Schlichter v. Port Arthur Towing Company

• Decision Date: 05 April 1961
• Docket Number: No. 18505.,18505.
• Parties: Mrs. Clifford Raymond SCHLICHTER, v. PORT ARTHUR TOWING COMPANY.
• Court: U.S. Court of Appeals — Fifth Circuit

288 F.2d 801 (1961)

Mrs. Clifford Raymond SCHLICHTER, v. PORT ARTHUR TOWING COMPANY.

No. 18505.

United States Court of Appeals Fifth Circuit.

April 5, 1961.

James H. Drury, Frank J. Varela, New Orleans, La., for appellant.

George W. Healy, III, New Orleans, La., for appellee.

Before JONES and BROWN, Circuit Judges, and CARSWELL, District Judge.

JOHN R. BROWN, Circuit Judge.

This appeal presents the question whether the District Court was correct in granting an instructed verdict in favor of a defendant vessel owner in a Jones Act, 46 U.S.C.A. § 688, claim for damages due to the negligent death of a seaman. We affirm.

The vessel is the small river pusher type towboat Ann Lee. She is 55 feet in length. Her stern is square with a wooden grating type decking over the extreme after end. This raised portion is about a foot above the level of the steel deck. This gives the appearance of a platform four or five feet in length fore and aft and running athwart the stern. The steel deck is flat and furnishes a passageway across the stern immediately forward of this raised platform. It also furnishes a passageway approximately three feet wide along the port and starboard side of the deckhouse. The freeboard was in the neighborhood of two feet. Along each side of the tug are permanent steel stanchion posts to which a chain guard rail, about waist high, is fastened. From the after-most stanchion the chain guard rail leads downward to the grating at the after end. The chain guard in this area is about knee-high.

In the housing on the main deck were crew's quarters, engine space, and the galley-mess room. Access to these spaces was through conventional doors on each side. The galley door (on each side) was but four or five feet from the after end of the deck housing and not over 15 feet from the stern. The wheelhouse is on the next deck above. A ladder leads up to the wheelhouse deck. This ladder is immediately forward of the forward end of the deckhouse.

The drowning took place late on the night of February 23, 1960. Schlichter, the decedent, was a member of the crew serving as engineer. The tug was then moored to the dock of a chemical company in the Ouachita River at Sterlington, Louisiana. The tug had been there several days. After mooring the tug at the dock, the captain and the remainder of the crew went to their homes for a periodic shore leave. Schlichter desired to remain aboard and this was permitted. Although the evidence does not categorically spell it out, Schlichter as the sole person aboard had a responsibility for the safekeeping of the vessel, or at least her removable equipment. Consequently, he had keys to all of the access doors. While there was a port engineer stationed at nearby Sterlington, the uncontradicted evidence showed that his responsibility was only as an engine maintenance man. It was not his duty to see that during Schlichter's stay lights were left on, doorways left open, or lifesaving gear kept available. These things were left entirely up to Schlichter.

On the afternoon of February 23, Schlichter had entertained two of his friends, Redden and Slade, aboard the tug. Each had worked for the Towing Company in the past but neither was then in its employ. Whether their presence or activity that afternoon was or was not permissible need not concern us since nothing then done caused harm. Likewise it does not matter how much drinking went on aboard the ship. For after he had all of the doors opening into the deckhouse locked, Schlichter and his two friends left the tug about 6:00 p. m. and went ashore where Slade and Schlichter engaged in some rather concentrated drinking. For example, Slade, the sole surviving witness and produced by the plaintiff, acknowledged that Schlichter had purchased 18 bottles of beer and the three of them had obtained two pints and one-fifth of Vodka. One pint was completely consumed, largely by Slade and Schlichter. The fifth was opened for one drink. How much beer each consumed was not directly shown, but it was substantial as several irrefutable factors made manifest. Slade's categorical acknowledgment on the witness stand that Schlichter was intoxicated may be disregarded in view of his prior inconsistent statement given at the Coroner's inquest. But in stating the facts on which he based his opinion of intoxication, and whether, as one sign, Schlichter's speech was blurred or fuzzy, his answer showed both the extent of the drinking and his lack of dependable observation or recollection as a witness. It also appeared that when he stated to the Coroner that Schlichter was not drunk, he was using that term as he understood it and on that standard the man was not drunk so long as he was able to move as Schlichter clearly was. But intoxication was not left to the imponderables based upon the observation and estimates of witnesses using elusive terms which are unavoidably so inexact. The body was removed from the river the next day and an autopsy was performed for the Parish Coroner. It is uncontradicted that the chemical examination revealed the presence of 0.31% Ethyl alcohol in the blood. After all possible adjustments were made for changes due to post-death metabolism (the effect of which is to reduce alcohol in the blood) or possible production of body alcohol (which could account for a maximum of 0.05%), the reading was not less than 0.30%. A pathologist and toxicologist, whose qualifications were conceded, as an expert witness then compared this with medical studies made concerning intoxication of an average person. Whereas Schlichter had a 0.30% plus reading, it is considered, medically and legally, that a person with a reading in excess of 0.15% is too far under the influence of alcohol to permit driving an automobile. This figure is generally accepted as proof of driving while intoxicated. In the other direction, a reading of 0.40% produces a coma colloquially described as passing out. After that, an additional 0.10% is critical as death from acute alcoholism generally occurs at 0.50%. The intensity of the state of intoxication is reflected by the amount of alcohol required to produce this percentage. The reading of 0.31% would have required 15 ounces of Vodka (at 80 proof) or 22 bottles of beer.

