James E. Venable v. A/s Det Forenede Dampskibsselskab

assign- denied; motion effect on against Society and their ap- on of counsel this court already ment peal have must skin whose counsel revoking bail from order tough. better He is rather become granted. obser- predict his whether sound able client responsibilities vations on sphere responsi- not to counsel’s invade — who may client equally on a that rest bilities though lawyer even is himself have them—will to observe find harder salutary or wheth- should effect persist in conduct er the defendant will VENABLE, Appellant, E. James Legal Society will Aid The toward require and allow—or demand its relief DET FORENEDE DAMPSKIBSSEL A/S proceed behalf. his own (cid:127) —him to SKAB, Appellee. assign No. 11799. request Birrell’s appeal from the his ment of counsel in Appeals United States Court of reargument pre denying bail order on Fourth Circuit. Legal problem.4 The sents different 8, Argued Jan. 1968. assigned as Society Aid been 12, Decided June appeal, while we on that counsel Society assign under the Crimi could Sept. Rehearing Denied augment Act, prefer we nal Justice en banc. acceptable problems if another more argument At the course is available. Society accord were in Birrell and the repre attorney qualified to best appeal N. Charles him on the sent

Brower, Esq., at the his counsel who was Although to add

trial. reluctant even assignment to the burdens limited already imposed his Mr. Brower Case, thought firm, it best White & re to make

under quest circumstances Wadmond, Esq., of them. Lowell firm, partner Mr.

senior immediately responded

Brower ap Birrell’s

best traditions plication the bar. assignment counsel on for the appeal remand will

his from the order of granted appropriate an

therefore be assigning Mr. order will be entered Act. Criminal Justice

Brower under the petitions for mandamus as Legal declining to Aid

order relieve

Society counsel in the district court denying motion Birrell addressed In proviso to under 18 U.S.O. § order of December to the remand Feinberg preserved Judge § the last sentence of the writer expressing appealability joined the rule Stack in a memorandum Boyle, light'of although, L.Ed. final view that include assumed to which was such § sentence 18 U.S.C. awaiting persons appealable sentence. convicted and after conviction was not order gaged stowing he next tier when space empty

