Reyes v. Vantage S. S. Co., Inc.

• Decision Date: 26 August 1977
• Docket Number: No. 75-2696,75-2696
• Citation: 558 F.2d 238
• Parties: Stella REYES, Administratrix of the Estate of Florentino Reyes, Deceased, Plaintiff-Appellant, v. VANTAGE STEAMSHIP CO., INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 238

558 F.2d 238

Stella REYES, Administratrix of the Estate of Florentino Reyes, Deceased, Plaintiff-Appellant, v. VANTAGE STEAMSHIP CO., INC., et al., Defendants-Appellees.

No. 75-2696.

United States Court of Appeals Fifth Circuit.

Aug. 26, 1977.

Frank E. Caton, Thomas B. Greene, III, Houston, Tex., for plaintiff-appellant.

James E. Ross, John L. Yates, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, Chief Judge, HILL and FAY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

The plaintiff-appellant, Stella Reyes, sued under the Jones Act, 46 U.S.C.A. § 688 and general maritime law for the death of her husband, Florentino Reyes, a member of the crew of defendant-appellee's SS NATIONAL DEFENDER. Reyes was employed as a seaman on board NATIONAL DEFENDER at the time of his death. The lower court found that the vessel was not unseaworthy in any respect, the Master, Officers and crew were not negligent and the sole, proximate cause of Reyes' death was his own negligence in attempting to swim in the ocean. The court rendered judgment for the shipowners and the widow appeals. We reverse the finding of fault but remand for a determination of damages.

Reyes was 44 years old at the time of his death. He was an American seaman employed as an oiler aboard NATIONAL DEFENDER. The ship departed Houston, Texas, on July 27, 1973, to carry a cargo of wheat to Russia and ultimately to proceed to Libya.

On October 1, 1973, the ship was anchored and moored at a terminal approximately one mile off the northern coast of Libya, loading a cargo of oil through underwater pipelines. A number of other vessels were moored nearby, similarly loading oil. The weather was calm and clear. In addition to the regular crew there was a Loading Master on board to supervise the loading operation. On that day, Reyes stood his regular watch in the engine room of the ship from 4:00 a. m. until 8:00 a. m., after which he ate breakfast in the crew's messroom. At approximately 9:00 a. m. he began working overtime, painting an emergency generator room of the ship.

At approximately 11:15 a. m., the ship's chief cook, Ramiro Gonzales, observed Reyes entering the messroom. Reyes was wearing a pair of cut-off blue jeans and was carrying a towel. He stated that he was going swimming, a statement that was not particularly unusual since the ship had its own swimming pool. At approximately 11:30 a. m., Reyes went to the ship's rail on the port side of the emergency generator room deck (approximately 35 feet above the water), hung his towel over the rail, placed his shower shoes on the deck, and then sat momentarily on the rail with his feet and legs hanging over the rail. He then let out a loud yell and jumped down into the ocean below.

He began swimming strongly away from the ship toward a mooring buoy which was located off the stern of the ship, approximately 300 feet away. Several members of the crew, including his work partner, Sokolic, observed Reyes swimming, and for a brief time he could have been reached by a life ring or line. During this time, however, he was swimming easily and the crew made no attempt to assist him.

After Reyes swam outside the lee of the ship, he encountered a current, but continued to swim toward the buoy. When he was approximately 280 feet away from the ship and only about twenty feet short of the buoy, Reyes abruptly stopped swimming and lay motionless, face down, with his arms outstretched. At no time prior to this did Reyes ever cry for help or go beneath the surface of the water. No alarm was sounded by anyone on the ship, no life ring or life line was thrown to Reyes and no line-throwing apparatus was available or employed, although by the time he was motionless, a crowd of crew members had gathered to watch.

As Reyes swam away from the vessel some of the crew members became concerned. They were yelling and screaming that Reyes was overboard . . . was in the water. Chief Engineer Scott, hearing the commotion, ran from the deck to the Captain's midship office. The Captain, accompanied by the Loading Master, hurried onto the deck to assist Reyes. The Captain observed Reyes floating behind the buoy and realizing the urgency of the situation, told the Loading Master to call a work boat from a nearby ship to pick up Reyes.

NATIONAL DEFENDER was equipped with four lifeboats, only one of which was motorized. At the time of the incident, all of the boats were in their customary positions, suspended high above the water in davits. There was evidence before the court below that these lifeboats could be lowered to their embarkation points within four minutes after they are reached and manned by a four-member crew including an engineer. When Reyes was swimming in the water, however, the ship's position was such that the motorized boat would have had to travel completely around it, a distance of 810 feet in length and 104 feet in breadth, in order to reach Reyes.