A more detailed description of the occurrence at the time of the drowning has not been prefaced by this review as a basis for any conclusion that, as a matter of law, death was due either partly or wholly to the seaman's intoxication. Intoxication does not work a forfeiture since that generally merely mitigates damages. Bently v. Albatross S. S. Co., 3 Cir., 1953, 203 F.2d 270, 272, 1953 AMC 645; McDonough v. Buckeye S. S. Co., N.D.Ohio, 1951, 103 F.Supp. 473, 1951 AMC 2042, affirmed 200 F.2d 558, 1953 AMC 343. Of course, the result is different if the seaman's negligent intoxication is the sole cause of the injuries. Donovan v. Esso Shipping Co., 3 Cir., 1958, 259 F.2d 65, 1958 AMC 2096. But this was a fact against which, in the peculiar circumstances of this record, the shipowner's duty and whether any breaches of such duty contributed to cause death is to be measured.

The three — Schlichter, Redden and Slade, came back late that night. It was, of course, dark. No lights were burning on the tug but the lights from the terminal were presumably adequate in their judgment to permit them to go aboard. To go from the terminal wooden catwalk running out from the shore down onto the tug, they had to climb down a nearly vertical ladder some 15 or so feet in height. The men boarded the tug near the bow and made their way back to the stern by the passageway on the starboard side. While the tug was equipped with adequate toilet facilities, these were located in the deckhouse which had been locked by Schlichter when he went ashore earlier that evening. Consequently it was Schlichter's purpose to relieve himself while standing on the after deck near the starboard side. No survivor saw Schlichter fall. How he fell or what caused him to fall is not known. Slade, the only survivor, had his back to Schlichter and heard the splash. Slade thereafter never saw Schlichter. Almost instantaneously Redden jumped in the water presumably to try to rescue Schlichter. Slade did see Redden's head come to the surface one time. In order to obtain a life jacket to throw toward Redden, he attempted to get in the galley, but the door was locked. He then ran forward and up to the wheelhouse which was still open, obtained a life jacket and ran back to the stern. After returning to the stern, he never saw Redden, Schlichter, or any sign of them. It was not until sometime the next day that Schlichter's body was recovered from the river.

This was no unexplained disappearance under circumstances suggesting unsafe working conditions as in Schulz v. Pennsylvania R. Co., 1956, 350 U.S. 523, 76 S.Ct. 608, 100 L.Ed. 668, 1956 AMC 737. Here Schlichter's position on the stern was reasonably fixed. The conditions then existing were known and on the trial were described without any equivocation. Slade affirmed categorically that the deck was free from grease or any other slippery substance. There was nothing which would cause Schlichter to lose his balance, slip or fall. A slight criticism is made of the height of the chain guard because at that point it ran down at an angle from waist-high to knee-high. But there was no evidence that the operation of the towboat in its ordinary activities would reasonably have permitted any other type of railing or guard. Whether the lights on the tug were on is not clear. It was uncontradicted, however, that at the corner of the after end of the deckhouse there was a flood-type light which would have lighted up the entire after end. If that light was not on, it was because Schlichter had not turned it on. Smith v. Reinauer Oil Transport, Inc., 1 Cir., 1958, 256 F.2d 646, 650, 1958 AMC 1875.

Liability cannot, therefore, rest upon the initial cause of...