Theodories v. Hercules Navigation Co., 29460.

• Decision Date: 12 October 1971
• Docket Number: No. 29460.,29460.
• Citation: 1971 AMC 2477,448 F.2d 701
• Parties: Calliope THEODORIES, Widow of Pete Patterson, Individually and as Administratrix of the Succession of Pete Patterson, etc., Plaintiff-Appellee, v. HERCULES NAVIGATION CO., Inc., Defendant-Appellant-Cross-Appellee, v. PETERSON MARINE SERVICES, INC., Third-Party Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

1971 AMC 2477, 448 F.2d 701 (1971)

Calliope THEODORIES, Widow of Pete Patterson, Individually and as Administratrix of the Succession of Pete Patterson, etc., Plaintiff-Appellee, v. HERCULES NAVIGATION CO., Inc., Defendant-Appellant-Cross-Appellee, v. PETERSON MARINE SERVICES, INC., Third-Party Defendant-Appellant.

No. 29460.

United States Court of Appeals, Fifth Circuit.

September 20, 1971.

Rehearing Denied October 12, 1971.

Donald A. Lindquist, Chaffe, McCall, Phillips, Burke, Toler & Hopkins, New Orleans, La., for Hercules Navigation Co., Inc.

A. D. Freeman, Jr., New Orleans, La., for Peterson Marine Services, Inc.; Morphy & Freeman, New Orleans, La., of counsel.

Harold H. Wedig, John M. Coman, Jr., New Orleans, La., for Calliope Theodories.

Before JOHN R. BROWN, Chief Judge, and WISDOM and MORGAN, Circuit Judges.

JOHN R. BROWN, Chief Judge:

In this Grigsby-style¹ litigation we are confronted with a variety of issues arising from a shipboard injury and the death of the amphibious Good Samaritan who attempted to assist the unfortunate accident victim. However, most of the juridical complexities are vaporized, and discussion of them short-circuited, by our conviction that the District Court's critical finding on the issue of unseaworthiness is not supported by the evidence. The judgment must therefore be reversed.

The Contractor Takes Over

The controversy centers around SS DIMITRIOS, a standard American Liberty ship owned by Shipowner.² Docked in navigable waters at the Press Street Wharf in New Orleans, the vessel was scheduled to take on a cargo of bulk grain at Baton Rouge, and in order to pass the National Cargo Bureau's inspection the ship's five holds had to be cleared of dust and debris left by a previous shipment of coal. For this purpose Shipowner's New Orleans agent contracted with Contractor,³ an experienced marine maintenance specialist, for the cleaning crew and equipment necessary to perform the job. On the night of April 5, 1966 a crew of about 40 Contractor employees boarded SS DIMITRIOS and began the cleaning operations.

Sometime between the hours of ten and eleven o'clock several of Contractor's men — including Evans, the foreman, and Barrociere, the unsuspecting accident victim — were completing the finishing and scraping of the No. 5 hold tween deck. They were using portable lighting equipment furnished by Contractor, with power supplied either from the ship's generators or from the wharf.⁴ Apparently satisfied that the work on the port side was finished, Evans handed the portable extension light to Barrociere and, after instructing him to stay where he was⁵ and to direct the light toward the open hatch on the starboard side, walked to the other side in order to adjust the extension lights already located there.

Man Into Hold

The lights were hanging too high, and Evans called to the hands on the main deck to lower them, but for some reason, after a delay of from twenty to twenty-five minutes, they were not moved. Then, contrary to his previous instructions, Barrociere laid down the extension light he was holding and began walking from the port side toward Evans on the starboard side. In doing so he fell through the open hatch to the bottom of No. 5 hold, suffering serious injuries. Evans yelled to the men on the main deck that a man had fallen in the hold, and the additional lights he had requested were finally lowered.

Comes The Good Samaritan

Word of the accident was immediately passed around the ship, and within a few minutes the Master, Chief Officer and practically the entire deck crew of the vessel, in addition to various longshoremen and shore personnel, were gathered on the main deck of No. 5 hold. From this position they could all see that Barrociere, lying at the bottom of the hold, was bleeding profusely and was in obvious need of emergency treatment.

Among the onlookers was Panagiotis D. Papadopoulos (Pete Patterson), a 43-year-old Greek seaman and former restaurateur, who earlier in the evening had boarded the vessel with a friend who had business to transact with members of the ship's crew. Patterson himself was neither a member of the crew nor an employee of either Shipowner, its agent or Contractor, and it is undisputed he was present for purely personal reasons.⁶ When word of the accident came he was drinking coffee in the Master's cabin and, along with almost everyone else on board, ran to the topside scene of the accident.