The Captain decided to employ the workboat of the nearby ship to pick up Reyes. It was immediately summoned by the Loading Master and directed to Reyes' body. At that time a doctor ashore was also alerted and told to stand by with emergency equipment. The workboat picked up Reyes but instead of going immediately to shore, went instead to NATIONAL DEFENDER where Chief Engineer Scott boarded it with Reyes' papers for the Libyian authorities. Then the workboat met a boat from shore with a doctor on board who attempted resuscitation, to no avail.

Reyes' body was returned to Houston, Texas, where a postmortem examination was conducted. The autopsy report indicated that death was caused by asphyxia due to drowning. The blood analysis indicated the presence of .185% alcohol.

Before NATIONAL DEFENDER departed Houston on her voyage to Russia, officials of the ship's owners ordered the Captain of the ship to maintain a quantity of beer aboard the vessel for sale to crew members. The practice of operating such a beer store or floating dram shop was unfamiliar to the Captain, however, and he questioned the advisability of doing so. He nonetheless complied with the ship owners' instructions, and added 350 cases of beer to his previous stock of 50 cases before the ship departed for Russia. There was evidence that the crew members availed themselves of the opportunity to drink beer while aboard ship. In fact, so much alcohol was consumed during the voyage that the Captain felt compelled to purchase 50 additional cases of beer in the port of Odessa, Russia in order to have an adequate supply for the remainder of the voyage.

The Findings Below

The District Court found that the vessel was not unseaworthy by selling beer aboard. To the contrary, it found that while somewhat unusual, the practice was a measure of goodwill toward the crew. It further found that the Master, the Officers and the crew acted with all prudence and diligence in undertaking to assist and to rescue Reyes. Were it not for the autopsy report the court held the evidence would not suggest that Reyes was to any degree intoxicated. While apparently he had partaken of intoxicants in moderate amounts, this did not affect his conduct or behavior and was in no sense responsible for or a proximate cause of his difficulties. The sole and only cause of his death was Reyes' conduct in undertaking to swim in the ocean. Based on these findings of fact, the court ruled as a matter of law that,

while the law imposes upon the vessel and her Captain a paternalistic duty to protect a seaman, even from his own injudicious conduct, where circumstances permit, where as here the sole and only cause of the disaster is that of the seaman's own negligence; and where the officers and crew did all within their power to rescue the victim when his danger came to their knowledge, there is no liability.

Throw Out the Life Line

The fatal flaw in the opinion of the lower court lies in its disregard of the violation of Coast Guard regulations by NATIONAL DEFENDER, specifically, 46 C.F.R. § 94.45-1 et seq. ¹ The regulations require that all vessels of 150 gross tons and over in ocean or coastwise service maintain line-throwing appliances for rescue operations. The Captain of NATIONAL DEFENDER testified that the vessel did not have such equipment and that he thought it was illegal to use them. Vessels of 500 gross tons and over are required to have impulse-projected rocket type line throwers. The appliances must have lines of at least 1,500 feet in length and a breaking strength of at least 9,000 pounds.

In Marshall v. Isthmian Lines, Inc., 5 Cir. 1964, 334 F.2d 131, 1964 AMC 1686, there was a violation of the Coast Guard regulations relating to the shipment of hazardous articles. There we said,

(t)he law is well established that violations of a statute which is intended to protect the class of persons to which a plaintiff belongs against the risk of the type of harm which has in fact occurred is negligence in itself. Inherent in this statement of the legal principal are three questions which must be resolved before liability could be imposed in this case on a negligence per se theory. What proof makes out a violation of the regulations? Were the regulations designed to protect the (plaintiffs)? Were they intended to protect against the risk of the kind of harm that occurred here . . . .

Id. at 134 (citations omitted); see Phipps v. S.S. Santa Maria, 5 Cir. 1971, 418 F.2d 615; Manning v. M/V Sea Road, 5 Cir. 1969, 417 F.2d 603; Grigsby v. Coastal Marine Serv. Inc., 5 Cir. 1969, 412 F.2d 1011, 1969 AMC 1513; Venable v. A/S Det Forenede Dampskibsselskab, 4 Cir. 1968, 399 F.2d 347, 1968 AMC 1437; Provenze v. American Export Lines, Inc., 4 Cir. 1963, 324 F.2d 660; Simmons v. Gulf and South American S.S. Co., (E.D.La.1966), 260 F.Supp. 525, aff'd, 5 Cir. 1968, 394 F.2d 504, 1968 AMC 1978.

In the application of these requirements to Reyes, the...