Unpublished Disposition, 917 F.2d 28 (9th Cir. 1987)

MEMORANDUM^* 

Sea-Land Corporation appeals a district court judgment holding it liable to Clarence Tinsley for injuries he sustained as a result of an unseaworthy condition on one of its vessels. We affirm in part, but reverse the court's decision that Tinsley was not comparatively negligent. We remand for a determination of the percentage that Tinsley was at fault for failing to report the unseaworthy condition. The damages already awarded shall be reduced by the percentage of blame assignable to Tinsley.

Clarence Tinsley served as chief mate on the SS Galveston, a ship owned and operated by Sea-Land Corporation. At the time of plaintiff's accident, the Galveston was transporting refrigerated cargo vans ("reefers") from Kodiak, Alaska to Tacoma, Washington. As chief mate, plaintiff was required to make periodic checks of the temperature of each reefer. While involved in that task, he sustained injuries which gave rise to this suit in admiralty.

On September 5, 1987 plaintiff mounted the ladder of a reefer stack near hatch # 4 to check the temperature gauge on the third-tier unit. A catwalk had been installed at the second tier, but not at the third tier, to which plaintiff was climbing. As he neared the top of the second reefer, plaintiff reached for the bottom rung of the third-tier ladder and in doing so hit his head on the protruding frame separating the two reefer levels. The bump caused him to lose his balance and fall to the surface of the second-tier catwalk, where he was injured.

Plaintiff sued under the Jones Act, 46 U.S.C. § 688 (1988), arguing Sea-Land was negligent, and under general maritime law, claiming the absence of a third-tier catwalk at hatch # 4 rendered the Galveston unseaworthy. He further alleged that the unseaworthy condition was the sole cause of his injuries. The district court agreed the Galveston was unseaworthy and awarded damages of $721,673.00. Sea-Land timely appeals.

THE "PRIMARY DUTY" DEFENSE

The existence and extent of a duty is reviewed de novo. Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir. 1985).

It is a principle of maritime law that an employer's "duty to provide a seaworthy ship is absolute and non-delegable." Hudson Waterways Corp. v. Schneider, 365 F.2d 1012, 1014 (9th Cir. 1966); accord Seas Shipping Co., Inc. v. Sieracki, 328 U.S. 85, 94 (1946); Norris, 2 The Law of Maritime Personal Injuries, Secs. 298-303 (3rd ed. 1975). Assumption of risk and contributory negligence are not defenses; rather, a plaintiff's negligence is only relevant to mitigate damages. Seas Shipping, 328 U.S. at 94-95; Hudson Waterways, 365 F.2d at 1014-1015. The seaworthiness doctrine was founded on the belief that, because seamen must expose themselves to obvious dangers, taking orders even when the risk of injury is great, it would be unfair for ship owners to be able to hide behind the defenses typically available to employers on dry land. A narrow exception to this general principle, called the "primary duty rule," or the "Walker doctrine," was first stated in 1952.¹  The primary duty rule rarely has been applied to deny recovery, however defendant seeks to bring the present case within its ambit.

Judge Learned Hand first articulated the rule in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772 (2d Cir. 1952), holding that recovery is barred if a seaman's injuries were due to his breach of "a duty which [he] consciously assumed as a term of his employment." Id. at 773. The Second Circuit refined the rule three years later, stressing that the duty alleged to have been breached must be "independent" of the normal tasks expected of the particular seaman. Dixon v. United States, 219 F.2d 10, 16 (2d Cir. 1955). As the court explained:

[The] result turns really not upon any question of "proximate cause," "assumption of risk" or "contributory negligence," but rather upon the employer's independent right to recover against the employee for the non-performance of a duty resulting in damage to the employer, which in effect offsets the employee's right to recover against the employer for failure to provide a safe place to work.

Id. at 16-17 (emphasis supplied). This narrow construction has been adopted by the Ninth Circuit. California Home Brands, Inc. v. Ferreira, 871 F.2d 830, 836 n. 3 (9th Cir. 1989) ("In order for the primary duty rule to apply, the employee must have failed to perform a specific, positive duty for which he had primary responsibility.") (emphasis in the original); Hudson Waterways, 365 F.2d at 1015.