stepped into an backward fell, hogsheads, and sustained trial, injuries. ar- At serious back faulty gued lighting, inadequate hogsheads of the tier sup- working failure and which he was ply dunnage employ rendered the immediately ship unseaworthy caused relating Testimony the accident. no That there was these issues varied. lighting where artificial the stow disputed. The accident occurred is depend on natural men were forced light passing through the hatch open. slightly Most than half more light- that the witnesses testified day ing of the accident conditions on the although “generally poor,” one were opined “fair that conditions poor good” in the around the hatch but wings. undisputed dun- no It is also nage provided steve- either the shipowner. defendant dore or the testimony effect that offered accepted practice dun- to use was not the stowage, type nage particular in this plaintiff’s testified fellow workers while Norfolk, (Kel- Sidney Kelsey, Va. H. it been had used it would have been Va., Rabinowitz, Norfolk, sey on & negligence, questions of available. The brief), appellant. proximate cause unseaworthiness Barrow, Norfolk, Va. it re- Bernard G. submitted Vandeventer, steamship (Walter Martin, Jr., com- B. for the turned pany. verdict Va., Black, Martin, Norfolk, Meredith & brief), appellee. an issue appeal, raises Venable On proven to the fed- troublesome SOBELOFF, BRYAN Before “op- can the extent courts: To what eral Judges. BUTZNER, Circuit long- negligence” of a alone erational give rise workers or his fellow shoreman SOBELOFF, Judge: Circuit ? The for “unseaworthiness” an action judgment on his From an adverse judge’s in- point the trial from arises injuries a fall claim for sustained : struction hogsheads stowing tobacco on while this acci- you conclude “if should vessels, defendant-appellee’s one of of the result dent was the longshore- Venable, plaintiff, James long- plaintiff fellow and his which the challenge man, brings appeal. His performed duties their validity judge’s shoremen instruc- is to the admiralty concerning this was issues tions vessel and that board raised at trial. cause of efficient any exclusion entire Briefly stated, testimony indicates any unseaworthiness defendant previ- that while on a surface event, there vessel, then, of ously hogsheads appellee’s stowed liability im- could be vessel, Oklahoma, appellant was en- would be S.S. posed upon the defendant such 926, 833, 80 S.Ct. 4 L.Ed.2d 941 circumstances.” (1960). opinion In the course of its shipowner’s Court stated: actual “[T]he unnecessary length It is to dwell at knowledge or constructive the unsea- development expansion worthy condition is not essential to his complete doctrine of exposition A unseaworthiness. * * *. What has evolved history found Mah- complete divorcement of unseaworthi- Co., nich v. Southern S.S. U.S. concepts ness from 99-104, 64 S.Ct. L.Ed. 561 gence.” Chesapeake See Schell v. & Ohio Racer, and Mitchell v. Trawler Railway Co., (4th 543-549, 1968); Grzybowski, Barge etc. Arrow (1960). 4 L.Ed.2d 941 is sufficient It Co., 283 F.2d 481 steady to observe that course affirmatively Mitchell answered duty shipowner’s decisions the main- question shipowner re- whether a seaworthy a tain in- vessel has become sponsible for an condition creasingly demanding.1 Although it was by created or a member of the crew duty shipowner’s once held that a ended longshoreman working For a on board. delivery seaworthy vessel, with of a time, however, question- some recognized courts ship, it came to be that a operational negligence, ed whether stand- though might delivered, safe when subse- ing alone, support injured sea- an quently temporarily be made unsea- longshoreman’s or dam- worthy by man’s claim for operational negligence of ages by longshoremen doctrine of unseaworthi- crew or in the course valiantly The loading ness. lower federal courts unloading. or In Grillea v. opera- attempted to line States, draw a (2d United 232 Cir. F.2d 919 unseaworthiness, tional 1956), the court held owner liable States, supra; see v. United injury Grillea longshoreman caused Inc., Racer, 265 by negli- Mitchell v. Trawler his own or a fellow worker’s (1st 1959); F.2d 426 Cir. Penedo Cia improperly replacing a hatch- Maniatis, v. 284 saying Naviera A. 262 F.2d cover, S. existed 1959). recognizing the “though While may Cir. he [the have owner] distinction, our circuit in Scott learning correcting, observed of, means of Co., 113, 124 v. Isbrandtsen F.2d 327 defect.” 232 The F.2d at 923. court (1964), obvious trend “enough “[t]he commented that time had pro- Supreme Court elapsed decisions is toward to result in unseaworthiness.” viding increasing protection for cases, perhaps over-emphasizing ever Later * * * temporal crewmen aspect opin- [or] in this noted may be called aboard ion, who to work shipowner only held that a liable was agents vessels.” negligent if he or his failing States, rectify Recently detect and condi- in Mascuilli United v. example 237, 1705, An tion. Trawler 387 87 L.Ed.2d is Mitchell v. U.S. S.Ct. 18 Racer, Inc., (1st 426, squarely con- Cir. 743 the Court was 432 1959). deciding necessity However, requirement of a fronted with the lapse significant of time after the act vessel could be rendered whether a seaworthy solely longshoremen’s explicitly order to create re- was jected handling proper Supreme negligent in Mitchell of otherwise Court Racer, Inc., 539, equipment. Trawler 549- v. 362 U.S. Osceola, 158, 423, ser, 445, See L.Ed.2d 189 U.S. 23 S.Ct. U.S. 79 S.Ct. 3 358 Racer, 483, (1903); (1959); 47 L.Ed. Mahnich v. Mitchell v. Trawler 760 413 Co., Shipping supra; supra; Inc., Southern S.S. Waldron v. Moore-McCor Seas Sieracki, Lines, 724, 85, Co. S.Ct. 66 S.Ct. mack 386 U.S. 328 U.S. 87 (1967); (1946); 90 L.Ed. L.Ed.2d Mascuil 1099 Alaska 482 18 Steamship States, Petterson, 87 Co. U.S. li v. 347 United (1954); (1967). L.Ed.2d L.Ed. 743 Crumady v. Fis The Joachim Hendrick interpreted

