Shipman v. Central Gulf Lines, Inc.

Citation709 F.2d 383
Decision Date11 July 1983
Docket NumberNo. 82-3410,82-3410
PartiesFrank SHIPMAN, Plaintiff-Appellant, v. CENTRAL GULF LINES, INC., Defendant-Appellee. Summary Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

William G. Tabb, III, Elliot G. Snellings, New Orleans, La., for plaintiff-appellant.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Glenn G. Goodier, New Orleans, La., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

PER CURIAM:

Plaintiff Frank Shipman, a merchant marine officer, brought Jones Act and unseaworthiness claims against Central Gulf Lines to recover for an injury sustained when a gantry crane on defendant's lash vessel, the S/S GREEN ISLAND, struck the back of his left foot.

The S/S GREEN ISLAND was fitted with the standard Morgan gantry crane, a four-legged crane that moved fore and aft on the deck of the vessel on railroad-type tracks; the crane was incapable of any lateral movement. The giant crane aboard the vessel was used to load and unload barges from its cargo hold in a LASH system, a concept in which dry cargo barges are loaded at points inland and brought to a staging area. Central Gulf Lines contracted with stevedore crews to perform unloading operations. The crane was operated by a stevedore; the ship's crew did not handle the crane.

On the night of June 23 and early morning of June 24, 1978, Shipman, who had been licensed as a second officer since 1977, was the ship's port relief officer responsible for the integrity of the lash vessel and its anchorage. His general responsibilities were to oversee cargo unloading and to insure the safety of all those on board during the unloading operation, including his own safety.

At trial Shipman testified that he had been working with the crane for five and one-half hours, observing its operations. The crane stopped momentarily. When he moved closer to the crane to observe its operation, the crane moved and caught his left foot in its overhang. Shipman claimed that he didn't have any warning that the crane was starting and that he didn't see a white line or flashing lights or hear any noise, including the release of brakes or warning bells. At trial he proceeded on theories that the inoperative warning systems, constituting both negligence and unseaworthiness, caused his injury.

In response to interrogatories, the jury found defendant negligent, but did not find the vessel unseaworthy. The jury awarded Shipman $10,000 in general damages. Because Shipman was found 75% contributorily negligent, his general damage award was automatically reduced by the trial court to $2,500.00 plus costs and interests.

The district court denied Shipman's motion for a new trial challenging the jury's findings. On appeal Shipman contends that the jury's finding of seaworthiness is not supported by the evidence, that the jury's finding of contributory negligence is not supported by the evidence, that the damage award is inadequate, and that defendant's closing arguments prejudiced the jury.

I. Sufficiency of Evidence

Shipman failed to move for a directed verdict at the close of all the evidence. It is well-settled in this Circuit that in the absence of a motion for a directed verdict at the close of all the evidence, the sufficiency of the evidence to support a jury verdict is not reviewable on appeal. Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978). Appellate inquiry is limited to whether there was any evidence to support the jury's verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a "manifest miscarriage of justice." Id.

Since Shipman failed to move at the close of all the evidence for a directed verdict on either the Jones Act or unseaworthiness issues, this Court's inquiry would normally be limited to the "any evidence" or "plain error" standard. Shipman did, however, raise the sufficiency issue for the first time in a motion for a new trial. Nevertheless, this motion will not reopen the question foreclosed by the failure to move for a directed verdict. Id. Under these circumstances, this Court may inquire only into whether the trial court abused its discretion in overruling the motion for a new trial. Id. at 297-98. The proper standard of review is whether there is an "absolute absence of evidence to support the jury's verdict." Id. at 298. A review of the record reveals that Shipman's insufficiency of the evidence contentions on both the unseaworthiness and Jones Act contributory negligence issues are meritless.

A. Unseaworthiness

General maritime law imposes an absolute duty on a ship owner to provide a seaworthy vessel, that is, a vessel and appurtenances reasonably safe for their intended use. Ceja v. Mike Hooks, Inc., 690 F.2d 1191, 1193 (5th Cir.1982). Shipman contends that the sole cause of his injury was the lack of a proper audible warning device, which rendered the vessel unseaworthy. Shipman argues, in particular, that discontinuance of the use of the siren, which he described as the critical advance warning system that the crane was operating, rendered the vessel unseaworthy. There is evidence in the record, however, to support a finding of seaworthiness, including evidence that the vessel was sufficiently equipped with other warning devices, including wide stripes painted on the deck which demarcated a danger zone. In addition, defendant used both bells and four flashing strobe lights on the legs of the crane as part of the fixed warning system when the crane was in operation. The crane's cab operator, at his discretion, could operate a siren system with a foot pedal, but the siren system was not in use because residents in Luling, Louisiana, had complained of the siren's noise. Shipman, who testified that he had been told that the bells had been shut down, was the only one who claimed that the bells weren't working. A port engineer who inspected the vessel after the incident testified that the bell system was operating properly. He also testified that a machinery noise from the release of the brakes and the lowering of the guides is audible to a person standing near the crane. As an additional safety measure, defendant used crews of stevedores to observe the track and movement of the crane during unloading operations. Two stevedores who walked beside the crane had walkie-talkies to communicate with the crane operator. Given that there was evidence supporting the finding of seaworthiness, the district court did not abuse its discretion in denying the motion for a new trial on that basis.

B. Contributory Negligence

In order to support a jury finding of contributory negligence, the seaman must have had a duty to act or refrain from acting. Bobb v. Modern Products Inc., 648 F.2d 1051, 1056-57 (5th Cir.1981). While a seaman's duty to protect himself is slight, the duty does exist. Id.; Robinson v. Zapata Corp., 664 F.2d 45, 48 (5th Cir.1981). A seaman would not be contributorily negligent merely because he used an unsafe tool or appliance or proceeded in an unsafe area of the ship. Ceja, 690 F.2d at 1194-95. Where it is shown, however, that there existed a safe alternative available to him, of which he knew or should have known, a seaman's choice of an unsafe course of action can properly be considered in determining whether he was negligent. Id. at 1195, citing Robinson v. Zapata Corp., 664 F.2d 45, 49 (5th Cir.1981) (where seaman knew of "several simple ways"--well-known and readily available to him--to avoid the unsafe course created by a lack of proper equipment, he had the duty to follow the safe course of conduct) and Hussein v. Isthmian Lines, Inc., 405 F.2d 946,...

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