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

• Decision Date: 02 January 1980
• Docket Number: No. 75-2696,75-2696
• Citation: 609 F.2d 140,1981 A.M.C. 1255
• Parties: Stella REYES, Administratrix of the Estate of Florentino Reyes, Deceased, Plaintiff-Appellant, v. VANTAGE STEAMSHIP COMPANY, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 140

609 F.2d 140

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

No. 75-2696.

United States Court of Appeals Fifth Circuit.

Jan. 2, 1980.

Rehearing Denied Feb. 14, 1980.

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.

ON PETITION FOR REHEARING

(Opinion August 26, 1977, 5 Cir., 1977, 558 F.2d 238)

Before BROWN, HILL and FAY, Circuit Judges.

JOHN R. BROWN, Chief Circuit Judge:

We grant this rehearing in order to clear some confusion engendered by our opinion appearing at 558 F.2d 238, and to modify certain portions of that opinion. Our prior opinion directed the trial court to compare the negligence of seaman Reyes with that of this employer, and to award some positive amount of damages even if slight, to plaintiff Stella Reyes, widow of the deceased seaman. The effect of our opinion today is to add to the task of the trial court on remand: the court must determine the issues of causation for the two faults held, as well as comparative fault.

A few additions to the facts stated in our prior opinion are appropriate. As stated, Reyes was legally drunk at the time of his death ¹ and the ship operated a floating dram shop, which sold large quantities of alcohol to the crew. The drunk seaman met his fate when he decided to take a swim in the ocean. He jumped some 35 feet off the side of the ship and attempted to swim to a mooring buoy located several hundred feet away. He was spotted almost immediately and crew members were aware from the time of first sighting that Reyes was in mortal danger. Yet no effort by either crew or officers was made to rescue Reyes, not even a shouted command for him to return to the vicinity of the ship.

By the time that a ship's officer was made aware that Reyes was in the water, Reyes had cleared the lee of the ship and was beyond reach of a hand-thrown line or life ring. At the same time, Reyes encountered a powerful current which began to sweep him away from both ship and mooring buoy. Careful examination of the record shows that (i) Reyes did not stop swimming or cry out for help, but (ii) he was in an obvious fight for his life with the current, and (iii) he was exerting enormous effort in his fight against the current. Reyes swam in this fashion for several minutes, slowly gaining on the current and approaching the buoy. Only about 20 feet short of the buoy, however, and for reasons unknown, Reyes became motionless in the water and at that point, or somewhat later, died.

Application of the maritime rescue doctrine is at issue here. The first branch of that doctrine is applicable where a seaman "has apparently fallen overboard but (his) presence or location in the water is not readily discernable from the ship." 1B R. Benedict, Admiralty § 30, at 3-225 (6th ed. 1976). That "search and rescue" branch requires the ship's officers to both rescue the seaman And to effect a search of the area traversed by the ship, so long as it is reasonably possible that the seaman remains alive in the water. ²

But the second branch of the rescue doctrine is the one applicable to Reyes's death. The second branch applies where the seaman falls or jumps overboard but remains visible to those on board the ship. There, a long line of cases has imposed an affirmative Jones Act duty upon the ship to use every reasonable means to retrieve the seaman from the water. E. g., Harris v. Pennsylvania R.R. Co., 4 Cir., 1931, 50 F.2d 866, 1931 AMC 1303; Cortes v. Baltimore Insular Line, Inc., 1932, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368, 1933 AMC 9 (approving of Harris in dictum); Kirincich v. Standard Dredging Co., 3 Cir., 1940, 112 F.2d 163, 1940 AMC 868; Tompkins v. Pilots Assoc., E.D.Pa., 1940, 32 F.Supp. 439, 1940 AMC 716; Schlichter v. Port Arthur Towing Co., supra at 804-06, 1961 AMC at 1169-71; Grantham v. Quinn Menhaden Fisheries, Inc., 4 Cir., 1965, 344 F.2d 590, 593, 1965 AMC 1481, 1484-85; Britt v. Marine Transport Lines, Inc., S.D.Tex., 1969, 1970 AMC 652, 656.