Sea-Land contends that plaintiff, as chief mate, had a primary duty to alleviate the unseaworthy condition created by the absence of a catwalk, relying principally on Reinhart v. United States, 457 F.2d 151 (9th Cir. 1972), one of the few decisions barring recovery on primary duty grounds. The plaintiff in Reinhart, a chief mate, was responsible for spotting defects in wooden sheathing placed in the hold of the vessel to prevent bombs stored below from coming into contact with the metal hull. He also was responsible for rat inspection. While searching for rats plaintiff fell through a hole he had neglected to spot in the sheathing. The court held the breach of his primary duty to check accurately the sheathing barred any recovery. Over the dissent of Judge Choy, the majority found irrelevant that (1) the actual repair of defective sheathing was the responsibility of home port stevedors, and (2) plaintiff could not have corrected the problem himself. The court emphasized plaintiff's duty had been to inspect for damage, and that plaintiff's failure to do so was the cause of his injuries. Sea-Land urges us to hold that Tinsley's failure to report the absence of the catwalk constituted a breach of a primary duty, even though it was not within his power to install a catwalk himself.

Our most recent formulation of the primary duty rule is found in California Home Brands, 871 F.2d at 835-36. Finding the rule inapplicable in that case, the court held: " [i]n order for the primary duty rule to apply, the employee must have failed to perform a specific, positive duty for which he had primary responsibility." Id. at 836 n. 3. (emphasis added to the word "specific"). Drawing on Walker and Dixon, the court made clear that the duty alleged must be specific. As Learned Hand explained in Walker, the duty must be "consciously assumed as a term of employment." Walker, 193 F.2d at 773. According to Judge (later Justice) Harlan, the duty must be so clearly delineated that, if breached, the employer would have a cause of action against the employee. Dixon, 219 F.2d at 16-17.

By contrast, plaintiff in the present case was told in a highly generalized way that he was responsible for maintaining a safe ship. He was never instructed to make reports detailing where he perceived catwalks were needed. The primary duty rule covers only those situations where the failure to undertake an explicitly assigned duty backfires on the very person who was inattentive to it--where the connection between the seaman's negligence and his own mishap is so strong as to justify a total bar to recovery.² 

If we were to accept Sea-Land's position, seamen with broad responsibilities like plaintiff would rarely recover in tort; ironically, they would be responsible for nearly every unseaworthy condition causing them harm. Moreover, ship owners would have an incentive to broadly define the duties of their seamen, with the effect that an assumption of risk standard would begin to prevail in maritime law. Such an outcome would contradict the basic principle that a ship owner's duty to provide a seaworthy ship is absolute and nondelegable.

For these reasons, we hold that California Home Brands, not Reinhart, controls this case and that the primary duty rule is inapplicable.

THE LACK OF CAUSALITY CLAIM

Questions of causality are fact-based and thus are reviewed for clear error. Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir. 1985); see also Trinidad Corp. v. SS Keiyoh Maru, 845 F.2d 818, 822 (9th Cir. 1988) (admiralty court's findings of fact reviewed under clearly erroneous standard). We must affirm unless we are left with a " 'definite and firm conviction that a mistake has been committed.' " Trinidad Corp., 845 F.2d at 822 (quoting In re White Cloud Charter Boat Co., Inc., 813 F.2d 1513, 1517 (9th Cir. 1987)). No such mistake was committed here.

Sea-Land argues that the absence of a catwalk on the third tier at hatch # 4 is irrelevant since plaintiff fell from a point below where a catwalk would have been, not while he was attempting to read the temperature gauge. The district court found, however, that the absence of a catwalk did cause plaintiff's injury since the catwalk serves the additional function of providing safer access to the next reefer level up. It is not just a gangplank running from the ladder across the base of the reefer; rather, it has a protective frame through which one would pass before rising onto the grating. This frame would have caught Tinsley as he fell backwards. As stated in the district court's findings of fact:

5. At all times material there was no catwalk affixed to the stacking frame supporting the vans on the third tier of hatch # 4 which rendered access to the refrigerated vans precarious and dangerous and thus unseaworthy.

