Catherine Poignant, Libellant-Appellant v. United States , 225 F.2d 595 ( 1955 )

HINCKS, Circuit Judge.

Libellant brought this action to recover for personal injuries sustained while employed as a stewardess on board defendant’s vessel, the S. S. Marine Flasher. Her libel contained two causes of action: the first was for recovery on the ground of negligence under the Jones Act, 46 U.S.C.A. § 688, and on the ground of unseaworthiness; the second was for maintenance and cure. The trial court, sitting in admiralty without a jury, dismissed the first cause of action and gave the libellant relief under the second cause of action. No appeal is taken from this latter holding. The sole question confronting us is whether the dismissal of the first cause of action was right.

The S. S. Marine Flasher, on September 20, 1947 while owned and operated by the United States, was docked at Bremerhaven, Germany, for the purpose of discharging passengers. At about 1:20 a. m. on the above date, libellant slipped and fell in one of the passageways located near the vessel’s dining room. It is undisputed that her fall and consequent injuries was caused by the presence of an apple skin, or some piece of garbage which looked like an apple skin, on the floor of the passageway.

The findings of fact made below do not precisely state when or how the apple skin got in the passageway. The trial court did find that the vessel had no garbage disposal chutes: the practice was at the conclusion of each meal to pull large cans of garbage from the galley over the passageway in question to the ship’s rail for dumping overboard. As to the amount of garbage in the passageway, the findings below went no further than the statement that, “ * * * it was not littered with garbage.” The findings did not indicate whether the apple skin had been dropped out of one of the garbage cans or whether it had been dropped by a passenger or seaman.

The trial court found that the defendant had no notice, actual or constructive, of the presence of the apple skin in the passageway and held that this lapse in libellant’s proof was fatal to her cause of action for negligence. The finding was consistent with the evidence in the case. We think that the trial court rightly ruled that libellant was not entitled under the Jones Act to recover on the ground of negligence. Daniels v. Pacific-Atlantic S. S. Co., D.C.E.D.N.Y., 120 F.Supp. 96; Adamowski v. Gulf Oil Corp., 3 Cir., 197 F.2d 523; Guerrini v. United States, 2 Cir., 167 F.2d 352; Boyce v. Seas Shipping Co., 2 Cir., 152 F.2d 658.

The trial court also held, without accompanying discussion, that the respondent could not be held to have breached its warranty of seaworthiness.

Under the general maritime law an injured seaman, once he proves an injury caused by an unseaworthy condition, may recover without proof of negligence on the part of the vessel’s owner. In Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66 S.Ct. 872, 877, 90 L.Ed. 1099, the Supreme Court, in referring to the doctrine of unseaworthiness, stated: “It is essentially a species of liability without fault, analogous to other well known instances in our law. Derived from and shaped to meet the hazards which performing the service imposes, the liability is neither limited by conceptions of negligence nor contractual in character. * * * It is a form of absolute duty owing to all within the range of its humanitarian policy.” See also The Osceola, 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760; Mahnich v. Southern S. S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561. Since the inquiry in unseaworthiness cases is not directed to the issue of the owner’s fault, it follows that prior notice, actual or constructive, of the un-seaworthy condition is not essential to a cause of action based on that doctrine.

That such is the law is further apparent from the decision of the Supreme Court in Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798. In this case, the court held that the relinquishment of control over the vessel to an independent contractor did not serve to exonerate the owner from his absolute liability: it even applied that rule' to defective equipment which had been brought on board by the contractor and over which the owner had no control. On this point, the Petterson case, in affirming Petterson v. Alaska S. S. Co., 9 Cir., 205 F.2d 478, overruled several decisions of this court, — a fact which we noted in Berti v. Compagnie De Navigation Cyprien Fabre, 2 Cir., 213 F.2d 397. See also our decision in Tarkington v. United States Lines Co., 2 Cir., 222 F.2d 358. Since lack of control does not prevent the accrual of absolute liability for unseaworthiness, there is no reason why that liability should depend upon notice to the owner.

However, other problems are presented. Here the accident occurred after the voyage had been commenced and while the vessel was docked in a foreign port. It now seems settled that an owner is absolutely liable for injuries sustained by a seaman after the inception of the voyage when the injuries are caused by an unseaworthy condition which existed before the vessel commenced her voyage or before she departed from her home port. Dixon v. United States, 2 Cir., 219 F.2d 10; Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927; Balado v. Lykes Bros. S. S. Co., 2 Cir., 179 F.2d 943.

Here, however, the alleged unsea-worthy condition, like the accident itself, in all likelihood arose after the voyage had commenced. Does the doctrine of absolute liability for unseaworthiness apply in such eases?

