# Sherwood Lester, Libelant-Appellant v. United States of America, and Marine Basin Company, Respondent-Impleaded-Appellee > Court of Appeals for the Second Circuit · June 4, 1956 · 234 F.2d 625 URL: https://www.frixlaw.com/law-library/cases/9445183 ## Case - **Full name:** Sherwood LESTER, Libelant-Appellant, v. UNITED STATES of America, Respondent-Appellant, and Marine Basin Company, Respondent-Impleaded-Appellee - **Court:** Court of Appeals for the Second Circuit - **Decided:** June 4, 1956 - **Citations:** 234 F.2d 625; 1956 U.S. App. LEXIS 4703 - **Precedential status:** Published - **Opinion:** Dissent by Frank - **Judges:** Frank, Lumbard, Waterman - **Cited by:** 34 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9445183 ## Opinion text FRANK, Circuit Judge (dissenting). The trial judge, who saw and heard the witnesses when they testified, found that libellant was not negligent. This finding must be accepted by us since it is not “clearly erroneous.” I agree with my colleagues in accepting the trial judge’s conclusion that the absence of the guard rail was causally related to the accident. I disagree with my colleagues’ conclusion that, in the circumstances, the Q-100 was nevertheless seaworthy. The evidence shows that the overhaul contract, made before the accident, specifically called for a guard rail (but that for some reason it was never installed). My colleagues hold that the judge mistakenly considered this provision of the contract as evidence that the absence of the rail rendered the vessel unseaworthy. I would agree — see Wigmore Evidence, Section 283 — if here there were a contract (or plan) to make an improvement after the accident. But I think that, since the respondent, before the accident, had planned to make this improvement, the judge correctly gave this evidence much weight. My colleagues also say that, even if the vessel without the rail would have been unseaworthy when at sea, the same is not true of the vessel when in dry dock. This amounts to saying that the rail was essential for seaworthiness when and only when the vessel was in motion and in rough waters. I cannot agree. In Krey v. United States, 2 Cir., 123 F.2d 1008 , we held the shipowner liable, on account of unseaworthiness, to a seaman injured when he slipped in a shower, despite the fact that the ship was in port. That here libellant, without negligence, fell from the trunk top, and suffered serious injury from the resultant fall, and that the fall would not have occurred if there had been a rail, serve to show that the vessel was not safe even when motionless. Nor are my colleagues correct *630 in suggesting that libellant was engaged in the very repairs contemplated by the overhaul contract: He had nothing to do with the work of setting up a rail, for he was an electrical worker. I consider easily distinguishable the cases on which my colleagues rely for their conclusion that the vessel was not unseaworthy. In Newport News Shipbuilding & Dry Dock Co. v. Watson, 4 Cir., 1927, 19 F.2d 832, 833 , the court pointed out that “the launch in this case was employed in carrying heavy lines or hawsers about the shipyard, and it was equipped with a hand rail around its deck house and a coping around the outer deck a few inches high. It can readily be seen that a hand railing around the outer deck would greatly interfere with the handling of the heavy lines sought to be carried.” On the" basis of these facts, the court said, “Within the protected waters of the shipyard, where the launch plied (it did not go on protracted voyages or into rough water), it would seem that the lack of an outer guard rail did not render the launch unseaworthy or unfit for the service in which it was employed.” In Brick v. Long Island R. Co., 245 N.Y. 222 , 157 N.E. 93, 94 , there was a guard rail sufficiently close to the point from which the seaman fell so that he could have grasped it, had he been careful: Cardozo, J. stated: “A boat is not unsea-worthy because there are spaces here and there where a seaman, if awkward or inattentive, may find it possible to fall.” That is not this case. Here the vessel had no guard rail at all along the main deck, and (to repeat) we must accept the finding that libellant was not negligent. In Hanrahan v. Pacific Transport Co., 2 Cir., 262 F. 951 , the court assumed that the plaintiff was injured by the negligence of the ship’s officers in not replacing a guard rail that had been temporarily removed, but the court decided for the ship’s owner on the sole basis of the rationale of Hedley v. Pinkney (1894), App.Cas. 222 and Olson v. Oregon Coal & Navigation Co., 9 Cir., 104 F. 574 . Those cases held that, when a ship’s equipment is adequate but the equipment is not adequately used because of the negligence of the injured seaman’s fellow servants, if the ship is thereby rendered unsafe, the owner is not liable. We have rejected such rulings; Mollica v. Cam-pania Sud Americana, 2 Cir., 202 F.2d 25 ; cf. Grillea v. United States, 2 Cir., 232 F.2d 919 , on rehearing. The general statements in the cases, on which my colleagues rely, related to facts different from those involved in the instant case. See Wason v. Sanborn, 45 N.H. 169 , 170: “Whenever a fixed and certain rule can be established, it is immensely important that it should be. But there is a large class of cases and of questions, where the circumstances admit of so numerous variations, that no rule can be framed comprehensive enough to reach them. In such cases decisions must be made in the exercise of a sound judgment upon all the circumstances, and such decisions can furnish rules for new cases, only where the same circumstances occur, yet there is a constant striving to treat them as precedents, and to regard the expressions used by the courts in stating the grounds of their decisions, and which are true perhaps in regard to the case in hand, as universally true.” 1 . See also Chafee, Simpson and Maloney, Cases on Equity (1951) 1058-1059. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445183. Public record. Not legal advice.