Ramos v. Matson Navigation Company

• Decision Date: 22 May 1963
• Docket Number: No. 17942.,17942.
• Citation: 316 F.2d 128
• Parties: Jose A. RAMOS, Appellant, v. MATSON NAVIGATION COMPANY, a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

316 F.2d 128 (1963)

Jose A. RAMOS, Appellant, v. MATSON NAVIGATION COMPANY, a corporation, Appellee.

No. 17942.

United States Court of Appeals Ninth Circuit.

March 22, 1963.

Rehearing Denied May 22, 1963.

L. Charles Gay, San Francisco, Cal., for appellant.

Brobeck, Phleger & Harrison, and Donald D. Connors, Jr., San Francisco, Cal., for appellee.

Before CHAMBERS, HAMLEY and DUNIWAY, Circuit Judges.

DUNIWAY, Circuit Judge.

This is a libel in admiralty, with a cause of action under the Jones Act (46 U.S.C. § 688), for damages and maintenance and cure arising from a claim that Ramos was injured aboard appellee's vessel. There are three causes of action. The first charges that the vessel was unseaworthy in that the stowage of laundry was unsafe, and accordingly, Ramos was not provided with a safe area in which to work. The second charges negligence, under the Jones Act, based upon the same facts. The third is for maintenance and cure. Judgment went against Ramos, who appeals.

The material parts of the court's findings of fact and conclusions of law are as follows:

"FINDINGS OF FACT

* * * * * *

"II.

On or about July 9, 1959, libelant terminated his employment aboard SS HAWAIIAN PILOT and reported to the United States Public Health Service Hospital in San Francisco, California, where he was made unfit for duty. Records of the aforesaid hospital reflect that on January 11, 1960; February 1, 1960; February 16, 1960 and February 26, 1960, libelant was made fit for duty by physicians at the said hospital, and I find he was so fit.

"III.

At all times material hereto SS HAWAIIAN PILOT was a safe and seaworthy vessel and was and constituted a safe place for libelant to work, and I so find.

"IV.

If libelant sustained any injury aboard SS HAWAIIAN PILOT, said injury was not caused in whole or in any part by the negligence of any employee, agent or officer of said SS HAWAIIAN PILOT, or of respondent, and I so find.

* * * * * *

"VI.

I find libelant to be an unreliable and untrustworthy witness.

"VII.

Respondent Matson Navigation Company paid libelant maintenance and cure at the rate of $8 per day from July 9, 1959 until February 1, 1960. Said respondent also paid libelant unearned wages in the amount of $338.20, following the termination of his employment aboard SS HAWAIIAN PILOT, as mentioned in Finding No. 1. Respondent has fully discharged its obligations to libelant as to maintenance and cure and unearned wages, and I so find.

* * * * * *

"CONCLUSIONS OF LAW

* * * * * *

"II.

The vessel SS HAWAIIAN PILOT was at all times material hereto, and all of her gear, equipment and appurtenances were at all times material hereto, safe, fit, and seaworthy, and said vessel constituted and was at all times material hereto a safe place for libelant to work.

"III.

There was no negligence on the part of any crew member of SS HAWAIIAN PILOT, nor on the part of any agent or employee of respondent Matson Navigation Company, which contributed proximately or directly, in whole or in part, to the condition of libelant which caused him to terminate his employment aboard SS HAWAIIAN PILOT on July 9, 1959, as aforesaid.

"IV.

Any disability or partial disability which libelant may have had on or after July 9, 1959, was not caused directly or proximately, or in whole or in part by any negligence of any employee or agent of respondent Matson Navigation.

"V.

Respondent Matson Navigation Company has completely discharged its liability to libelant for maintenance and cure and for unearned wages: there is no sum of money whatsoever due, owing or unpaid from respondent to libelant."

Appellant attacks findings III and IV and conclusions II, III and IV as inadequate, and as not supported by the evidence. He does not claim that the basic findings are insufficient in form. Thus, he states in his closing brief, as to finding III, "This is a direct finding of fact, and sufficient in form." "A finding of seaworthiness is usually a finding of fact." (Stone, C. J., in Mahnich v. Southern S.S. Co., 1944, 321 U.S. 96, 98, 64 S.Ct. 455, 457, 88 L.Ed. 561) We think the same can be said of finding IV, as to negligence, especially when it is read with conclusion III, which is as much a finding as it is a conclusion. Appellant cites and apparently agrees with the views of Judge Learned Hand, in Petterson Lighterage & Towing Corp. v. New York Central R. Co., 2 Cir., 1942, 126 F.2d 992, 996, where he said: "Findings should not be discursive; they should not state the evidence or any of the reasoning upon the evidence; they should be categorical and confined to those propositions of fact which fit upon the relevant propositions of law." (See also Carr v. Yokohama Specie Bank, Ltd., 9 Cir., 1952, 200 F.2d 251, 255) Appellant's argument as to the inadequacy of the findings is, in part, inconsistent with the foregoing views. He complains that the court did not find whether or not he suffered an accident on appellee's ship, and points to finding IV as indicating that perhaps he did. Yet, assuming that there were such an accident, appellee would be liable only if there was unseaworthiness, which caused the accident, or negligence attributable to appellee, which caused the accident. The court did find against both of these.

