Venable v. A/S Det Forenede Dampskibsselskab

• Decision Date: 10 August 1967
• Docket Number: Civ. A. No. 4779.
• Citation: 275 F. Supp. 591
• Parties: James E. VENABLE, Plaintiff, v. A/S DET FORENEDE DAMPSKIBSSELSKAB, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

275 F. Supp. 591

James E. VENABLE, Plaintiff, v. A/S DET FORENEDE DAMPSKIBSSELSKAB, Defendant.

Civ. A. No. 4779.

United States District Court E. D. Virginia, Norfolk Division.

August 10, 1967.

Sidney H. Kelsey, Norfolk, Va., for plaintiff.

Walter B. Martin, Jr., Norfolk, Va., for defendant.

MEMORANDUM

WALTER E. HOFFMAN, District Judge.

This matter stands on plaintiff's motion to set aside the verdict of the jury as contrary to the law and the evidence and to direct a verdict for the plaintiff notwithstanding the jury verdict in favor of the defendant or, in the alternative, to grant a new trial. Due to the many issues raised by plaintiff during the course of trial, it is deemed appropriate to deal with same by this memorandum. As counsel for plaintiff challenged the array at the outset of the trial, the memorandum will discuss (1) the trial, including alleged errors in the charge and miscellaneous contentions, and (2) the challenge to the array.

THE TRIAL

This case was originally scheduled for trial on June 18, 1965. By agreement of counsel, it was rescheduled for July 15, 1965. On June 15, 1965, after the July date had been selected, counsel for plaintiff advised that the plaintiff's two treating physicians would not be available on July 15, 1967, and the case was again rescheduled for trial on January 14, 1966, which was the earliest date available. The matter was heard before a jury on January 14-15, 1966, same resulting in a verdict for the defendant. Between July, 1965 and January, 1966, a new group of jurors had been called for service.

Plaintiff, a longshoreman employed by Old Dominion Stevedoring Corporation,¹ was injured while working aboard the M/V OKLAHOMA, owned by the defendant, on April 20, 1964, at Newport News. The stevedore had contracted with the shipowner to stow a cargo of hogsheads of tobacco aboard the vessel. Plaintiff contends that the walking and working surface was insufficient and dangerous due to inadequate lighting and no use of dunnage.

On the morning of the accident, at some time between 10:00 and 11:00 A.M., the No. 4 hatch was slightly more than half open.² There was no artificial lighting in the 'tween deck area where the accident occurred. The longshoremen depended on the natural light coming through the loading hatch. The witnesses had different versions as to the lighting conditions. Some characterized the condition as "poor", while another described the same as "fair" to "good" in and around the square of the hatch, but "poor" under the wings. The latter witness, Joseph Hollomon the gang boss, was confronted with his prior discovery deposition in which he said that the lighting was sufficient as far as he was concerned, although it does not appear that this witness was in the 'tween deck at the moment of the accident.

It was conceded by the witnesses that it was not unusual for some small space to be left between the rows of hogsheads in stowing them. Plaintiff contended that the shipowner should have provided dunnage to cover up these spaces for the purpose of preventing falls between the hogsheads. There was conflicting evidence as to whether dunnage was ever used for this purpose. Without detailing the evidence, the jury had ample credible testimony to sustain a finding that dunnage was not customarily used or required in situations presented herein—as contrasted with stows when the hogsheads may be several feet apart.

While the greater number of witnesses referred to "poor" lighting,³ the credibility of the witnesses was for the jury. The plaintiff and his two fellow-longshoremen who testified in his behalf all said that, at the time of the accident either three tiers of hogsheads had been stowed in the 'tween deck and a fourth was in the process of being stowed,⁴ or that two tiers had been stowed and they were working on the third. However, a marine surveyor who measured the hatch testified that slightly less than 10 feet vertical space was available in the 'tween deck, and each hogshead measured approximately 4 feet in height. The latter testimony, if accepted, tends to discredit the plaintiff and his liability witnesses, but it also may discredit the stevedore foreman who stated that three tiers of hogsheads were loaded in the vessel.⁵

A fellow longshoreman, Harris, on cross-examination, placed the point of the accident close to the edge of the square of the hatch⁶ and not back under the wings.

