Provenza v. American Export Lines, Inc., 8959.

• Decision Date: 04 November 1963
• Docket Number: No. 8959.,8959.
• Citation: 324 F.2d 660
• Parties: Joseph S. PROVENZA, Plaintiff. Appellant, v. AMERICAN EXPORT LINES, INC., Defendant and Third-Party Plaintiff, Appellee. AMERICAN EXPORT LINES, INC., Defendant and Third-Party Plaintiff, Appellant, v. ATLANTIC AND GULF STEVEDORES, INC., Third-Party Defendant, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

324 F.2d 660 (1963)

Joseph S. PROVENZA, Plaintiff. Appellant, v. AMERICAN EXPORT LINES, INC., Defendant and Third-Party Plaintiff, Appellee.

AMERICAN EXPORT LINES, INC., Defendant and Third-Party Plaintiff, Appellant, v. ATLANTIC AND GULF STEVEDORES, INC., Third-Party Defendant, Appellee.

No. 8959.

United States Court of Appeals Fourth Circuit.

Argued June 6, 1963.

Decided November 4, 1963.

John J. O'Connor, Jr., Baltimore, Md. (O'Connor & Preston, Baltimore, Md., on brief), for Joseph S. Provenza.

Southgate L. Morison, Baltimore, Md. (Ober, Williams, Grimes & Stinson, Baltimore, Md., on brief), for American Export Lines, Inc.

Herbert F. Murray, Baltimore, Md. (Clater W. Smith, Robert E. Powell, and Smith, Somerville & Case, Baltimore, Md., on brief), for Atlantic and Gulf Stevedores, Inc.

Before SOBELOFF, Chief Judge, and BRYAN and J. SPENCER BELL, Circuit Judges.

J. SPENCER BELL, Circuit Judge.

The plaintiff, a longshoreman, brought this action against the shipowner, American Export Lines, Inc., for injuries which occurred during loading operations, alleging unseaworthiness, negligence, and violation of safety regulations promulgated by the Secretary of Labor under the Harbor Workers' Compensation Act as amended. (33 U.S.C. § 941). The shipowner in turn filed a third party complaint against the stevedore employer of the plaintiff.

Plaintiff was working as a "relief deck man" when a draft of cargo being loaded into the No. 2 hatch of the SS EXAMINER swung back in a pendulum-like motion, striking some metal hatch beams which fell or tipped over on the plaintiff's legs and broke them. The beams had been removed from the square of the hatch and stored on the inshore side of the ship between the hatch coaming and the waistplate. The testimony was conflicting as to whether or not and, if they were, how securely the beams were lashed. The plaintiff was standing between the beams and the ship rail near the after end of the hatch, from which point he was signaling to the winch drivers and giving orders to the men on the pier. Two winches located at the forward end of the hatch were being used to work the cargo in cooperation. The "inshore" winch picked up the draft and raised it above the level of the ship's rail and the hatch coaming; the "up and down" winch then pulled the load over the hatch opening preparatory to lowering it into the hold. As the cables of both winches were attached to the same load, they were in effect pulling against each other as the load was pulled from the pier to the hatch, thus it was necessary for the inshore winch to pay out its cable as the "up and down" winch retracted its line. During this operation, the up and down winch cut out while the inshore winch continued momentarily to pay out its line. This relieved the tension on the "joint" line, causing the load to swing down, striking the hatch beams, one or more of which struck the plaintiff. There was a conflict of evidence as to whether the "up and down" winch had previously cut out on several occasions that morning. There was also conflicting evidence as to whether the winch was in proper operating condition. The plaintiff contended both that the winch was in an unseaworthy condition and that both the manner and place of storing the hatch beams constituted the ship unseaworthy with respect thereto. The usual interrogatories on seaworthiness, negligence, and contributory negligence were submitted. The court charged the jury that if they found the ship to be seaworthy in all respects they need not reach the other interrogatories. The jury answered the first interrogatory as follows:

"1. Was the SS EXAMINER unseaworthy with respect to

"(a) the starboard winch of the Number 2 hatch?

"Answer (`yes\' or `no\') NO

"(b) the place and/or the manner of stowing the hatch beams on the deck of the vessel?

"Answer (`Yes\' or `no\') NO."

