Scott v. Isbrandtsen Company

• Decision Date: 13 January 1964
• Docket Number: No. 8994.,8994.
• Citation: 327 F.2d 113
• Parties: Robert U. SCOTT, Appellant, v. ISBRANDTSEN COMPANY, Inc., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

327 F.2d 113 (1964)

Robert U. SCOTT, Appellant, v. ISBRANDTSEN COMPANY, Inc., Appellee.

No. 8994.

United States Court of Appeals Fourth Circuit.

Argued September 30, 1963.

Decided January 13, 1964.

Sidney H. Kelsey, Norfolk, Va., for Appellant.

John W. Winston, Norfolk, Va., and George W. Sullivan, New York City (Seawell, McCoy, Winston & Dalton, Norfolk, Va., and Lilly, Sullivan & Purcell, New York City, on brief) for Appellee.

Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges.

BOREMAN, Circuit Judge.

Robert U. Scott, plaintiff-appellant, seeks to recover damages from the defendant-appellee, Isbrandtsen Company, Inc., for personal injuries sustained by him aboard the S.S. FLYING ENDEAVOR while engaged in unloading her cargo. The responsibility of the defendant was that of a shipowner as the vessel was operated and controlled by it under a bareboat charter. A judgment in favor of Isbrandtsen was rendered by the District Court, based upon the jury's answer to only one special interrogatory. Scott moved to set aside the verdict and for a new trial, which motion was denied, and he has appealed. We think he is entitled to a new trial.

Scott was injured in an accident which occurred aboard the FLYING ENDEAVOR on January 27, 1961. He was a longshoreman, employed by Whitehall Terminal Corporation, and was assigned with fellow employees to discharge a cargo of heavy bales of piece goods from the vessel. The complaint alleged unseaworthiness of the vessel and negligence of Isbrandtsen.

Whitehall, an independent stevedore contractor, was impleaded as a third-party defendant by Isbrandtsen. Isbrandtsen contended, both in its answer to plaintiff's complaint and in the third-party complaint, that Scott's accident and resultant injuries were due to the negligence and carelessness of Whitehall, its agents, servants and employees, in the performance of their duty, all in breach of the warranty of workmanlike service owed by Whitehall. During the course of the trial, Isbrandtsen and Whitehall stipulated that the issues raised by the third-party complaint and answer thereto would not be submitted to the jury but would be determined by the District Court at the conclusion of the trial of Scott's case against Isbrandtsen and upon the evidence presented therein.

The trial court propounded to the jury certain special interrogatories numbered 1 through 6 which are fully set out below.¹ The jury answered Interrogatory No. 1 in the affirmative and, as directed by the court, answered no others. Scott bases his appeal upon alleged errors in the trial court's charge, the court's refusal to charge as requested, errors in Interrogatory No. 1, and the order of submission to the jury of these special interrogatories, contending that he has been deprived of his right to a jury trial in violation of guarantees of the Seventh Amendment to the United States Constitution, on the issues of Isbrandtsen's alleged negligence and breach of warranty of seaworthiness.

The FLYING ENDEAVOR was berthed at Norfolk, Virginia, and Whitehall had been engaged by Isbrandtsen to discharge the cargo. Scott and his fellow longshoremen, together with their hatch boss and their job supervisor, were assigned to work aboard the vessel. Bales of piece goods, loaded at Hong Kong, were stowed in the lower hold of the vessel's No. 4 hatch. After the No. 4 hatch was opened at 8:00 o'clock A.M., eight longshoremen, including Scott, were sent into the hatch and the actual discharge of the cargo began about 8:30 A.M. The No. 4 lower hold was divided into two sections by the shaft alley tunnel housing which extended down the center. Beside the ship's cargo gear, which was not claimed by Scott to have been in any way defective or responsible for his injuries, the longshoremen were supplied by Whitehall with blunt hand cargo hooks to be used in handling the bales since sharp hooks could not be used without danger of damage to the contents of the bales. Four longshoremen were assigned to work on each side of the shaft alley tunnel. Scott, Fonville, Brown and another longshoreman began the discharge of the bales on their side. The cargo had been stowed in what was described as a "tight block stow" which extended across the ship from port to starboard and aft from the forward bulkhead to a location approximately eight or ten feet back of the edge of the hatchway opening in the lower hold. Each bale was tightly compressed, bound by metal bands, measured about 38 inches by 29 inches by 18 inches and weighed approximately 450 pounds. There were cloth loops at or near the ends of the bales through which the longshoremen could place their blunt hooks in handling the bales. In approximately six layers or tiers, the bales were stowed horizontally, but in the next or topmost tier the bales were stowed vertically with the top ends up underneath the ceiling or overhead of the hold from side to side.

