*1 WALDRON, Plaintiff-Appellant, James J. INC., LINES,
MOORE-McCORMACK Defendant-Appellee.
No. Docket 29504. Appeals
United States Court of
Second Circuit.
Argued Oct. 1965.
Decided Jan. Joseph Smith,
J. Judge, dis-
sented.
crew, including gave the officer who the order, respects competent in all to were perform their duties. findings implicit in the verdict (1) given by
are:
the order
the
negligent order,
third
mate was
a
say, plaintiff
to
failed
convince
to
jury
the
that under the
circumstances
reasonably prudent man would not have
given
order;
(2)
such an
and
that the
unseaworthy
vessel was not
because the
City,
Friedman,
York
H.
New
Theodore
tacky
paint
deck was
from wet
or was
Nizer,
Phillips,
(Henry Isaacson and
slippery.
wet and
No shore workers are
Ballon,
Benjamin,
York
&
New
Krim
involved nor is there
claim of a de-
City,
brief),
plaintiff-appel-
on the
gear,
fect
vessel
of its
lant.
appliances.
and
York
New
M. Kimball,
William
I.
Barron,
(Burlingham, Underwood,
City
Wright White,
City,
the
New York
on
According
docking
log,
brief),
defendant-appellee.
operation of
at her
SS Mormacwind
Brooklyn pier was
minutes, between
in 11
consummated
LUMBARD,
Judge,
Chief
and
Before
on
1:20 and 1:31 P.M.
Judges.
SMITH,
MEDINA and
May 8,
regulations
1960. Coast Guard
required
carry
deck,
the vessel to
on
Judge:
MEDINA, Circuit
category,
unlicensed
able seamen
Waldron,
and
able seaman
James J.
ordinary
fact,
and 3
seamen. In
car
she
Mormac-
SS
of the crew the
a member
utility
ried a boatswain and two deck
men
injured
as
wind,
his back
and
fell
in addition. Thus the SS Mormacwind
were
crew
another member
and
hauling
had three more unlicensed deck crewmen
mooring
heavy
line
manila
required
than her certificate
and all of
during a
along
the deck of the
docking
during
were
them
operation.
on board
negli-
docking operation.
The issue
gence
and several features
working in
aft dock-
Waldron
was
Waldron,
unseaworthiness, as claimed
ing gang on
side of the
the starboard
jury who returned
submitted to
were
ship, inboard,
Tar-
under the command of
One of
for defendant.
verdict
antino,
com-
the third mate. The usual
against
ship-
claims
plement
gang
seamen
of this
was 3 able
having
mo-
dismissed and the
owner
ordinary
particu-
and
seamen.
this
On
seaman
for a
trial
tion
appeals.
new
occasion,
lar
Tarantino had under his or-
before us
The sole
Waldron,
seamen,
ders 4 able
judge
appeal
the trial
this
is whether
ordinary
and 1
seaman.
per-
refused to
committed error when he
jury
pass upon
progressed
ad-
operation
mit
Waldron’s
with
As the
requisite dispatch,
claim of unseaworthiness based
on the
ditional
upon
the officer
mooring
bridge
an order of the third mate
line was
decided another
carry
necessary
spring
from where it
the line
and the order
line
as
grating
passed
deck to
coiled on a
Tarantino. As
mooring
approximately
urgent
feet
occupied
chock
other men were
away.
expert
There was
evidence to
other lines.
tasks connected with the
assigned
2 were
effect that 3 or 4 men rather than
an-
Tarantino
and
Waldron
required
carry
seaman,
exceptional-
con-
line
order to
other able
who was
prudent seamanship.”
strong
putting
ly
capable,
“safe and
stitute
the task of
disputed
quickly
possible.”
It is
the vessel was
new line “as
as
fully
eye
line,
properly
manned
The other seaman took the
early foundations,
one
even in
seaworthi
“over
its
about 15 feet
slack
threw
concept;
other,”
had
ness was a
the vessel
and over
threefold
shoulder
“tight
gear,
tugging
staunch,”
must be
the chock.
her
reached
Waldron
top
appliances
coil, attempting
flake
serv
along
good
deck,
slip-
order,
iceable and in
including
some slack
when he
ped and fell.
