Venable v. A/S Det Forenede Dampskibsselskab

• Decision Date: 12 June 1968
• Docket Number: No. 11799.,11799.
• Citation: 399 F.2d 347
• Parties: James E. VENABLE, Appellant, v. A/S DET FORENEDE DAMPSKIBSSELSKAB, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

399 F.2d 347 (1968)

James E. VENABLE, Appellant, v. A/S DET FORENEDE DAMPSKIBSSELSKAB, Appellee.

No. 11799.

United States Court of Appeals Fourth Circuit.

Argued January 8, 1968.

Decided June 12, 1968.

Rehearing Denied September 16, 1968.

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Sidney H. Kelsey, Norfolk, Va. (Kelsey & Rabinowitz, Norfolk, Va., on brief), for appellant.

Bernard G. Barrow, Norfolk, Va. (Walter B. Martin, Jr., and Vandeventer, Black, Meredith & Martin, Norfolk, Va., on the brief), for appellee.

Before SOBELOFF, BRYAN and BUTZNER, Circuit Judges.

Rehearing Denied September 16, 1968 en banc.

SOBELOFF, Circuit Judge:

From an adverse judgment on his claim for injuries sustained in a fall while stowing hogsheads of tobacco on one of defendant-appellee's vessels, the plaintiff, James Venable, a longshoreman, brings this appeal. His challenge is to the validity of the judge's instructions concerning the admiralty issues raised at trial.

Briefly stated, the testimony indicates that while working on a surface of previously stowed hogsheads in the appellee's vessel, S.S. Oklahoma, appellant was engaged in stowing the next tier when he stepped backward into an empty space between hogsheads, fell, and sustained serious back injuries. At trial, he argued that inadequate lighting, faulty stowage of the tier of hogsheads upon which he was working and failure to supply and employ dunnage rendered the ship unseaworthy and immediately caused the accident. Testimony relating to these issues varied. That there was no artificial lighting in the stow where the accident occurred is not disputed. The men were forced to depend on natural light passing through the hatch which was slightly more than half open. Most of the witnesses testified that the lighting conditions on the day of the accident were "generally poor," although one opined that conditions were "fair to good" around the hatch but poor in the wings. It is also undisputed that no dunnage was provided by either the stevedore or the shipowner. The defendant offered testimony to the effect that it was not the accepted practice to use dunnage in this particular type of stowage, while plaintiff's fellow workers testified that it would have been used had it been available. The questions of negligence, unseaworthiness and proximate cause were submitted to the jury and it returned a verdict for the steamship company.

On this appeal, Venable raises an issue that has proven troublesome to the federal courts: To what extent can the "operational negligence" alone of a longshoreman or his fellow workers give rise to an action for "unseaworthiness"? The point arises from the trial judge's instruction:

"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 unnecessary to dwell at length on the development and expansion of the doctrine of unseaworthiness. A complete exposition of its history is found in Mahnich v. Southern S.S. Co., 321 U.S. 96, 99-104, 64 S.Ct. 455, 88 L.Ed. 561 (1944), and Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 543-549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960). It is sufficient to observe that by a steady course of decisions the shipowner's duty to maintain a seaworthy vessel has become increasingly demanding.¹ Although it was once held that a shipowner's duty ended with the delivery of a seaworthy vessel, it came to be recognized that a ship, though safe when delivered, might subsequently be made temporarily unseaworthy by the operational negligence of its crew or by longshoremen in the course of loading or unloading. In Grillea v. United States, 232 F.2d 919 (2d Cir. 1956), the court held the owner liable for an injury to a longshoreman caused by his own or a fellow worker's negligence in improperly replacing a hatchcover, saying that liability existed "though he the owner may have no means of learning of, or correcting, the defect." 232 F.2d at 923. The court commented that "enough time had elapsed to result in unseaworthiness." Later cases, perhaps over-emphasizing the temporal aspect noted in this opinion, held that a shipowner was liable only if he or his agents were negligent in failing to detect and rectify the condition. An example is Mitchell v. Trawler Racer, Inc., 265 F.2d 426, 432 (1st Cir. 1959). However, this requirement of a lapse of time after the significant act in order to create liability was explicitly rejected by the Supreme Court in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549-550, 80 S.Ct. 926, 833, 4 L.Ed.2d 941 (1960). In the course of its opinion the Court stated: "The shipowner's actual or constructive knowledge of the unseaworthy condition is not essential to his liability * * *. What has evolved is a complete divorcement of unseaworthiness liability from concepts of negligence." See Schell v. Chesapeake & Ohio Railway Co., 395 F.2d 676 (4th Cir. 1968); Grzybowski, etc. v. Arrow Barge Co., 283 F.2d 481 (4th Cir. 1960).

