Wescott v. Impresas Armadoras, S. A. Panama
| Decision Date | 14 November 1977 |
| Docket Number | No. 76-1611,76-1611 |
| Parties | Lloyd WESCOTT, Plaintiff-Appellee, v. IMPRESAS ARMADORAS, S.A. PANAMA, Defendant-Appellant, v. BRADY HAMILTON STEVEDORE CO., Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John R. Brooke (argued), of Wood, Wood, Tatum, Mosser & Brooke, Portland, Or., for defendant-appellant.
Raymond J. Conboy (argued), Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of oregon.
Before BARNES, and ELY, Circuit Judges, and VAN PELT, * District Judge.
FACTS
Wescott 1 was a longshoreman with 18 years experience hired by the Brady Hamilton Stevedore Co. ("Brady"), an independent contracting stevedore, to work aboard the Merchant Vessel 'Ioanna" which was owned and operated by Impresas Armadoras, S.A. Panama ("Impresas"). At the times herein considered, Brady had a superintendent in charge of the overall stevedore work on the vessel, a " walking boss" overseeing the operations in the hatches wherein the loading was performed, and a "gang boss" who directed the workers at each hatch.
The operation involved herein was the loading of two types of wheat onto the vessel Ioanna. On the morning of the accident, stevedore superintendent Wilhemson suggested using a sloping type separation wherein the first type of wheat is poured into the hatch, runs off to its natural angle of repose and a burlap material is placed on top over the stowed grain before the second type of grain is poured in. The ship's master, however, requested that a flat type separation be used which necessitated a levelling off of the first wheat before the burlap material is employed and the second type of wheat is poured on top. The ship's master did not instruct Brady's agents on how to accomplish the flat type separation as the process of loading was supposedly within the area of the Brady's expertise.
Brady chose to utilize a "panning" method to fill out the grain in the hatch. This involved the use of a curbed metal pan about 18 inches wide and about 8 or 9 feet in length (weighing approximately 200 pounds) which is attached to the grain spout and is movable so that the flow of the wheat off the pan can be directed. Rope taglines are used by longshoremen inside the hatch to control the pan.
Wescott and another longshoreman, Mock, were assigned by Brady to work inside the hatch during the panning process. Both were experienced and had made level separations before, although not through a panning process. After the pan was lowered into the hatch, Wescott and Mock could not find an appropriate fixture to secure the rope taglines. Although there were padeyes and other fixtures in the hatch, neither longshoremen could reach them. 2 Wescott and Mock informed their supervisors on deck of the trouble and after some discussion it was decided to proceed with Wescott and Mock holding the pan and two additional taglines tied to the lip of the pan.
Initially, a half-stream rate was used. Before too long, however, the force of the wheat through the spout onto the pan caused it to whip and swing about. Wescott had the pouring stopped. He did not inform the deck men of the movement of the pan or ask them to reduce the volume of wheat. After having the spout moved aft a bit, Wescott held the pan and Mock held onto the taglines, and Wescott ordered the pouring to begin again. Within two or three minutes the pan and spout started whipping even more violently this time and Wescott was injured while holding onto the pan until Mock could get clear of it.
At no time prior to the accident were the ship's personnel informed by Brady of the trouble in loading or advised that a flat type of separation would present any danger to the longshoremen.
On June 25, 1974, Wescott filed an action for personal injuries against the defendant-Impresas which was subject to the 1972 Amendment to the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq. ("1972 Amendments"). 3 Wescott had previously received a workman's compensation award from Brady. Impresas answered denying its liability and charging the plaintiff with contributory negligence. In a proposed draft of a pretrial order, Impresas, for the first time, raised the issue of the stevedore's negligence 4 and thus invoked, indirectly, the application of the Murray Credit (or more aptly an Equitable Credit) doctrine. 5 Brady moved and was granted permissive intervention under Rule 24(b) of the Federal Rules of Civil Procedure ("FRCP") in order to counter the defendant's charges that its negligence caused, in whole or in part, the plaintiff's injuries. Brady's answer to the defendant's initial answer contained a counterclaim against the Impresas to recover any monies paid to the plaintiff for workmen's compensation.
The trial on the issue of liability was segregated from the trial on the damages issue. The pretrial order adopted by the trial court and signed by the attorneys for the defendant and plaintiff, but not by the intervenor's attorney, did not raise the issue of Brady's negligence, the Murray Credit question or Brady's counterclaim against Impresas.
