Stella Reyes, Administratrix of the Estate of Florentino Reyes, Deceased v. Vantage Steamship Company, Inc.
609 F.2d 140
5th Cir.
1980
Check Treatment

*2 FAY, BROWN, Circuit Before HILL Judges. BROWN, Judge:

JOHN R. Chief Circuit rehearing in order to clear grant We opinion our engendered some confusion modify and to appearing at 558 F.2d opinion. prior Our portions certain of that compare opinion the trial court directed Reyes with that of seaman posi- some award employer, and to slight, to even if damages tive amount of widow the de- plaintiff Stella opinion of our ceased The effect seaman. the trial court to the task of today is add court must determine the remand: held, two faults for the issues of causation as fault. comparative well to the facts stated A few additions prior As opinion appropriate. our stated, legally drunk at the time Reyes was to effect a search the seaman and operated a float- death1 and long as it is ship, so by the traversed large quantities area ing which sold shop, dram the seaman re- reasonably possible The drunk seaman to the crew. alcohol the water.2 a mains alive in decided to take his fate when he met *3 some jumped 35 in the ocean. He swim But second branch of the rescue attempted ship and the side feet off applicable Reyes’s to is one doctrine mooring buoy several located to swim to a applies where second branch death. spotted away. feet He was almost hundred overboard but jumps or the seaman falls immediately crew members were aware and ship. on board the to those remains visible sighting Reyes of first from the time imposed There, has an long a line cases danger. Yet effort no was in mortal upon duty ship to Act affirmative Jones officers was made to rescue either crew or to retrieve the every use means reasonable for a shouted command him not even g.,E. Harris v. water. from the seaman ship. of the vicinity to return Cir., 1931, Co., 4 50 F.2d Pennsylvania R.R. ship’s that a officer was By 1303; the time Baltimore 866, 1931 AMC Cortes water, Reyes 367, was in the Inc., 1932, made aware that Line, 287 53 U.S. Insular Reyes had cleared the lee 368, (ap 9 173, 1933 AMC 77 L.Ed. S.Ct. beyond hand-thrown line or dictum); was reach a Kirincich v. proving of Harris in time, 1940, ring. Reyes life encoun- Co., Cir., At the same 112 Dredging 3 Standard began 868; powerful a current which 163, Tompkins tered Pi AMC F.2d 1940 439, away E.D.Pa., 1940, F.Supp. him from both moor- sweep Assoc., 32 lots of the rec- ing buoy. 716; Careful examination v. Port Arthur 1940 AMC Schlichter (i) stop 804-06, swim- Reyes ord did not Co., shows that 1961 AMC at Towing supra at (ii) he cry help, for ming 1169-71; out Quinn Menhaden Grantham v. the cur- 1965, 590, an for life with fight obvious Fisheries, Inc., Cir., 1484-85; rent, (iii) exerting 1481, enormous he was Britt Ma 593, 1965 AMC Inc., S.D.Tex., 1969, the current. fight against Lines, in his effort Transport rine for min- Reyes several 652, swam in this fashion 656. the current and

utes, slowly gaining duty to rescue arises as The affirmative buoy. Only about feet approaching the water, enters soon as the seaman however, for reasons buoy, short of the falling overboard. by jumping whether unknown, motionless became Reyes expansive duty which derives This is an later, point, or somewhat water and at status as a the seaman's celebrated from died. contract of admiralty: of the “The “ward” surren- merely not employment maritime rescue involves Application of the personal liberty of the seaman The first branch der of the is issue here. doctrine at customary, is . greater where a extent than applicable of that doctrine is sea excep- an imposes upon employer but it apparently man “has fallen overboard but well-being obligation for the presence or in the water not tional care location [his] Pennsylvania R.R. ship.” IB R. of the crew.” Harris v. readily discernable from 868,1931 There Benedict, Co., AMC at 1307. Admiralty supra at 3-225 ed. concerning the confusion 1976). “search and rescue” branch has been some That the sea- duty to rescue where scope to both rescue requires officers g., miralty E. Schli- is not uncommon. undisputed actions 1. alcohol content of It is that the Co., approxi- Towing Reyes’s at the time of death was chter v. Port Arthur blood evidence, 801, 802-03, mately Despite 1961 AMC it 0.185%. appropriate appear quite to conclude that clear that did not to be intoxicat- Thus it legally appearance, the time death. No an drunk at ed. matter what reading enough to convict alcohol 0.185% person driving leading intoxicated almost while the doctrine and 2. This branch of every describing state in the Judicial notice of at [man- Union. with infra it dealt are cases uscript in connection with ad- state intoxication laws at 144-145]. overboard, deliberately jumps line-throwing appliances man aware that how- these situations, ever. In such some might cases not used rescue men usually to impose duty only be read to rescue Nevertheless, for of es- purposes water.5 begins of the time that the seaman duty, only impor- it is tablishing breach help. drown or to cry appliance might required tant that the been used to effect a rescue. duty

