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Morton v. Berman Enterprises Inc.

decided: January 19, 1982.

JOHN MORTON, PLAINTIFF-APPELLEE,
v.
BERMAN ENTERPRISES, INC., DEFENDANT-APPELLANT



Appeal by a shipowner from a judgment of the Eastern District of New York entered by Judge Eugene H. Nickerson after a jury trial ended with a verdict finding its vessel unseaworthy and awarding $110,600 damages and $644 maintenance and care to the injured seaman. Appellant's principal claim is that the trial judge committed reversible error in refusing to charge the jury that seaworthiness does not necessarily require an accident-free vessel or one with the best possible equipment. The award of damages is reversed and remanded for a new trial. The maintenance and cure award is affirmed.

Before Lumbard, Mansfield and Van Graafeiland, Circuit Judges.

Author: Mansfield

In this personal injury action brought by seaman John Morton pursuant to the Jones Act, 46 U.S.C. ยง 688, and general maritime law alleging negligence and unseaworthiness, defendant shipowner, Berman Enterprises, Inc. ("Berman"), appeals from a judgment of the Eastern District of New York by Judge Eugene H. Nickerson after a jury trial resulted in a verdict finding the vessel unseaworthy and awarding $110,600 damages and $644 maintenance and cure and from an order, 508 F. Supp. 342, denying Berman's post-trial motion for judgment notwithstanding the verdict or for a new trial. Berman advances numerous grounds on appeal, among them that the alleged accident was physically impossible, that there was no evidence of unseaworthiness, that the jury award was excessive, and that the jury's special verdict finding Berman non-negligent but the vessel unseaworthy is fatally inconsistent. We reverse the award of damages on the ground that the trial court's failure to give the requested jury charge that seaworthiness does not necessarily require an accident-free vessel or one with the best possible equipment was error and remand for a new trial.

Berman owns an oil tanker on which Morton was employed as a tankerman in the fall of 1977. Morton claims that he suffered a serious back injury on September 21, 1977, while working on Berman's tanker and attempting to connect the ship's fuel hose to the dock's intake facility in order to discharge the ship's cargo of oil. The 30-foot hose weighing 600 to 1,000 pounds is part of the tanker and is suspended by three hooks from a boom on the ship. When the tanker is berthed, the boom is swung into place over the docking facility and the hose is lowered and manipulated by the crew to line it up with the dock's intake manifold, where it is then secured by attaching six bolts. Morton claims that on September 21 while standing under the fuel hose with his arms wrapped around it and pushing with his shoulder to create some slack, apparently a routine practice, the hose came down from the middle of the three suspension hooks and carried him to the deck, causing a snap and sharp pain in his back. There followed a series of medical visits and therapy sessions leading Morton to claim a permanent disability preventing him from continuing his sea-going career.

The crux of the case is whether the manner in which the hose was suspended from the boom constituted negligence or rendered the vessel unseaworthy. The hose was suspended from the boom at three points, each consisting of a sling wrapped around the hose with an eye-hole slipped over an open metal hook attached to the boom. Morton contends that while he was pushing the hose the middle sling slipped out of the open hook, bringing the hose to the deck. Morton called as an expert witness Captain Adams, a licensed shipmaster, who testified that open hooks "present a hazard," that "straps have come out of hooks," and that "safety hooks" (such as hooks with spring-loaded latches or with mousings) were increasingly preferred over the traditional open hooks.

At the close of trial Judge Nickerson furnished to counsel a copy of his proposed jury charge, to which Berman objected on the ground that the instructions on unseaworthiness were inadequate. Judge Nickerson charged that to be seaworthy a vessel must be "reasonably fit to permit a seaman to do his work with safety."*fn1 Berman argued that, in light of testimony comparing open hooks with closed hooks that were available, the jury should also be instructed that seaworthiness requires neither an accident-free ship nor one with the best possible equipment. In particular, Berman submitted jury instruction requests Nos. 11 and 12:

"11. The warranty of seaworthiness does not require that a seaman be furnished an accident-proof ship, nor does it make the shipowner an insurer of the seaman's safety. Mitchell v. Trawler Racer, Inc. (362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960)).

"12. To satisfy the warranty of seaworthiness, a shipowner is not required to furnish the best possible ship, gear, or equipment but must simply furnish a ship, gear and equipment which is reasonably fit and suitable for its intended purpose. Italia Societa per Azioni di Navigazione v. Oregon Stevedoring C., 376 U.S. 315 (84 S. Ct. 748, 11 L. Ed. 2d 732) (1964)."

Judge Nickerson denied the requests on the grounds that the "reasonably fit" language in his proposed charge adequately encompassed the requested instructions, that Request No. 12 would in effect direct a verdict for the shipowner, and that if he expanded the charge beyond what the shipowner must provide to elaborate what a shipowner need not provide he would be involved in marshalling the evidence, supplanting the jury's judgment with his own.

After the jury returned its verdict Berman moved pursuant to Rule 50(b), F.R.Civ.P., for judgment notwithstanding the verdict or in the alternative under Rule 59 for a new trial. In his Memorandum and Order Judge Nickerson further elaborated his reasons for denying the requested charges:

"The instructions given by the court fairly state the law. There was no danger that the jury would construe "reasonably' fit to mean "absolutely' fit or "accident proof'. Nothing in the Mitchell case suggests that under the circumstances of this case the court was obliged to say that "reasonable' did not mean "perfect'. Indeed, a simple addition to the charge of defendant's requests might have misled the jury into supposing that as a matter of law an open hook was wholly appropriate. But the jury was free to determine that in the circumstances a hook that could not slip off was the only hook reasonably fit.

"If the court had granted defendant's requests, to prevent a misconception the court would also have had to point out other considerations bearing on the reasonableness of using open hooks. For the court to discuss evidentiary details (such as the miniscule cost of spring loaded hooks) seems unwise. There is a risk of omitting matters which jurors may properly take into account. Furthermore, as noted above, to reach a "reasonable' result the law seeks to draw on the joint experience of the jurors rather than the views of a single judge. By emphasizing only factors which it deems important the court may trench upon the function of the jurors."

We disagree with Judge Nickerson's reasoning and hold that the requested "negative" instructions should have been given.

The district court's jury charge on unseaworthiness employing the "reasonably fit" standard was an accurate statement of law as far as it went. However, in our view it did not go far enough. The requested negative instructions are taken directly from the Supreme Court's opinions articulating the unseaworthiness doctrine, Italia Societa v. Oregon Stevedoring Co., Inc., 376 U.S. 315, 84 S. Ct. 748, 11 L. Ed. 2d 732 (1964); Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960); Boudoin v. Lykes Brother Steamship Co., Inc., 348 U.S. 336, 75 S. Ct. 382, 99 L. Ed. 354, amended, 350 U.S. 811, 76 S. Ct. 38, 100 L. Ed. 727 (1955), whose language has been repeated on numerous occasions by this and other Circuits. See, e.g., Rice v. Atlantic Gulf & Pacific Co., 484 F.2d 1318 (2d Cir. 1973); Oliveras v. American Export Isbrandtsen Lines, Inc., 431 F.2d 814 (2d Cir. 1970); Stevens v. East-West Towing Co., Inc., 649 F.2d 1104 (5th Cir. 1981); Dunlap v. G. & C. Towing, Inc., 613 F.2d 493 (4th Cir. 1981) (quoting Rice v. Atlantic Gulf & Pacific Co., supra); Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972). ...


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