Symonette Shipyards, Ltd. v. Clark

• Decision Date: 15 August 1966
• Docket Number: No. 22486.,22486.
• Parties: SYMONETTE SHIPYARDS, LTD., Appellant, v. Lee CLARK et al., Appellees. Lee CLARK et al., Appellants, v. SYMONETTE SHIPYARDS, LTD., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

365 F.2d 464 (1966)

SYMONETTE SHIPYARDS, LTD., Appellant, v. Lee CLARK et al., Appellees.

Lee CLARK et al., Appellants, v. SYMONETTE SHIPYARDS, LTD., Appellee.

No. 22486.

United States Court of Appeals Fifth Circuit.

August 15, 1966.

W. F. Parker, Miami, Fla., for appellant.

Arthur Roth, Miami, Fla., for appellees.

Before WISDOM and COLEMAN, Circuit Judges, and HUGHES, District Judge.

HUGHES, District Judge.

This is the second appeal of the consolidated cases of Lee Clark, an injured person, and Ruby Koutumas, the administratrix of the Estate of Albert Zannino, deceased, against Symonette Shipyards, Ltd., (Symonette). The death case was filed under the Death on the High Seas Act¹ and the Jones Act² and suit for injury under the Jones Act and General Maritime Law.

The first question to be disposed of, raised by Koutumas, is whether the appeal by Symonette was timely filed. The record reveals that Symonette filed its notice of appeal twenty eight days after the trial court's denial of the motion for new trial which had been timely filed. Koutumas contends that the appeal should be dismissed because it was filed more than ninety days following the entry of final judgment. This Court in the recent case of Gulfstream Shipping Co., Ltd. v. Collins & Tolson, 356 F.2d 466 (5th Cir. 1966), decided this question adverse to Koutumas when it decided affirmatively the question of

"whether the period for seeking review in an admiralty case begins to run from the date of the court\'s denial of the motion for rehearing rather than from the date of the court\'s entry of the motion where the motion for rehearing is filed within the period allowed for appealing from the orginal judgment." 356 F.2d at 467.

On the first appeal, the facts surrounding the accident in which Zannino was killed and Clark was injured were ably summarized by the Court as follows:

"* * * Lee Clark, a minor, and Albert Zannino were two of six men who were employees of one Wilson who had a contract to erect certain petroleum product tanks in Haiti. Wilson arranged for the transportation of the tanks together with the necessary equipment to be used in their erection on a landing craft owned by Symonette Shipyards, Ltd. As a part of the agreement of transportation Symonette, acting through its proper representative, agreed with Wilson to transport the six men with the understanding that in order to comply with the laws of the Bahamas the men would have to be signed on as if they were members of the crew, although it was agreed that they should perform no duties for the ship. This subterfuge was to obviate the penalty that the ship would be subjected to if it carried passengers, since under the Bahama regulations it was not permitted to land with passengers. Included in the equipment put on board was a large crane, which both Wilson and the ship\'s captain understood was to be used by Wilson\'s men, including Zannino and Clark, to unload the ship when it arrived at its destination. Following a stop at Nassau for unloading of cargo, one Ryder, who had been designated by Wilson as being in charge of the Wilson group, caused several of his group to attach an additional length of boom to the boom of the crane. In order to do this it became necessary for the men to add length to the cable that held up the boom, which, of course, in turn held the cable that would be attached to the cargo for use. In order to lengthen this cable, the men, including Zannino and Clark, under Ryder\'s supervision, simply placed the ends of the two pieces of cable together and clamped them in a manner that a pull on either end of the cable would tend to cause them to separate. There was no loop made with the brackets or clamps fastened over the turned-back ends of the loop.

"All concede, and the trial court found, that the splicing was done in a manner that no one knowing anything about such an operation could countenance. * * * Thereafter, after the splice was tested by lifting against a cleat of the deck of the vessel, the crane was used to lift a hand truck. Zannino and Clark were on the deck from which the truck had been lifted and when a part fell off of it they jumped under the truck to recover the part, at which time the splice parted, the boom fell and the truck fell on the two men killing Zannino and injuring Clark." 330 F.2d at 555.

It is the contention of Symonette that since the accident happened on a ship registered in and flying the flag of the Bahamas and actually owned by a citizen of that country the trial court erred in applying the law of the United States rather than that of the Bahamas.