The affirmative duty to rescue arises as soon as the seaman enters the water, whether by jumping or falling overboard. This is an expansive duty which derives from the seaman's celebrated status as a "ward" of the admiralty: "The contract of employment involves not merely a surrender of the personal liberty of the seaman to a greater extent than is customary, . . . but it imposes upon the employer an exceptional obligation to care for the well-being of the crew." Harris v. Pennsylvania R.R. Co., supra at 868, 1931 AMC at 1307. There has been some confusion concerning the scope of the duty to rescue where the seaman deliberately jumps overboard, however. In such situations, some cases might be read to impose the duty to rescue only as of the time that the seaman begins to drown or to cry for help.

The correct view is that the duty to rescue arises from the instant that the seaman goes overboard, however, and the cases which seem to suggest otherwise are in fact based either upon a lack of causation ³ or on the fact that (under the Jones Act's comparative negligence doctrine) the seaman's negligence completely offset that of the shipowner's in failing to rescue the seaman. ⁴ It would be contrary to the underlying rationale of the rescue doctrine to allow a ship's officers to stand idly by making no preparations for rescue until the seaman let out a yell for help. See Grantham v. Quinn Menhaden Fisheries, Inc., supra at 593, 1965 AMC at 1484-85 (rejecting such a "one-yell" rule, and stating that "we decline to interpret the rescue rule so restrictively").

Having clarified the duty element of the rescue doctrine, we proceed to the elements of breach of duty and causation. Breach of duty to rescue is established by the fact that a line-throwing appliance Could have been used to deliver a line to Reyes. Coast Guard regulations required the ship to have a rocket powered line-throwing appliance capable of throwing at least 1,500 feet of line. 46 CFR § 94.45-1 Et seq. We are aware that these line-throwing appliances are not usually used to rescue men in the water. ⁵ Nevertheless, for purposes of establishing breach of duty, it is only important that the required appliance might have been used to effect a rescue.

The failure to follow Any Coast Guard regulation which is a Cause of an injury establishes negligence Per se. In Kernan v. American Dredging Co., 1958, 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382, 1958 AMC 251, an open-flame kerosene lamp was placed on the deck of a scow, rather than at least eight feet above as required by Coast Guard regulation. The regulation was solely for purposes of navigation, not crew or fire safety. The lamp ignited the surface of the river and a seaman abroad the tug which was towing the scow lost his life. The Supreme Court awarded Jones Act damages and expressly held that the type of Coast Guard regulation violated was irrelevant so long as the violation played any part in causing the injury. See also Neal v. Saga Shipping Co., 5 Cir., 1969, 407 F.2d 481, 1969 AMC 280.

Consequently, the lack of the required line-throwing device, coupled with the shipowner's duty to rescue, establishes that the shipowner was negligent as a matter of law. Only a cluster of Causation problems remain. Our reconsideration of those problems requires a modification of the disposition of this case. We feel that upon remand the District Court must make three categories of findings relating to causation.

The first relates to the deployment of the line-throwing appliance, had one been aboard. From the discussion of the duty element it follows that some member of the crew should have been ordered to break out the line-throwing appliance as soon as it was apparent that Reyes was beyond reach of hand-thrown lines or life rings. From the present record, this would have been at about the same time as an officer was first made aware of Reyes's peril. As discussed, the duty to prepare for rescue does not await the cry for help, nor for other signs that the seaman is about to drown. In addition, the location at which a line-throwing appliance would likely have been stored is a part of this first problem of causation. ⁶ The District Court on remand must be prepared to determine whether there was time for a crew member to go to the hypothetical storage location, obtain the hypothetical line-throwing appliance, move it to the appropriate firing location, and fire the appliance all before Reyes went limp in the water.

If the first causation question is resolved in favor of Reyes, then the second and third causation problems arise. The second is whether it was reasonable to use the now-prepared line-throwing appliance. There is Some possibility that a line or lines fired over or near Reyes might have harmed him or perhaps have impeded his labored swimming. Against this hypothetical, the District Court must somehow balance the possible facts that (i) Reyes was struggling against the current and likely would have cooperated in any rescue efforts, and (ii) Reyes may have responded to a shouted command to grab ahold of the line.

If the first two causation questions are resolved in favor of Reyes, the only remaining question of causation is whether actually firing the line would probably in fact have saved his life. In part the question is whether Reyes went limp in the water between the time that the hypothetical decision to fire a line was reached and the time that such a line would have reached him. Again the question of whether Reyes would have obeyed an order to take the line is also at issue. No doubt there are other minor hypothetical issues which the District Court in its discretion should consider.

From the foregoing discussion, it...