Webb v. Dresser Industries

• Decision Date: 04 August 1976
• Docket Number: No. 74-4220,74-4220
• Citation: 536 F.2d 603
• Parties: Everett C. WEBB, Plaintiff-Appellee, v. DRESSER INDUSTRIES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 603

536 F.2d 603

Everett C. WEBB, Plaintiff-Appellee, v. DRESSER INDUSTRIES, Defendant-Appellant.

No. 74-4220.

United States Court of Appeals, Fifth Circuit.

Aug. 4, 1976.

F. E. Billings, Houston, Tex., for defendant-appellant.

Gus Kolius, Richard W. Mithoff, Jr., Joseph D. Jamail, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.

GOLDBERG, Circuit Judge:

Dresser Industries appeals from a $40,000 district court judgment in favor of plaintiff-appellee Everett C. Webb, a seaman on Dresser's vessel the M/V CANADIAN OLYMPIC. Webb, claiming that he received injuries as a result of defendant's negligence and breach of its warranty of seaworthiness, brought this action pursuant to the Jones Act, 46 U.S.C. § 688 et seq., and general maritime law. The controversy was tried without a jury. The trial judge found both negligence and unseaworthiness and rendered a verdict for the plaintiff. Appellant Dresser Industries asserts that the court erred in 1) finding negligence and unseaworthiness; 2) failing to hold that plaintiff Webb was negligent; 3) denying Dresser's motion for a continuance; and 4) calculating Webb's lost earnings. After careful consideration of these claims, we hold that except for the absence of a finding with respect to Webb's contributory fault, the judgment of the district court was proper. Therefore, we remand this cause to that court for consideration of the issue of plaintiff's negligence.

I. Facts

Everett C. Webb served as a member of the crew ¹ of the M/V CANADIAN OLYMPIC, a 199 ton vessel involved in oceanic surveying. Prior to the accident from which this suit arose, the ship was docked at Seward, Alaska, for outfitting for Alaskan operations. Plaintiff had been aboard the moored boat for approximately two weeks when supplies from Anchorage arrived at the Seward bus station. The district court found that the M/V CANADIAN OLYMPIC's party-chief, David Colten, who was in administrative control of the vessel and who had responsibility for all operations including supplies and safety equipment, "order(ed) plaintiff to go ashore to pick up supplies." Webb and two other members of the crew went into town to get the ship's provisions at the local bus station. Because it was wintertime, significant amounts of snow and ice had accumulated in Seward making walking conditions very hazardous. While checking off the supplies being loaded into the crew's truck, plaintiff slipped on the snow and ice, sustaining the injuries for which damages were awarded by the district court.

At trial, Webb argued that the failure of Dresser Industries to provide him with proper footwear for journeying ashore in the ice and snow in the course of his duties as a seaman rendered the M/V CANADIAN OLYMPIC unseaworthy and constituted negligence under the Jones Act. He testified that he had realized that his clothing was inadequate. At the time of the fall, he was wearing the smooth soled boots that he had used in the tropics. He stated, however, that on three different occasions he had told his superior, Mr. Colten, about his need for proper boots. According to Webb, Colten had indicated "that he would try to get them, in a very noncommittal way . . ." Colten testified that he could not recall any such request.

The court also heard statements to the effect that an individual wearing smooth soled shoes like plaintiff's would not be "properly rigged" for working on snow and ice and that wearing such shoes in the Alaskan winter was dangerous. A safety expert testified that another type of available boot, presented to the court by the plaintiff's attorney, would have been a definite aid to one working on snow and ice and would have eased the difficulty of ambulating on such surfaces. ²

After hearing the evidence, the district court judge filed his findings of fact. He determined that plaintiff was injured while "working in the course and scope of his employment." ³ He observed:

At the time of and prior to the date of plaintiff's injury, . . . Mr. Colten, the party chief, was aware of the very hazardous walking conditions in and around Seward, Alaska. Nevertheless the defendant, Dresser Industries, Inc., did not provide any kind of special boots or shoes for members of the crew to use in cold weather and to enable them to better walk on the slippery surfaces ashore, nor did Mr. Colten take any steps to requisition such special boots or shoes.

At the time of his injury, plaintiff was subject to all orders given by Mr. Colten and was responsible for seeing that supplies were picked up from the bus station and loaded aboard the vessel.

