Sandoval v. Mitsui Sempaku KK Tokyo

• Decision Date: 16 June 1972
• Docket Number: No. 71-1699.,71-1699.
• Citation: 460 F.2d 1163
• Parties: Leopoldo SANDOVAL, Plaintiff-Appellee-Cross Appellant, and Panama Canal Company, Intervenor-Appellee-Cross Appellant, v. MITSUI SEMPAKU K. K. TOKYO, Defendant-Appellant-Cross Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 1163 (1972)

Leopoldo SANDOVAL, Plaintiff-Appellee-Cross Appellant, and Panama Canal Company, Intervenor-Appellee-Cross Appellant, v. MITSUI SEMPAKU K. K. TOKYO, Defendant-Appellant-Cross Appellee.

No. 71-1699.

United States Court of Appeals, Fifth Circuit.

May 23, 1972.

Rehearing Denied June 16, 1972.

E. J. Berger, Cristobal, Canal Zone, Jacob Rassner, New York City, for appellee-appellant.

Woodrow De Castro, Balboa, Canal Zone, Winston Edward Rice, New Orleans, La., for Mitsui Sempaku K. K. Tokyo; Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., and Kirlin, Campbell & Keating, and John R. Geraghty, New York City, of counsel.

De Castro & Robles, Balboa, Canal Zone, for plaintiff-in-intervention-appellant-appellee.

Dwight A. McKabney, Robert J. Park, Office of General Counsel, Panama Canal Co., Balboa Heights, Canal Zone, John L. Haines, Jr., Balboa Heights, Canal Zone, for Panama Canal Co.

Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.

AINSWORTH, Circuit Judge:

On the evening of September 10, 1960, Leopoldo Sandoval and his fellow Panama Canal Company employees boarded Mitsui's vessel AKIBASAN MARU shortly after the vessel began her northbound transit of the Panama Canal. No vessel may transit the Canal without the Canal Company's pilot and linehandling crew, unless special permission is granted by the Canal Company. 35 C.F.R. § 109.4.¹ At the time of Sandoval's injury, the AKIBASAN MARU was being prepared by the Canal Company to pass through the Pedro Miguel Locks. The vessel was to be guided by mechanical towing mules or locomotives which travel along a track on the lock walls. A heavy steel cable ran from the vessel to the mules. Sandoval was injured while he and three other linehandlers were attempting to secure the eye or loop at the end of the bow line to a bitt on the vessel.

Standard procedure called for a half-inch manila "heaving line" to be thrown from the vessel to a dinghy in the Canal. The "heaving line" was in turn tied to a manila "messenger line" which connected to the steel cable. Once the lines were connected, the heaving line was retrieved by hand, bringing with it the first part of the messenger line. The messenger line and the steel cable were then brought aboard using the ship's winch. As the eye was brought close to the bitt, Sandoval and his partner took hold of the steel cable to ease the tension so that the eye could be placed on the bitt. While Sandoval and his partner held the cable, but before the eye was placed on the bitt, Sandoval's partner, Saayedra, got a splinter or burr from the cable in his hand causing him to drop the cable. Sandoval held on for a moment but then fell and was struck by the cable. As a result he suffered injuries to his right leg and foot.

Sandoval's right to recover from Mitsui was first established in a nonjury trial confined to the issue of liability. The Court found that a burr or splinter in the cable rendered the vessel unseaworthy. See Sandoval v. Mitsui Sempaku K. K. Tokyo, D. Canal Zone, 1968, 288 F.Supp. 377. Subsequently, the Canal Company intervened as a complainant to recover from Mitsui the value of compensation benefits paid to Sandoval pursuant to the Federal Employees Compensation Act, 5 U.S.C. § 8101 et seq. Mitsui counterclaimed against the Canal Company seeking indemnity for all sums it was adjudged liable to Sandoval. Both parties moved for summary judgment on the indemnity issue.

On May 22, 1970, the District Court entered findings of fact and conclusions of law fixing Sandoval's damages against Mitsui in the amount of $60,092.08. The Court also held that Mitsui was not entitled to indemnity from the Canal Company. See Sandoval v. Mitsui Sempaku K. K. Tokyo, D. Canal Zone, 1970, 313 F.Supp. 719.

On January 11, 1971, the District Court entered formal judgment in favor of Sandoval against Mitsui in the amount of $60,092.08. The Court granted the Canal Company's motion for summary judgment on the issues of indemnity and dismissed Mitsui's counterclaim, 316 F.Supp. 237. The Court also ordered that Sandoval's private fee arrangement with his attorney be given effect by the Court and refused intervenor Canal Company's demand that the amount of the fee be reduced. The Court further ordered "that in determining intervenor's right to a refund of compensation benefits paid by it to plaintiff (which right arises under 5 U. S.C. § 8132) the reasonable attorney's fee within the meaning of said § 8132 shall be 331/3% unless appeal is taken in which case it shall be 40%." Finally, the Court denied a motion by Sandoval to tax his attorney's fees against defendant Mitsui as costs of the suit.

