United States Lines Company v. Williams, 22087.

• Decision Date: 18 August 1966
• Docket Number: No. 22087.,22087.
• Citation: 1966 AMC 2418,365 F.2d 332
• Parties: UNITED STATES LINES COMPANY, Appellant, v. Leroy WILLIAMS et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

1966 AMC 2418, 365 F.2d 332 (1966)

UNITED STATES LINES COMPANY, Appellant, v. Leroy WILLIAMS et al., Appellees.

No. 22087.

United States Court of Appeals Fifth Circuit.

August 18, 1966.

James F. Moseley, Clark W. Toole, Jr., Kurz, Toole, Maness & Martin, Jacksonville, Fla., for appellant.

Steven A. Werber, Lloyd C. Leemis, Jack F. Wayman, Boyd, Jenerette & Leemis, Jacksonville, Fla., for appellee Strachan Shipping Co.

Before JONES and BROWN, Circuit Judges, and BREWSTER, District Judge.

JOHN R. BROWN, Circuit Judge.

Of the hundreds of amphibious Tinker-to-Evers-to-Chance juridical round robins churned by the swells of Sieracki-Ryan-Yaka-Italia,¹ this is one of the simplest. Simple in outline of its facts, in its cast of characters and in its outcome through the jury verdict, it really offers only one significant legal question. All others pretty well washed out by the jury's resolution of the facts and the remaining one became alive by the jury's verdict and our recent intervening opinion which made the trial Judge an erring prophet.

Unlike so many, this one starts out simply as to the parties. There is, to be sure, the Longshoreman who sues, the Shipowner who is pursued and who, in the spirit of the enterprise, turns on the Stevedore, the employer of the Longshoreman and one who thought at one time that the exclusive liability clause of the Longshoreman's Act, 33 U.S.C.A. § 905, meant what it said. The verdict was a two-part general one for the plaintiff Longshoreman against the Shipowner and in favor of the impleaded Stevedore.² The Shipowner alone appeals.

The No. 4 tween deck and lower hold of the SS AMERICAN BANKER, then at the Port of Jacksonville, Florida, undergoing discharge of her last stick of cargo preparatory to return to Virginia to join the mothball layup fleet, was the scene. Williams, an employee of the Stevedore, was a part of the gang working in the No. 4 lower hold discharging a cargo of steel beams 40 to 60 feet in length. To permit a suitable cargo sling to be wrapped around the drafts, someone in the gang decided that a piece of dunnage was needed on which to rest one end of the beams. No dunnage was available in the lower hold. Williams, using the ship's ladder, went up to the tween deck where he found some dunnage stowed in the offshore wing. This was dunnage remaining after discharge of some cargo at prior ports. Little or no care had been exercised by the ship's crew in determining fitness of the dunnage for further use, absence of nails, etc., since it was intended that this and all other dunnage and trash be removed³ at Jacksonville prior to layup.

Williams found a 4" x 6" timber approximately 8' long which he thought suitable. Conscious, as he was, of the possible presence of nails, he examined the piece as best the light would permit, concluded it was fit, and pulled it over to the square of the hatch. After hollering out a warning to the gang below, he threw the timber into the lower hold. Unfortunately for him, there was a spike protruding several inches which caught his clothes, and he was pulled in with the dunnage.

Against virtually uncontradicted proof from the ship's mate that before stowing dunnage, it is ordinarily inspected and suitable steps taken to remove or bend protruding nails to eliminate the obvious risk of injury, it is difficult to comprehend the Shipowner's contention that there is insufficient evidence to sustain the charge either of unseaworthiness, negligence, or both. Recognizing that unseaworthiness is ordinarily a question of fact for jury or fact-finder resolution, Jefferson v. Taiyo Katun, K.K., 5 Cir., 1962, 310 F.2d 582, 583, cert. den. 1963, 372 U.S. 967, 83 S.Ct. 1091, 10 L.Ed.2d 130, although it may be, Walker v. Harris, 5 Cir., 1964, 335 F.2d 185, cert. den., 379 U.S. 930, 85 S.Ct. 326, 13 L.Ed.2d 342, or become so, as a matter of law on resolution of subsidiary findings, Mills v. Mitsubishi Shipping Co., 5 Cir., 1966, 358 F.2d 609, the record warranted, if it did not require, such a finding on the simple classic test of reasonable fitness for the work intended.