On the basis of these findings, the court found the defendant negligent for failing to provide plaintiff a safe place to work and for violating the slop chest statute, 46 U.S.C. § 670, which requires that certain vessels carry clothing for sale to seamen. With respect to the claim of unseaworthiness, the court said:

The failure of defendant, Dresser Industries, Inc., to provide plaintiff with special boots or shoes to use in cold weather and to enable him to better walk on icy or other slippery surfaces and other proper and adequate clothing, tools, devices, appliances and appurtenances, that would have afforded the plaintiff the opportunity of performing his duties in a safe manner, rendered the vessel, "THE CANADIAN OLYMPIC," unseaworthy.

With these findings before us, we turn to the legal issues raised by this appeal.

II. THE LEGAL ISSUES

A. The Standard of Review

The district court's resolution of the questions of seaworthiness and negligence are considered findings of fact. See, e. g., McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 7-8, 99 L.Ed.2d 20, 24 (1954); See M. Norris, The Law of Maritime Personal Injuries §§ 131, 265, 314 (3d 1975); See generally C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2585 (1971). As such, these determinations are to be overturned by an appeals court only if they are clearly erroneous. Id; Rule 52(a), Fed.R.Civ.P.

B. Seaworthiness

Under admiralty law, an absolute and non-delegable duty is imposed on the shipowner to furnish a vessel reasonably safe and fit for its intended purpose. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941; White v. Rimrock Tidelands, Inc., 5 Cir. 1969, 414 F.2d 1336; see generally Norris, supra §§ 298 et seq. This obligation includes the duty to provide necessary appliances, gear, and equipment. See, e. g., Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); see generally Norris, supra §§ 301, 305. ⁴

In Walker v. Harris, 5 Cir. 1964, 335 F.2d 185, Chief Judge Brown set forth the subsidiary questions leading to the ultimate conclusion of seaworthiness vel non :

"(W)hat is the vessel to do? What are the hazards, the perils, the forces likely to be incurred? Is the vessel or the particular fitting under scrutiny, sufficient to withstand those anticipated forces?"

Id. at 191. In reference to the questions posed in Walker, it is clear that an integral part of the M/V CANADIAN OLYMPIC's maintenance and thus its ability to perform its Alaskan functions included the movement of provisions from shore to sea. The defendant, through its agent Colten, was fully aware of the need for such land missions. According to the district court, Colten directly ordered the plaintiff to take charge of the particular chore in question here. Moreover, Colten knew that the ice and snow, which one would reasonably expect to encounter ashore in the Alaskan winter, presented difficult and dangerous environmental conditions. He also knew or could easily have anticipated that special winter boots not available on the M/V CANADIAN OLYMPIC were necessary to carry out the boat's errands safely in such conditions. These factors, when analyzed in the context of the Walker criteria, lead us to the conclusion that the district court was not clearly erroneous in finding unseaworthiness.

Defendant, however, calls to our attention testimony to the effect that crew members traditionally have furnished their own clothing. The importance of this custom, if it be such, is undercut in the case before us by the fact that Dresser admittedly made available to the scientific crew wet weather gear including boots. See note 2 supra. More importantly, it has long been held that the determination of reasonable fitness is not limited by custom. E. g., White v. Rimrock Tidelands, Inc., 5 Cir. 1969, 414 F.2d 1336, 1339 (the fact that safety equipment, particularly protective boots, may not have been provided by other drillers is not controlling); Bryant v. Partenreederei-Ernest Russ, 4 Cir. 1974, 330 F.2d 185. In view of the "awesome obligations of seaworthiness," Saunders v. Pool Shipping Co., 5 Cir. 1956, 235 F.2d 729, 730; see Norris, supra § 298; see also, Cox v. Esso Shipping Co., 5 Cir. 1957, 247 F.2d 629, 636 (shipowner's "heavy obligation to provide seaworthy equipment") and the less than controlling significance of custom, we find on the record before us that the district court did not err in refusing to permit the testified-to custom set the outer limits of defendant's duties.

Thus, after careful scrutiny of the trial court proceedings, we have decided to affirm the district court's seaworthiness conclusion. The judge below obviously credited much of seaman Webb's testimony, particularly with respect to the circumstances of the accident. Given this factual background, and the above analysis, we do not find incorrect the lower court's determination that with the M/V CANADIAN OLYMPIC docked at a port where much ice and snow covered the ground, proper footgear should have been made available to plaintiff. See, White v. Rimrock Tidelands, supra (allegation that defendant shipowner did not provide protective boots or other safety equipment to seaman directed to enter...