Smith v. United States

• Decision Date: 24 August 1964
• Docket Number: No. 9405.,9405.
• Parties: Robert Bernard SMITH, Appellee and Cross-Appellant, v. UNITED STATES of America, Appellant and Cross-Appellee, v. WHITEHALL TERMINAL CORPORATION, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

336 F.2d 165 (1964)

Robert Bernard SMITH, Appellee and Cross-Appellant, v. UNITED STATES of America, Appellant and Cross-Appellee, v. WHITEHALL TERMINAL CORPORATION, Appellee.

No. 9405.

United States Court of Appeals Fourth Circuit.

Argued June 18, 1964.

Decided August 24, 1964.

Sidney H. Kelsey, Norfolk, Va., for appellee and cross-appellant.

John W. Douglas, Asst. Atty. Gen. of United States (Claude V. Spratley, Jr., U. S. Atty., and Sherman L. Cohn and Edward Berlin, Attorneys, Department of Justice, on brief), for appellant and cross-appellee.

William B. Eley, Norfolk, Va. (Rixey & Rixey, Norfolk, Va., on brief), for appellee.

Before SOBELOFF, Chief Judge, J. SPENCER BELL, Circuit Judge, and HEMPHILL, District Judge.

SOBELOFF, Chief Judge:

Libelant, Robert Bernard Smith, a longshoreman employed by the Whitehall Terminal Corporation, filed an action under the Suits in Admiralty Act, 46 U.S. C.A. § 741 et seq., to recover damages for personal injuries sustained while working aboard the USNS GOLDEN EAGLE, a vessel owned by the United States. A third-party complaint was thereafter brought by the United States against Whitehall for indemnity on the alternate grounds of breach of the express terms of the stevedoring contract or of the implied warranty of workmanlike service.

After a trial before the court without a jury, the United States District Court for the Eastern District of Virginia found that Smith's injuries were caused in equal degree by the unseaworthiness of the ship and by libelant's own contributory negligence. Damages were assessed at $12,326.43 but, by application of the comparative negligence principle, the award was reduced by 50 percent. Additionally, the court denied the claim of the United States for indemnity from Whitehall.

Denial of indemnity prompted this appeal by the United States, and a cross-appeal was subsequently filed by Smith to challenge the finding of contributory negligence with the consequent reduction of his award. We shall consider Smith's cross-appeal first, and then turn to the indemnity question.

I.

Smith reported for work aboard the GOLDEN EAGLE at eight o'clock on the morning of December 15, 1960. Once on the ship, he climbed down the forward ladder into the number 4 hold. After working there the entire day, he started to ascend from the hold, using the same ladder. The ladder in question was attached to a metal stanchion connecting the hatch coaming (at deck-level) with the floor of the lower 'tween deck, and consisted of parallel vertical rods and horizontal metal rungs. For the most part the rungs protruded from the stanchion, furnishing adequate standing room. However, at one point near the top of the ladder, there were two "recessed indentures," each of which housed a horizontal metal rung in a compartment only two inches deep. Smith had reached this position on the ladder when he fell. The District Court's description of the fall is as follows:

"At some stage of his climb a pallet or skid was sent below for the purpose of putting brooms and other items thereon preparatory to closing the hatch. When libelant saw the pallet being lowered into the square of the hatch, he stopped on the ladder and waited for it to pass him safely. He then continued his climb and, according to his contention, his right foot was in the lower recessed indenture (fourth rung from the top), his left foot was in the upper recessed indenture (third rung from the top), his right hand was on the uppermost rung attached to the hatch coaming, and his left hand was on the very top of the coaming. At this point his left hand gave way, his left foot slipped from the upper recessed indenture, and he fell to the floor of the lower \'tween deck alongside the pallet which had been sent down to the longshoremen."

Because it was uncontested that the minimum safe "toe clearance" in an indenture of the type here in question is four inches, with five inches preferred by the United States Navy, and the portion of the ladder where Smith was standing immediately prior to the accident afforded only a two-inch clearance, the District Court concluded that the vessel was unseaworthy — a conclusion not now contested. The court further concluded that Smith contributed to the accident by his own fault.

"Viewing libelant\'s testimony in its entirety, the preponderance of all of the evidence suggests that (1) his foot did reach one of the recessed indentures, (2) his hand slipped first and then his foot, by reason of the inadequate toe hold afforded, also slipped, (3) he was holding a rung with his right hand at the time, and (4) while his failure to exercise ordinary care for his own safety initially contributed to his precarious position on the ladder, the inadequacy of the recess sic indenture was likewise a contributory factor to his fall.

