Smith v. Ithaca Corp.

• Decision Date: 22 February 1980
• Docket Number: No. 77-1601,77-1601
• Parties: 5 Fed. R. Evid. Serv. 885 Delores Alston SMITH, etc., Plaintiff-Appellee, v. ITHACA CORPORATION and Texas City Tankers Corporation, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 215

612 F.2d 215

5 Fed. R. Evid. Serv. 885

Delores Alston SMITH, etc., Plaintiff-Appellee, v. ITHACA CORPORATION and Texas City Tankers Corporation,

Defendants-Appellants.

No. 77-1601.

United States Court of Appeals, Fifth Circuit.

Feb. 22, 1980.

Joseph D. Cheavens, Houston, Tex., for defendants-appellants.

Alan Epstein, Philadelphia, Pa., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before WISDOM, HILL, and VANCE, Circuit Judges.

WISDOM, Circuit Judge:

Delores Alston Smith initiated this admiralty suit under the Death on the High Seas Act, 46 U.S.C. §§ 761-768 (DOHSA), the Jones Act, 46 U.S.C. § 688, and general maritime law to recover for the wrongful death of her husband, merchant seaman Rufus Eddie Smith. ¹ Rufus Smith suffered a fatal heart attack caused by a coronary occlusion on January 25, 1972, two days after being discharged from the crew of the SS V.A. FOGG, a tanker that plied United States coastal waters carrying benzene and other petroleum products. In her suit against the owners and operators of the FOGG, Ithaca Corporation and Texas City Tankers Corporation, Delores Smith alleged that benzene fumes aboard the ship aggravated her husband's heart disorder and precipitated his death.

The district court, sitting without a jury, found that Smith's exposure to benzene fumes aboard the FOGG "directly result(ed) in his eventual demise." ² The court concluded "that the conditions aboard the ship which contributed in part to the illness and death of Rufus Smith were unsafe as a result of the defendant's negligence in failing to protect against the emission of Benzine (sic) fumes"; and that "defendant's failure to protect against the Benzine (sic) fumes rendered the vessel unseaworthy." The opinion does not state whether liability was based on the Jones Act, DOHSA, general maritime law, or some combination of the three theories of recovery.

The defendants challenge the district court's factual determination that benzene fumes aboard the vessel contributed to Smith's death and that failure to protect against their emission constituted negligence and rendered the vessel unseaworthy. Counsel for the defendants also questioned during oral argument whether the district court properly awarded the plaintiff damages for loss of society. ³ We affirm. We hold that the district court's findings of liability based on negligence and unseaworthiness were not clearly erroneous. We further find that the plaintiff is entitled to damages for loss of society under the general maritime doctrine of unseaworthiness. ⁴

I.

Rufus Smith was a member of the crew of the FOGG from August 16, 1971 until January 23, 1972. He was a bedroom utility man. His duties aboard ship included cleaning living quarters and passageways, making beds, and laundering. Throughout Smith's employment, the FOGG transported petroleum products between ports on the Atlantic seaboard and the Gulf of Mexico. Typically, the FOGG transported benzene and other cargo from Puerto Rico to ports in Louisiana and Texas. At Texas ports, the FOGG loaded gasoline and methanol destined for New Jersey ports. The FOGG would leave New Jersey without cargo, return to Puerto Rico, and commence a similar 30-day voyage. When Smith joined the crew in Jacksonville, Florida, the FOGG was bound for Puerto Rico with empty cargo tanks.

In the district court, the plaintiff presented evidence showing that toxic benzene fumes permeated the living quarters of the FOGG, aggravated Smith's pre-existing heart disorder and arteriosclerosis, and caused his fatal heart attack. The defendants challenge the sufficiency of the plaintiff's evidence. Specifically, the defendants attack the district court's findings on the duration of the decedent's exposure to benzene and the cause of Smith's death; they attack the court's conclusions that the defendants were negligent and the ship unseaworthy. On appeal, we are limited to considering whether the district judge's findings are clearly erroneous. McAllister v. United States, 1954, 348 U.S. 19, 20, 75 S.Ct. 67, 99 L.Ed. 20, 24; Market Insurance Co. v. United States, 5 Cir. 1969, 415 F.2d 459, 461.

The evidence shows that the FOGG carried a cargo of benzene during 41 days of Smith's 161 days as a crewmember. The 41 days during which benzene was transported aboard the FOGG comprised separate eight to ten day periods. During a period equivalent to about nine of these 41 days, the crew was loading and discharging benzene or cleaning the storage tanks in preparation for loading another petroleum product. Contamination of the crew's quarters on the ship by escaping benzene fumes was most likely to have occurred during the loading, discharging, and cleaning operations.