The correct view is that the rescue arises from the instant that the sea any follow Coast The failure to however, overboard, goes man and the cases regulation which is a cause of an Guard suggest which seem to otherwise are in fact per injury se. establishes based either upon lack of causation3 or on Co., Dredging Kernan v. American (under the fact that the Jones Act’s com 2 L.Ed.2d 355 U.S. 78 S.Ct. *4 parative doctrine) the seaman’s open-flame an kerosene 1958 negligence completely offset that of the scow, of lamp placed on the deck a was shipowner’s failing in to rescue the seam eight feet an.4 rather than at least above as It would be to contrary underly the ing by required regulation. rationale of the rescue to Coast Guard The doctrine allow a idly officers to by making regulation solely stand purposes was for of navi — preparations no for rescue —until the safety. sea gation, lamp not crew or fire The man yell help. let out a for See Grantham ignited the surface of the river and sea Quinn Fisheries, Inc., supra Menhaden at tug towing man abroad the which was the 593, 1965 (rejecting AMC at 1484—85 such a Supreme scow lost his life. The Court “one-yell” rule, and stating that “we decline damages expressly awarded Jones Act to interpret the rescue so rule restrictive- regula type held that the of Coast Guard ly”)- long as tion violated was irrelevant so the

Having causing played any part violation the duty clarified the element of the doctrine, Co., rescue proceed injury. Saga Shipping we also Neal elements See of breach of duty Cir., 1969, and causation. Breach of 5 407 F.2d 1969 AMC 280. duty to by rescue the established fact the lack of the re Consequently,

