APPEAL from the Circuit Court of St. Clair County; the Hon.
THOMAS P. O'DONNELL, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, Federal Barge Lines, Inc., appeals from the judgment of the Circuit Court of St. Clair County, entered on a jury verdict awarding damages for personal injuries to the plaintiff, Gilbert Maxson, in an action brought under the Jones Act (46 U.S.C. § 688 (1976)) and the general maritime law.
At the time of the accident, the plaintiff was employed as a deckhand in the crew of defendant's vessel, M/V United States, a tow vessel on the Mississippi River. In the early morning hours of a rainy night near Osceola, Arkansas, a barge containing soybean oil was to be added to the tow. The plaintiff, another deckhand, and the first mate left the M/V United States and proceeded the length of several barges to the head of the tow, which the evidence indicates was poorly lighted. A river tug brought the barge to a space at the head of the tow. The plaintiff and the other deckhand boarded the barge in order to secure it into the tow. As the plaintiff was tightening a cable with a ratchet, he slipped on soybean oil that had been spilled on the deck of the barge and fell. He fell again at a different location on the barge. The witnesses agreed that the oil made footing very difficult. The following morning, the plaintiff left the M/V United States with a master's certificate entitling him to see a Public Health Service doctor. He was subsequently treated for injury to his back at various hospitals.
The defendant contends that the trial court erred in denying its motion for a directed verdict at the close of the evidence on plaintiff's claims of negligence under the Jones Act and unseaworthiness under the general maritime law.
Section 68(4) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 68(4)) provides that a verdict returned by the jury is not reversible if any one of alternative grounds of recovery is sufficient to sustain the verdict. (Hammonds v. Inland Tugs Co. (1979), 75 Ill. App.3d 377, 393 N.E.2d 1328.) Because we have concluded that the trial court did not err in submitting the seaworthiness claim to the jury, we need not consider the propriety of submitting the Jones Act claim.
1 The "warranty of seaworthiness" consists of the shipowner's absolute duty to furnish a vessel and appurtenances reasonably fit for their intended use. (Mitchell v. Trawler Racer, Inc. (1960), 362 U.S. 539, 4 L.Ed.2d 941, 80 S.Ct. 926.) A shipowner's liability for unseaworthiness is a species of liability without fault, derived from and shaped to meet the hazards imposed by the performance of maritime service, neither limited by conceptions of negligence nor contractual in character, owing to all within the range of its humanitarian policy. (Seas Shipping Co. v. Sieracki (1946), 328 U.S. 85, 90 L.Ed. 1099, 66 S.Ct. 872.) In Mitchell v. Trawler Racer, Inc., an accumulation of slime and gurry on a ship rail, which caused a seaman to slip and sustain injury, was held to be an unseaworthy condition.
The defendant does not dispute the proposition that a sufficient accumulation of oil on the deck of a ship may constitute an unseaworthy condition. Rather, it contends that there was no evidence that it exercised operational control over the barge at the time of the accident, and that it could not be held liable on the unseaworthiness claim in the absence of such evidence. Defendant cites West v. United States (1959), 361 U.S. 118, 4 L.Ed.2d 161, 80 S.Ct. 189; Lawlor v. Socony-Vacuum Oil Co. (2d Cir. 1960), 275 F.2d 599, cert. denied (1960), 363 U.S. 844, 4 L.Ed.2d 1728, 80 S.Ct. 1614; and Moye v. Sioux City & New Orleans Barge Lines, Inc. (5th Cir. 1968), 402 F.2d 238, cert. denied (1969), 395 U.S. 913, 23 L.Ed.2d 226, 89 S.Ct. 1759, and argues that "[t]hese cases clearly establish the principle that a defendant who does not have operational control of a vessel cannot be held liable for unseaworthiness of the vessel when the transitory condition giving rise to the unseaworthiness arose while the vessel was in the custody or control of a third person."
The plaintiff fell while he was using the ratchet device to remove the slack from a cable, the "breast-wire," that had already been secured to fittings on the barge to be inserted into the tow and a barge that was already secured in the tow. Steve King, the other deckhand, testified he did not remember whether the tugboat that had brought the barge from shore had left prior to the accident or was still holding the barge in place. He stated that usually the tug would leave after the barge was temporarily secured with "lines" (ropes), and then the deckhands would permanently secure the barge with cables.
Contrary to the defendant's contention, it is apparent that the defendant was in the process of exercising "operational control" at the time of the accident. The plaintiff fell in the course of performing the very duties through which the defendant's control over the barge was attained.
Furthermore, the cases cited by defendant do not support the contention that it cannot be held liable for the alleged unseaworthy condition of the barge. In West v. United States, the Supreme Court held that no warranty of seaworthiness extended to a shore-based worker on a ship in repair docks, where the work involved was not "ship's work" but rather a complete overhaul of such nature, magnitude, and importance as to require the vessel to be turned over to the repair contractor and docked at his pier for the sole purpose of making the vessel seaworthy. In Lawlor v. Socony Vacuum Oil Co., a shipowner was held liable on unseaworthiness grounds to a shipyard worker in a fall from an improperly secured ladder owned by the shipyard, where the plaintiff was doing work traditionally done by seamen, where there were no major repairs or extensive changes being made to the vessel as in West, and the shipowner was in general control of the vessel, even though the shipyard was in control of the scaffolds and ladders. Moye v. Sioux City & New Orleans Barge Lines, Inc. reviewed the above cases and held that there was no warranty of seaworthiness running from a barge owner to a shipyard worker where the owner had completely surrendered control of the barge to the shipyard.
To the extent that these cases establish control of a vessel as a prerequisite to liability for unseaworthiness, they do not preclude liability here, where the accident occurred while defendant was exercising control. Also, there is no question that the plaintiff was engaged in "ship's work."
These cases serve to limit liability of a shipowner to a shipyard worker injured as a result of an unseaworthy condition on the vessel, only where the condition arises and the injury occurs after a complete surrender of control by the defendant shipowner to a shipyard for repairs or work not traditionally done by seamen. A different case is presented where, as here, the defendant takes operational control of a vessel owned by another, and one of the defendant's deckhands is injured as a result of an unseaworthy condition existing upon the vessel.
In Blair v. United States Steel Corp. (3rd Cir. 1971), 444 F.2d 1390, cert. denied (1972), 404 U.S. 1018, 30 L.Ed.2d 666, 92 S.Ct. 681, a longshoreman fell on an accumulation of ice on the deck of a barge and brought an unseaworthiness claim against his employer, the bailee in exclusive possession of the barge. The court held that the defendant was an owner pro hac vice standing in place of the owner for the voyage or service contemplated and bearing the owner's responsibilities.
2 The case before us is essentially comparable. While the nature of the legal relationship under which the instant defendant assumed control of the barge is unclear, Blair appears to hold that the existence of possession and control is a decisive factor in determining whether a party bears the owner's responsibilities for the voyage or service contemplated. Here, the service contemplated included the entry upon the barge by defendant's deckhands for the purpose of securing the barge into the tow. Defendant's contention that the M/V United States could not exercise operational control of the barge until it had ...