In the Dixon case, supra, this court found it unnecessary to rule upon that point. Here, however, the fact situation is such that the question must be answered and the answer, we think, depends upon applicability of the concept of control. In the Dixon case it was said [219 F.2d 15]: “Moreover, while the vessel is at her home port the owner has opportunities — not always, or to the same extent, available after the voyage starts — to correct dangerous conditions .aboard the ship.” This may well be true. However, as already noted, it was held in the Petterson case that absence of control by the owner does not exonerate him from absolute liability for unseaworthy conditions. We think that the rationale of that decision extends as well to unseaworthy conditions arising after the voyage began as to those earlier arising. We hold, therefore, that although the condition here complained of did not arise until after the voyage began and the vessel was in a foreign port, recovery was not barred on that account.

We now come to the main problem in this case. Did the presence of an apple peel on the floor of a public corridor in the vessel constitute an unseaworthy condition, for the harmful effect of which the owner is absolutely liable to a member of the crew? As to this, there have been a number of cases involving transitory substances temporarily in the vessel and the cause of harm, in which it was held that there was no breach of the warranty of seaworthiness. Cookingham v. United States, 3 Cir., 184 F.2d 213, certiorari denied 340 U.S. 935, 71 S.Ct. 495, 95 L.Ed. 675; Adamowski v. Gulf Oil Corp., D.C., 93 F.Supp. 115, affirmed 3 Cir., 197 F.2d 523; Daniels v. Pacific-Atlantic S. S. Co., D.C.E.D.N.Y., 120 F.Supp. 96; The Seeandbee, 6 Cir., 102 F.2d 577.

The Petterson case, later decided, makes it plain that the results reached in this line of cases cannot be justified by the mere fact that the existence of such a condition was not brought to the knowledge of the owner or that he lacked opportunity to prevent or correct the condition. Nevertheless, that opinion does not go so far as to hold that unseaworthiness arises from every defect in a vessel or in its equipment and maintenance, whether consisting of a transitory substance or otherwise. As to this, subsequent to the Petterson decision the Supreme Court has held, in a suit by a seaman for an assault by a fellow member of the crew, that the owner was liable but only because the oifending seaman was not “ ‘equal in disposition and seamanship to the ordinary men in the calling.’ ” Boudoin v. Lykes Bros. S. S. Co., 348 U.S. 336, 75 S.Ct. 382, 384. In the Boudoin opinion the court makes it abundantly clear that it has not overruled the long-settled doctrine that to be seaworthy a vessel does not need to be free from all cause for mishap, — that it is enough if it is reasonably fit. In its opinion the court cited The Silvia, 171 U.S. 462, 19 S.Ct. 7, 8, 43 L.Ed. 241, for its statement that “the test of seaworthiness [in a cargo suit] is whether the vessel is reasonably fit to carry the cargo.” (Emphasis supplied.) And to like effect it cited The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65. It approved the use made of this test in Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, quoting from Judge Learned Hand’s opinion in that case as well as from his opinion in Jones v. Lykes Bros. S. S. Corp., 2 Cir., 204 F.2d 815. And the Boudoin opinion, as to the test of seaworthiness, further said: “The problem, as with many aspects of the law, is one of degree. Was the assault within the usual and customary standards of the calling?” If so, it was said, “it is one of the risks of the sea that every crew takes.”

We think the import of the Boudoin case is that just as the vessel is not unseaworthy because of the misbehavior of a seaman whose disposition and skill is the equal of that of ordinary men in the calling, so it does not become unsea-worthy by reason of a temporary condition caused by a transient substance if even so the vessel was as fit for service as similar vessels in similar service. This was essentially the holding of Doucette v. Vincent, 1 Cir., 194 F.2d 834, 838, in which it was said that to make his vessel seaworthy an owner is not obligated to provide “the best possible vessel and gear” and that his obligation is satisfied by provision of a vessel and gear “reasonably safe and suitable” even if there may have been equipment “more modern or more perfect in some detail.” We so held in Berti v. Compagnie De Navigation Cyprien Fabre, supra. We there ventured a conclusion that our holding was not in conflict with the Pet-terson case. The later decision of the Supreme Court in Boudoin v. Lykes Bros. S. S. Corp. confirms that view. And so, we hold, although the owner is absolutely liable for failure to provide a vessel which measures up to the standard of the law, that standard is not perfection but reasonable fitness.

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.¹ 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.

1 . That comparable vessels generally are not provided with such chutes is one factor, but not necessarily a conclusive factor, which the trier may consider in judging of unseaworthiness. The T. J. Hooper, 2 Cir., 60 F.2d 737.