Maseuilli, longshoreman, cases in the was en ered and two army in ac- gaged loading find tanks Circuit. We ourselves in the Second Fiddler, cord that circuit’s conclusion Marine aboard the U.S.N.S. rejecting long be read of his fellow Maseuilli must one or more when operational negligence negligently factor permitted shoremen both “as loading liability.” vangs port determination of Candiano v. starboard and Lines, Inc., simultaneusly F.2d taut. This Moore-McCormack boom to become 1967); (2 parting Alexander in the sudden Corporation, port one of caused Bethlehem Steel shackle which in turn (2d vangs to the after to recoil and fall the port deck, striking killing Maseuilli. agree con- We unable to courts, his administratrix In the lower case, tention, present advanced in First, recovery. denied Crumady cited gave judg sitting jury, Judge, without a supposed and Mahnich because against found that ment her because persuaded factual similarities. We are ship’s appurtenances “in all to indicate its the Court cited them times, re seaworthy all condition at operational alone view that throughout the entire mained so may an unsea- sufficient to create be caused operations. worthy view condition.3 We take the solely negligent operation the Crumady the Mahnich and decisions that seaworthy equip stevedoring using crew Supreme emphasize to the cited the in manner as to cause ment such a deep concern, * voiced in both * * Court’s instantane to occur accident opinions, and of seamen the welfare (E.D. ously.” F.Supp. 241 at 362 354 clarify longshoremen,4 cor- to and Pa.1965). appeal, Third Circuit On responding obligation shipowner. affirmed, adopted reasoning 358 this (1966). F.2d 133 neg It that the is now settled Court, However, Supreme ap- in ligent and sufficient misuse safe recog- parent the trend continuation of unseaworthy. equipment renders a vessel Co., supra, nized in v. Isbrandtsen Scott Lines, Moore-McCormack See Waldron v. summarily granted re- certiorari and 1410, Inc., 724, 727, 87 386 U.S. S.Ct. citing Circuit, versed Third Thus, operational (1967). 18 L.Ed.2d 482 Co., supra, and Mahnich v. Southern S.S. subsumed been Crumady Fis- Hendrick v. The Joachim unseaworthiness, trial and a doctrine 445, ser, 423, L.Ed.2d 358 79 3 U.S. S.Ct. longer should court’s instructions (1959). pro- 413 The Court’s brief distinguish two. attempt to between nouncement consid- Maseuilli has been appurte- specifically (a) Vangs ropes that all 2. found are that from the extend use, spar peak steady fit for their intended it. nances ap- (b) cut-offs had “no that the winch similarity 3. The claimed factual is non- case,” bearing plication the instant Crumady In Mahnich the existent. F.Supp. 363, (c) that at 241 lower work- courts had found that solely from the employed gear ers defective in the course longshoremen engaged rope in their duties —a defective loading must as- vessel. We adjusted improperly Mahnich and an accepted find- these that sume Crumady. “cut-off” device The circuit think, ings, which, serve distin- courts in both cases concluded that guish the other two cases. Maseuilli from alone In did create unseaworthiness. might however, instance, have cited its de- each The Court Court, accepting v. Moore-McCormack cision while the factual find- Waldron Inc., 726, ground they Lines, ings, S.Ct. at at 386 U.S. 87 that reversed sufficiently 1411, broad re- it stressed “the where established con- purposes Maseuilli, of unsea- doctrine ditions as a of law. In medial matter judge hand, worthiness.” on the other the district 352 Corpora performing