* * * * * *

"Considering the type of libelant here presented, together with his various inconsistent statements, we do not feel that the evidence as a whole points to the slipping of the hand as the sole cause of the fall. Italics in original That this factor combined with the inadequacy of the recessed indenture in bringing about the fall cannot be doubted; but libelant\'s failure to exercise due care for his own safety in properly grabbing the rung or top of the coaming is a matter which mitigates the damages. Of course, libelant did not assume the risk of the unseaworthiness of the vessel as to the inadequate `toe clearance.\'

* * * * * *

"As the libelant knew of the condition of the recessed indenture and did not take sufficient hold of the rung or top of the coaming with his left hand, and in all probability started to climb the ladder after the pallet was in the process of being lowered into the hold, we believe that his own negligence contributed to the accident by fifty percent."

In testing the propriety of the District Court's resolution of the contributory negligence question we must, of course, be mindful that erroneous conclusions of law may always be set aside, while findings of fact, to be rejected on appeal, must be "clearly erroneous." Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed. 2d 205 (1962); McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954). And "a finding of fact is clearly erroneous only when `although there is evidence to support it, the reviewing court is left with a definite and firm conviction that a mistake has been committed.'" Burgess v. Farrell Lines, 335 F.2d 885, 4th Cir., 1964, quoting from McAllister v. United States, 348 U.S. at 20, 75 S.Ct. at 8. We have such a firm conviction here.

In the first place, the fact of the pallet being lowered at approximately the same time as Smith's attempted ascent is of negligible significance. A pallet measuring four feet square, suspended in a hatch opening of thirty by forty feet can in the present circumstances have no causal connection with the fall. The District Court appears to have acknowledged this by attributing some small fault to Smith because he "in all probability started to climb the ladder after the pallet was in the process of being lowered into the hold." This conclusion was reached in spite of the court's finding that libelant "stopped on the ladder and waited for it the pallet to pass him safely." But whether the pallet was in motion when Smith started to climb or when he was near the top of the ladder is immaterial. There is nothing to show that his fall was in any way caused by the moving object.

Further, the fact that "the libelant knew of the condition of the recessed indentures" does not justify a finding of contributory negligence against him, for such a finding here is tantamount to holding that Smith assumed the risk of the defective ladder. Palermo v. Luckenbach S.S. Co., 355 U.S. 20, 78 S.Ct. 1, 2 L.Ed.2d 3 (1957); Socony Vacuum Oil Co. v. Smith, 305 U.S. 424, 432, 59 S.Ct. 262, 83 L.Ed. 265 (1939). He may not be charged "with assumption of the risk under another name." Holley v. The Manfred Stansfield, 269 F.2d 317, 322 (4th Cir. 1959); see Bryant v. Partenreederei-Ernest Russ, 330 F.2d 185, 4th Cir., 1964. Clearly, to say that Smith was at fault for using the ladder when he knew of its deficiency does not differ in substance from invoking the doctrine of assumption of risk against him.

Had an alternative, safe route been available to Smith, his deliberate choice of a course known to be unsafe could possibly have indicated contributory fault,¹ but mere knowledge of the unseaworthy condition and use of the ladder in the absence of a showing that there was an alternative is not contributory negligence.²

The remaining reason that the District Court gave for finding contributory negligence was Smith's "failure to exercise due care for his own safety in properly grabbing the rung or the top of the coaming" with his left hand.³ Smith himself was uncertain whether he was holding on to a rung with both hands or his left hand was merely resting on the hatch coaming. He gave both versions in his testimony, but neither version supports a finding of contributory negligence. A slip of the hand's grip does not necessarily denote negligence and there is no basis for inferring that, but for the inadequate footing, the grip of the other hand would not have sufficed. Even assuming that the left hand slipped first, the loss of the grip of that hand would not likely have attained significance if the libelant's foot were on a step wide enough for safety. Of course, in the other alternative, if the foot slipped first, throwing libelant off balance and releasing his grip, there could not arguably be contributory negligence. As Judge Boreman said in Mason v. Mathiasen Tanker Indus., Inc., 298 F.2d 28 (4th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 23, 9 L.Ed.2d 66 (1962):

"No witness testified that plaintiff failed to grasp the handrail which was provided for anyone using the ladder, or that he failed, in any respect, to take proper

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