explaining that industrial standards are some evidence that a ship is seaworthy, but are not conclusive
How later courts described this case
- explaining that industrial standards are some evidence that a ship is seaworthy, but are not conclusive
- warped board furnished for construction of grain feeder
Written by the judges who cited it.
The opinion
BOREMAN, Circuit Judge
(dissenting) :
I cannot concur in the majority opinion. This case was presented to the District Judge, sitting as the trier of fact without a jury. He found, as facts, that the ship was not unseaworthy and that the defendant was not negligent. In an oral deliverance from the bench, the court stated:
“Plaintiff further testified that he had no difficulty in getting up on the coaming and that there was nothing unusual about getting up on the coaming. All testified that it was the usual and customary manner in which this type of work was done on feeder boxes.
“Plaintiff states he had the correct board, and repeated this, and that it was no different from any other board that stuck on occasions, but that it had to be driven in.”
X * * X X- X
“There is no testimony here that this particular board was unseaworthy, and the ship’s duty is only to have the equipment reasonably safe for the purpose for which it was intended. There is ample testimony to the effect, by all concerned, that the condition, as far as the board was concerned, was a customary and usual one and that it was normal to fit the boards which stuck in this manner in by tamping or ramming them into place while standing on the hatch coaming.”
* * * * *A*
“x x x gu^. according to the plaintiff’s own testimony, the board fitted well enough to be driven in so that he gave no thought to taking it out. * * *”
X- X X X X X
“It just appears to be one of those unfortunate instances that happens on the waterfront where a person sustains an accident and for which, of course, he can recover under the Longshoreman’s Act.
“So, the Court finds for the defendant ship. It was not unseaworthy, nor was it negligent.” (Emphasis mine in the above quotations.)
There was abundant evidence in the way of testimony by the injured plaintiff himself and by his fellow longshoremen that the condition of the board was a customary and usual one and that the board fitted well enough to be driven in by following the generally approved practice which was described as reasonably safe. The duty of the owner is to furnish a vessel and appurtenances reasonably fit for their intended use. That *191 principle is particularly apposite here and, in my opinion, was followed and applied by the District Court notwithstanding certain language employed by the court in orally announcing its findings and opinion at the conclusion of the trial.
Concluding, as I must, that the findings with respect to seaworthiness and negligence are supported by substantial evidence, I would affirm.