On September 10, 1975, at the close of trial, the court denied the defendant's motion for a directed verdict. The jury decided in the plaintiff's favor and in response to special interrogatories stated that it found Wescott not to have been negligent, Impresas to have been 60% negligent, and Brady to have been 40% negligent. The defendant moved, but was denied, a motion for judgment notwithstanding the jury verdict. Later, on the issue of damages, the jury awarded Wescott approximately $88,500. The judgment issued on December 3, 1975, by the trial court, omitting recitals, stated:
"It is Ordered and Adjudged that plaintiff Lloyd Wescott have and recover of defendant Impresas Armadoras, S.A. Panama the sum of $88,468.00."
The judgment did not mention the Murray Credit question or Brady's counterclaim.
On November 21, 1975, this court rejected the Murray Credit and Equitable Credit doctrines in its decisions in Dodge, supra, 528 F.2d at 671 6 and Shellman, supra, 528 F.2d at 680. In its "Designation of Record of Points to be Raised on Appeal," the defendant listed the failure of the trial court to apply the Equitable Credit doctrine. However, in its brief before this court, Impresas only argued as to whether the failure to grant the directed verdict or the motion for judgment notwithstanding the jury verdict was error.
Prior to oral argument herein, this court noted that a question of jurisdiction might have arisen due to the failure of the district court's judgment to pass upon the rights of Intervenor Brady. The parties were ordered to file supplemental briefs on the question, and did so.
1. Is the district court's judgment below final in terms of Rule 54(b) of the FRCP such that this court has jurisdiction to hear the appeal?
2. Did the trial court err in refusing to grant the defendant's motions for a directed verdict or judgment notwithstanding the jury verdict?
Although the documents and pleadings in the record before this court are rather sketchy and confused, it appears that the defendant-Impresas did raise the issue of the application of the Murray (Equitable) Credit doctrine. Likewise, Brady did submit a counterclaim against Impresas. Thus, the failure of the trial court to deal with the rights of the intervenor Brady or to make an express determination of a final judgment prevents the trial court's judgment from being a final appealable decision pursuant to Rule 54(b) of the FRCP and 28 U.S.C. § 1291.
Two arguments are raised asserting that this court has jurisdiction despite the failure to meet Rule 54(b). First, it is argued that Impresas abandoned the Murray (Equitable) Credit claim and hence the trial court did not have to rule on it. Cf. General Time Corp. v. Padua Alarm System, 199 F.2d 351 (2d Cir. 1952), cert. denied, 345 U.S. 917, 73 S.Ct. 728, 97 L.Ed. 1351 (1953); Sierra Club v. Morton, 400 F.Supp. 610, 620 (N.D.Cal.1975). That contention is unpersuasive for two reasons. Initially it is noted that the defendant-appellant, in its supplemental brief on jurisdiction, asserts to this court that it never abandoned the Murray (Equitable) Credit claim. Examining the record, it appears that Impresas did not strongly press the issue (e. g., the trial court's pretrial order does not list the Murray (Equitable) Credit question as a matter in contention; Impresas' Opening Brief to this court fails to mention the issue). However, there is no evidence to indicate any actual abandonment of the Murray (Equitable) Credit claim. Moreover, even if Impresas had abandoned the claim, Brady's counterclaim was still present and thus the trial court was still obligated to resolve the question of Intervenor Brady's rights.
A second argument is made that this court should take jurisdiction under the exception to the final judgment rule stated in Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152-154, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). In Gillespie, the administratrix of the estate of her son, Daniel, brought actions against respondent vessel owner-employer to recover damages for Daniel's death for herself and for Daniel's brother and sisters under the Jones Act and the Ohio Wrongful Death Statute. The respondent moved to dismiss all reference to the laws of Ohio and claims of Daniel's brother and sisters. The trial court agreed. Gillespie appealed for herself, joined by the brother and sisters. The respondent moved to dismiss the appeal on the ground that the rulings appealed from were not "final" decisions as required by 28 U.S.C. § 1291. The Court of Appeals determined the controversy on the merits without deciding the question of appealability and affirmed the trial court. The Supreme Court reversed on the merits but voiced approval of the Court of Appeals'...
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