Mitchell answered affirmatively the question of whether a shipowner is responsible for an unseaworthy condition created by a member of the crew or a longshoreman working on board. For a time, however, some courts questioned whether operational negligence, standing alone, would support an injured seaman's or longshoreman's claim for damages under the doctrine of unseaworthiness. The lower federal courts valiantly attempted to draw a line between operational negligence and unseaworthiness, see Grillea v. United States, supra; Mitchell v. Trawler Racer, Inc., 265 F.2d 426 (1st Cir. 1959); Penedo Cia Naviera S. A. v. Maniatis, 262 F.2d 284 (4th Cir. 1959). While recognizing the distinction, our circuit observed in Scott v. Isbrandtsen Co., 327 F.2d 113, 124 (1964), that "the obvious trend of the Supreme Court decisions is toward providing ever increasing protection for crewmen or longshoremen * * * who may be called upon to work aboard vessels."

Recently in Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967), the Court was squarely confronted with the necessity of deciding whether a vessel could be rendered unseaworthy solely by the longshoremen's negligent handling of otherwise proper equipment.

Mascuilli, a longshoreman, was engaged in the loading of army tanks aboard the U.S.N.S. Marine Fiddler, when one or more of his fellow longshoremen negligently permitted both the starboard and port vangs² on the loading boom simultaneusly to become taut. This resulted in the sudden parting of the port shackle which in turn caused one of the vangs to recoil and fall to the after port deck, striking and killing Mascuilli. In the lower courts, his administratrix was denied recovery. First, the District Judge, sitting without a jury, gave judgment against her because he found that all the ship's appurtenances were "in a seaworthy condition at all times, and remained so throughout the entire loading operations. The accident was caused solely by the negligent operation of the stevedoring crew using seaworthy equipment in such a manner as to cause the accident to occur * * * instantaneously." 241 F.Supp. 354 at 362 (E.D. Pa.1965). On appeal, the Third Circuit adopted this reasoning and affirmed, 358 F.2d 133 (1966).

However, the Supreme Court, in apparent continuation of the trend recognized in Scott v. Isbrandtsen Co., supra, granted certiorari and summarily reversed the Third Circuit, merely citing Mahnich v. Southern S.S. Co., supra, and Crumady v. The Joachim Hendrick Fisser, 358 U.S. 423, 79 S.Ct. 445, 3 L.Ed.2d 413 (1959). The Court's brief pronouncement in Mascuilli has been considered and interpreted in two cases in the Second Circuit. We find ourselves in accord with that circuit's conclusion that Mascuilli must be read as rejecting operational negligence "as a factor in the determination of liability." Candiano v. Moore-McCormack Lines, Inc., 382 F.2d 961, 962 (2 Cir. 1967); Alexander v. Bethlehem Steel Corporation, 382 F.2d 963 (2d Cir. 1967).

We are unable to agree with the contention, advanced in the present case, that the Supreme Court cited Crumady and Mahnich merely because of supposed factual similarities. We are persuaded that the Court cited them to indicate its view that operational negligence alone may be sufficient to create an unseaworthy condition.³ We take the view that the Mahnich and Crumady decisions were cited to emphasize the Supreme Court's deep concern, voiced in both opinions, for the welfare of seamen and longshoremen,⁴ and to clarify the corresponding obligation of the shipowner.

It is now settled that the negligent misuse of safe and sufficient equipment renders a vessel unseaworthy. See Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 727, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967). Thus, operational negligence has been subsumed under the doctrine of unseaworthiness, and a trial court's instructions should no longer attempt to distinguish between the two. Alexander v. Bethlehem Steel Corporation, 382 F.2d 963, 965 (2d Cir. 1967).⁵

Venable next contends that the trial judge erred in charging that "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 unseaworthiness."

That it is the shipowner's duty to furnish all seamen and longshoremen a safe place to work and that this obligation extends to the stowage where men perform the loading and unloading operations are uniformly acknowledged. Mahnich v. Southern S.S. Co., supra, 321 U.S. at 102, 64 S.Ct. 455; Palazzolo v. Pan-Atlantic Steamship Corp., 211 F.2d 277 (2d Cir. 1954); Gindville v....