Vargas v. McNamara

• Decision Date: 30 October 1979
• Docket Number: Nos. 79-1216,s. 79-1216
• Citation: 608 F.2d 15
• Parties: Harold VARGAS, Plaintiff, Appellant, v. Robert C. McNAMARA, III, et al., Defendants, Appellees, v. SIDMAR ENTERPRISES, INC., Third-Party Defendant, Appellee. Columbus BAKER, Plaintiff, Appellant, v. Robert C. McNAMARA, III, Defendant, Appellee, v. CAPE COD MARINE SERVICES, INC., et al., Third-Party Defendants, Appellees. Columbus BAKER, Plaintiff, Appellant, v. CAPE COD MARINE SERVICES, INC., Defendant, Third-Party Plaintiff, Appellee, v. SIDMAR ENTERPRISES, INC., Third-Party Defendant, Appellee. Columbus BAKER et al., Plaintiffs, Appellees, v. Robert C. McNAMARA, III, and Cape Cod Marine Services, Inc., Defendants, Appellants. Columbus BAKER et al., Plaintiffs, Appellees, v. Robert C. McNAMARA, III, et al., Defendants, Appellees. Sidmar Enterprises, Inc., Third-Party Defendant, Appellant. to 79-1220.
• Court: U.S. Court of Appeals — First Circuit

Page 15

608 F.2d 15

Harold VARGAS, Plaintiff, Appellant, v. Robert C. McNAMARA, III, et al., Defendants, Appellees, v. SIDMAR ENTERPRISES, INC., Third-Party Defendant, Appellee.

Columbus BAKER, Plaintiff, Appellant, v. Robert C. McNAMARA, III, Defendant, Appellee, v. CAPE COD MARINE SERVICES, INC., et al., Third-Party

Defendants, Appellees.

Columbus BAKER, Plaintiff, Appellant, v. CAPE COD MARINE SERVICES, INC., Defendant, Third-Party Plaintiff, Appellee, v. SIDMAR ENTERPRISES, INC., Third-Party Defendant, Appellee.

Columbus BAKER et al., Plaintiffs, Appellees, v. Robert C. McNAMARA, III, and Cape Cod Marine Services, Inc., Defendants, Appellants.

Columbus BAKER et al., Plaintiffs, Appellees, v. Robert C. McNAMARA, III, et al., Defendants, Appellees.

Sidmar Enterprises, Inc., Third-Party Defendant, Appellant.

Nos. 79-1216 to 79-1220.

United States Court of Appeals First Circuit.

Argued Sept. 13, 1979.

Decided Oct. 30, 1979.

Harvey M. Forman, Boston, Mass., with whom Forman, Cohen & Forman, Boston, Mass., was on brief, for Harold Vargas and Columbus Baker.

Lawrence B. Wernick, Boston, Mass., with whom Thomas D. Burns and Burns & Levinson, Boston, Mass., were on brief, for Cape Cod Marine Services, Inc.

Carroll E. Ayers, Wakefield, Mass., with whom Curley, Ayers & Curley and John E. Sutherland, Wakefield, Mass., were on brief for Robert C. McNamara, III.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiffs appeal from the district court's granting of defendants' motions for directed verdict in this personal injury action.

From the evidence viewed in the light most favorable to plaintiffs, the following could be found. Plaintiffs Vargas and Baker were seamen employed by defendant McNamara ¹ in contemplation of an upcoming fishing trip. Preliminary to the trip, they were to perform certain repairs on defendant's vessel, NORA. Vargas and McNamara brought the NORA from Provincetown to Falmouth, docking at the boat yard of defendant Cape Cod Marine Service where the repair work was to be done. McNamara instructed Vargas and Baker to clean the engine room and provided them with the equipment for the task which consisted of a spray gun with hose attachment, an unlabeled five gallon bucket of a cleaning agent known as Verisol, and a steam cleaner. Defendant McNamara had received this equipment from defendant Cape Cod Marine. Whether or not Cape Cod Marine provided any information to McNamara as to the type of cleaning component furnished or the precautions which should be followed in using it is unknown, plaintiffs having produced no evidence on this point.

In accordance with McNamara's instructions plaintiffs proceeded to spray an area of the engine room with Verisol, to scrape the grime, and then to apply the steam cleaner. They worked without a respirator or other equipment to offset any toxic fumes. Soon after commencing work, the engine room began to fill with steam, and plaintiffs experienced difficulty breathing and started coughing. Although they took frequent breaks in the fresh air, their symptoms worsened and other unpleasant sensations ensued. As a consequence of this experience, plaintiffs were disabled from working for a period of time. ²

An assistant professor of occupational medicine testified that Verisol is a toxic industrial solvent which may have a harmful effect on the body according to the length and intensity of exposure. It is particularly hazardous to use in spray form because droplets of solvent are absorbed via the respiratory system if no respirator is worn.

