Reinhart v. United States

• Decision Date: 13 March 1972
• Docket Number: No. 25039.,25039.
• Citation: 457 F.2d 151
• Parties: Robert REINHART, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 151 (1972)

Robert REINHART, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 25039.

United States Court of Appeals, Ninth Circuit.

March 13, 1972.

Lawrence Drasin (argued), of Kessler & Drasin, Los Angeles, Cal., for plaintiff-appellant.

Michael Dempsey (argued), William H. Brainerd, of Lillick, McHose, Wheat, Adams & Charles, William D. Keller, U. S. Atty., Los Angeles, Cal., Lawrence F. Ledebur, Chief, Admiralty & Shipping Section, Washington, D. C., for defendant-appellee.

Before TRASK and CHOY, Circuit Judges, and BATTIN,^* District Judge.

TRASK, Circuit Judge:

Robert Reinhart appeals from a judgment in favor of the United States in an action brought by Reinhart for personal injuries sustained by him at sea while employed as a seaman on a vessel owned by the United States. The district court had jurisdiction under the Suits in Admiralty Act, 46 U.S.C. § 742, the Public Vessels Act, 46 U.S.C. § 781, the Jones Act, 46 U.S.C. § 688, and general maritime law.¹ This court has jurisdiction under 28 U.S.C. § 1291.

Reinhart was employed as Chief Mate on the S.S. Queens Victory, which transported ammunition to Vietnam. Before the ship departed the United States, longshoremen installed wooden sheathing in its holds to prevent contact between the bombs and the vessel's metal hull. Since his duties as Chief Mate included overseeing safe working conditions on the vessel, Reinhart inspected the sheathing that was laid in each hold and accepted it as suitable for the intended cargo.

During unloading at Cam Rhan Bay by military crews using mechanical equipment, portions of the wooden sheathing were broken and gouged, especially along the sides of the ship. Rough treatment of the sheathing was expected, and it was customarily inspected and repaired after each voyage to Vietnam by longshoremen on the West Coast. The Queens Victory did not carry lumber aboard to repair the sheathing, and her carpenters had no duties regarding sheathing repair while at sea.

Immediately following the completion of the discharge operation in Vietnam, Reinhart had gone down into the lower portion of Hold Number 5 to supervise its cleaning. He also went into the hold on a sanitary inspection before the ship left Vietnam. During the return voyage, Reinhart was responsible for setting and inspecting rat traps which Government regulations required be placed in the empty holds. He and a carpenter descended into the holds to set the traps, but thereafter Reinhart alone entered the holds. Reinhart knew that some sheathing was broken and damaged.

After five or six inspections without incident, Reinhart descended into Hold Number 5 on August 23, 1968, to look for rats. The sole lighting in the hold was supplied by a single cluster of lightbulbs of 250 watts at the forward end of the hold. Reinhart had a flashlight which he played only on the sides of the hold looking for rats, and not on the sheathing on which he was walking. He fell through a hole in the flooring sheathing approximately twelve to fourteen inches long and eight inches wide, sustaining a hernia. He was declared unfit for duty, and underwent surgery. Maintenance and cure has been provided.

Reinhart then sued the United States, the shipowner, to recover his lost wages and other damages. He alleged that the vessel was unseaworthy because the United States had failed to maintain it and Hold Number 5 as a safe and adequate place to work.

General maritime law imposes an absolute duty upon a shipowner to provide a vessel that is seaworthy. Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922); The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903). This warranty of seaworthiness does not mean that the vessel is guaranteed to weather all storms or that it is accident-proof. It does mean that the vessel, together with its gear and complement of personnel, are reasonably fit to complete the intended voyage. Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955). It also requires that the ship be reasonably fit to enable the crew to perform their duties with reasonable safety. Ross v. The S. S. Zeeland, 240 F.2d 820, 822 (5th Cir. 1957).

Liability resulting from a failure to provide a seaworthy ship does not depend upon the negligence of the owner. The duty is absolute and thus creates a variety of liability without fault. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 4 L.Ed. 2d 941 (1960). It is completely independent of any duty to exercise reasonable care under the Jones Act. Id. "What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence." Id. at 550, 80 S.Ct. 926, at 933. Likewise, neither contributory negligence nor voluntary assumption of risk is a defense, but may be taken into account in mitigation of damages. Socony-Vacuum Co. v. Smith, 305 U.S. 424, 431, 59 S.Ct. 262, 83 L.Ed. 265 (1939); The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586 (1890).

