*1 thаt, registrant ther held because the prima case, present
failed to facie prejudice
there no in the board’s failure consider the letter from Accord, doctor. v. United States John-
son, 678; 1972, 473 F.2d McKinley, Cir., United States distinguished
447 F.2d Davis 964. Kelly prima as a case which involved a Davis,
facie claim for reclassification.
supra, 484 F.2d at n. 2. also States Bingham, n. United States
v. Thrower, Cir., 1973,
285. considering Were we this case
light Kelly alone, inter- Davis, vention of we inclined Hоwever, to Davis, reverse. we are bound presents which a close factual analogy Coale, to the ease us. before Davis, like asserted a condition medical clearly establishing fell short of prima facie disqualification. claim for Davis,
Under the rule of failure
the local board to consider Coale’s sufficient prejudice. claim resulted in no
Affirmed. PEYMANN,Plaintiff-Appellant,
Hans CORPORATION,Defendant-
PERINI Appellee.
No. Appeals,
United States Court
First Circuit.
Argued Oct. 1974. 22, 1974.
Decided Nov.
Rehearing Denied Dec. April
Certiorari Denied
See 95 *2 unseaworthiness, Two for Count presently
and a maintenance count verdict involved. The court directed a One, for the defendant on Count jury found for the defendant on Count alleges Two. Plaintiff error *3 respect and, direction of the verdict with charge. to the For count, second to, we will come there was no reasons directing thе verdict. We will error Two. first with Count deal however, so, ex we Before strong press criticism appendix. inadequate No counsel for an experienced appellate practitioner could skimpy excerpts think of testi mony rele forth were all that were set questions at This vant issue. presentment is a violation selective Towing 10(b). Moran F.R.A.P. Corp. v. M. A. Constr. Gammino We practice obliging long complained aof appellee inter to fill substantial sashay requiring stices, in turn us appendix Cher from one other. Radio, Cir., 1964, nack v. notify the bar that serious by respect appellant
breaches this imposition hereafter result chargeаble against per counsel of costs sonally. Plaintiff in this ease offended respect testimony, with over-reducing charge. but Plaintiff’s claim of unseaworthiness following upon based facts. On tug day question defendant’s Gorham David B. Kaplan, Boston, Mass., with undergoing Whitney a sub- docked Kaplan, whom Latti Flannery, Boston, & engine stantial being ovеrhaul. This was Mass., brief, was on plaintiff-appel- for by plaintiff, was the done who lant. engineer, and one It chief assistant. Gahan, Jr., James C. Boston, Mass., raise the defendant-appellee. for engine. time, heads, one at a from the (a effected chain fall This was ALDRICH, Before McENTEE and temporarily pulley device) at- chain and CAMPBELL, Judges. Circuit immedi- tached in the deck shackle weighed ately overhead. The fall some forty pounds, was at- ALDRICH, Judge. and while Senior Circuit slipped taching it in this instance seaman, brought Plaintiff, suit injuring fell, back. his against employer, shipowner, in his ceil- In order to affix the fall to the negli- the usual counts: Count One obliged ing, plaintiff gence stand Act, under the Jones 46 U.S.C. § engine employer keep room in something. He testified that defendant seaworthy condition, you must then stepladder; should have furnished him a find for the defendant this case. that he looked for such but could not one, accordingly, find that, he was' short, re- “In cannot obliged to stand “like a bird” on an unseaworthy iron cover on the of an basis pipe which, rail unnoticed him until wholly condition which is due afterwards, was covered with oil. solely He per- -to a failure on customary responsibilities form the signed as- further testified that were job, men on the to him. That is one the as- to have three constantly pects his re- refused of the defendant hаd it is the burden quests help. additional establish. this solely it was [that claimed this basis On plaintiff’s duty keep supplied place work defendant had room in a condition.]” particulars: no unsafe in three that was ladder; *4 rail, insufficient The bracketed material was included oil on the and not plaintiff’s appendix. response was in Nor was thе assistance. Defendant’s plain- explanation pro available; that court’s full of the rata that a ladder was negligence rail, plaintiff’s only at on rule if not have stood tiff should contributory it, plaintiff’s injury wiping and it was if without that least —that only part customary, or was due to his failure and not to proceed- improper mеn when the work was to conduct defend three leisurely ant, ratably. ing pace plaintiff in- at the dock at a recover by emergency repair Socony-Vacuum Smith, of at sea. v. stead See Oil Co. Defendant, addition, an ad- 1939, obtained 83 305 U.S. 265; Shipping plaintiff en- as chief L.Ed. Donovan v. Esso mission from that engineroom gineer chаrge Co., Cir., 1958, it 259 F.2d cert. of stepladder duty denied, if L. obtain the 79 S.Ct. was his to needed, Finally, plaintiff’s and re available and Ed.2d 572. one was working charged quest proper conditions the court illustrated maintain engine explicit “keep and free terms that could rail clean defendant this rely upon any assump principle like oil. of nоt from various substances ” of Plaintiff countered the risk. drippings from the oil “is charge We cannot read the a whole off and the we take them heads when concluding fairly without it always com- some oil liners out. There’s ing jury that, irrespective formed the of railing floor”-— down to plaintiff’s duty, would lia- self-stultifying position for a somewhat ble if thеre should