6. Plaintiff's injuries were proximately caused by the unseaworthiness of the vessel in that defendant failed to provide a safe and reasonable access to the reefer vans on the third tier at hatch # 4.

(emphasis supplied). As plaintiff demonstrates, the record supports the conclusion that a catwalk would have made it safer to climb around the stacking frame, up to the level where the actual "walk" (or gangplank) would have been in place. We affirm the district court on this point because its findings of fact appear correct, and certainly were not clearly erroneous.

THE PERMANENT DISABILITY CLAIM

The district court's finding that plaintiff was permanently disabled as a result of his fall is an issue of fact, and is therefore reviewed for clear error. Trinidad Corp., 845 F.2d at 822.

Sea-Land contends the district court erred in finding that plaintiff was permanently disabled. It points primarily to differing expert testimony on the subject of disability. The testimony of neither team of experts appears inherently incredible; nothing indicates that one side clearly was right and the other wrong. Thus, we uphold the court's decision to accept the conclusions of plaintiff's experts, notwithstanding Sea-Land's credibility attacks. SEC v. Rogers, 790 F.2d 1450, 1455 (9th Cir. 1986) (special deference owed to district court's credibility determinations).

THE DISTRICT COURT'S REFUSAL TO HEAR TESTIMONY

The district court refused to hear the testimony of a Sea-Land employee who would have stated that plaintiff spoke to him after his fall concerning the settlement of an unrelated heart attack claim, and that at this meeting plaintiff asked to be reassigned to another ship or to other duties until he retired. Sea-Land argues Tinsley's inquiry about other work contradicts his claim of being permanently disabled, and that this testimony went to the heart of its case. It therefore asks for a new trial based on the alleged error.

We review a district court's evidentiary rulings for an abuse of discretion, and will not reverse absent prejudice. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1989). In the present case, the district court allowed defense counsel to offer proof concerning what the testimony of the witness would be. After this colloquy, the court was satisfied the testimony would not add to the trial. The record confirms the testimony would have added little. There was already considerable evidence indicating plaintiff was not faking his injuries and that he was indeed permanently disabled. We therefore find the district court did not abuse its discretion, and that even if it did, withholding the employee's testimony did not materially prejudice Sea-Land's case.

THE COMPARATIVE NEGLIGENCE CLAIM

Finally, Sea-Land argues plaintiff was negligent and that his comparative fault should offset the district court's damage award. The district court's finding that plaintiff was not negligent must be affirmed unless clearly erroneous. Trinidad Corp., 845 F.2d at 822. We hold the court's finding was clearly erroneous.

Sea-Land asserts Tinsley was comparatively negligent because he failed to: (1) devise a safer means of climbing to the third tier of hatch # 4, (2) invoke the company directive stating seamen should not climb reefer stacks in dangerous conditions, and (3) report the unseaworthy condition created by the absence of a catwalk. The first two theories are without merit. As to the first, the district court expressly found, based on credible evidence, that a temporary rigging device would have been impracticable, if not unsafe. As to the second, the company directive only authorized Tinsley to abstain from checking reefer temperatures in circumstances such as heavy weather. Under normal conditions, he was expected to climb all reefer stacks, including those without third-tier catwalks.

Whether plaintiff was comparatively negligent in failing to report the unseaworthy condition created by the absence of a catwalk is a different question. Courts generally are reluctant to find seamen negligent in situations where they have been ordered to carry out dangerous assignments. Under maritime law, the defense of contributory negligence requires evidence of some negligent act or omission by the plaintiff other than his knowledgeable acceptance of a dangerous condition." Tolar v. Kinsman Marine Transit Co., 618 F.2d 1193, 1196 (6th Cir. 1980); accord Akermanis v. Sea-Land Service, Inc., 688 F.2d 898, 904 n. 2 (2d Cir. 1982), cert. denied, 464 U.S. 1039 (1984); Furka v. Great Lakes Dredge & Dock Co. Inc., 755 F.2d 1085, 1090 (4th Cir. 1985), cert. denied, 484 U.S. 1042 (1988); CEJA v. Mike Hooks, Inc., 690 F.2d 1191, 1194-95 (5th Cir. 1982); Hall v. American S.S. Co., 688 F.2d 1062, 1065-66 (6th Cir. 1982); Joyce v. Atlantic Richfield Co., 651 F.2d 676, 682-83 (10th Cir. 1981).