As near as we can discern it, the Shipowner at this juncture argues that the dunnage was not being used for its intended purpose since dunnage is to be laid, not thrown. It then tries to fortify this argument by a sort of full-astern reverse application of those cases which, to establish breach of the warranty of workmanlike performance, impute to the stevedore-employer the negligence of the injured longshoreman himself.⁴

We think the jury was entitled to conclude that the dunnage was available for use, dunnage with long nails protruding was dangerous and not fit and, of course, there was no doubt that this condition was causally related directly to the injuries. This left only the matter of reduction for claimed contributory negligence on the part of the Longshoreman as to which the jury was likewise fully charged. Treated by all as a jury issue, the jury had ample basis for the verdict.

The Shipowner fares no better in most of its attacks on the charge. The first complains of instructing the jury that a "* * * failure by the Stevedore to inspect the area tween deck does not constitute a breach of implied warranty of workmanlike service." The Shipowner, almost as much as conceding that as an academic matter the instruction was proper, seems to assert that it was erroneous because inapplicable. As was the trial Judge, we are inclined to agree since nothing in or on the tween deck area was pertinent to this casualty. If it was error, and we stress the if, it was certainly not harmful. F.R.Civ.P. 61.

In much the same boat is the complaint of the failure of the trial Court as a part of an otherwise detailed charge on the so-called workmanlike warranty⁵ to expressly instruct the jury that this warranty was "tantamount to a manufacturer's warranty."⁶ In discussing the action over against the Stevedore, the Court's charge was full and in great detail as to the nature of the warranty of workmanlike performance. No exceptions as such were taken to it. The Shipowner's criticism is reduced, therefore, to the failure to use the proffered words "tantamount to a manufacturer's warranty." As a predicate it claims that this is what Italia (see note 1, supra) so holds.

There are several answers. First, what an appellate Judge, or here a Justice, says for the Court, even the highest Court of the land, does not mean that such language may, or should, be used as a jury charge. It all depends on whether the words presumably chosen by one artificer for others of presumed like skill communicate the applicable legal principle to those attending, as it were, their once-in-a-lifetime-law-school-for-a-day. Next, the trial Court accurately pointed out that in substituting "tantamount" for Mr. Justice White's "comparable", the Shipowner was introducing confusion by an ambiguous term. And most important, the colloquy added up to the Judge's wise conclusion that prefaced by "tantamount" or "comparable" or otherwise, an effort to drag in the esoteric, unpredictable uncertainties and undulations of the dynamic field of manufacturer's warranties would bring not light, but darkness, to the jury's labors.

We have concluded, however, that the Shipowner's point is well taken that under the charge as it was constructed, both in the instructions given and in the form of the verdicts used, the jury was never told that in evaluating performance by the Stevedore in compliance with the legally imposed duty of workmanlike performance, the conduct of the plaintiff Williams was an element to be reckoned with. It is true, of course, that the charge was emphatic that the failure of Williams to exercise reasonable care for his own safety would amount to contributory negligence. But the charge was equally precise that negligence of the Longshoreman had only one consequence — namely, reduction of the amount of damages to be awarded to the plaintiff in proportion to the jury's finding of the extent of his fault. Full as was the Court's charge on workmanlike performance (see note 5, supra), there was not the slightest suggestion that the actions of Williams would or might be the actions of the Stevedore or that the Stevedore might have to bear legal responsibility for actions of Williams if the jury concluded that these were in one or more particulars a failure to comply with the standards of workmanlike performance articulated in the Court's charge.

On the other hand, however, the record is absolutely crystal clear that the Shipowner had earnestly urged the Court to charge that a negligent act of Williams could amount to a breach of the Stevedore's implied workmanlike warranty.⁷ The colloquy in the charge conference including discussion of what Damanti (specifically cited to the Court, see note 7, supra) meant in the light of Italia (note 1, supra), brought sharply into focus the difference between the trial Judge and the Shipowner's counsel on the asserted theory that the action of the injured Longshoreman could be imputed to the Stevedore as a significant, if not sole, factor in determining breach of the warranty of workmanlike performance. The trial Judge was, of course, aware that this doctrine is firmly established in the Second Circuit,⁸ but he expressed doubt that we or the Supreme Court would hold that Damanti, and others, would be applicable where the defect (the nail in the dunnage) was not created by the Longshoreman's actions. It was here, of course, that his oracular resources were "unseeworthy." For since that time we have decided Lusich v. Bloomfield S.S. Co., 5 Cir., 1966, 355 F.2d 770, (see note 4, supra), which, distinguishing Drewerey,⁹ holds positively "* * * that the negligence of the contractor's injured employee * * * is a factor to be taken into consideration on the issue of breach of the contractor's implied warranty. Damanti v. A/S Inger, 2 Cir., 314 F.2d 395 (1963) * * *; Nicroli v. Den...