*3
the master and his subordi
nates,
competent
must
and sufficient
particular
position on the
Waldron’s
Parsons,
in number to man the
1
phase
unseaworthiness
of the claim
Desty,
(1859);
Maritime Law 122
Judge Tenney
to submit
refused
Relating
Shipping
Manual of the
Law
very
jury
to the effect
clear
Admiralty,
(1879);
and
Section 232
Lord
many men
question of how
is a
“[i]t
C.C.D.Cal., 1877,
Goodall S.S.
15
job.”
assigned
particular
to this
were
pp. 884,
(No. 8,506),
Fed.Cas.
887-888
vessel
no difference how well the
made
aff’d on
grounds, 1880,
other
102 U.S.
consequence
Nor
it of
was manned.
541,
26
Meyer,
In re
N.D.
adequate
that an
number of
Cal., 1896,
881, 885;
74 F.
The Gentle
assigned
group hand-
were
to the
seamen
man, S.D.N.Y., 1845, 10
pp. 190,
Fed. Cas.
ling
lines
under the direction
aft
(No. 5,324),
192
grounds,
rev’d on other
the third mate.
could have
“There
C.C.S.D.N.Y.,
p.
Fed.
(No.
10
Cas.
188
stern,
a hundred men on
Similarly,
or five.”
5,323);
Levi,
Tait v.
[K.B.
14 East
1811]
contended that other fac-
481.
getting
tors,
urgency
such
as the
being performed
line,
the new
by
the tasks
variety
reasons,
For a
histori
men,
the other
condition of
sociological
cal, ethical,
others,
and
we
on,
absolutely
current, wind and so
were
surprised
should not be
to find
irrelevant
unseaworthi-
cargo
passengers
interests of
owners and
though
ness,
they
did have
bear-
paramount
early days just
ing
negligence.
on the issue of
referred to. Humanitarian considera
vogue. Although
agree
Judge
tions were not in
Tenney,
We
whose
gave
unseaworthiness of a
report-
vessel
a sea
short memorandum
ed,
is not
right
man the
to abandon
and we affirm.
without
penalty
paid
and
wages,
his
see
Cyrus, D.Pa.,
Dixon v. The
1789,
II.
7 Fed.
p.
(No.
Cas.
3,930);
755
Rice v. The
The
unseaworthiness
Polly
Kitty, D.Pa., 1789,
and
20 Fed. Cas.
history.
long
has
The so-called
had a
p.
(No. 11,754),
666
and mariners were
warranty
early Amer
seaworthiness
entitled to maintenance and
for
cure
in
its
in contracts
ican law has
roots
juries suffered in
ship,
the service of the
affreightment, un
marine
insurance
see
Gordon,
Harden v.
C.C.D.Me., 1823,
liability
on the
der which
was conditioned
(No.
11
p.
Fed.Cas.
6,047),
early
480
being
respects for
in all
“sufficient
maritime
remedy by way
law afforded no
voyage; well-manned',
furnished
compensatory
of
injuries.
damages
personal
for
necessary
with sails
furniture.”
and all
Lucas,
See
Flood Tide: Some
Conkling, Admiralty Jurisdiction,
164-
History
Irrelevant
Supreme
of Admiralty,
(1848).
requirement, stem
A similar
249,
Court
299; Smith,
Review
ming
implied
codes,
from the
ancient
Liability in
Admiralty
Injuries
carriage
goods
in contracts for
Seamen,
Harv.L.Rev.
passengers by
Abbott,
sea.
Merchant
(1906).
Ships
(1802);
Seamen,
see
178-9
Caledonia,
157 U.S.
From 1903 and the much discussed dic-
duty
pro
S.Ct.
L.Ed. 644.
Osceola,
This
tum of 189 U.S.
seaworthy
absolute,
through
vide a
vessel was
see
S.Ct.
47 L.Ed.
Leathers, 1878,
379-380,
Work v.
Jones Act
41 Stat.
1012; Abbott,
U.S.C.,
Ships
long
Merchant
Section
series
Seamen,
longshoreman
supra,
178, 181; and,
cases,
down Mitchell v.
