1. The defendant failed to provide plain tiff with a reasonably
safe place in which to work.
2. The M/V ED RENSHAW was inadequately equipped with trained
crew hand for the operation of the vessel.
3. Orgulf failed to furnish plaintiff with adequate equipment
with which to perform his duties.
4. The defendant wrongfully terminated plaintiff in retaliation
for plaintiff's intention of filing a claim against defendant
In analyzing the law governing the out come in this case, the
Court will focus on the issues of the general maritime warranty
of seaworthiness and Jones Act negligence. At the close of
plaintiff's case-in-chief, this Court granted defendant's
Motion for a Directed Verdict as to Counts IX and X, which
arise out of the claim of retaliatory discharge. Plaintiff's
failure to present sufficient evidence of retaliatory discharge
was manifest. Nevertheless, the Court will elaborate herein on
its finding that plaintiff neglected to pursue and ex haust his
rights under the SIU collective bargaining agreement.
I. The Warranty of Seaworthiness
The warranty of seaworthiness is a doctrine of liability
without fault. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66
S.Ct. 872, 90 L.Ed. 1099 (1946). A ship owner has an absolute
and nondelegable duty to furnish a seaworthy vessel and
appurtenances that are reasonably safe and fit for their
intended use. 328 U.S. at 94-95 n. 11, 66 S.Ct. at 877 n. 11;
Weeks v. Alonzo Cothron, Inc., 466 F.2d 578 (5th Cir. 1972);
2 M. Norris, The Law of Maritime Personal Injuries §§ 300-303
(3d ed. 1975). As a general rule, a seaman's contributory
negligence will reduce the amount of damages for which the
vessel owner is liable, but it will not extinguish the seaman's
right to recovery. Seas Shipping, 328 U.S. at 94 n. 11, 66
S.Ct. at 877 n. 11.
Since the advent of steam navigation, courts have realized
that vessels have evolved from simple sailing ships, whose
seaworthiness any sailor could adequately judge, to complex
vessels full of complicated and dangerous machinery. Only
skills experts could ascertain seaworthiness be carefully
examining a ship's machinery an appliances. Hence, an absolute
duty was imposed upon shipowners to furnish seaworthy vessels
and injured seamen became entitled to greater compensation than
that afforded by "maintenance and cure." 328 U.S. 85, 91 n. 9,
66 S.Ct. 876 n. 9; see also Mahnich v. Southern S.S. Co.,
321 U.S. 96 103, 64 S.Ct. 455, 459, 88 L.Ed. 561 (1944)
Nevertheless, an exception arises to the shipowner's absolute
duty when the seaman's negligence is the sole cause of his
injury, Boudreaux v. Sea Drilling Corp., 427 F.2d 1160 (5th
Cir. 1970), or where the injury results from the "negligent use
of an otherwise seaworthy vessel." Peymann v. Perini Corp.,
507 F.2d 1318, 1322 (1st Cir. 1974), cert. denied,
421 U.S. 914, 9 S.Ct. 1572, 43 L.Ed.2d 780 (1975). When a seaman is the
cause of his own misfortune he will be barred from recovery.
Boudreaux, 427 F.2d 1160, 1161 (5th Cir. 1970).
Based on this exception, defendant argues that the plaintiff
cannot recover under a claim of unseaworthiness. Upon
consideration of all the evidence and testimony in this case,
the Court finds that plaintiff created the hazard that caused
his injury and that he is therefore precluded from recovery
based on a claim of unseaworthiness.
While plaintiff's complaint alleged that defendant did not
retain an adequate number of trained crew hands for safe
operation of the vessel, plaintiff's statements during trial
and his case-in-chief informed this Court that the only issue
of seaworthiness before the Court was whether the capstan rope
was a reasonably fit and seaworthy appliance.
Much of plaintiff's testimony strained this Court's credulity.
Plaintiff stated that he repeatedly sought permission to
prepare a new capstan line because it, like "all the lines,"
was frayed and in poor condition. Allegedly, the Captain,
Pilot, first mate Sam Wilson, and second mate Albert Mynes were
all entreated to allow plaintiff to make a new capstan line.
receive authority to make a new line, plaintiff used the
available line and began to operate the capstan. Approximately
fifteen minutes later, plaintiff observed great strain on the
line and alleged it attenuated from 21/2 inches to one inch and
began to "melt down." Plaintiff observed the line for what he
variously described as a "split second" and "one and a half
seconds" during which he saw the line rapidly deteriorate. When
the line broke and struck plaintiff in the calves, it allegedly
catapulted plaintiff twenty feet in the air. Plaintiff fell
head first on a stack of iron ratchets, yet his only
significant injury was that inflicted by the rope. Plaintiff
produced no corroborating evidence or witnesses and admitted
that even a new line would break if subjected to excessive
Albert Mynes, the second mate and "lead man," was responsible
for supervising the men on plaintiff's shift and inspecting the
lines to ensure that they were in good condition. Mynes
testified that any worn lines are immediately replaced. While
Mynes was not an eyewitness to the accident, he came to
plaintiff's aid soon after the rope broke. After plaintiff was
taken off the towboat, Mynes examined the broken capstan line
and found it to be in very good condition with no signs of
defect. The witness echoed the plaintiff's observation that a
new line could break if the capstan were operated improperly,
thereby putting excessive strain on the line.
Defendant also put Russell Jeffries, a deckhand who witnessed
the accident, on the stand. Jeffries stood on the starboard
head deck about six feet from the plaintiff when the accident
occurred. Jeffries stated that prior to and during the
accident, plaintiff was standing along the capstan's starboard
side away from the controls. The witness stated that in order
to operate the capstan properly, one should stand by the
controls out of harm's way. After the accident, which the
witness attributed to excessive strain on the line, Jeffries
examined the broken line and found it to be in good condition.