that a line-throwing appliance could have device, quired line-throwing coupled with been used to Reyes. deliver a line to Coast rescue, shipowner’s duty regulations the establishes Guard required ship to have powered a mat shipowner negligent rocket that the was line-throwing appliance capable 1,500 of throwing Only of at least ter of law. a cluster feet of line. 46 CFR 94.45—1 seq. problems et We of are remain. Our reconsideration Greene, g„ Lines, Inc., Transport supra (see E. 3. Nolan v. 6 Britt 383 F.2d v. Marine (clear causation); 814 note). lack of supra Kiesel v. Ameri- In re Atlass’ discussion Cf. Trading Producing D.Md., 1972, can Corp., & Petition, Cir., 1965, 7 350 F.2d 1965 AMC F.Supp. 347 (seaman drunk, 679 was either (seaman weak injured 2048 but without when dizzy long-standing as a result of his shipowner); alco- knowledge or aid of Donovan deliberately jumped or holism Co., Cir., 1958, overboard —ei- Shipping Esso way, ther a search over two hours later would negli- (seaman injured but own 1958 AMC 2096 futile). have Transport been In Britt v. Marine gence outweighed employer’s). Lines, Inc., supra, the District Court based its finding liability of no on both a lack of causa- by for It no unheard of line-throw- 5. means having tion and on the seaman been 100% ing appliances men in the be used to rescue negligent. apparently There the seaman was imply that water. Authoritative references disobeyed by jumping sober and orders off usually line-throwing appliances used to ship. pass from to shore from lines towing, ship, purposes of however. often for g., Co., Cir., E. Barge Rabb v. Canal Danton, Theory The Practice See G. (seaman negligent for was 100% Kegan Seamanship (Routledge & Paul 129-30 failing required jacket to wear life and not 1958); Manual American Merchant Seaman’s carrying flashlight); Port Schlichter v. Arthur A, ed., 1942); (F, 3d Cornell & Hoffman ed. Co„ (decedent drunk, Towing supra with- was Guard, Manual Ordinance United States Coast knowledge out shipowner, or aid of and had ed.). CG-272, (1978 to 6-6-13 at 6-6-12 jackets unavailable); life himself caused ing question of causation is whether actual- problems a modification of requires those disposition of We feel that in fact probably this case. ly firing the line would the District must make upon question remand part In have saved life. findings relating to cau- categories three limp in water be- Reyes went whether sation. hypothetical time that deci- tween the the time was reached and sion fire line deployment relates to the first have reached him. that such line would line-throwing had one been appliance, duty Again question whether would aboard. From the discussion some member of the obeyed element it follows that an order to take the line is also have have out crew should been ordered break No there are other minor at issue. doubt it line-throwing appliance as soon as which the District Court hypothetical issues apparent beyond reach its should consider. discretion rings. From of hand-thrown lines life discussion, foregoing ap- it From the present record, this would been parent that the element of causation as an about same time officer was first turns on a number of either am- situation discussed, Reyes’s peril. As made aware hypothetical biguous or issues fact. De- duty prepare for rescue does not in this case termining the causation element cry help, signs await the for nor other (i) is made most difficult facts seaman is about to drown. *5 equipment which ship required the lacked addition, the location at which a line-throw- used conceivably could have been for'rescue ing appliance likely would have been stored by (ii) of and the actual failure the part problem is a of this first of causation.6 attempt a omissions are even rescue. These pre- The District Court on remand must be solely ship. fault the the of pared to whether there was time determine hypothetical go for a crew member to the place such a difficult We refuse location, storage hypothetical obtain the widow proving burden causation the of appliance, ap- move it to the line-throwing Instead, the the Dis of deceased seaman. location, firing appli- fire propriate and the presume the trict on remand is to Court limp ance —all before went defendant-appel of and existence causation water. overcoming of lee have shall the burden question If the first causation resolved of considera presumption. that A number Reyes, favor of then second and third burden support tions this allocation causation arise. The problems second proving causation. whether it was reasonable to use the now- line-throwing prepared appliance. There rescue” branch The “search and possibility some that line or lines fired already recognizes such a rescue doctrine Reyes might over or him near have harmed in fa presumption of causation rebuttable perhaps impeded have his labored swim- representative. vor of a seaman’s ming. Against hypothetical, the Dis- v. National Bulk leading case Gardner trict Court must pos- somehow balance the Inc., Cir., 1962, 284, Carriers, 4 (i) sible facts that struggling 29, 1023, cert. de 1963 A.L.R. 2d 91 against the current and likely would have 728, nied, 1963, 913, 9 372 83 S.Ct. U.S. cooperated efforts, (ii) in any rescue and 721, pointed en out L.Ed.2d banc Court Reyes may responded to a shouted had forced that omissions grab command to ahold of the line. on difficult finding of causation turn held, If first then questions hypothetical two issues. The Court causation 35, resolved 288, in favor only remain- AMC at id. at 1963 “[i]f ready part equip- regulations help 6. The ble for use. No of this will of little determination, any purpose. District since the other be used ment shall only applicable provision only 94.45-20(a). states that: 46 § CFR line-throwing appliance equip- The and its kept easily readily ment shall be accessi-

