessel was a circumstance which justified removal of lookouts from there. Compare also Puratich v. United States, 9 Cir., 126 F.2d 914, 916, where the trial court held that under the circumstances there prevailing the lookout's post on the bridge was as good as, if not better than, a position at the bow. It would seem that, even if regulation 62.25(a) governs in this case, there remains the same possibility of departure as under the case law cited. Appellant cites many cases among which Belden v. Chase, 150 U.S. 674, 698, 699, 14 S.Ct. 264, supra, which requires strict adherence to rules for preventing collision and permit departure only to avoid impending peril. However these cases relate to rules of true navigation on the compliance with which other ships must be able to rely. The same rationale does not apply to the position of the lookout, and we cannot accept that there exists a right or duty unnecessarily to endanger the life or limbs of a seaman by strictly keeping to the position of the lookout in the bow in situations when the advantage of such position does not justify the risk involved for the seaman. The duty to provide a seaman with a reasonably safe place in which to work is enforced under the Jones Act. The failure to provide a seaman with a safe place to work can be present in many forms. 2 Norris, The Law of Seamen, § 688; Hanson v. Luckenbach S.S. Co., 2 Cir., 65 F.2d 457; Persson v. James Griffiths & Sons, Inc., 85 Cal.App.2d 672, 673, 194 P.2d 86. It certainly includes the subjecting of a seaman to risks not justified by the object to be accomplished. In Matson Navigation Co. v. Hansen, 9 Cir., 132 F.2d 487, 488, it is said: 'Obviously, the rest of reasonable safety varies with the prevailing conditions. No liability flows from requiring a sailor to perform his necessary sailor's duties with the ship rolling and lurching in a heavy storm, even though he may be injured from a fall caused by a wave sweeping across the deck. Yet the owner would be liable if, instead of performing some necessary duty, he were injured when sent by the mate across the same wave swept deck to rescue the ship's cat. The test is whether the requirement of the sailor is one which a reasonably prudent superior would order under the circumstances.' The question presented in this respect in our case is: would a reasonably prudent superior, because of his duty to guard the reasonable safety of the sailor, under the circumstances proved have departed from the rule that the lookout should be in the bow?

A statement of some of the evidence is now required. On the night of February 27, 1951, the vessel after having delivered a load of cement at Honolulu was returning without cargo....