None of the parties is completely satisfied with the judgment and all parties have appealed. Mitsui contends that the judgment is erroneous in all respects except insofar as it rejected Sandoval's motion to tax attorney's fees as costs. Sandoval claims that the judgment was erroneous in failing to tax attorney's fees as costs and that the amount of damages awarded him was inadequate. He also seeks to have us award prejudgment interest. Mitsui argues that the issue of prejudgment interest was never presented to the Trial Court in the first instance and is therefore waived. The Canal Company appeals the issue of Mitsui's liability to Sandoval but seeks to preserve the judgment denying indemnity to Mitsui. The Canal Company also claims error in the District Court's calculation of the amount due to it for compensation benefits paid to Sandoval. We affirm in part; reverse in part; and remand for further proceedings not inconsistent herewith.

I. SANDOVAL'S CLAIM AGAINST MITSUI²

At the time of his injury, Sandoval was engaged in classic seaman's work of handling the lines of the vessel. He was, therefore, owed the warranty of seaworthiness by the vessel and its owner. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), reh. denied, 328 U.S. 878, 66 S.Ct. 1116, 90 L.Ed. 1646 (1946), and Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953). The defective cable belonged to the Canal Company and was being handled by its employees. But when the equipment was brought aboard the AKIBASAN MARU to aid in the vessel's navigation it became ship's tackle rendering Mitsui absolutely responsible for any unseaworthy condition created by it. See Alaska Steamship Company v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). See also Ryan Stevedor. Co. v. Pan-Atlantic Steam. Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956).

The District Court concluded that a splinter or burr existed in the steel cable and that the defect rendered the vessel unseaworthy. The Court found that "The proximate cause of the injury was that the linehandler, Saayedra, `got a splinter or burr in his hand from the cable and he let go for awhile' and the weight of the cable was so great that the plaintiff was pulled suddenly toward the chock and caused to let go as he slipped and fell to the deck. The heavy cable, which at that point had not been checked by the messenger line which was still around the drum of the winch, struck him causing the fractures of which he complains." 288 F.Supp. at 382. A seaworthy vessel is one "reasonably suitable for her intended service." Mitchell v. Trawler Racer Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933 (1960). "The doctrine is a growing concept, constantly undergoing redefinition as the risks of those protected are enlarged by changing technology and ship board technique." Dillon v. M. S. Oriental Inventor, 5 Cir., 1970, 426 F.2d 977, 979. The District Court's conclusions that the AKIBASAN MARU was unseaworthy on account of the defective cable, and that that unseaworthiness proximately caused Sandoval's injuries, are not clearly erroneous. See Fed.R.Civ.P. 52(b); Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774; Nelson v. Jacksonville Shipyards, Inc., 5 Cir., 1971, 440 F.2d 668, 670.

Nevertheless, Mitsui argues that the presence of the Panama Canal linehandlers, bosun, and pilot constituted compulsory pilotage, and accordingly, Mitsui may not be adjudged responsible in personam for their negligence.³ However, the conclusion of the District Court that the vessel was itself unseaworthy because of defective equipment was the basis of his determination of liability. The Court finally concluded that "the unseaworthiness was more than instantaneous and existed as long as the defective cable was on board." Id., 313 F. Supp. at 723. The conclusion is correct and amply supported by the record. See Alaska Steamship Company v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954). See also Rogers v. United States, 5 Cir., 1971, 452 F.2d 1149.

Finally, Sandoval appeals the issue of damages. The District Court awarded judgment in the amount of $60,092.08. Appellant states in his brief that he "does not claim that the finding by the Court below as to the amount of damages was clearly erroneous, as called for by the holding of the Supreme Court of the United States in the case of Mc-Allister v. United States, 348 U.S. 19, 75 S.Ct. 6 99 L.Ed. 20, but respectfully asks that this Honorable Court consider increasing the award in an amount comparable to that generally allowed by Courts and juries for similar injuries." This Court is not at liberty to disturb findings of fact made by the District Court unless they are clearly erroneous, which is not the case here. See Rule 52(b), Fed.R.Civ.P.

II. MITSUI'S CLAIM FOR INDEMNITY AGAINST THE PANAMA CANAL COMPANY

The factual basis for Mitsui's claim for indemnity against the Canal Company is clearly established by the record. Canal Company employees were aboard the AKIBASAN MARU to assist the vessel through the Panama Canal locks; Mitsui paid a toll for the service; the Canal Company's gear was defective; the defective gear caused Sandoval's injuries; and Mitsui was not guilty of any conduct sufficient to preclude...