While the ship's port captain and Peterson, Contractor's president, descended into the hold to assist Barrociere, Patterson began giving orders in Greek to the other seamen on the main deck, directing them to rig a stretcher that could be lowered to the injured man. After the necessary equipment had been brought aft, Patterson pushed aside an individual who was attempting to tie a tag line to one corner of the stretcher and began making the line fast himself. While doing so he suddenly stopped, clutched his chest and staggered toward the salon amidships where, after efforts to revive him failed, he died a few hours later. The cause of death was diagnosed as a heart attack.

The Shipowner Loses

Patterson's widow then instituted suit against Shipowner and Contractor, grounding her claim on the unseaworthiness of the vessel and the negligence of the defendants. Both defendants cross-claimed against each other. The District Court, sitting without a jury, held that SS DIMITRIOS was unseaworthy because of inadequate lighting in hold No. 5, that the unseaworthy condition was the proximate cause of Barrociere's injury, that the accident in turn created an emergency and necessitated a rescue operation in which Pete Patterson was a participant, and that Patterson's death was "the direct result of his exertion and excitement while participating in the rescue." In reliance upon these findings and our decision in Grigsby, judgment was entered in favor of the widow and minor child in the total amount of $128,000 with judgment for that amount in favor of Shipowner against Contractor for breach of the WWLP.⁷

How Far Good Samaritan?

Obviously the circumstances of this case — with no breach of duty to Patterson up to that time and an unexpected, unforeseen cardiac failure after only slight exertion — draw us toward the imprecise and as yet unexplored outer limits of the Grigsby doctrine, including the still undecided question of whether the amphibious Good Samaritan is afforded the blanket protection of the warranty of seaworthiness when his injury or death results, not directly from the unseaworthy condition itself, but from a succession of events only tenuously related, in a causal sense, to the original condition.⁸ But we need not here determine precisely how wide a berth Grigsby requires in view of our finding that, on these facts, the crucial and ultimate fact of unseaworthiness has not been established.

Of course the standard by which we are bound in reviewing factual or legal-factual findings of this sort is the seagoing Plimsoll Line variant of the clearly erroneous rule, McAllister v. United States, 1954, 348 U.S. 19, 75 S. Ct. 6, 99 L.Ed. 20, 1954 A.M.C. 1999; Mississippi Shipping Co., Inc. v. Zander and Co., Inc., 5 Cir. 1959, 270 F.2d 345, 347, 1960 A.M.C. 247, judg't vacated, Aron & Co. v. Mississippi Shipping Co., 1959, 361 U.S. 115, 80 S.Ct. 212, 4 L. Ed.2d 148; DS Ove Skou v. Hebert, 5 Cir., 1966, 365 F.2d 341, 347, 1966 A.M. C. 2223; Oil Screw Noah's Ark v. Bentley & Felton Corp., 5 Cir., 1963, 322 F. 2d 3, 5, 1964 A.M.C. 59; Compagnia Maritima La Empresa, S.A. v. Pickard, 5 Cir., 1963, 320 F.2d 829, 830. The standard, while a stringent one, still permits us — and at times compels us — to give effect to the "qualitative factor of the truth and right of the case — the impression that a fundamentally wrong result has been reached." Oil Screw Noah's Ark, supra, 322 F.2d at 5-6; W. R.B. Corp. v. Geer, 5 Cir., 1963, 313 F. 2d 750, 753. Particularly is this true when there is more or less general agreement on fundamental facts and disagreement only with respect to the ultimate fact of seaworthiness and the legal consequences and liabilities it entails.

Where the Unseaworthiness?

Here the entire claim stands or falls on the answer to one question: was the lighting in hold No. 5 so inadequate that it was not reasonably fit for the performance of the work at hand? If it was not, the vessel was unseaworthy. Walker v. Harris, 5 Cir., 1964, 335 F.2d 185, 191, 1964 A.M.C. 1759, cert. denied, 379 U.S. 930, 85 S.Ct. 326, 13 L.Ed.2d 342; Texas Menhaden Co. v. Johnson, 5 Cir., 1964, 332 F.2d 527, 528; Delta Engineering Corp. v. Scott, 5 Cir., 1963, 322 F.2d 11; Vega v. The Malula, 5 Cir., 1961, 291 F.2d 415, 1961 A.M.C. 1698. "The subsidiary questions leading to ultimate conclusion of seaworthiness are therefore: what is the vessel to do? What are the hazards, the perils, the forces likely to be incurred? Is the vessel or particular fitting under scrutiny sufficient to withstand those anticipated forces?" Walker v. Harris, supra, 335 F.2d at 191. A realistic assessment of the conditions existing in the hold on the night of the accident leads inevitably to the conclusion that the lighting was sufficient under the circumstances — one of the circumstances being the positive, emphatic, clear instruction to Barrociere to stand fast, not come adrift.

This is not to suggest that there was no danger involved in the cleaning operation. Open hatches on both starboard and port sides of the tween deck were constant potential sources of hazard for the...