145 go utterly is not to be stulti- no here say, rescue doctrine further than however, fied,” must be presumption given the statutory violations alone representative.7 (the to the seaman’s accorded stowage liferaft overload- Lines, v. United 4 Accord Abbott States ing), Seaboard is not entitled to exonera- Cir., 1975, 118, F.2d AMC 1629. 512 1975 tion. 86 Pennsylvania, The (19 U.S. Cir., Corp., Barrios Waterman 5 Cf. S.S. Wall.) 136, 125, 22 L.Ed. 148 (1873), 1961, 310, (ship 290 1961 AMC 1123 F.2d makes it clear that the burden is on a to search for seaman due unable to return safety violation statute —in weather). barge this case the show “not merely —to that her might fault not have been one of of stat- involving In collisions violations causes, or that it probably not, the reversal the bur- regulations, utes it could not have been.” Sea- causation well-established proving den of wrong board is in its contention that Pennsylvania.8 of The under the rule See admiralty applies only this rule in collision Grueninger, 5 506 Skidmore cases. Kernan v. Dredging Co., American n.l, 1103, n.l; 716, 1110 F.2d 1976 AMC 721 426, 355 394, U.S. 78 2 S.Ct. L.Ed.2d 382 Colocotroni, The Puerto Rico v. S.S. Zoe (1958) (fire on a tug caused 1978, open- 1327,1335, Rico, 456 F.Supp. D.Puerto flame lamp kerosene carried on 21, Circuit, scow in The 1979 AMC 29-30. Second violation); Denali, statutory action dealing with an for limitation of F.2d 1940) (stranding case). than the Cir. liability rather rescue doctrine as such, applied Pennsylvania has rule to a Cir., In re Shipping Seaboard Corp., 1971, There, situation. violations man-overboard 1971 AMC stowage of a governing of statutes life denied, 1972, cert. U.S. S.Ct. barge occurred, loading of raft and the 2038-39, 32 L.Ed.2d 337. IB R. See Bene but there was no evidence that these viola- dict, supra (discus 3-153 3-152 to of two tions contributed deaths sea- case). sion of barge. men aboard the The Court never- *6 seamen, Allowing Reyes theless favor of by plaintiff pre- found in the Stella a proof: means of a in the burden of sumption shift is also strongly urged of causation however, by argues, that there commentators. As Benedict states: Seaboard any barge’s the was no evidence that of Whereas in cases there is reason [some] prob- acts negligent defects or Seaboard’s place not rebutting the burden of a deaths, that there- ably caused the negligence presumption of and causation We need proof. fore there a failure of on the defendant there appears little ex- cause, urges, consequence 7. Proximate the as a of has not its breach. Once the proved. been Failure her to reverse course possibility evidence sustains the reasonable search, runs, argument a conduct the rescue, ample narrow, according of circumstances, death, does not of itself account for the since duty, disregard total of the definitely it has not been that shown the man try, refusal to make even a here, as was the case was alive and could have been saved. But liability. imposes ignores underlying this view the character of Moreover, virtually the master’s default — duty. duty the was less It than a to rescue complete emphasized by another conse- —is him, positive duty but it was a to make a quence flowing therefrom. It obliterated all attempt duty sincere at rescue. The is of possibility prove evidence of whether a such nature its will omission contribute search, undertaken, if would have succeeded duty to cause the seaman’s death. The arises analogous alone failed. This has in situa- possibility when a there is reasonable of res- ground tions been considered a sufficient by cue. Proximate cause is tested the same wrongdoer. responsibility fasten on the e., standard, proved i. causation is if the 287, (footnote Id. at 1963 AMC at 33-34 omit- destroys master’s omission possibility the reasonable ted). Pennsylvania of rescue. Harris v. R., 1931). R. Cir. (19 Pennsylvania, Wall.) 8 The 86 U.S. Therefore, proximate implicit cause here 136, 22 L.Ed. Indeed, duty. duty the breach of the would empty if did it not itself embrace loss cases, Combining slight standard of causa- rescue-type doing so cuse for not reg- of of causation to where, independently Coast Guard presumption tion with the ulations, shipowner charged with entitled means plaintiff is here which the diligence to save a degree highest must show shipowner that on remand the gone has overboard. seaman who regulatory vio- inaction [*] [*] # [*] [*] # lations could not have been even a contribu- In death. See re ting Reyes’s cause of . inappro- . not . [I]t [is] Corp., supra. Shipping Seaboard judge priate for the trial Pennsylvania standards and [invoke] Court on remand If the District [place] proof on the burden defend- plaintiff as to the finds in of the favor unfair ... to force ant. It seems element, element then the representative to deal with causation the decedent’s despite contention that damages and, contributory the defendant’s particular, would negligence there have been no negligence must be assessed. The to have any time in event saved the “compara Jones Act embodies of course drowning man. Reyes’s Thus negligence tive” framework. Benedict, IB (emphasis at 3-152 against R. that of negligence § to be offset omitted). supplied) (footnote dam shipowner in order to determine had with . . . sober or he problem [requiring ages. Had been plaintiff prove that it liquor the aid knowl obtained without is] open possibility leaves that even might then we well edge shipowner, where the seaman is able to tread water that his recklessness hold as matter of law time, period shipowner for a brief completely offset jumping off can claim that he not did have sufficient A num shipowner. opera- time in which commence rescue ship held the ber of decisions which above, tions. As mentioned such situa- seaman volun owner not liable where the equitably tions could be more handled tarily jumps are consistent with overboard placing the burden on the defendant 4, supra. such a total note offset. See merely might show not that his not fault have been one of the causes of the drown- case, however, shipown not, ing, probably or that it Reyes’s largely responsible er was reck contributory it could not have been floating dram less act. is that The fact factor. board, the use shop operating omitted). (footnotes Id. at 3-236 was not su intoxicants therefrom obtained *7 consequence “the pervised, and as a vessel has been Nothing impairs that said .,” must bear of the fault . part at least causative element in principle Reyes’s negligence. 558 F.2d at is less than common law Jones Act cases previous holding Thus we our reaffirm con- cause, proximate although standard caution, cerning damages. again, We how- necessary. is still reaf cause in fact We ever, previous interpretation Spinks the District on firm our remand Co., Cir., 1975, 507 F.2d Chevron Oil cannot hold that was 100% contribu- Boats, Vid and Bros. Inc. v. torily negligent. Sanford rine, Cir., 1969, 412 F.2d AMC we Since for causal remand determina- negligence 1706: “A owner’s under the tion, must, as the District Court dissent proximate Act need not be the sole Jones out, pointed F.2d at also consider liability, in injury of an to result cause respect finding causation with to our either contributing may merely cause.” 558 with of unseaworthiness or re- States, F.2d at 244. See Santana United floating spect to the operation of a dram 331, 335-36,1978 572 F.2d shop. 558 F.2d at 244—45. See (reversing “ap trial court’s 1731-32 Plaintiff must District proximate cause now return parent” application of determined, on record or standard). Court to have supplemented parties on a record and appropriate,