have been three men plaintiff in view of his admitted- to take present and the absence of the third looking railing mounting ly without accident; man contributed if or knew, for, removing, he the oil stepladder was needed but was not avail- necessarily basis, was there. able; if, jury’s view, plaintiff or in the charge portion of the which The contributorily negligent. Con- following. objects is the complained-of sequently the was, instructions, duty you both because of other main- find that the of “If applicable only terms, taining and in direct if room in a seawor- duty thy solely found that the accident was due which condition solely plaintiff, employer to the failure of owed to сharge, you one in have the perform, find the con- and if by obtaining seaworthy lad- an available which was dition of unseaworthiness rail, proper or, if der it was use accident the cause of to see it was free of oil before he solely failure of stepped duty carry on it. out his to his Cir., 1974, Steamship question v. American thе ladder makes If a vessel need not detain us. performing an means available two reasoning applies if Similar g., unsafe, e. two is act, one which having primary plaintiff, defective, or two tools, is one which unnecessarily proceeded oil, up dean slippery, ladders, it one of which If a seaman so. application of the an indirect would be oppor then, rejecting spilled oil and assumption proscribed doctrine it, tunity wipe it up, had walked it recovery completely if risk to foreclose him the conscience allow shock al desirable the less seaman chose settled that such The rule is to recover. ante, Socony-Vacuum, ternative. negligent an otherwise use of 431-432, 262. But 59 S.Ct. precludes relief. Sotell vessel mean that a seaman this does not Overseas, Maritime wholly selects a if he barred not be King 794, 796; T., Inc. June reasonably think he could not method 404, 407; Wil giv cook were open Thus if the to him. Larrinaga, v. The De liams opener chоse proper bottle
en a 735; Donovan 1961, 287 F.2d bottle, could the head off knock Co., ante, Shipping F.2d at Esso complain. there were two Or D.Or., Captantonis, v. M.Y. The Seitz gangways was marked “Do not and one F.Supp. little 723. We see thought use,” could not be sea it present Plain- case. difference insisting upon using despite man operation, tiff, of the knew *5 proferred complain alternative could cylinder dripped He oil. heads that the So, ship’s the unseaworthiness. keep duty knew, too, it was his to that a ladder availa if there was In- a condition. safe the single engi which was the means the ble rag rail, he passing the a over stead of as, indeed, supposed use, to his neer was it, step indifferently, on proceeded, to testimony suggested, own it would not then, the court’s instruction unless and responsible proper to hold the vessel ship correct, to hold would seek was degree any not to use his decision though jury find the were to even Lehigh it was a free choice. Berke v. solely his.1 fault Disposal Corp., Cir., 1970, Marine 2 435 In circumstances, similar recov 1073, denied, 825, F.2d cert. 92 ery Lykes was (seaman barred in injured Walker v. Bros. 55, S.Ct. L.Ed.2d 53 Cir., 1952, using safety line; 772, F.2d when not no evidence ship’s injured available). where a master was in his line was not court made quarters by equipment own particularly by broken its clear condi charged neglеcted repair, tioning was nonliability finding a attend to. person having Walker has plaintiff, been read to bar as the full free recovery injury whenever decision, a seaman’s dom of was the sole cause of by has been caused in the breach of his accident. This is not a a case where duty employer, his contraсtual employee his lower echelon was offered de permitting employer’s thus means, action fective so that both he and the pon-performance, creating ship and may a set-off. at fault. been Noack jdaintiff’s ously wipe every conten 1. The extreme nature the oil from the rail quo by following may dripped engine’s be illustrated time oil heads, from the reply brief. tation from his the overhaul task would never be appellant’s completed.” . . indicated “[A]s simple logic rail of oil on To us Brief the film dictates that had wipe Peymann his fall after Mr. observed the oil off the rail when he was during continuously present an over- about to stand on it to fasten or was unfasten Simple logic operation. dictates the chain fall. haul Peymann required to continu- if Mr. tion, States, See Reinhart v. stepping and that his conduct in 1972, wiping oil, 154. On broad the rail without first off the reading, a guidance prop- placed Walker’s conduct, there own was his erly Dag- responsibility.2 declined this сourt Boat sole ny, Todd, Cir., Inc. Turning One, was it to Count where the breached his proper to direct verdict under duty supervise else, someone but the in view of fact that Jones Act count ship independently at fault. claim was element Dagny ship- Boat was made unsea- proof of unseaworthiness. As worthy by genera- reason of a defective request pointed instruc in his out lighting ship’s tor. When failed as only negligence tions, under asserted consequence, injured. the master was furnish a was the failure to Count One engineer The defendant showed that This failure was the vessel. repaired generator could have if he under the second count. Since sole issuе charged care, exercised that manifestly plaintiff cu could not have duty super- because master’s was to Myers recoveries, v. Isthmian mulative engineer, vise the the master could not Lines, Inc., 1 F.2d Observing fellow recover. that the serv- denied, & n. cert. 29-30 longer applies