Appellant also suggests that the court should have made findings as to what, if anything, did happen to him on the ship. He suggests that the finding of seaworthiness may be nothing more than a conclusion that, although an accident did occur, and although it was caused by the condition to which appellant and his witness attributed it, that condition is not one of unseaworthiness. He urges that the condition of which he complains was, as a matter of law, one of unseaworthiness. This position, we think, is inconsistent with appellant's statement, quoted above, that the finding is a direct finding of fact, and sufficient in form. If it is, then it must be presumed that the court made such subsidiary findings, as to the evidence, as are necessary to support it.

We are committed to the proposition that a finding as to negligence, or as to unseaworthiness, is one of fact, not to be upset by us unless clearly erroneous. (See, as to negligence: Pacific Tow Boat Co. v. States Marine Corp., 9 Cir., 1960, 276 F.2d 745; Albina Engine & Mach. Works v. American Mail Line, Ltd., 9 Cir., 1959, 263 F.2d 311; Amerocean S.S. Co. v. Copp, 9 Cir., 1957, 245 F.2d 291; and as to unseaworthiness: Admiral Towing Co. v. Woolen, 9 Cir., 1961, 290 F.2d 641.) At the same time, we think it better practice for the court to make enough findings as to what actually happened, so that the parties and this court can appraise the ultimate finding as to negligence or seaworthiness. We have, from time to time, remanded cases with the requirement that such findings be made. (See Irish v. United States, 9 Cir., 1955, 225 F.2d 3; same, 1957, 243 F.2d 874.) But for reasons hereafter stated, we do not think it necessary or desirable to do so here.

We turn to the evidence. In doing so, we have in mind that the burden of proof, as to both unseaworthiness and negligence, was upon appellant, not upon appellee. (Lieberman v. Matson Nav. Co., 9 Cir., 1962, 300 F.2d 661.) This necessarily means that if the plaintiff fails to prove unseaworthiness or negligence, findings such as were made here are not clearly erroneous, even though there be no affirmative proof offered to show that the vessel was seaworthy, or that due care was used. Often, when we say that a finding against a party is not clearly erroneous, or is supported by the evidence, what we mean is that because of the burden of proof, the finding is not clearly erroneous because it is supported by a lack of contrary evidence.

Ramos was ship's cook. He testified that, in company with one Freitas, he went to the "reefer" to get frozen meat for the next day's meal. The "reefer" was on a deck below the galley. Two trays were filled with meat and the two men, each carrying a tray, started back to the galley, Freitas in the lead. Beside them in the passageway was a "laundry corral," made of horizontal wooden slats, starting near the deck and rising to about from three to six feet from the deck above. It was used for storage of bags containing soiled linen. Ramos said that the bags were irregularly piled above the top board of the corral, in such a way that they could fall, and that one did fall, knocking him to the deck, and causing injury to his back.

Freitas' testimony was by deposition. He gave a similar description of the corral and the stacking of the bags. He said it was higher than Ramos said it was. He did not see the bag fall, or Ramos fall. He was starting up the ladder when he heard a noise, turned around, and saw Ramos lying on the deck, with a laundry bag beside him and the contents of the tray scattered over the deck. Neither Ramos nor Freitas testified to any defect in the construction of the corral. The only evidence that would support a finding of either unseaworthiness or negligence was their testimony as to the manner in which the bags were piled above its top.

Appellee's defense was an attack upon Ramos' credibility, and there is ample evidence in the record to sustain the court's finding that he was "an unreliable and untrustworthy witness." He was shown to have had a series of accidents aboard various ships, each during the course of a voyage, and each resulting in a back injury. As a result of each, he collected maintenance and cure, (including unearned wages for the balance of the voyage), and a cash settlement. When the alleged accident here involved occurred on July 7, 1959, he had a claim pending against his union for another back injury, said to have been incurred while working in the union's coffee shop. He saw the doctors at San Francisco Marine Hospital July 9, and he dismissed his claim against the union's insurance carrier on July 10, "for my own personal reasons." The court could well conclude that he had...