The plaintiff admitted that, at the time of the accident, he didn't have any trouble seeing to do his work. He gives a rather inept description of how he stepped when assisting another man in rolling the hogshead, but concedes that he stepped either sideways or backwards. He claims that he did not have time to look "because the hog was coming back". The jury could have concluded that the lighting, even if inadequate, was not a proximate cause of the accident. Indeed, there is nothing to preclude the rejection of uncontradicted testimony. Scates v. Isthmian Lines, Inc., 319 F.2d 798 (9 Cir., 1963); Ramos v. Matson Navigation Company, 316 F.2d 128, 132 (9 Cir., 1963).

Issues of negligence, unseaworthiness, and proximate cause were submitted to the jury. The jury could properly find for the defendant if we accept the testimony in the light most favorable to the defendant.

THE CHARGE

Plaintiff complains of the charge wherein, after telling the jury that the warranty of seaworthiness "includes an obligation to furnish a stowage reasonably fit for its intended purposes", the Court said:

"In that connection, with respect to the stow of these hogsheads, you may consider what was usual and customary in the standards adopted in the trade for the purpose of determining whether the vessel was or was not seaworthy and whether the defendant was or was not guilty of negligence, but such custom and practice in the trade is not conclusive or binding upon you.

"The mere fact that there was an empty space between some of the hogsheads of tobacco comprising the stowage on board the OKLAHOMA is not enough, standing alone and by itself, to constitute an unseaworthy condition."

Plaintiff's claim of vice in this portion of the charge is twofold. He contends that any mention of what is customary in the standards adopted in the trade constituted error, relying upon Bryant v. Partenreederei-Ernest Russ, 330 F.2d 185 (4 Cir., 1964). To the contrary, this portion of the charge coincides with the language of Bryant where it is said:

"At best, evidence of prevailing industry standards may be considered as some evidence that the ship in question is in fact seaworthy. It may never be conclusive."

The latter portion of the quoted charge relates to the statement that merely because there was an empty space between some of the hogsheads is not enough, standing alone, to constitute an unseaworthy condition. To otherwise charge the jury would make the shipowner a guarantor of the safety of anyone in the area. This portion of the charge is supported by Nuzzo v. Rederi, A/S Wallenco, Stockholm, Sweden, 304 F.2d 506 (2 Cir., 1962). The situation here presented is not analogous to falling into an unlighted hatch or hole in the deck. The purpose of stowage, as described in Nuzzo, "is a disposition of cargo within the vessel which will be reasonably safe and convenient both for carriage at sea and for unloading at the destination". Plaintiff's reliance upon Strachan Shipping Co. v. Alexander, 311 F.2d 385 (5 Cir., 1962), is misplaced. When we examine the opinion of the trial court, Alexander v. Meiji Kaiun K.K., 195 F.Supp. 831 (E.D.La., 1961), we find that the hole in which the longshoreman fell was large enough to receive his body and, according to all of the testimony, was required to be covered by dunnage. That is a far cry from the instant case. The issue as to whether the stow of the hogsheads was faulty, or faulty by reason of the lack of dunnage if the same was necessary, was submitted to the jury and decided contrary to plaintiff's contentions.

Plaintiff urges that the Court overemphasized the terms "reasonably fit for its intended use" throughout the charge. Of course, this is the language used by the Supreme Court in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L.Ed.2d 941 (1960), as well as in many other cases defining seaworthiness. In Ballwanz v. Isthmian Lines, Inc., 319 F.2d 457 (4 Cir., 1963), the vice of the charge was in telling the jury that unseaworthiness could not occur without fault of the shipowner, and this incorrect statement of law, coupled with "repetitive insistence" that the equipment need be only reasonably fit for the purpose for which it was being used, failed to distinguish the warranty of seaworthiness from the concept of negligence. There was no error in using the term "reasonably fit for its intended use" in the present case, especially where the jury was likewise told that the shipowner's duty was absolute and non-delegable.

The next complaint registered by plaintiff is to that portion of the charge which says:

"Moreover, if you should conclude that this accident was the result of the manner in which the plaintiff and his fellow longshoremen performed their duties on board the vessel and that this was the efficient cause of the accident to the entire exclusion of any negligence of the defendant or any unseaworthiness of the vessel, then, in that event, there would be no liability that could be imposed upon the defendant under such circumstances."

It is contended by plaintiff that this language is in direct contradiction with Scott v. Isbrandtsen Company, 327 F.2d 113 (4 Cir., 1964). To the contrary, the charge in Scott was given by the same trial judge who wanted to test the vitality of his own prior ruling in Holley v. Manfred Stansfield, 186 F.Supp. 212 (E.D. Va., 1960)—a case that was not appealed —wherein the longshoreman who created and brought into play the unseaworthy condition was permitted to recover. Moreover, in Scott,...