Titus v. The Santorini, 15592.
| Decision Date | 05 August 1958 |
| Docket Number | No. 15592.,15592. |
| Citation | 258 F.2d 352 |
| Parties | Glen TITUS, Appellant, v. THE SANTORINI and Sigalas and Kulukundis, its claimants, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Peterson, Possi & Lent, Frank H. Possi, Gerald H. Robinson, Portland, Or., for appellant.
Wood, Matthiessen, Wood & Tatum, Erskine B. Wood, John R. Brooke, Portland, Or., for appellees.
Before FEE, CHAMBERS and HAMLEY, Circuit Judges.
On February 5, 1955, Titus, a longshoreman, was injured on the deck of the S. S. Santorini as it lay at the dock in Coos Bay, Oregon, taking on a load of lumber. At the moment he was acting as hatch tender. As the load came up in the slings attached to the hook, both a preventer wire and a rope guy broke. Each was fastened to the upper end of the starboard boom and to the vessel's rail to give stability to the boom. As a result the winch tender naturally lost most of his control over the boom and the load in the slings. Titus got away from the load, but in doing so he slipped and suffered a bad break at his right ankle. He was an employee of the Independent Stevedoring Company which was connected with the ship and its owners only by its contract of employment. Passing over his compensation rights existing by virtue of his employment, he brought this suit in admiralty alleging negligence and unseaworthiness.
At the conclusion of the trial, the trial judge indicated his intention to rule in favor of Titus as libellant. After the case was briefed by counsel the court reversed itself and entered findings of fact for the defendant.1
It is now the law that a longshoreman does not have to be at sea to take advantage of unseaworthiness (if that caused his injury) and he doesn't have to be a seaman to obtain the benefits of the rule. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099.
McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20, laid to rest the right of appellate courts to try admiralty cases de novo, a prerogative which had been little used anyway in recent years.
But still this court must examine the facts to determine if the ruling was clearly erroneous. There is no suggestion in the proof that the flight of Titus when the wire and rope broke was ill-advised or that he acted unreasonably in the emergency. Possibly there was evidence upon which the trial court could have found unseaworthiness and therefore for Titus. But the trial court did not do so. Perhaps it might have done so if it had disbelieved some of the defense witnesses.
This court sitting on appeal a long distance from Coos Bay and without witnesses cannot announce what the cause of the breaking was. But from the evidence it believes it can put the possible causes in categories.
First, the wire and rope could have broken because they were inherently too small to do the job. They could have broken because they previously had been damaged or were worn out. They could have broken because of some latent defect in the manufacture. And they could have broken because of some negligence in the method of their installation. But there was evidence which the court accepted (and made findings thereof) that the wire and rope were newly installed the day before, were in good condition and had great margins of safety in their tensile strength; that there was no latent or patent defect upon subsequent examination of the wire at its point of breaking; and that the method of installation, if not the best approved method, did not contribute to the breaking.
Second, there was the possibility that the rope and wire broke because of some defect in the winch equipment. Appellant's witnesses were positive there was nothing wrong in the design or operating condition of the winches.
Third, there was the possibility that the winch was improperly operated or the loading was improperly done by a fellow longshoreman at the instant when the breaking occurred. In this field, the outlawed practice of winch operators "tightlining" their cables and producing an unusual strain on the wires and lines is the most typical. But there are others. There was no direct evidence that the loading was conducted in any way but in a skillful manner. But if the causation of the break was in this third category, negligence at the moment of a fellow longshoreman, the ship would not be liable.2
Fourth, only to complete the group of possible causes, it may be mentioned that some mysterious outside force may have clipped wire and rope. All would agree this did not happen.
In this case appellant, as did appellee, devoted much attention to the wire, but appellant devoted little attention to the rope.3 The rope, said the experts, was more than adequate for the normal stress under normal operation with the load here involved.4 The guy rope and the preventer wire apparently supplemented each other and did not perform independent functions. Whether the boom and load would have gone out of control if only the wire or the rope had broken is not clear. But this simultaneous breaking was an arresting circumstance, one that could not help but cause a trial judge to wonder. Certainly this coincidence would cause a court to question whether there were latent defects in the manufacture of both the rope and the wire.
There is one possibility overlapping perhaps between our second and third groups of causes which the parties do not sharply point up. There was testimony (and possibly the knowledge thereof is in the general domain not requiring experts) that excessive stress may be applied to wire (here stretching) which is released before the wire breaks, yet leaves the wire so weakened that a later less powerful pull when applied will cause the wire to break at a point far below the wire's rated tensile strength. One may assume the same rule of physics is applicable to rope.
Suppose the wire and rope were weakened by negligent or willful misconduct of the longshoremen's crew, either yesterday or an hour ago. Wouldn't that defect have to be charged to the ship as unseaworthiness?5 The court had ultimately satisfied itself that appellant's theories of causation were untenable. Further, it came up with an abiding doubt as to what caused breaking. So the question just posed does not arise and will have to be answered in this circuit in another case.
This court is not convinced that the instantaneous acts of a fellow longshoreman rendering the equipment unseaworthy and injury to the longshoremen are chargeable to ship as unseaworthiness.6 If this be characterized as slicing the law too fine, one may counter with an illustration. Suppose a longshoreman throws a match in a bucket of gasoline on the deck. The result is an explosion which simultaneously and immediately renders the ship unseaworthy and injures the second longshoreman. Would the ship be held on its implied in law warranty of seaworthiness for the injury to the second longshoreman?
Practically, the trial court having eliminated other causes,7 it was left with one likely cause (uncertain in time of...
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