Plaintiffs' complaints against both their employer and Cape Cod Marine were based solely on allegations of negligence. At the close of plaintiffs' evidence, defendants moved for a directed verdict. In allowing the motion, the district court observed that there was no evidence either defendant knew or should have known the toxic qualities of Verisol or the circumstances under which it should be used, nor was there evidence that Cape Cod Marine either furnished incorrect information or failed to pass along information in its possession; consequently, the district court concluded plaintiffs had failed to establish a prima facie case. The court then raised the issue of unseaworthiness itself, although the matter had not been pleaded, and invited arguments from the parties on the subject. While poorly articulating any coherent theory of unseaworthiness, plaintiffs did request leave to amend their complaints to add a count therefor. The court responded that even were the complaints so amended the directed verdicts would be granted because unseaworthiness had not been established by the evidence. Plaintiffs construe the court's ruling as a denial of their motion to amend and now argue that the court erred in denying that motion and in directing verdicts for both defendants on the negligence counts.

Fed.R.Civ.P. 15(a) ³ provides that "leave (to amend) shall be freely given when justice so requires." The motion to amend ordinarily should not be denied "(i)n the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, Futility of amendment, etc. . . . (Emphasis added)." Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Here, the reason given for denying the amendment was futility, a valid reason in general, but, we think, incorrect in the circumstances of this case. ⁴

There was, in fact, sufficient evidence from which a factfinder could conclude the vessel was unseaworthy. Unseaworthiness may arise from the employment of an unsafe method of work such as the shipowner's failure to provide adequate equipment for the performance of an assigned task or necessary safety equipment. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 327, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960) (vessel has duty to furnish seamen with tools reasonably fit for their intended use); See Webb v. Dresser Industries, 536 F.2d 603 (5th Cir. 1976), Cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1977) (failure to provide proper foot apparel for ice and snow conditions to seaman ordered ashore to pick up supplies); White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1339 (5th Cir. 1969) (absence of adequate safety equipment rubber boots); Ferguson v. Erie Railroad Co., 235 F.Supp. 72, 76 (S.D.N.Y.1964) (ship unseaworthy because of failure to provide protective glasses); 1B Benedict Admiralty § 24, pp. 3-74 to 3-81 (7th ed. 1976). Here, the factfinder could conclude that the procedure McNamara directed for cleaning the engine room was unsafe. There was evidence that the use of Verisol in spray form increased plaintiffs' exposure to its toxic fumes. Whether a toxic solvent in spray form should have been utilized at all in the poorly ventilated room is debatable, but at the very least, or so a factfinder could permissibly conclude, protective masks should have been provided. That McNamara did not know, or in the exercise of reasonable care would not necessarily have known, that the modus operandi he prescribed was unsafe or that protective masks were required, is irrelevant, for liability under unseaworthiness principles is not dependent upon fault. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

While the reason stated for denial of plaintiffs' motion to amend was therefore erroneous, it does not follow that the motion should be granted. In Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15 (1st Cir. 1979), we stated that where a considerable period of time passes between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some valid reason for his neglect and delay. There, movant's proffered reason for delay developments in the law applicable to his case was unsupported. Id., at 20. Furthermore, defendants would have suffered some prejudice had the amendment been allowed, for discovery had apparently already been completed by the time movant sought to add both a new defendant and additional allegations against the original defendant. We concluded that given movant's failure to excuse his delay, we could not describe this prejudice as insignificant. Defendants here argue they are faced with even greater prejudice discovery proceeded and was completed and cross-examination was conducted on the basis that this was solely a negligence case. Furthermore, plaintiffs have offered no excuse other than inadvertence for leaving out an unseaworthiness count, nor did they present the district court with a single legal citation which could have shown the court that an amendment might put them in a position to prevail on that theory. It is the duty of an attorney to research the law and to present the court with citations to controlling legal authority. See ABA Code of Professional Responsibility, Canon 7, EC 7-23. No court, no matter how capable and knowledgeable, can possibly keep in the front of its mind every precedent and statute in the myriad specialized areas of the law.

In the circumstances, we think the case must go back to the district court for redetermination of the motion to amend. If the court is satisfied that, notwithstanding the fact that inclusion of a seaworthiness count would not be futile, the interests of justice do not support granting permission to amend, it may continue to deny the motion. If, on the other hand, it concludes that providing a trial on unseaworthiness at this late date is in the interest of justice and not unduly prejudicial to defendants, it may allow the motion. A factor the court may wish to take into account is that plaintiffs' pretrial memoranda and interrogatories made some, albeit brief, reference to alleged unseaworthiness; on...