Reliance is placed by Symonette on Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), for its proposition that the "law of the flag" must govern. It is true that the Supreme Court held in Lauritzen that Danish law, the law of the flag, controlled, but in addition, the plaintiff there was a Danish citizen and had signed the ship's articles providing that the rights of crew members would be governed by Danish law and by the employer's contract with the Danish Seaman's Union of which the plaintiff was a member. The facts in this appeal are entirely different.

Of the seven factors listed in Lauritzen as influencing the choice of law,³ i. e., place of the wrongful act, law of the flag, allegiance of the injured, allegiance of shipowner, place of contract, inaccessibility of foreign forum, and the law of the forum, only two (law of flag and allegiance of the ship-owner) lend some support to Symonette's argument. In the context of this case, we believe the most significant choice of law factor to be the nationality of the injured and deceased seamen. As the Supreme Court indicated in Lauritzen, "* * * Each nation has a legitimate interest that its nationals and permanent inhabitants be not maimed or disabled from self-support." 345 U.S. at 586, 73 S.Ct. at 930. In addition the ship's articles were signed in the United States and the contract between Symonette and Wilson to transport tanks and equipment was made in this country. The two seamen were part of a crew assembled by Wilson, an American businessman, for use on an enterprise of his located in Haiti. We are of the opinion that the citizenship of the seamen and the factors surrounding their employment are sufficient to justify applying the law of the United States.⁴ See Gilmore & Black, Admiralty § 6-64, at 388 (1957).

With reference to other factors mentioned in Lauritzen for the choice of law, while the forum is held in Lauritzen to be of little significance, it might be well to point out that in this case the law of the United States is established and easily determinable, whereas the evidence relating to the law of the Bahamas is vague and indefinite. We agree with the finding of the trial court that the testimony of the expert witness relating to Bahamian law did not establish "whether or not proof of negligence is necessary to maintain an action for unseaworthiness or whether or not the common law defenses are an absolute bar as opposed to mitigation of a damage award." We find no error in the trial court's ruling that the law of the United States should govern.⁵

In the first trial where the District Judge denied the seamen's claims for general damages, he found that the splice was negligently made but expressly held that the doctrine of seaworthiness did not apply. He concluded that the sole cause of the injuries to Clark and the death of Zannino was their "inattentively standing under the boom which they knew was sustained by a cable which had been spliced by inexperienced persons."

On appeal this Court determined that the district court erred in holding that the doctrine of seaworthiness did not apply for the benefit of the seamen. We directed that "the trial court * * * consider the evidence touching on the negligence in the splicing and the negligence, if any, of the plaintiffs in reacting as they did when the boom was suspended above them in light of our holding that these plaintiffs were both entitled to the protection of the doctrine of seaworthiness." 330 F.2d at 557.

With this Court's determination that the doctrine of seaworthiness was applicable, it was the duty of the trial judge on remand to find whether the vessel was in fact unseaworthy, whether such unseaworthiness, if any, was a proximate cause of the injury of Clark and death of Zannino, whether Clark and Zannino were negligent, and if so, whether such negligence was a proximate cause of the injury and death.

In determining the correctness of the trial court's finding that Symonette breached its duty to furnish a seaworthy ship, it is necessary to examine the cases of the Supreme Court interpreting the doctrine of seaworthiness. We find that the decisions of the last twenty years clearly support the result. In the landmark case of Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944), the Court held a shipowner liable for an unseaworthy condition and declared that the duty to furnish a seaworthy ship is absolute and not based on negligence. The facts were that Mahnich was injured by the collapse of a staging, caused when a defective rope supporting it parted.

This theory of "absolute" liability was reiterated and further developed two years later in Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946). Justice Rutledge explained:

"The character of the doctrine is essentially a species of liability without fault, analogous to other well known instances in our law. * * * The liability is neither limited by conceptions of negligence nor contractual in character." 328 U.S. at 94, 66 S.Ct. at 877.

Sieracki expanded the seaworthiness doctrine to cover longshoremen injured aboard a ship while doing work ordinarily performed by seamen. The stevedore in that case was loading cargo on the vessel when he was injured by the breaking of a shackle which caused a boom and tackle to...