Alexander Bethlehem Steel meet the hazards which 1967).5 tion, (2d imposes, 382 F.2d 965 Cir. services nei- by conceptions ther limited contends the trial Venable next that * * nor *. judge charging contractual character “[t]he erred duty owing It empty is a form of absolute to all fact there was mere range within space hogsheads its humanitarian between some of the policy.” Sieracki, Shipping stowage Co. v. comprising on board Seas tobacco supra 94-95, 328 standing at enough, U.S. S.Ct. at the Oklahoma is not 90 L.Ed. by itself, alone and to constitute unsea-

worthiness.” spaces nec fact are duty shipowner’s That it is essarily present hogsheads furnish seamen all longshoremen knowingly and that sub obliga place a safe work and ject hazard, themselves are tion men extends where mitigating Recognizing factors. perform unloading accept, these men are constrained “to operations uniformly acknowledged. are without critical examination and without Co., supra, Mahnich v. Southern S.S. protest, appli conditions 455; at Palazzolo v. U.S. S.Ct. superior ances as commanded [their] Steamship Corp., Pan-Atlantic officers,” repeat declared Court has (2d 1954); Amer Cir. Gindville edly deemed to “not assume Steamship Co., 224 ican-Hawaiian F.2d the risk Mahnich unseaworth[iness].” (3d 1955); American Cir. Boleski v. Co., v. Southern S.S. 321 U.S. at Export (4th Lines, 385 F.2d 69 561; Socony-Vac at S.Ct. 88 L.Ed. 1967); Shipping Alex Strachan Co. v. Smith, uum Oil Co. ander, (1939). 83 L.Ed. 265 duty, nondelegable, This absolute “species Certainly shipowner creates a without was ** cognizant shaped fault *. Derived from and fact that attempt injured 5. The obvious longshoreman being by the dis- draw seaman or operational negligence tinction negligently dropped by a wrench a fellow by Although and unseaworthiness is not rectified worker. we think that our portion charge the later opinion instruct- broadly is not be read so ing encompass that: injuries, again all we refer “If Supreme an condition unsafe on the existed to the protection Court’s extension of the if, your opinion, in vessel and un- by such afforded the unseawortlii- injuries safe condition constituted unseaworthi- ness doctrine to sustained as ness, time, longshoreman’s no matter for how short of a result or seaman’s if negligent that unseaworthiness was or equipment created misuse safe by play did into operations. come reason of the course maritime Mascuilli longshoremen, or its then if States, steverore supra; Waldron v. United you further unsea- supra. believe such Lines, Inc., Moore-McCormack proximate was a worthiness cause of the Cognizant development of the clear plaintiff’s injuries, the defendant is lia- doctrine, unseaworthiness the Second Cir- ble.” recently cuit observed: best, jury At logic would be confused as “Although there is no basis in proper apply. standard to Since attributing for to a unseaworthiness Judge’s opinion explicitly soundly re- respect every is in vessel which jected operating negli- idea “that completely equipped constructed standing gence, alone, is sufficient negligence because of the support recovery” (the District Court’s longshoremen or crew en members emphasis), it is reasonable to infer that operation gaged board, in inter- was meant to be so by judicial term has been created fiat preted. counsel for both sides Indeed practical purposes used for all charge in construed the this manner. imposing ship absolute single or ac- Without citation