face wires to their parking place when not being used - along the walkways on both sides of the tug, the safety line has to be taken down. When there is no reason to work with it down the safety line should be up. There is no reason for leaving the safety line down when work is not being performed requiring it to be down. Yet, according to the testimony even of the defendant's witness, leaving the safety line down between the upfacing and facing up of the barges was a habit, a custom. Apparently experienced seamen knew this and compensated for it by avoiding using the walkways or being agile in their using them when the facing wires were stored on deck and the safety lines were still down. The captain of the tug himself conceded that leaving the safety lines down under the circumstances of this incident was not necessary but was the usual way.
Under the doctrine of unseaworthiness the ship owner has had the absolute duty to correct this practice or be totally responsible for all injuries suffered by any member of the crew who would stumble and be dragged overboard by sliding facewires, no matter how contributorily negligent the crew member might have been. Under the law of the sea this is an absolute liability that attaches to an unnecessary but hazardous condition. This is more than the doctrine of liability even without fault. There is fault here when the owner of the vessel is aware of or fails to find out about a natural hazard and does nothing about it.
In this case the jury answered only the first two of the five interrogatories on the verdict form and then it proceeded on to sign and return a verdict for the vessel and its owner and against the injured pilot of the boat. The first interrogatory was: "Was defendant Conti Carriers and Terminals, Inc. (the owner of the boat) negligent?" Following that question was this instruction: "If your answer . . . was (NO), . . . go on to the Interrogatory No. 2" The jury's answer was "No." Interrogatory No. 2 was: "Was the M/V Conti Karla (the defendant's boat) unseaworthy?" Following that question, one of the instructions the verdict form gave was this: "If your answer to Interrogatory No. 2 is (NO) and your answer to Interrogatory No. 1 was also (NO), proceed no further . . . and have [the verdict] signed and dated . . . and return(ed) . . . to the Court." This is what the jury did. It was their verdict absolving the defendant of any and all liability to the plaintiff for his injuries. Obviously, the jury, doubtlessly dismayed by testimony of a medical expert presented by the defendant casting serious doubt as to the truth of the extent of plaintiff's claimed injuries, closed the door on him completely.
This court has concluded that the Court of Appeals of this Circuit and generally the district courts herein have, to the extent they have expressed themselves, taken a strong position similar to that of the Fifth Circuit, allowing the use of the rules of traditional admiralty and maritime law by seamen engaged in the manning of and operation of vessels in its navigable streams, as differing from that available to employees working off of docks and in factories serviced by those vessels. It is true as defendant points out, that there are numerous cases in the casebooks which, when finding unseaworthiness, are concerned with circumstances far more obvious than the circumstances in the instant case: cases involving the absence of lifeboat equipment, the lack of an adequate crew, the falling down of a ladder while the plaintiff was on it, the pilothouse door slamming shut on a seaman's hand; but the law of the sea has adjusted to accommodate the law of comparative negligence in litigation wherein employer-employee relation are more related to harbor work than to characteristically navigation work.
Even if refueling at a dock involves less navigation than other work, the testimony of the general manager to the effect that the safety line must be detached where work is being performed across the edge of the vessel, ignores the fact that at the time of the accident the work being performed or that had just been performed requiring a lowering of the safety line, had been or was being performed on the port side of the vessel, and not on the starboard side where the accident occurred.
The testimony of this same general manager as well as that of defendant's expert, Admiral Owen Siles, to the effect that it was appropriate to detach the safety line while the vessel was harbored at a port for refueling fails to address the issue of why would the safety line be down in the very side of the deck that was not being used for refueling. This testimony failed to answer the question as to why it was the program of the tug to leave the safety lines down not only while the vessel was refueling, but also during the entire navigation period involved in the refueling trip -- including all of the six miles travelled from the flotilla of barges to the refueling dock. The testimony of crew members Rayform and Watson that the handrail and other objects secured to the bulkhead of the cabin were available to hold on to conflicted with the fact that the owner itself had seen fit to make available these same safety lines to assist the person moving along the side of the deck adjacent to the water. And of course defendant's suggestion that there was no evidence that the safety line was broken or nonfunctional is oblivious of the fact that it was no more functional lying down on the deck than it would have been had it been unbroken.
Whether this condition, which the plaintiff had sought in an incorrect way to correct, was purposely or accidentally left that way by the captain of the vessel when he went off duty, his failure to correct it was the tug's failure, and the failure of the pilot when coming on duty to use safe methods in correcting it, were also the ship's failures and improprieties. And the fact that the person injured as a result of these failures and improprieties was himself the ship's alter-ego does not absolve the vessel of total responsibilities for the injury the plaintiff experienced. This is what the court meant in the course of the trial when it observed that the "vessel was inherently unseaworthy." It has the same impact after the trial of the case.
Judgment notwithstanding the jury's verdict is entered for the plaintiff and against the defendant on the matter of liability, and the case will be set down for re-hearing before the court on the issues of damages.
IT IS SO ORDERED.
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