Before MEDINA, FRIENDLY and SMITH, Circuit Judges.
Benjamin Blier was employed as a seaman purser on the vessel SS American Leader, owned by defendant United States Lines Company, and he was injured on May 31, 1957 as he was boarding the vessel on his return from shore leave. The American Leader, having arrived from a foreign port, was at anchor in the Port of New York, at the Stapleton anchorage. Blier's version of the accident was that the third section of a three-piece gangway, rigged into place by a s.ore gang employed by defendant, provided a series of five wooden steps leading from the top of the bulwarks of the vessel to the main deck, and that as he came down these steps he slipped "on a large smear of grease on the second or third steps and skidded down the gangway twisting his right ankle." The claim for recovery was based on the familiar double aspect of unseaworthiness under the general maritime law and negligence under the Jones Act, 46 U.S.C.A. § 688. The proofs adduced by the shipowner tended to establish that there was no grease on the steps and that the shipowner had no notice of the presence of any grease on the steps. The case was submitted to the jury, in a charge to which plaintiff's counsel took no exceptions and with respect to which he expressed satisfaction, except that he expressed the thought that it might be helpful to the jury if the trial judge saw fit to give the jury some examples of unseaworthiness. No exception or objection was noted when the trial judge refused to do this, and the jury rendered a general verdict for defendant. Plaintiff appeals.
We are urged to reverse on the ground that Judge Dimock is said to have instructed the jury that "a vessel does not become unseaworthy because of a temporary condition of unseaworthiness"; that his instructions were such as to require a finding for defendant on the unseaworthiness count, unless the jury found defendant had notice of the existence of such a "temporary unseaworthy condition"; that the rule thus alleged to have been applied by Judge Dimock had been "closely adhered to by this circuit right down to and including the case of Poignant v. United States, 1955, 225 F.2d 595," and the dictum of Judge Byers in Pierce v. Erie R. Co. et al., 2 Cir., 1959, 264 F.2d 136, at page 139; and that this rule had been overturned and repudiated as bad law by the Supreme Court in its recent decision in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941, decided on May 16, 1960, just twelve days after the rendition of the verdict in this case. If these assertions were correct we might well have given serious consideration to appellant's contention that the trial judge had committed "fundamental error." In such a case we clearly have power to decide on the whole trial record whether the likelihood of a miscarriage of justice is such as to warrant a review of the "error," even in the absence of objection or exception at the trial. See Hormel v. Helvering, 1941, 312 U.S. 552, 557, 61 S. Ct. 719, 85 L. Ed. 1037; Troupe v. Chicago, Duluth & Georgian Bay Transit Co., 2 Cir., 1956, 234 F.2d 253; Thorp v. American Aviation and General Ins. Co., 3 Cir., 1954, 212 F.2d 821, 824-825; Massachusetts Bonding & Ins. Co. v. Ray Dilschneider, Inc., 8 Cir., 1953, 203 F.2d 556, 560; Smith v. Welch, 10 Cir., 1951, 189 F.2d 832, 836-837; Dowell, Inc. v. Jowers, 5 Cir., 1948, 166 F.2d 214, 2 A.L.R.2d 442; Shokuwan Shimabukuro v. Higeyoshi Nagayama, 1944, 78 U.S.App.D.C. 271, 140 F.2d 13; 5 Moore, Federal Practice, Para. 5104, at 2503-04.
We find, however, that Judge Dimock's instructions to the jury were wholly unexceptionable, that they are in strict conformity with the teaching of Mitchell and that appellant has misunderstood the course of decision in this Circuit concerning the doctrine of seaworthiness as applied to temporary conditions arising after the commencement of the voyage. We shall, accordingly, briefly comment on the point decided in Mitchell, on the effect of this decision on rulings made by us in Poignant and other cases, and on the instructions actually given by Judge Dimock.
The development in this Circuit of principles of law governing the liability of a shipowner for unseaworthiness, caused by a temporary or transitory condition that arose after the commencement of the voyage, is illustrated and illuminated by the fine opinion of our brother, the then Judge Harlan, in Dixon v. United States, 2 Cir., 1955, 219 F.2d 10. Two lines of decisions developed in the course of time relating to slippery conditions on stairways, passageways and other places on shipboard caused by grease, vegetable matter or other similar substances. A common feature of these cases and the one now before us is, there are numerous ways in which the slippery substance might have been placed where it was and very little the shipowner could do about it unless he had some notice of the existence of the condition. The Third Circuit held there was no liability for unseaworthiness caused by such a temporary condition, in the absence of some proof that the shipowner knew of the condition, and had an opportunity to remedy it. Cookingham v. United States, 3 Cir., 1950, 184 F.2d 213. In that case a ship's cook had slipped on some Jello on a stairway. In Poignant, where a stewardess slipped on a piece of apple peel in a passageway leading to the dining room, we held the question of seaworthiness was one of fact to be decided by the trier of the facts, even in the absence of proof that the shipowner had notice of the condition and an opportunity to remedy it, and the Ninth Circuit took the same position in Johnson Line v. Maloney, 1957, 243 F.2d 293. Finally, the view that there could be liability for a temporary condition of unseaworthiness, in the absence of any fault on the part of the shipowner, was "impressively challenged by Chief Judge Magruder's opinion,"*fn1 writing for the First Circuit in Mitchell, 1959, 265 F.2d 426. There a member of the crew of a fishing trawler slipped on some slime and fish gurry on the rail of the trawler as he was going ashore. The slime and fish gurry had remained on the rail after the earlier unloading of the catch. The record in Mitchell presented in the clearest possible way the question of whether the shipowner could be held liable for damages caused by a temporary condition of unseaworthiness, in the absence of any fault on his part, as the trial judge specifically instructed the jury that they could not find for the plaintiff on the unseaworthiness count unless they also found as a fact "that the slime and gurry had been on the ship's rail for a period of time long enough for the respondent (shipowner) to have learned about it and to have removed it." Exception was taken to this instruction and it was the basis for the reversal by the Supreme Court. Thus the shipowner's liability for unseaworthiness was held not to be limited by concepts of common law negligence. As the Supreme Court has spoken, we need not concern ourselves with the origin or the development of the doctrine of transitory unseaworthiness up to this point. Obviously, the doctrine has grown and prospered since we decided Dixon in 1955. But what of the future? It is not likely the last word has yet been written on the subject of the liability of the shipowner for a temporary condition of unseaworthiness.
