Williams v. Brasea, Inc., Vessel Ciapesc I, 72-3623.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: GEWIN, THORNBERRY and SIMPSON, Circuit
• Citation: 497 F.2d 67
• Parties: Roy C. WILLIAMS, Plaintiff-Appellant-Cross Appellee, v. BRASEA, INC., and VESSEL CIAPESC I, her engines, etc., Defendants-Appellees-Cross Appellants, Bender Welding & Machine Co., Inc., Defendant-Appellee-Cross Appellant, Construction Machinery Company, Defendant-Appellee-Cross Appellant.
• Docket Number: No. 72-3623.,72-3623.
• Decision Date: 05 July 1974

497 F.2d 67 (1974)

Roy C. WILLIAMS, Plaintiff-Appellant-Cross Appellee, v. BRASEA, INC., and VESSEL CIAPESC I, her engines, etc., Defendants-Appellees-Cross Appellants, Bender Welding & Machine Co., Inc., Defendant-Appellee-Cross Appellant, Construction Machinery Company, Defendant-Appellee-Cross Appellant.

No. 72-3623.

United States Court of Appeals, Fifth Circuit.

July 5, 1974.

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M. W. Meridith, Jr., Corpus Christi, Tex., for Const. Mach. Co.

C. D. Kennedy, William M. Jensen, Houston, Tex., Jack G. Carinhas, Jr., Brownsville, Tex., for Brasea.

A. J. Watkins, Bill R. Bludworth, Houston, Tex., for Bender.

William R. Edwards, Corpus Christi, Tex., W. A. Cleveland, Jr., Jacksonville, Fla., for Williams.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

SIMPSON, Circuit Judge:

The shrimp trawler CIAPESC I, out of Freeport, Texas was trawling for shrimp in the Gulf of Mexico, when the events leading to this involved lawsuit took place. Roy C. Williams, the plaintiff below and appellant (and cross-appellee) here, was master of the CIAPESC I at the time he was seriously injured aboard the vessel. Williams prevailed below in this action against the owner of the vessel, Brasea, Inc. (Brasea), its builder, Bender Welding and Machine Company, Inc. (Bender), and the designer-manufacturer Construction Machinery Company (CMC), of the winch assembly involved in the accident. As to Brasea the action was premised upon unseaworthiness of the CIAPESC I and negligence under the Jones Act, Title 46, U.S.C. Sec. 688. Bender and CMC were sued on theories of negligence and products liability. Brasea cross-claimed for a right of indemnity as against Bender and CMC, and Bender cross-claimed for indemnity from CMC.

The several claims and cross-claims were tried together to the district court without a jury. Final judgment was entered for Williams in the sum of $316,500, which was reduced from a finding of damages in the amount of $527,500, by 40% ($211,000.00), the proportion of damages the court found to represent Williams' contributory negligence. Liability was found as to Brasea based on the negligence of employee Terry, a crewman aboard the vessel, and unseaworthiness of the CIAPESC I. Bender and CMC were found liable on the theory of products liability set forth in the Restatement of Torts 2d, Sec. 402A. Both Bender and CMC were further found not to have been negligent, and both cross-claims for indemnity were denied. By amendment to the final judgment, the liability found was changed from joint and several against the defendants to primary-secondary. Williams gave timely notice of appeal and all defendants filed cross-appeals. After review of the briefs, record, and argument we remand for further findings in connection with the negligence issues and reverse on the issue of products liability.

I FACTS

On December 10, 1969, the CIAPESC I was trawling for shrimp in the Gulf of Mexico off the Texas coast. Aboard were Williams, master of the vessel, and two crewman, Edward Terry and Jeremiah Richo. The accident involved a power winch designed and manufactured by CMC and installed by Bender during the ship's construction. The winch had three drums which revolved when power was supplied to the winch. Two machined steel winch heads, called "catheads", were attached to and extended from the drums. Catheads resemble large empty spools perhaps a foot high and of somewhat smaller diameter. Their function largely is to assist in pulling "whiplines", a whipline being a line attached to a shrimp net and run thence through a block and tackle down to the deck of the ship from the A frame boom which supports it. By wrapping the loose end of the whipline around the cathead and engaging the power, a crewman uses the rotation of the cathead to pull the net alongside the vessel and from there out of the water and up to the deck.

