Unpublished Disposition, 880 F.2d 416 (9th Cir. 1987)

Nos. 86-6484, 86-6541 and 87-6675.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and FLETCHER, Circuit Judges, and LLOYD D. GEORGE,^*  District Judge.

MEMORANDUM^** 

Seaman Harry M. Carvalho appeals the district court's judgment after a bench trial for the defendant vessel, the M/V "Andera C", denying damages for injuries based on either unseaworthiness of the vessel or negligence of the Andrea C Fishing Corporation. He also seeks review of the district court's order denying his motion for a new trial under Rule 60(b) (1). The defendants below filed a cross-appeal, arguing that the district court lacked jurisdiction over the seaworthiness claim. We affirm.

FACTS

Appellant Harry M. Carvalho was a tuna fisherman employed as a crew member of the defendant vessel, the "Andrea C." In November of 1982, the "Andrea C" was sent to Panama to pick up a truckload of salt bags which were to be delivered at sea to a sister ship, the M/V "Uncle Louis."

On the date of Carvalho's injury, the "Andrea C" was tied up parallel to a dock in Panama. A large flatbed truck, loaded with more than 100 sacks of salt weighing approximately 100 pounds each arrived at the dock and parked parallel to the vessel. According to Carvalho, the supervisor ordinarily in charge of loading salt is the deckboss, but no deckboss had been hired for the vessel at the time of the accident. Consequently, Navigator Matt Giacalone was in charge of the loading procedure. Giacalone ordered Carvalho and several other members of the crew to assist in unloading the salt bags from the truck, and loading them onto the vessel. Apparently, specific crew members were not assigned specific tasks. Rather, they assigned themselves to perform different aspects of the job.

The loading method worked as follows: one crew member spread a cargo net on the dock, between the truck and the vessel; other members of the crew climbed onto the back of the flatbed and threw the bags down from the truck onto the cargo net. When the net was full, it was hooked up to the ship's "cherry-picker," and its contents dropped into the ship's hold. Other crew members stacked the salt bags in the hold.

Appellant Carvalho and Matt Giacalone were the only two crew members unloading bags from the back of the flatbed. Giacalone was positioned on the side of the truck nearest the cargo net. He simply pulled sacks off the stack and swung them out and into the cargo net. Carvalho's position was on the other side of the flatbed. From this position, Carvalho was required to pick up a bag, carry it six to eight feet across the truck and swing it out to drop it into the cargo net. It is undisputed that the bed of the truck was covered with loose salt.

During the unloading of the salt, Carvalho injured his back. Over three months later, orthopedic specialist Dr. Handler diagnosed Carvalho as having two herniated discs and performed surgery. Carvalho's condition worsened, and a second surgery was performed in June of 1984. Because of Carvalho's continuing back problems, Dr. Handler testified that Carvalho cannot return to jobs involving heavy labor, such as the one he performed prior to sustaining his injury.

Carvalho brought this action under the Jones Act, 46 U.S.C. § 688, alleging negligence on the part of the defendant, and in admiralty, claiming that his injury was caused by the unseaworthiness of the vessel. The parties waived a jury trial.

The district court concluded that Carvalho failed to establish that his injuries were caused either by unseaworthiness, or by the defendant corporation's negligence. Judgment for the defendants was entered on July 11, 1986.

Carvalho's motion for a new trial under Fed. R. Civ. P. 59, was denied on October 1, 1986. Carvalho appealed. The defendants filed a cross-appeal, contesting the district court's finding that it had jurisdiction over the seaworthiness claim. By order dated April 30, 1987, the case was remanded to the district court for the purpose of obtaining a ruling on Carvalho's proposed motion for a new trial under Fed. R. Civ. P. 60(b). Judge Keep entered an order denying the Rule 60(b) motion on October 26, 1987. Carvalho filed a timely notice of appeal. We have jurisdiction over the consolidated appeals under 28 U.S.C. § 1291.¹ 

DISCUSSION

During the trial, Carvalho argued that the lack of proper supervision of the unloading process, the presence of too few crew members to do the job, and the presence of loose salt on the surface of the truck bed combined to create unsafe working conditions, and that these unsafe conditions caused Carvalho to injure his back. After hearing all of the testimony, the trial judge found that Carvalho failed to establish that the vessel was unseaworthy or that the defendant corporation was negligent. The court found that Carvalho's injury resulted from a pre-existing back condition. Carvalho challenges these findings.

The district court's determination that the corporation was not negligent is reviewed under the clearly erroneous standard. Weyerhaeuser Co. v. Atropos Island, 777 F.2d 1344, 1347 (9th Cir. 1985). The court's finding that the vessel was seaworthy is subject to the same standard of review. Craig v. M/V Peacock, 760 F.2d 953, 957 (9th Cir. 1985) (magistrate's finding of seaworthiness not clearly erroneous); see also Taisho Marine & Fire Ins. Co. v. M/V Sea-Land Endurance, 815 F.2d 1270, 1272-73 (9th Cir. 1987) (district court's determination that the vessel was seaworthy and the loss of cargo was from a "peril of the sea" reviewed under the clearly erroneous standard). Where the trial court's factual findings rest in large measure upon its determination of the credibility of the witnesses, extreme deference is afforded those findings. Johnson v. United States Postal Service, 756 F.2d 1461, 1464 (9th Cir. 1985).