admiralty, ant rule no could L.Ed.2d that the we held failure mаster’s suffi- under the Jones Act count not recover supervise ciently engineer was but all unless he established unseaworthi contributory fault. ness, appropriate submit regard quite jury, differ under the second issue count, single from Walker, question. ent where the master Blanken supervise himself, Line, ship failed to and the fault New Ellerman’s Wilson was his alone. While we criticized some York, Dagny language, pur approval Myers. Boat of'the court’s No cited with reading asking pose does contradict a strict would be served road, second, longer, Walker that seaman not recover travel breach where his constitutes destination. the same *6 injury. of sole cаuse Our decision mere Affirmed. proposition ly the self-evident followed assign every will breach of not FOR REHEARING PETITION ON inju responsibility for his full a seaman Judge. ALDRICH, Circuit Senior ante, Noack, at F.2d ry. also See Cir., re- petition for a Lynch filed Bros. has 941; Mason v. Plaintiff hearing propriety to the Becker Wa addressed 1956, 709, F.2d jury the 1950, ruling for the verdict Corp., our termаn S.S. count in unseaworthiness as on the at the case moot, disposed plaintiff’s of, might jury or have found rendered Walker, the permitted have been primary duty that he should to maintain claim negligence go count. the to the condi- in a wrong re- and then holding disagree himself 2. This is with a not re- deciding, ship. we Without case, Caddy Texacо, Inc., cover from cent state Gaddy suggest may seaman in N.E.2d 348. Mass. A.S. There first, up the oil to clean up been instructed had oil seaman was instructed to clean and do instead, ahead, gone his other with work, had other but was not told in what some slipping in work, recover for proceed. could not he held that his order The cоurt hypothesis had been he only the oil because make other first could work place taken had to work but contributorily negligent. plaintiff offered safe Here him against place, he fol- If orders. the unsafe to tell himself. Whatever was the one place a safe would have doctrine, lowed orders there must bе be the limits of this charge give point to work. where one in cannot sup petition in the common law sense” is find the we While upon by (and only by) Black support is based & merit, in Devitt ported the brief rhar, Jury to an- and Instruc misconception it be well Federal Practice j[ This is tions, 2d ed. 93.09. swer. misunderstanding applicable of the law in court its distriсt The seamen.2 all unseaworthiness defined as resulting as the deficiencies asserted why Act under the Jones The reason alleged negligence. from defendant’s charge that to a is entitled manifestly- Except flirting with some neg- defendant's he need show of unseaworthi mistaken definitions injury was ligence contributed 1 plaintiff that, as noted “concedes ness Basically it Rogers. explained fully liability Court, theories distinguished because, from is upon in case at bar to establish relied negli- law, defendant’s common where negligence unsea Act and' both Jones pro- efficient, “sole, gence must be general worthiness under maritime ducing be cause” were the sаme.” His contention law negligence con- awas if his own barred misidentified the bases not that we “express- tributing cause, Act the Jones liability, “the but that we misunderstood employer to liability upon imposes ly in Jones distinction between causation damages injury or death pay gen negligence and causation in the Act negligenсe.” part’ its or whole ‘in remedy eral maritime of unseaworthi 505-507, at 352 U.S. says that while “under ness.” Plaintiff law of unseaworthi- does the But so [Rogers Rogers, v. Missouri Pacific R. Hawn, Talbot, Pope Inc. v. & ness. Co., 1957, R. 77 S.Ct. L.Ed. 143. 74 S.Ct. L.Ed.2d es causation would 493] be instance, mean, in either not does This negligence if the defendant’s tablished shown not be fault must defendant’s (even contributed, whole or course, must, of a cause—there to be slightest), in Petitioner’s merely be need a connection —it juries,” it “seems that causation clear well distinction the cause. allegation re unseaworthiness Farnarjian American brought out quires causation the common law Lines, Export Isbrandtsen something thereto,” very sense or close [Emphasis supplied] consequently dis- conclusion, note, in higher placed burden him. We jury in charged the properly court trict emphasize waffling because exactly this sense.3 explains meaning sup neither its nor it; ports heavy. of “causa- denied. burden Petition *7 Halcyon g., speaking 1. B. proximate Lunsford v. E.D. 3. In “a causal con- F.Supp. 573, Pa., nection between the unseaworthiness injury,” [emphasis gave ours] court frequently expressed, apprehen- have our single, very clear, example unsea- —an general respect compilations sions with worthy “slippery top deck, but See, g., instructions. e. McMillen v. fell in might suggest room.” We Stаtes, legalese “proximate” is a word not They dangerous authors, are because no helpful lay jury, too to a well be erudite, comprehensive however can altogether, avoided it can do harm no so background jf substantive in all fields. 93.- long appropriate meaning suggested 05 of Devitt & Blackmar there is [Whеre, articulated. the case at special interrogatory, supposedly, (but, includes an to reduce vestigation not), supported by authority, the verdict proportion,] any, jettisoned by any admiralty lawyer. would be plaintiff’s negligence contributed, the articula- objection compilations Our to these is that apparent. tion is they may unsuspecting judges lull into not doing their homework.