Henry Phipps, Libellant-appellant, v. the S.s. Santa Maria, Etc., et al., Respondents-appellees, 418 F.2d 615 (5th Cir. 1969)

Here the claimant, a longshoreman at the Port of New Orleans, was injured while working in the lower hold of S.S. Santa Maria while she was being loaded with bulk grain.¹  The hatch boards had been removed leaving the hatch beams of the tween deck exposed. A mechanical grain trimmer was lowered and raised through these spaces from time to time as loading went on. Throughout the ship the locking devices to secure the hatch beams in place were rusted, defective and unusable. Consequently, the stevedore instructed the longshore employees to lash the beams with ropes. Claimant worked in the lower hold even though, as found by the Trial Court, he "knew that the tween deck beams were neither locked nor lashed — [and] that unlashed beams overhead created a substantial hazard to those working below." While the grain trimmer was being maneuvered into position a momentarily unattended but defective winch "walked up" causing the trimmer to lift one of the beams out of its socket so that it fell into the hold.

The District Court found claimant had suffered $11,255.14 in damages as a result of the unseaworthiness of S.S. Santa Maria from dual causes. "An unseaworthy condition was created — by the unsecured hatch beams, as well as by the malfunctioning of the winch."²  However, this was reduced by 50 percent because of the additional finding that claimant was 50 percent contributorily negligent.

Although, as we did in our recent decision in Manning v. M/V "Sea Road", 5 Cir., 1969, 417 F.2d 603 [Oct. 16, 1969], we reject claimant's contention that the comparative fault doctrine has no place in a case where the unseaworthiness is the result of the violation of the Safety and Health Regulations for Longshoring, 29 C.F.R. § 1504.1 et seq., we believe that it is appropriate to remand this case for reconsideration by the Trial Court in the light of the principles there discussed. Under Manning the unseaworthiness of S.S. Santa Maria was the per se result of the violations of the Safety and Health Regulations for Longshoring as they relate to hatch beams³  and cargo winches.⁴  29 C.F.R. §§ 1504.43, 1504.53. See Manning, supra; Marshall v. Isthmian Lines, Inc., 5 Cir., 1964, 334 F.2d 131, 1964 A. M.C. 1686.

As in Manning it would in these circumstances defeat the congressional objective of achieving industrial safety to permit the victim of flagrant violation as to beam locks (note 3, supra) to bear more of a responsibility for this than the shipowner. The maximum contributory negligence attributable to claimant on this score would therefore be 50 percent. But the present result of a 50/50 decree ignores altogether the other ground of the defective winch.⁵  This violation was equally flagrant but completely unknown by or attributable to the victim.

Of course, assessment of damages under comparative fault is something more delicate (and frequently more enigmatic) than matching element by element the victim's and the wrongdoer's derelictions. But the strong congressional policy which gives effectiveness to statutory regulations through civil sanctions requires that every violation producing per se unseaworthiness for which the shipowner is responsible has to be carefully assayed. We would not undertake to say either in dollars or percentages what that may or must be here. That is the role initially of the Trial Judge.

As we are left in doubt that these principles subsequently articulated were adequately assessed, remand is not a matter of holding the mixed law-fact finding of 50 percent to be clearly erroneous, F. R.Civ.P. 52(a).⁶  Rather, it is just to assure that proper legal standards are followed. We therefore conclude a remand is appropriate for reconsideration of this comparative fault, mitigation of damage phase on either the present record or as supplemented by the parties under the direction of the Trial Judge.

Remanded.