Carvalho's major challenge to the district court's findings is that the district court failed to address one of Carvalho's theories of recovery. He points to the following statement in the district court's Findings of Fact and Conclusions of Law:

To find defendants liable under either the Jones Act or this court's general admiralty jurisdiction, the court must first find that plaintiff slipped on loose salt on the bed of the truck. This finding is the basis for all of plaintiff's theories of liability under both the negligence and unseaworthiness claims. These theories are accepting defective cargo (leaking salt bags); providing an unsafe work place (the presence of loose salt on the bed of the truck; providing inadequate supervision or work methods (the presence of salt on the truck bed required more men to pass the salt bags so seamen wouldn't slip, or necessitated a cargo net on the back of the truck so seamen wouldn't walk on the salt, or required a sweeper to clear salt).

Supplemental Excerpts of Record (SER) at 7. Weighing the credibility of the witnesses, the court found that Carvalho did not slip on the salt, but injured his back lifting the salt. Id. at 8.

Carvalho maintains that the district court's analysis represents a misunderstanding of his theories of liability. He argues that the work method employed in the unloading process, which required Carvalho to pick up, carry, and throw 100-pound sacks of salt was inherently dangerous, regardless of the existence of loose salt on the truck bed. Carvalho presented expert testimony at trial suggesting that having two men, rather than one, lifting each salt bag would have been a safer method of unloading the salt. He contends that the dangerous work method (one man lifting) caused his injury, and that this provides a basis for the defendants' liability even if we accept the district court's finding that he did not sustain his injury as a result of slipping on loose salt.

Carvalho cites several cases, including Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724 (1967), which establish that an improper work method, such as the assignment of too few crew members to safely perform the assigned task, renders a vessel unseaworthy. The defendants do not dispute this general statement of the law. However, to recover, Carvalho must establish that, in fact, the work method was unsafe because too few crew members were assigned to the task, and that those unsafe work methods caused his injury. After reviewing the district court's findings and the record below, we conclude that the district court addressed, and rejected, this theory of liability, and that the district court's findings were not clearly erroneous.

The district court's findings contained the following statement:

All witnesses who testified generally agreed a reasonably fit seaman is able to carry one hundred pound bags of salt; based upon this testimony, this court so finds. Hence, no liability can be predicated upon requiring plaintiff to load salt.

SER at 10-11. Although this finding could have been drafted more artfully, we interpret it as an explicit rejection of Carvalho's theory that requiring him to lift the bags by himself was an unsafe work method.

This finding is not clearly erroneous. While Carvalho points to testimony indicating that it would have been safer to employ a different method of unloading, there was also evidence that requiring one reasonably fit seaman to move 100 pound sacks of salt is not unreasonable. Even Carvalho's expert witness, Norman Mezin, admitted that the possibility of slipping was the main factor requiring the use of more than one man per sack. That was revealed in cross-examination through the following exchange:

Q. Assume one other fact. Assume he [Carvalho] didn't slip. You would expect a reasonably good seaman to be able to walk across and pick up a sack of salt, walk across the bed of that truck with salt on it, he didn't slip, you would expect that he was reasonably fit, not to have him pop his back, wouldn't you?

A. Gee, I'd hope so.

Reporter's Transcript (RT) at 1067. This testimony is consistent with other testimony suggesting that reasonably fit seamen are capable of performing lifting tasks similar to the one performed by Carvalho. The district court's ultimate findings that requiring individual seamen to lift and carry one hundred pound bags of salt did not create an unseaworthy condition or constitute negligence are not clearly erroneous.

Carvalho also challenges the district court's denial of his Rule 60(b) (1) motion for relief from judgment. Carvalho's motion challenges the court's admission of evidence gleaned from the written notes of claims adjustor Tuck Arnold on the basis that the evidence was a "surprise" because the defendant's answers to Carvalho's interrogatories did not disclose the existence of these notes. The district court's denial of Carvalho's Rule 60(b) motion is reviewed for abuse of discretion. LaFarge Conseils et Etudes, S.A. v. Kaiser Cement & Gypsum Corp., 791 F.2d 1334, 1338 (9th Cir. 1986).

Even if we assume that the Arnold evidence was a "surprise" and that the Rule 60(b) motion was brought within a reasonable time, it was within the discretion of the trial court to deny this motion. The court clearly concluded that a second trial would serve little purpose because even if Carvalho successfully rebutted Arnold's testimony, the remaining testimony was sufficiently strong to compel the same result. Weighing the equities, the court therefore determined that the Rule 60(b) motion should be denied. Cf. Madsen v. Bumb, 419 F.2d 4, 6-7 (9th Cir. 1969) (affirming refusal to set aside default judgment because movant failed to establish the existence of a meritorious defense, and because of the cost and delay of reopening the proceedings). That conclusion was not an abuse of discretion.

CONCLUSION

The district court's findings that the vessel was seaworthy and that the corporation was not negligent are not clearly erroneous. The district court did not abuse its discretion in denying Carvalho's Rule 60(b) motion. Because we affirm the district court's judgment, we need not address the defendants' argument on cross-appeal that the district court lacked jurisdiction over Carvalho's seaworthiness claim.

AFFIRMED.