Inc.,
Racer,
denied,
Trawler
cert.
beyond, 172,
Often,
S.Ct.
probably
L.Ed.2d
developed
body
there has
generally,
vast
of fed
is one of fact for
concerning
eral
right
judge
jury
law
of a sea
as in Mitchell Traw
man,
person performing
or a
Racer, Inc., 1960,
the tradi
ler
seaman,
tional duties of a
926, supra,
to recover
was fish
S.Ct.
gurry
where there
compensatory damages
injuries
ship’s
rail. See also Blier v.
Lines
United States
longer
per
vessel. It no
matters
injury
sonal
cases
the unsea
whether
L.Ed.2d 37. But there
worthy
neg
condition was caused
always
proof
of which
the basis
ligence
anyone
finding
else.
made.
unseaworthiness can be
warranty ap
rule that the so-called
gear,
ship’s
respect
It is with
*4
plies only to the vessel as she
her
left
most
appliances that the
equipment and
port
home
voyage,
at the commencement of the
along liberal
developments
significant
posed
problem
which
we
no
place.
makes
It now
taken
lines have
vexing
found so
in Dixon v. United
gear
avail
safe
other
difference
States, Cir., 1955,
2
has,
219 F.2d
See,
g.,
v.
Mahnich
e.
not used.
but
able
away
respects,
least in some
been blown
U.S.
321
S.S.
by
Southern
the winds of time. But the basic
work
561. Shore
64 S.Ct.
concept
ship, proper
threefold
of a sound
longshoremen
others
ers,
gear
competent
and a
crew has remained
traditionally
work
performing tasks
unchanged. Each of
in
these contributes
the benefits
seamen,
to
entitled
of
became
special way
provide
to
“a vessel reason
warranty
Seas
of seaworthiness.
of
ably suitable for her intended service.”
Sieracki, 1946, 328 U.S.
Shipping
v.Co.
Racer, Inc., 1960,
Mitchell v. Trawler
362
1099. And
L.Ed.
90
66 S.Ct.
539, 550,
933, supra.
80 S.Ct.
applied
them
has been
may
profitable
briefly
therefore be
by
gear
supplied
if the defective
developments
examine the
in the mari
brought
it aboard
stevedore who
applicable
time law
to each of these three
Petterson,
See,
g.,
Co. v.
e.
Alaska S.S.
separate
complementary phases
but
of
601, L.Ed.
74 S.Ct.
warranty
of seaworthiness.
Cir.,
798, affirming
F.2d 478
concerning
gear
appliances
1953).
need be said
Little
if the
or
Even
“tight
requirement
ship
maladjustment
defective,
of a
not
Carriage
staunch,”
might
dangerous
as
Goods
them
and the ves
make
ff.,
by
Act, U.S.C.,
unseaworthy.
Sea
Sections
sel could
found
Cru
duty
shipowner’s
Fisser,
mady
has
down the
cut
v. The Joachim Hendrick
only
respect to 1959,
exercise of
cargo
care
due
79 S.Ct.
nothing to
owners.
have found
We
2d
So also with a stuck valve
duty
by
indicate that
ship
to furnish a sound
could
use of tools
be “broken”
together.
working
mem
is less than absolute vis-a-vis
or
several
Lines,
bers of the crew. Pertinent illustrations American President
Ltd. v. Red
plates,
fern, Cir., 1965,
v.
are
United
F.2d
also
cracked
McGhee
629. So
Cir.,
leading
States,
F.2d
portable
aluminum ladder
awith
signal
Nagle
falling
mast,
place
of a
slipped
rotted
the hold
which
S.D.N.Y.,
States,
ship,
A.M.C.
United
of the
de
fell
to the movement
due
grease
spots
placed
or
of oil
spite
blobs
had
fact that an officer
ladders,
Weyer
keep
or on
Yanow
deck
a man to hold it and had told him to
Co., Cir.,
Quebec
Paper
haeuser S.S.
it.
watch over
Reid v.