No issue is joined on appeal with respect to seaworthiness. The district court entered judgment for the United States on the ground that the appellant was barred from recovery under his theory of seaworthiness. The court concluded that: (1) as Chief Mate, Reinhart was himself directly responsible for maintaining the vessel's seaworthiness, including the safety of the sheathing on which he walked; (2) he had failed to fulfill his responsibility; and (3) this breach of his contractual duty to the shipowner caused his injury and barred his recovery under the theory of seaworthiness.² This appeal is presented on that issue.

The district court cited and relied upon Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2d Cir. 1952). Walker was the Master of the ship and sued the owner under the Jones Act for injury to his shin when a roll of the ship caused a drawer of a steel filing cabinet in his office to open into him unexpectedly. Walker knew that the catches on the drawers had become defective and had had ample opportunity to have them fixed before the ship left port, but failed to do so. The owner argued that the Master of the ship had the duty to make the ship safe for the voyage and could not recover damages for his own breach of that duty.

Judge Learned Hand agreed. He distinguished between a momentary failure to exercise due care, which characterizes contributory negligence, and the failure to perform a positive duty which the injured party has knowingly and advisedly entered into with his employer. This latter type of failure had proximately caused Walker's own injury, for which he nonetheless sought to recover damages against his employer.

"The important thing in situations like that at bar is to distinguish between such a duty, which the law imposes upon the injured person, regardless of any conscious assumption of a duty towards the wrongdoer `a duty not to expose himself to the chance that the wrongdoer may himself be delinquent . . . .\', and a duty which the injured person has consciously assumed as a term of his employment. By `contributory negligence\' which results in no more than reducing the amount of employee\'s recovery, the Act means the first; the second is a bar to any recovery." Walker v. Lykes Bros. S. S. Co., supra at 773.

Judge Hand's rationale was followed in Dixon v. United States, 219 F.2d 10 (2d Cir. 1955).³ In that case, three rungs of a ladder in Hatch Number 2 were broken while the ship was discharging cargo. Dixon, the Chief Officer of the vessel, learned of the mishap and reported it to the Master; repairs were ordered at once. After the repairs were supposed to have been made, the Master ordered Dixon to inspect the ladder, and he was injured while doing so. The district court gave judgment for the libelant and the circuit court remanded for further findings. During the course of a carefully written opinion (prior to Mitchell v. Trawler Racer, Inc., supra), then Circuit Judge John M. Harlan distinguished Walker v. Lykes:

"Cases such as Walker v. Lykes Bros. S. S. Co., 2 Cir., 1952, 193 F.2d 772; Great Northern Railway Company v. Wiles, 1916, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732, and other cases of the same tenor which the appellant cites, are in no way inconsistent with the rule that assumption of risk is not a defense or comparable to the situation before us. Those cases are only instances of the firmly established rule that an employee may not recover against his employer for injuries occasioned by his own neglect of some independent duty arising out of the employer-employee relationship. Their result turns really not upon any question of `proximate cause,\' `assumption of risk\' or `contributory negligence,\' but rather upon the employer\'s independent right to recover against the employee for the non-performance of a duty resulting in damage to the employer, which in effect offsets the employee\'s right to recover against the employer for failure to provide a safe place to work. Such cases are quite inapposite here. Dixon was not guilty of any breach of duty to his employer." 219 F.2d at 16-17.

In Dixon, like the present case, the Chief Officer had become aware of the disrepair, but Dixon had reported it and taken steps to have it fixed before the vessel again put to sea. Reinhart, on the other hand, took no steps to patch up the damage before the ship left Vietnam or to provide adequate lighting, which the court found could have been done; he made no effort to see that the area was safe for the limited purposes for which it was to be used during the return voyage. The trial court concluded as a matter of law that if the Chief Officer had properly performed his inspection duties and corrected the unsafe condition, no accident would have occurred. His failure to do so constituted a breach of his contractual duty to the defendant.

Appellant calls our attention to Boat Dagny v. Todd, 224 F.2d 208 (1st Cir. 1955), as a case which...