The defendants maintain, based on the ship's log and testimony of the ship's captain and other crewmembers, that benzene fumes escaped from the storage tanks only during the 8 days, 15 hours, and 27 minutes required for loading, discharging, and cleaning the cargo tanks. They say that as much care as possible was taken during these operations to avoid contamination of the crew's quarters by escaping toxic gases. If the decedent was in fact exposed to benzene, the defendants argue, that exposure necessarily was limited to the time during which the storage tanks were opened for cleaning, loading, and unloading. The defendants construe the medical testimony offered by the plaintiff as establishing that nine days of exposure to benzene could not have aggravated Smith's pre-existing heart disorder. Accordingly, the defendants assert that benzene poisoning was not a contributing cause of Smith's death.

The plaintiff presented evidence that despite the few days during which the ship's storage tanks were open, benzene fumes contaminated the ship's living quarters for long periods. The fumes lingered on the ship, according to the plaintiff, because of the ship's poor ventilation system and because benzene vapor is heavier than air. ⁵ The plaintiff's evidence on this issue included portions of a Coast Guard Marine Board of Investigation Report ⁶ and the testimony of members of the FOGG's crew.

Johnny Young, a crewmember on the FOGG during Smith's employment, testified, by way of deposition, that benzene fumes were constantly present in the crew's sleeping quarters and in the passageways in the living areas on the ship. Although he detected the odor of benzene daily, the fumes were more concentrated when the crew cleaned benzene from cargo tanks. According to Young, the fumes entered the crew's quarters through the air conditioning ducts and lingered indefinitely. Efforts to purify the air were unsuccessful, said Young; the ship's closed ventilation system recirculated the stagnant air.

Young's testimony is supported by the deposition of Donald W. Motes, the Chief Engineer aboard the FOGG. Motes testified that benzene fumes entered the crew's quarters through the ventilation system when the crew cleaned benzene from the storage tanks. Motes confirmed that the ship's ventilation system often only recirculated air instead of introducing fresh outside air. In addition, crewmember Jerry Mapes testified that he smelled benzene fumes in the crew's quarters on several occasions during the course of Smith's employment.

The defendants argue vigorously that the plaintiff's evidence fails to support the finding that benzene fumes were present aboard the ship for at least 41 days during Smith's employment, the minimal period necessary to produce toxic effects as the defendants interpret the medical testimony. Young's testimony is not credible, the defendants say, because it is flatly contradicted by the ship's log which shows that loading, discharging, and cleaning of the benzene tanks totaled only nine days during Smith's employment. The evidence shows that contamination of the living quarters by noxious fumes was most likely during the days of tank cleaning and loading. The evidence, however, is that because of the properties of benzene and the FOGG's inadequate ventilation system, benzene fumes lingered aboard the ship for long periods. Young's testimony supports this; his credibility was a question for the trial judge to resolve. The Coast Guard report also states that benzene fumes contaminated the working and living quarters of the vessel at times. On this record we cannot say that the district court was clearly erroneous in finding that Smith was exposed to benzene fumes for at least 41 days while aboard the FOGG.

The defendants also challenged the trial court's finding that benzene exposure caused Smith's death. The plaintiff established through the testimony of medical experts that sufficient concentrations of benzene vapors are deleterious to one's health; the fumes are a toxic poison affecting heart disorder and arteriosclerosis. The human body develops no tolerance to the gas; damage can be cumulative and permanent if the body is exposed to the gas for long periods. Significantly, the acceptable limit of exposure to benzene under normal working conditions is ten parts of benzene per one million parts air. The normal human olfactory system is unable to detect the aroma of benzene in concentrations of less than 100 parts per million. ⁷ The decedent, therefore, could have been exposed to concentrations of benzene that were ten times the safe limit before he or other crewmembers could detect the presence of the gas in the ship's quarters.

Smith died at the age of 42, two days after his discharge from the FOGG. The plaintiff's expert medical witness, Dr. Cyril H. Wecht, a forensic pathologist, testified that Smith suffered from "marked coronary artery disease". The immediate cause of death was complete occlusion of one of the major coronary arteries. Dr. Wecht further stated that "given (Smith's) underlying cardiovascular disease . . . it is quite reasonable from a medical standpoint to express the opinion . . . that...