The location of the break simply indicated that the line had
been pulled apart. Mr. Jeffries and Mr. Mynes both disputed
plaintiff's contention that he had repeatedly complained about
the condition of the capstan line and requested permission to
make a new line.
It is well-settled that the mere happening of an event is not
proof of either negligence or unseaworthiness. Logan v.
Empresa Lineas Maritimas Argentinas, 353 F.2d 373 (1st Cir.),
cert. denied, 383 U.S. 970, 86 S.Ct. 1276, 16 L.Ed.2d 310
(1965); Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223, 228-29
(2d Cir.), cert. denied, 375 U.S. 829, 84 S.Ct. 73, 11
L.Ed.2d 61 (1963); see also, In re Marine Sulphur Queen,
460 F.2d 89, 99 (2d Cir. 1972). In the instant case, plaintiff has
failed to provide any evidence or corroborating testimony that
would permit this Court to find that a defect in the capstan
line proximately caused his injury.
In a similar case, Tanzi v. Deutsche
Dampfschiffahrts-Gesellschaft Hansa, 355 F. Supp. 432 (S.D.N.Y.
1973), a longshoremen was injured while unloading cargo from a
ship when a metal band fastened around a carton broke apart and
lacerated the plaintiff's fingers. Tanzi's failure to present
the slightest hint of evidence establishing the cause of the
breakage compelled the court to grant a directed verdict in
defendant's favor. Id. at 435.
In Mosley, 314 F.2d 223 (2d Cir. 1963), the court had to
decide whether a hook used to dislodge scrap metal that
obstructed a chute leading from the deck to the hold was
reasonably fit for its intended purposes. The court concluded
that plaintiff presented insufficient proof of unseaworthiness:
Mosley failed to put in any proof that the hook was defective,
worn, weakened, broken, improperly designed, insufficiently
strong, excessively old, or in any other way unfitted or
unsuited for its intended use."
314 F.2d at 228.
While the instant plaintiff did contend that the capstan line
was worn, he offered no proof beyond his own testimony that
such was the case. The testimony of all other witnesses is
consistent in refuting plaintiff's version of events, and
suggests that the capstan line would not have broken if
plaintiff had properly operated the capstan controls. It has
been held that a plaintiff must only prove unseaworthiness by
the "barest margin" of evidence. Baczor v. Atlantic Richfield
Co., 424 F. Supp. 1370 (E.D.Penn. 1976). Plaintiff has not
presented any evidence or corrobative testimony that would
justify a finding that plaintiff's burden has been met. The
Court therefore finds that the M/V ED RENSHAW was reasonably
fit to permit plaintiff to perform his task aboard ship with
reasonable safety and thus, was in seaworthy condition. The
proximate cause of plaintiff's damage was not any defect in the
capstan line; rather, plaintiff's improper operation of the
capstan led to his injury.
II. Jones Act Negligence
In a Jones Act negligence case, a plaintiff has the burden of
proving that the vessel owner's negligence proximately caused
his injuries. Chisholm v. Sabine Towing & Transport, Inc.,
679 F.2d 60 (5th Cir. 1982); Thornton v. Deep Sea Boats,
Inc., 399 F. Supp. 933 (S.D.Ala. 1975). One court has defined a
vessel owner's negligence under the Jones Act as follows:
Negligence is the failure to exercise the degree of care which
an ordinary prudent person would use under the circumstances in
discharging the duty that he owes to those who work on a
vessel. The shipowner has a continuing duty to provide a
reasonably safe place to work and to use ordinary care to
maintain the vessel in a reasonably safe condition.
Clements v. Chotin Transport, Inc., 496 F. Supp. 163, 165
(M.D.La. 1980). The mere fact that an injury occurred does not
give rise to a Jones Act claim. An injured seaman seeking
recovery must produce evidence indicating that the shipowner or
his employees were negligent. See Marvin v. Central Gulf
Lines, Inc., 554 F.2d 1295 (5th Cir. 1977), reh. denied,
559 F.2d 29, cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54
L.Ed.2d 782 (1978); Kent v. Shell Oil Co., 286 F.2d 746 (5th
Cir. 1961); Carlton v. M/G Transport Services, Inc., 698
F.2d846 (6th Cir. 1983). The plaintiff in this case has failed
to prove that any negligent action or omission of the defendant
proximately caused plaintiff's injury. Thus, the Court finds
that plaintiff is not entitled to recover under the Jones Act
from the defendant for the accident of April 28, 1985.
III. Retaliatory Discharge
At the close of plaintiff's case in chief, defendant moved this
Court to direct the verdict on Counts IX and X, which allege
retaliatory discharge, in its favor. The court of appeals for
this circuit has held that a district judge should direct a
verdict where the evidence, with all justifiably deducible
inferences, will not support a verdict in favor of the party
producing it. Hohmann v. Packard Instrument, Inc.,
471 F.2d 815, 819 (7th Cir. 1973). This circuit's formulation of its
standard is derived from the long-standing rule that
when the evidence in a case is such that without weighing the
credibility of witnesses there can be but one reasonable
conclusion as to the verdict to be reached, a district judge
should determine the proceeding by directing the verdict,
without submission to the [finder of fact] . . . .
See Brady v. Southern Ry. Co., 320 U.S. 476, 479-80, 64
S.Ct. 232, 234, 88 L.Ed. 239 (1943); 9 Wright & Miller,
Federal Practice and Procedure § 2524 (1971).
Panter v. Marshall Field & Co.,