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

ALBERT V. BRYAN, Circuit Judge,

(dissenting):

I would affirm. Aware of the doctrine of operational negligence, the District Judge applied it quite precisely, I think. This court now reverses because, it finds, his jury instructions embodied an erroneous submission of the doctrine. The majority holds, with which I disagree, that under the doctrine, negligence of a longshoreman without more amounts to unseaworthiness. My second difference is that in any event the two statements in the instructions singled out as crossing the majority, were harmless, in the light of the unexceptionable comprehensiveness of the- charge in respect to negligence and unseaworthiness.

My understanding is that the rule does not equate negligence with unseaworthiness. The two remain separate elements. One is cause, the other effect, and together they create a basis of liability beyond a claim on negligence alone, i. e. a cause of action for unseaworthiness. Hence, the negligence of the longshoreman while actionable qua negligence, is not actionable as unseaworthiness unless it has caused unseaworthiness. Illustrations of the distinctiveness between the two are not wanting. For example, if a longshoreman in walking past another on deck negligently dropped a wrench upon the latter’s foot, the injured man would not have a cause of action on unseaworthiness, for no such condition resulted. Other instances come readily to mind. All demonstrate that negligence does not by itself constitute unseaworthiness. 1 This concept of the independence of these two elements was carried by the District Judge into the instructions here, and quite correctly I think. Nevertheless, this is the point of the reversal.

The first of the instructions, and the part to which the majority takes exception, declares that if “the accident was the result of the manner in which the *355 plaintiff and his fellow longshoremen perform their duties on board * * * and * * * this was the efficient cause of the accident to the entire exclusion of any negligence of the defendant or any unseaworthiness of the vessel”, there would be no liability on the shipowner. This sentence does not run counter to the principle of operational negligence.

The pith of that principle here is that if at anytime — before, during or after the voyage — the negligence of the shipowner or of a longshoreman causes unseaworthiness in the vessel, the owner is liable on the score of unseaworthiness to another longshoreman injured thereby. But for its invocation there must in fact be negligence imputable to the defendant or independent unseaworthiness. If there is none, then, as the District Judge charged, there would be no basis under the theory of operational negligence for unseaworthiness-liability. Hence, the instruction was accurate in excluding responsibility if there was no unseaworthiness or negligence of the defendant.

The majority is mistaken in framing the District Judge’s concept of operational negligence. He stressed that negligence of the owner or of another longshoreman requires finding of liability if the negligence resulted in unseaworthiness. If it did not, that is if the negligence stood alone, then there was no liability on the basis of unseaworthiness. Throughout the charge the trial judge made this distinction quite clearly. The part of his opinion which, of course, never went to the jury, now cited by this court to reveal the judge’s intendment of his words is incomplete. He did not make the naked assertion that operational negligence, standing alone, does not permit a recovery. Always he conditioned this holding on the absence of unseaworthiness due to negligence.

Likewise, I perceive nothing incorrect in the other instruction, also now held to demand reversal, that “the mere fact that there was an empty space between some of the hogsheads * * * comprising the stowage * * * is not enough, standing alone and by itself, to constitute unseaworthiness”. Surely this is sound, in fact and in law. “Some” of these containers could well be spaced apart without conclusively establishing negligence. To me this is a truism. The jury was entitled to know that this circumstance did not peremptorily command a finding of unseaworthiness. Other contextual conditions could, of course, make it actionable, but these had to be added to create liability.

The immediate defect found in the two instructions was that they submitted factual premises which were not in issue, e. g., (1) exclusivity of causal fault on the plaintiff’s part and (2) reference to the spacing of “some” hogsheads instead of just to those around the plaintiff. Granting the asserted infirmity arguen-do, I fail to grasp the gravity of either of these allusions. They were merely prefatory statements, conventionally given as the beginning point for the jury’s determination of negligence and unseaworthiness. In both instances, they were followed with a meticulous, step by step, enlargement upon every accusation made by the plaintiff. The charge defined unseaworthiness generally, then applied it specifically to each accusation, and advised the jury of the unqualified liability for any breach. The irrelevance of the owner’s participation or knowledge, and of the time at which it arose, was emphasized.

I think the majority strains for error.

. The demonstration is too evident to need citation of authority, and too plain to be overridden by a decisional trend.