the District Court deem these comparative negli-

issues

gence. panel Judge

No member of nor on

regular having active service the Court

requested polled the Court be on banc,

rehearing en the Petition for Rehear-

ing En Banc is DENIED. and REMANDED.

REVERSED HILL, Judge,

JAMES C. Circuit concur-

ring part dissenting part. opinion

I concur in so much of

rehearing as remands for a determination relationship issue causal between

the defendants’ failure maintain line

throwing appliances Reyes’ death. For my original dissent, reasons stated 248-49, again I once must dis- the findings

sent from of unseaworthiness law. negligence as matters WEST, Plaintiff-Appellant,

Robert W. STORES, INC.,

SAFEWAY

Defendant-Appellee.

No. 78-3359. Mighell, Atty., Kenneth J. S. Fort U. Appeals, United States Court of Worth, Tex., Kopp, Appel- Atty., E. Robert Fifth Circuit. Justice, Staff, Div., Dept, late Bar- Civil Gen., Babcock, Atty. Wash- bara Asst. A. Jan. Letter, ington, C., Douglas Atty., D. N. *8 Atlanta, Labor, Berger, Dept, William H. Ga., plaintiff-appellant. Tex., Dallas, Butler, for defendant-

Allen appellee. COLEMAN, Judge, Chief

Before KRAV- HENDERSON, Judges. Circuit ITCH and