Beyond mere acceptance of a dangerous condition, Tinsley was negligent in failing to report that climbing to the third tier was unsafe without a catwalk. When a seaman confronts a condition he knows to be dangerous, and when he does so on a recurring basis, he may be held negligent for not reporting that condition to his superiors. DuBose v. Matson Navigation Co., 403 F.2d 875, 878-79 (9th Cir. 1968); 1B Benedict on Admiralty Sec. 25 (6th ed. 1989).³  DuBose involved a suit by a scullion whose leg was injured when other workers repeatedly bumped into him as they carried dishes to be washed. Instead of reporting the problem, plaintiff endured being bumped into for three months, until he finally had to be hospitalized. We affirmed the district court's denial of recovery, holding that plaintiff was

negligent in not setting in motion circumstances which would bring about a change of conditions, namely, informing his superiors of the bumps he had been receiving so that they could change the course of the dish-runners. Of course, whether appellant had a duty to so inform his superiors depends upon whether it can be said, as a matter of law, that his continuing to work under the aforesaid conditions created "an unreasonable risk of injury to himself." Kulukundis v. Strand, 202 F.2d 708, 711 (9 Cir. 1953).

DuBose, 403 F.2d at 878 (emphasis in original).

It is conceded in this case that plaintiff knew for quite some time that he was working under an unsafe condition, and that he did not report it to his superiors. Under the circumstances, we find this condition created an unreasonable risk of injury to Tinsley. Moreover, the defect in the ship was rectifiable; plaintiff was not confronted with a general seafaring risk of the kind courts have excused seamen from reporting--such as having to go on deck during a violent sea. Thus, although Tinsley's failure to report the lack of a catwalk at hatch # 4 did not constitute a violation of a primary duty, we hold it did constitute negligence.

We address one additional point. The Second Circuit has adopted a narrow exception to the general rule of comparative negligence. Where the defect is obvious, no report should be required because the seaman's superiors presumably are aware of the problem. The Second Circuit arrived at this conclusion, distinguishing DuBose, in a case where the danger of a slippery floor was "immediately obvious to superiors." Rivera v. Farrell Lines, Inc., 474 F.2d 255, 258 (2d Cir.), cert. denied, 414 U.S. 822 (1973); Guerrero v. American President Lines, Ltd., 394 F. Supp. 333, 336 (S.D.N.Y. 1975). We believe this exception does not apply to the instant case.

Sea-Land's management undoubtedly knew catwalks were not installed at each level of all reefer stacks, but that fact alone tells us little. The crucial question is whether the absence of a catwalk at hatch # 4 should have been perceived by Tinsley's superiors as an obvious danger. We believe the danger was obvious only to seamen like Tinsley, who climbed the reefer stacks on a daily basis, and who were thus familiar with all the acrobatics involved in reaching the temperature gauges of those reefers which were not equipped with catwalks. The danger of the situation was discoverable only in the climb itself, not by casual observation. This is not, for instance, the case of a deck smeared with oil, or a hole in the hull, where the unseaworthy condition is immediately recognizable as unsafe by all concerned. The danger here was only obvious to those initiated in the rites of reefer climbing. We therefore find Tinsley is not excused from his failure to report the unseaworthy condition.

CONCLUSION

On remand, the district court shall determine the extent to which Sea-Land's liability is offset by Tinsley's negligence, and shall reduce the damage award already calculated according to the percentage of his fault. We emphasize, however, that our opinion should not be read to express a view on what amount of reduction is appropriate. The district court shall examine this question independently.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.