There were two catheads on board the CIAPESC I. A push-pull handle for engaging the power to the winch, and thus the catheads, was located between the two. A low platform on which to stand in front of the handle facilitated reaching it. On the day in question, with both port and starboard nets out, in the 25-fathom area, they hit a "bad bottom" and Williams, the master, ordered the crew to pick up the nets. As the port net was being retrieved the whipline running from the net through the snatch block to and around the cathead became tangled around the cathead. Terry cut the power to the cathead and Williams, who had been below, came on deck to see what had happened. Recognizing the problem, he instructed Terry to pull on the line in order to create some slack. Williams then began untangling the line around the cathead with his hands.

From all the testimony it appears that, at this precise moment, Terry was standing on the platform in front of the on-off power handle, between the two catheads. Williams was on the other side of the cathead on which the line was tangled, perhaps two feet away. Richo was about six feet away, but was not watching Terry or Williams. A factual dispute exists with respect to what immediately ensued. Terry testified that Williams ordered him to cut on the power of the winch and he did so. Williams denied giving any such order. Richo did not hear anything, but that fact is by no means conclusive, because he was not paying attention and because extraneous noises existed at the time.

When the power came on the cathead began to turn and the line quickly became taut. Williams' left hand caught in the line on the cathead and he yelled for Terry to take it out of gear. The cathead continued to turn for three or four revolutions after it was disengaged, as do all catheads mounted on winches that lack a brake. While trying to free himself, Williams caught his right hand in the line on the cathead and this arm was pulled further into it. He was cut loose after having been carried over the cathead several times thus entangled. The resulting injuries required the amputation of both of Williams' arms. There was further conflict in the evidence as to who actually turned the power off and whether it was before or after Richo freed Williams by cutting the line. Terry further testified that he looked at Williams just before he was ordered to turn on the power and, while he could not see his hands, he seemed to be in the clear.

II APPEAL BY WILLIAMS

Williams appeals from several aspects of the court's final judgment. Most significant in his attack on the 40% reduction of the judgment because of his asserted contributory negligence. He first urges that he was not in fact contributorily negligent, and second that, even if he were, the court made no factual findings to support its 40% comparative negligence figure. In our view the question of Williams' contributory negligence vel non is inextricably tied to the issue of (a) Terry's, and (b) hence Brasea's,¹ negligence. We deal first therefore with the competing negligence claims of Williams and Brasea.

The district court's memorandum-opinion and order contains two references to the dispute as to whether Williams ordered Terry to engage the power and its relevance to liability. The court initially stated that "whether plaintiff told him to do so or not, when Terry turned on the power without making a reasonable effort to be sure plaintiff was clear of danger, he was negligent, . . ." App. at 1746. Later in its opinion the court observed that "the Court is not prepared to find that Plaintiff gave Terry specific instructions to turn on the power, . . ." App. at 1758. The lower court clearly reasoned that Terry was negligent in turning on the power even if he was ordered by Williams to do so.

Williams' contributory negligence was put on a different footing. There was testimony regarding alternative methods Williams might have used in an effort to untangle the line around the cathead, such as prying it loose with a Stillson wrench or simply cutting it with a knife. This was perhaps the basis of the district judge's 40% comparative negligence figure, since in his reference to the reduction he stated that "(h)e took the hard way, a dangerous way, in trying to untangle the rope . . . (h)e disregarded the existing danger, when, if careful, he could have avoided being caught by the tangled rope, when the rod was pushed in". App. at 1757.

We determine that the present findings of fact in the record will not support the trial court's legal conclusions as to negligence and contributory negligence, and accordingly remand for further factual determination consistent with the following discussion.

As noted above, the trial court declined to find whether or not Williams instructed Terry to engage the power. Williams asserts that the burden of proof on that issue rested with Brasea by reason of its allegation that Williams gave the order in support of its contributory negligence claim. From there Williams argues that, since the court made no finding, and the burden of proof was on Brasea, a failure to carry that burden below means that we must assume on appeal that the order was not given. We find that argument imaginative but unavailing. The fact that the court did not make a factual finding is the functional equivalent of not passing on whether the burden of proof was carried — not a premise from which to infer that the burden was not carried. Specifically, the district court held that Terry was negligent even if the order was given ; thus that it was unnecessary to resolve the factual dispute.

On the subject of Terry's negligence, we review the record mindful that factual determinations are to be overturned only if clearly erroneous. F.R.Civ.P. 52(a). McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. This court has consistently interpreted that rule to mean that a finding of fact should not be reversed if supported by substantial evidence. Lentz v. Metropolitan Life Ins. Co., 5 Cir....