of a case owner and stevedore.” knowledgement Candiano the trend of recent Lines, decisions, Moore-McCormack F. our dissent- 382 ing posits hypothetical (2 1967). Brother of a 2d Cir. (2d otherwise, forced, during loading 1962). would be To instruct diffusing jury operations, tends to to work on the stowed mislead the hogsheads. proper his It therefore became focus of its attention. duty safe absolute to make surface Relying on this circuit’s recent Longshoremen' type for that of work. opinion Martin, in Sanderlin v. testify plaintiff’s called behalf objects appellant stating unanimous in instructing trial court’s available, dunnage have used had it been presumed shipowner “the defendant working since made their it would have law to have been free from surface safer. While the defendant’s testimony presumed in law to the Oklahoma is in- was that was contrary seaworthy have been until dustry dunnage practice to use appears from In Sanderlin the evidence.” particular type stowage, observed, parties had “since both As had oc- sufficient answer. we have evidence, offered issue of before, casion to comment perceive any logical fail to “[w]e [the was [or unseaworthiness] why reason trade jury’s] added determination without permitted to form the should be customs weight any presumption.” F.2d legal standard of seaworthiness ac- principle operates at 449. This Bryant tions under maritime law.” equal force in instant case. Russ, Partenreederei-Ernest duty Finally, plaintiff contends reasonably shipowner is to assure refusing trial court erred ship safe for all work on who board. grant for a directed his motion verdict.. obligation This is not satisfied Long- premised motion showing that he has reason- exercised shoring Safety Regulations which ex Sieracki, diligence, able or due see care walking plicitly provide that “[a] 872; supra U.S. at adequately illu areas shall be Mahnich, supra at 1504.92(a), minated,” 29 C.F.R. complied further, in- that he has term ‘shall’ indicates “[t]he mandatory.” provisions Ap dustry may practice guided which are be pellant of artifi insists that absence disregard safety. economy of men’s testimony lighting plus cial uniform satisfy Bryant, supra. See must He light in the area where the ship trier of his We fact that safe. poor, generally accident occurred was safety permit must men never the of the safety reg constituted a of the breach perpetuation to be to the subordinated unsea ulation rendered the vessel industry practices, of these if fall short Contrary worthy a of law. to as matter requirements. of the law’s strict however, plaintiff’s protestations, we question jury record, is entitled, for the think he is on this not simply the Okla the whether On re directed in his favor. a verdict homa trial, appellant was safe for its intended use to have these is entitled engaged placed jury men in the regulations surface for the with before heavy unloading hogsheads. accompanying of instruction consistent may present Certainly spaces holding a haz in Provenza with this court’s ard to Export Lines, thus con Inc., 324 American (1965), stitute an condition. See their “violation Meiji K., unseaworthy, ship Alexander v. Kaiun K. render would 1961); (E.D.La. F.Supp. proxi aff’d sub if such unseaworthiness was Shipping injury, nom. Co. Alex plaintiff’s Strachan mate cause of the it ander, shipown 311 F.2d 385 would also render the defendant Compare Rederi, Nuzzo 304 F.2d 506 er liable.” Kernan See v. American