Appellant seems to think that all the seaman must establish to warrant a recovery in this case is that there was grease on the gangway and that there was grease on the gangway and that he slipped on that grease and was injured. In effect he says: grease is slippery, and, if grease was on the gangway and appellant slipped on it, he is ipso facto entitled to recover, as the vessel must have been unseaworthy. But the teaching of Mitchell is merely that there must be and is a "complete divorcement of unseaworthiness liability from concepts of negligence," and that the duty of the shipowner is not "to furnish an accidentfree ship," but "only to furnish a vessel and appurtenances reasonably fit for their intended use," and the case was remanded for a new trial on the issue of unseaworthiness on this basis.
Where does Poignant fit into this framework? In Mitchell Mr. Justice Harlan, in his separate dissenting opinion, calls attention to the fact that in Poignant, the vessel lacked garbage chutes and the garbage was pulled, in cans, through the passageway where Poignant fell, to a railing, where it was jettisoned. He adds (362 U.S. at pages 570-571, 80 S. Ct. at page 943):
"The Court of Appeals first expressed the view that any unseaworthy condition which existed had in all probability arisen after the voyage had commenced. It said, much as the Court now holds, that Alaska Steamship Co. v. Petterson, 347 U.S. 396 [74 S. Ct. 601, 98 L. Ed. 798], required it to apply a rule of absolute liability nonetheless. It then put, as the critical issue, the question whether the presence of some garbage in a public passageway constituted an unseaworthy condition, and, finding the matter to turn on an issue of fact, remanded the case for trial. However, it is important to note the manner in which the court dealt with the problem. Although at the outset of the opinion the allegedly unseaworthy condition was assumed to be the presence of garbage in a passageway, 225 F.2d at page 597, the remand was in fact directed to the question whether the absence of garbage chutes rendered the vessel not reasonably fit for the voyage, and therefore unseaworthy. Id., at 598. This, of course, would be a condition going to the proper outfitting of the vessel for sea travel, and a clear case of initial unseaworthiness. In such event, the injury would have been the proximate result of that unseaworthiness, for it was by reason of the lack of chutes that garbage was carried through the passageways at all." (Emphasis that of Mr. Justice Harlan.)
The statement in Poignant on the subject of the remand, and the new trial, is (225 F.2d at pages 598-599):
"Since the dismissal of the claim based on alleged unseaworthiness was not required by the bare facts stated in the findings below, it becomes necessary to consider whether there was sufficient evidence on this issue to raise questions of fact which only the trial judge can resolve. As to this, there was some testimony tending to support possible inferences (1) that the absence of garbage chutes on the vessel was the proximate cause of the accident and (2) that comparable vessels generally are provided with such chutes. Especially since this testimony involves questions of credibility, its weight and any inferences which it may, or may not, require are matters for determination by the trial judge.
"Reversed and remanded for retrial on the issue of unseaworthiness."
The concurring opinion of Judge Frank would seem to indicate that he understood the holding of the Court to be in more general terms, and not limited to the question of unseaworthiness based upon the absence of garbage chutes and proof that other similar vessels were equipped with garbage chutes. But we cannot be sure of this, and the subject is not relevant in any event, in view of the holding of the Supreme Court in Mitchell. We would then conclude that, in order to follow Mitchell, in the absence of the submission of some specific request for instructions based upon the proofs adduced by the parties in a particular case, a trial judge should instruct the jury that, where the claim is based upon an alleged temporary condition of unseaworthiness, they can find for the plaintiff on the issue of unseaworthiness only if they find that the temporary condition in fact existed, that it was the proximate cause of plaintiff's injuries, and that the shipowner had not furnished and maintained a vessel and appurtenances reasonably fit for their intended use. And this is precisely what Judge Dimock did. His complete instructions on the subjects of unseaworthiness and negligence follow:
"First I will try to explain to you the term 'unseaworthiness'. The owner of a vessel has an absolute duty to provide a seaworthy vessel. This means that the defendant was obligated to furnish and maintain safe working conditions. Seaworthiness is reasonable fitness for the particular voyage, or directed to the present case, reasonable fitness for the ...