Transp. Co., Cir., 1965,
Sales
dangerous
Calderola
F.2d 34. Other instances of
by
in,
Cunard
279 F.2d
conditions caused
defects
anal-
ogous
of,
improper
types
way
hindsight
various
judg-
use
errors
multiplied.1
rule,
could be
ment. To alter the
in the absence
legislation,
would,
think,
we
come
to,
Many of the cases
referred
above
requiring
shipowner
close to
pro-
appellant’s
others,
have
cited in
proof”
“an
ship,
vide
accident
which the
urged
position
brief. We
to take the
are
teaching of Mr. Justice Stewart’s land-
principles
case
of these
highly clarifying
mark
applicable
cases are
Racer,
Mitchell
Inc., 1960,
v. Trawler
theory
here on the
condition
539, 550,
specif-
supra,
danger
potential
aboard
that is
ically negates.
necessarily
members
the crew is
unseaworthiness,
irrespec-
condition of
III.
tive of
and,
how it came into existence
course, irrespective
any negligence
event,
cur
uniform
part
fault on
supports
of the
or his
authority
rent of
in this
agents or
ship
the officers or
that,
other members
if the
and we hold
view
ship,
crew.
a well-manned
furnished
owner has
no
can be
with a
do this
The reason we cannot
injuries
liability
personal
triple con
traditional
inherent
ship that is
of an officer
order
respect
cept of unseaworthiness. With
proved
as
have
would
be such
*5
officers,
all
to the
by reasonably prudent man
been made
required
that
or has
is that the
is
been
under
circumstances.
properly
That is to
manned.
be
1933,
S.D.N.Y.,
F.
Magdapur,
“reasonably
say,
order
suitable
to be
971, Judge
Supp.
decided the
Patterson
her intended service” the vessel
precise question
held
involved and
here
adequate
proper
be manned
an
un
not shown
that the vessel was
of men
know
business.
number
who
their
seaworthy.
only
is that 3
difference
requirement
no
There is
that no one shall
heavy moor
men
were ordered to move
ever
If
in
make mistake.
someone is
ing
or
that 6
and there
evidence
wire
jured solely by
of
or omis
reason
an act
necessary.
ground of
7 men
part
sion
of
of
a crew
member
warranty of sea
decision was that the
possessed
competence
found to be
only
adequate
required
worthiness
an
calling,
ofmen
his
be no re
can
number of
men in
the crew
covery unless
act or
is
omission
it
shown
on
was not
men
proved
negligent.
We have found
hand and available lacked the skill and
authority
Indeed,
contrary.
no
ability
calling.
of men of
er
their
“The
only
this rule seems to us to be based not
ror was
chief
officer in as
judicial opinion
on a uniform
course
signing
particular
task too few of
but
on
also
sound reason.
In the man
F.Supp.
available for work.” 3
agement of the vessel both at sea and in
at 972.
port,
greater
moments of lesser or
ur
gency
quick
are
Judge
bound
occur
ruling
when
de
Magda-
Patterson’s
in The
made,
cisions have to be
pur
and there
al
Judge
is
approval by
was cited with
ways
possibility
may appear
of what
Learned Hand in 1952 in
v.
Keen Over-
States,
Cir., 1956,
v.
Grillea United
Corp.,
Cir., 1964,
657,
331 F.2d
919, 922,
F.2d
denied,
refers
cert.
85 S.Ct.
gear
“whether a
in hull or
defect
of the act a seaman
of his duties.
Nor is fact the crew was as complete recovery.
whole bar to place alleges appellant
first it was employing
the method of which unseaworthy,
made the not crew competence. argu- Secondly, size or
ment crew as a whole was ade- stating quate merely in another form rejected defense Mahnich v. South- ern S.S. (1944),
available safe which was not used. The unseaworthiness in The
Magdapur, F.Supp. (S.D.N.Y.1933), theory solely decided adequately
the vessel as a whole man-
ned. This rationale cannot stand in the development
face of the intervening years, illustrated holding in Mahnich.
I would reverse for new trial issue.
FEDERAL COMMISSION, TRADE Petitioner,
JANTZEN, INC., Respondent.
No. 20021. Appeals
United States Court of
Ninth Circuit.
Feb.