Ordinarily two men were required to handle a bale, one on each side, and it was customary to roll the bales in horizontal position slowly toward and into the cargo net. The loaded net was then lifted out of the hatch by winches. It was a part of Scott's job, with the help of another, to place the bales in the cargo net. The work progressed without incident until about 10:00 o'clock A.M. and at that time a substantial number of the bales had been discharged. The longshoremen had taken off all the bales which were stowed in vertical position in the top tier except one last row of bales stowed between a beam and the forward bulkhead. In doing this work the men had dug into the stow and had taken out three or four layers or tiers until the stow took on the appearance of a rough set of steps. Because of the tight stowage and the cramped working space, it was impossible for two men to work at pulling out the last row of these vertically positioned bales. Fonville was working alone and placed his blunt hook in the cloth loop of a bale which he attempted to move but the loop broke. He then attempted to work the bale free with his hands by pulling sideways and forward. The accident occurred while Scott was standing on the lowermost level of the remaining tiers of bales with his back to Fonville. He was unaware that Fonville had dislodged the bale and that it had started rolling down toward him. Fonville was unable to check it and as the bale moved end over end it hit another bale in the stair-step stow, bounced over it and struck Scott. Fonville stated that he did not expect the bale to reach Scott until it "double-headed." Belatedly Fonville yelled a warning but not in time for Scott to get out of the way.

The District Court charged the jury at length concerning the plaintiff's burden of proof, the credibility of witnesses, the shipowner's liability for injuries resulting from breach of warranty of seaworthiness and from negligence and failure to provide a safe place to work. The court told the jury that it was to find the facts and to apply the law as explained by the court; that it was not necessary for the plaintiff to prove both unseaworthiness and negligence and proof of either would be sufficient. The court undertook to explain the submission of the interrogatories, commenting upon each one in turn. Referring specifically to the first interrogatory and after reading it to the jury, the court stated:

"Now, when I use the word, `sole,\' I mean just what it says in there. `Sole\' necessarily excludes any other proximate cause, that is to say, it necessarily excludes any proximate cause that may be attributable to the unseaworthiness, if any, of the vessel and it necessary sic excludes any proximate cause which may be attributable to the negligence of the defendant, Isbrandtsen and Company, if any.

"The suit is not against Whitehall Terminal Corporation, it is against Isbrandtsen and Company.

"Now, if you answer this Question Number 1 in the affirmative, that is to say, if your finding is that the sole proximate cause of the accident was the negligence of Whitehall Terminal Corporation, its agents or employees, in the handling of the bales of piece goods aboard the vessel, then you do not answer any other question.

"On the other hand, if it was not the sole — and again I am emphasizing the fact that we are dealing with the sole proximate cause — if it was not the sole proximate cause, then you must pass to the next question, Question 2, `Was the S. S. Flying Endeavor seaworthy, as defined in the Court\'s charge, at the time of the plaintiff\'s accident?\'"

The court further charged the jury as set out below.² The court charged the jury, as a matter of law, that Scott was entirely free of contributory negligence and withdrew that issue from jury consideration. Vigorous objection was interposed by Scott's counsel to portions of the court's charge, to the substance and form of Interrogatory No. 1, the order in which the interrogatories were submitted for consideration by the jury and the court's failure and refusal to charge as requested.³

Rule 49(a) of Fed.R.Civ.P. provides that the court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer, or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court must give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. Section (b) of Rule 49 provides for a general verdict accompanied by answers to interrogatories and the court is empowered to submit to the jury a form for a general verdict for or against either party, together with written...