The plaintiff appeals, alleging numerous errors in the trial of the case. Upon a reading of the charge as a whole we must reject the plaintiff's contention, which is the basis for many of his specific objections, that the charge devitalizes the doctrine of unseaworthiness. The charge is relatively long, and the court conscientiously undertook meticulously to present the contentions of each of the parties on the many points of law involved. It appears to us that the jury could not have failed to understand the court's statement that:

"Liability for an unseaworthy condition does not in any way depend upon negligence or fault or blame, that is to say, the shipowner is liable for all the injuries and consequent damage proximately caused by an unseaworthy condition existing at any time even though the owner may have exercised due care under the circumstances and may have had no notice or knowledge of the unseaworthy condition which proximately caused the damage."

The substance of this statement was repeated several times. We agree with the trial court that while the duty to furnish a seaworthy vessel is an absolute, inalienable, non-delegable and continuing duty of the shipowner it does not make him an insurer of the safety of his crew. A seaworthy ship is one which is reasonably fit for its intended use. Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Grzybowski v. Arrow Barge Co., 283 F.2d 481, 484 (4 Cir. 1960); Ross v. Steamship Zeeland, 240 F.2d 820 (4 Cir. 1957). We find no such repetitive emphasis on the limitations to the standard of seaworthiness laid down by the Supreme Court as to create an imbalance in the charge. Ballwanz v. Isthmian Lines, Inc., 319 F.2d 457 (4 Cir. 1963).

The court's charge concerning the possible interplay between the negligence of the stevedore, if any, and the unseaworthiness of the equipment gave ample opportunity to the plaintiff to present all of his theories involving several combinations of the above factors.

We also agree with the court's conclusion that in the factual context of the case a finding that the vessel was seaworthy obviated the possibility of negligence proximately causing the plaintiff's injury. "Since unseaworthiness affords longshoremen recovery without fault and has been broadly construed by the courts, e. g., Mahnich v. So. S.S. Co. 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561, * * * it will be rare that the circumstances of an injury will constitute negligence but not unseaworthiness." Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 418, 74 S.Ct. 202, 209, 98 L.Ed. 143 (1953) (concurring opinion of Justice Frankfurter).

We next come to the plaintiff's contention that the court erred in refusing to submit to the jury his claim of negligence and unseaworthiness predicated upon violation of the "Safety and Health Regulations for Longshoring" (29 C.F.R. § 9.1, et seq.) promulgated by the Secretary of Labor under the authority of Public Law 85-742, 72 Stat. 835, 33 U.S.C.A. § 941 et seq. The 1958 amendment to the Longshoremen's and Harbor Workers' Compensation Act was Congress' effort "to provide for establishing and enforcing an effective safety program in * * the hazardous occupation of Longshoring * * *."¹

Plaintiff contends that the violation of these regulations², no matter by whom violated, ipso facto makes the shipowner liable either on the theory of negligence or unseaworthiness. He relies upon Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). That action was an exoneration and limitation proceeding involving the death of a seaman who had lost his life in a fire on his employer's tug, which at the time was towing a scow on the Schuylkill River in Philadelphia. The accident occurred at night, and under the Coast Guard regulations applicable the scow was to carry a white navigation light not less than eight feet above the surface of the water. The purpose of this regulation was to prevent collisions. The regulation was not complied with by the shipowner, who, instead of carrying a light no less than eight feet above the surface carried an open flame lantern on the barge three feet above the water. Fumes arising from waste petroleum products floating on the surface of the water ignited and the scow and tug were enveloped in flames, which caused the decedent's death. The trial court found that there was no negligence in carrying an open flame lantern on the barge three feet above the water, that since the danger encountered was not of the sort that the Coast Guard navigation regulation was designed to guard against, and since there was no negligence in having a light three feet above the surface, there could be no recovery under the Jones Act³. The Court of Appeals affirmed⁴. The Supreme Court reversed holding that recovery could be had under the Jones Act for the death which resulted from the violation of the statutory duty concerning lights even though there was no negligence in having the lantern three feet above the water and even though the character of the risk involved was not that which the statute was designed to guard against. In reaching this conclusion, the court relied on decisions under the Federal Employer's Liability Act, in which the court had held that recovery could be had for injuries resulting from the violation of the Safety Appliance Acts or the Boiler Inspection Act without regard to whether the injuries which flowed from the breach were the type the statute sought to prevent. Those principles developed under FELA were to be incorporated in construing the Jones Act, which grants to seamen the rights given to railroad employees under FELA.

Kernan can be distinguished, as suggested by the defendants, because the regulation in that case applied to the shipowner, whereas here the regulations by their express terms apply only to the stevedore. Nevertheless, if the violation of the regulations by the stevedore created a dangerous condition then the law is clear...