Dredging Co., finds, because, 355 U.S. S.Ct. This court now reverses it (1958).6 jury L.E.2d his instructions errone- embodied an ous of submission The ma- doctrine. Finding objection merit Venable’s holds, jority disagree, with which I instructions, con- trial court’s we doctrine, negligence long- under the aof trial. clude that he is entitled to a new shoreman without more to un- amounts We need not deal second with My seaworthiness. second difference major jury contention that the selection any event the two statements procedure employed his time of at the crossing singled the instructions out as Virginia, trial in the Eastern District light majority, harmless, Division, up Norfolk failed to measure unexceptionable comprehensive- of the recently the constitutional standards negli- respect of the- ness enunciated gence and unseaworthiness. Georgia, Whitus v. State 17 L.Ed.2d My understanding rule does is that the presented opportunity inasmuch itas equate negligence not unseaworthi- systematic Negroes. exclusion separate ness. The two remain elements. Subsequent argument ap- cause, effect, One is gether they the other and to- peal, President, on March create basis signed Jury Act into law the Selection beyond alone, a claim on i. e. (90th Cong.S. 989) prescribes for which of action cause for unseaworthiness. procedure the federal courts a selection longshore- Hence, alleged free from defects of qua negligence, man while actionable appellant Although complains. Act not actionable as unseaworthiness days will not become for 270 effective less it has caused Il- unseaworthiness. signing, appears after it lustrations distinctiveness already Virginia Eastern District wanting. example, two For o| adopted designed plan comply longshoreman walking past if a statutory requirements, and has new negligently dropped another on deck categorization pro- abandoned spective injured foot, wrench the latter’s jurors light by race sex. In man have a cause of action this, anticipate there is no reason unseaworthiness, for no such condition any objection readily resulted. Other instances come selection on remand. to mind. All demonstrate that unsea- does not itself Appellant constitute a number other raises concept inde- worthiness.1 This questions, unnecessary to but deem pendence of these two elements are not comment on too them for Judge carried into likely to recur on retrial the case. correctly here, quite I instructions Reversed and remanded. Nevertheless, point of think. this is the the reversal. BRYAN, Judge, ALBERT V. Circuit (dissenting): instructions, first the the The of part excep- majority to which the takes I would affirm. of the doctrine Aware tion, declares that if was operational “the accident negligence, of the District Judge applied quite precisely, I of the it think. the result the in which Regulation by promulgated We the are advertant to further state- that the the Provenga Secretary regulation binding of Labor ment is “the law may just Regulation any be the shown like other evidence that.if was violated practice resulting injury, plaintiff to is indicate a certain the is entitled recovery. is safe or unsafe. While such evidence to conclusive, not it is revelant.” We do not reg- need subscribe to this narrow role The demonstration is too evident to agree authority, plain respect of to be ulation. In this citation too by correctly charged Judge the decisional trend. overridden District who * * * hogsheads plaintiff some of com- and his fellow the *** * ** prising perform on board not their duties * * * enough, standing itself, by cause to this the efficient alone and was Surely constitute to exclusion unseaworthiness”. of the entire sound, any negligence or this is in law. of any of the defendant fact and “Some” vessel”, spaced of of these containers could well be unseaworthiness ship- apart establishing conclusively no without there be negligence. run The not To me this is sentence does a truism. owner. This operational cir- principle know this to of was entitled to counter negligence. peremptorily com- cumstance did not finding mand a of unseaworthiness. pith principle here is of that The could, of Other conditions contextual anytime before, during or after if at — actionable, course, had make it but these ship- voyage negligence —the liability. added to create be longshoreman un- or of causes owner vessel, the owner The defect found in seaworthiness immediate they two submitted is liable on the score of unseaworthiness instructions was thereby. issue, longshoreman injured premises factual to another (1) g., exclusivity But must in fact e. fault for its there causal invocation plaintiff’s part (2) negligence imputable defendant reference be hogsheads independent spacing If “some” instead unseaworthiness. Judge just plaintiff. then, none, of Granting as the District those around the there arguen- infirmity charged, there would be no basis asserted gravity negligence do, grasp theory for operational I fail of either the unseaworthiness-liability. Hence, They of these allusions. excluding conventionally statements, prefatory instruction was accurate given beginning responsibility point no unsea- if as the there was negligence jury’s the defend- determination of worthiness or instances, In both ant. unseaworthiness. meticulous, step were followed with framing majority is mistaken enlargement every step, accusation operation- Judge’s concept charge de- plaintiff. The made negli- negligence. He stressed that al generally, then fined unseaworthiness long- gence of another owner or accusation, applied specifically it each finding requires shoreman if unqualified jury of the and liability advised in unseaworthi- any irrelevance breach. The if not, If it ness. did that is participation or knowl- of the owner’s alone, there stood then arose, edge, at of the time which liability on of unseaworthiness. the basis emphasized. judge Throughout trial clearly. quite majority I for error. made this distinction think the strains course, which, opinion part of his REHEARING ON PETITION FOR jury, this never now cited went EN BANC judge’s intendment court to reveal incomplete. did He his words is PER CURIAM. operation- make the naked assertion that Appellee’s Petition misconceives alone, standing negligence, does not al holding. court’s adhere to view We Always recovery. condi- permit operational negligence may cause holding tioned on the absence unseaworthiness, do but not intimate that negligence. due seaworthiness every operational negligence instance Likewise, nothing perceive incorrect necessarily I creates the un- instruction, now held in the other doctrine. The seaworthiness defect reversal, mere fact Court, “the demand of the District space empty required reversal, there was that it ruled out finding possibility of a performed in which in an their duties

condition.

Rehearing denied. MANUFACTURING H. RUTTER-REX

J. Petitioner, COMPANY, LABOR RELATIONS

NATIONAL BOARD, Respondent. WORK-

AMALGAMATED CLOTHING AFL-CIO, AMERICA, ERS OF Petitioner,

NATIONAL LABOR RELATIONS BOARD, Respondent.

Nos. Appeals

United States Fifth Circuit.

July 23, 1968.

Rehearings En Banc Denied Oct

Case Details

Case Name: James E. Venable v. A/s Det Forenede Dampskibsselskab

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 16, 1968

Citation: 399 F.2d 347

Docket Number: 11799_1

Court Abbreviation: 4th Cir.