Sarah A. O'LEARY, Administratrix, Plaintiff, Appellant, v. UNITED STATES LINES COMPANY, Defendant, Appellee, 215 F.2d 708

WOODBURY, Circuit Judge. The plaintiff in an action against a shipowner to recover for the injury and death of her stevedore husband, alleged to have been negligently inflicted, has taken this appeal from a judgment entered on a verdict returned by a jury for the defendant by direction of the court. The complaint is in two counts. In the first count recovery in the maximum statutory amount is sought for the death of the deceased longshoreman under the Massachusetts version of Lord Campbell’s Act. Mass.Gen.Laws,

Chapter 229, § 2C. In the second count recovery is sought for the decedent’s pain and mental anguish, medical expenses and loss of wages under the Massachusetts statute providing for the survival of actions of tort. Mass.Gen.Laws,

Chapter 228, § 1(2). Federal jurisdiction based upon the diversity of the citizenship of the parties and the amount in controversy between them is alleged and clearly established. Title 28 U.S.C. § 1332(

a) d). On August 31, 1951, the defendant’s vessel American Attorney arrived in Boston already fitted to receive a cargo of grain in her No. 4 hold and the deep tanks thereunder, and immediately tied up at a dock in navigable waters. That afternoon the plaintiff’s decedent, a veteran longshoreman with several years experience in loading grain, was hired to work on the vessel by an independent stevedoring concern with which the defendant had a contract to load the vessel.

The decedent reported on board with his gang about 7 p. m. and was told by his gang boss that the deep tanks in the No. 4 hold were to be loaded first. These tanks, four in number, are located beneath the lower platform or floor of the lower hold, which was 65 feet wide, 81 feet long and 13 feet high. Each tank is 11 feet deep and is fitted with an approximately 9 by 10 foot cover which when in place rests on a coaming extending some 8 or 9 inches above the floor of the hold.

The four tanks are arranged side by side in pairs, and are spaced 6 feet apart in the starboard to port direction and 18 feet apart in the fore and aft direction. When the vessel was fitted to receive her cargo of grain the covers on all four deep tanks in the No. 4 hold were removed and placed to one side, and the tanks were then cleaned and sprinkled with lime to absorb residual moisture.

In addition the lower hold was bisected lengthwise by a temporary wooden partition extending from the ceiling to within 3 or 4 feet of the floor the purpose of which was to prevent grain in the hold from shifting from side to side during the voyage. This shifting board, so called, obstructed ladders at either end of the hold leading to the deck above, leaving an escape ladder located in the aft port

section of the hold as the only means of ingress or egress. The first step taken by the stevedores in preparation for loading the vessel was to remove the two forward sections of the main deck hatch covering the No. 4 hold. When this was done it could clearly be seen that the covers of the two forward tanks had been removed, that the shifting board was in place, and that a “feeder box” had been built and set in position. It could not be seen from the deck, however, whether the covers of the after deep tanks had also been removed or were still in place.

While the sections of the hatch cover were being removed the boss stevedore obtained a cluster light from the vessel’s mate which was lowered by its cord into the forward starboard deep tank which was to be loaded first. Then a blowing machine belonging to the stevedoring company was hoisted on board by the ship’s tackle and lowered through the feeder box into the tank for the purpose of distributing the grain evenly as it came on board.

About 7:15 a stevedore in the gang named O’Halloran was sent below to attach the blower pipe to the machine and guide it to its proper position in the forward starboard tank, and about five minutes later the decedent was ordered to go below to help O’Halloran. Two or three other stevedores in the gang testified that when this order was given they saw the decedent cross the deck in the direction of the escape hatch at the top of the escape ladder leading to the No. 4 hold. O’Halloran returned to the deck about 7:30 or 7:35 and was asked if he had seen the decedent.

He said that he had not seen or heard anything of O’Leary, and about five minutes later O’Leary appeared on deck with “an awful lump” on his head, his clothes dishevelled and covered with lime, without his hat, staggering and incoherent in speech, groaning, and complaining of pain in his head, shoulders and back. He was taken by ambulance to a hospital where he was found to be suffering from a fractured skull and other injuries from which he died a few days later.

After the accident O’Leary’s hat was found in the after port deep tank in which a 2yz inch pipe extended vertically about 3 feet above the bottom of the tank. This pipe was 1 or 2 feet aft of being under the forward coaming, and foot prints were seen in the lime around it. Also white hand prints were seen on the inside of the coaming but the testimony is conflicting as to whether those hand prints pointed up or down, or whether they were on the forward part of the coaming above the pipe or whether they were on the after part of the coam-ing near the escape ladder.

On the plaintiff’s testimony disclosing the foregoing facts the District Court directed the jury to return a verdict for the defendant on the ground of lack of any evidence from which the jury could reasonably find causal negligence on the part of the defendant. In Just v.

Chambers, 1941, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 the Supreme Court held that the maritime law was augmented or supplemented by state statutes providing for the survival of actions of tort against the estates of deceased tort-feasors, so that in consequence a plaintiff might maintain an action against the estate of a deceased shipowner to recover for injuries resulting from a maritime tort occurring within the territorial waters of the state.

Although authority seems to be lacking, no doubt by parity of reasoning the converse is also true, and the plaintiff is entitled by the Massachusetts survival statute cited above to maintain the cause of action stated in the second count of her complaint for her deceased husband’s pain, mental anguish, loss of wages, and medical expenses.

Nor can there be any doubt whatever that she may maintain the cause of action stated in the first count of her complaint for it has long been settled that a state-created remedy for wrongful death will be enforced both in the admiralty courts and in proceedings under the saving clause when death results from a tort committed on navigable waters within a state whose statute provides such a remedy. The Hamilton, 1907, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; Western Fuel Co. v. Garcia, 1921, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210; American Stevedores v. Porello, 1947, 330 U.S. 446, 67 S.Ct. 847, 91 L.

Ed. 1011, and the cases cited therein. See also the discussion in Just v. Chambers, supra. But, although it is perfectly clear that the plaintiff may look to the Massachusetts death act for a remedy, it is by no means clear whether the defendant’s liability is to be determined by application of the substantive law of Massachusetts, as ultimately determined by the Supreme Judicial Court of that Commonwealth, or whether its liability is to be determined by application of the general maritime law, as ultimately declared by the Supreme Court of the United States.

The latter court, so far as we have been able to determine, has never addressed itself specifically to the question. In the courts of appeals, however, it has been held several times that one who seeks to recover under a state death statute for a tort occurring on the navigable waters of the state may do so only in accordance with the substantive law of the state in which the tort was committed. See Feige v. Hurley, 6 Cir., 1937, 89 F.2d 575, 578; Klingseisen v. Cos-tanzo Transp. Co., 3 Cir., 1939, 101 F.2d 902, 903 and cases cited, followed and reaffirmed in The H. S. Inc.

No. 72, 3 Cir., 1942, 130 F.2d 341, 343 and Puleo v. H. E. Moss & Co., 2 Cir., 1947, 159 F.2d 842, 845, certiorari denied 331 U.S. 847, 67 S.Ct. 1733, 91 L.Ed. 1857. But these cases were all decided prior to Pope & Talbot, Inc. v.

Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202 wherein the Supreme Court of the United States in a civil action on the law side under the saving clause for the first time held categorically that the rights of a shore worker to recover for personal injuries short of death occurring on a vessel in the navigable waters of a state resulting from either the negligence of the shipowner or the unseaworthiness of the vessel are to be determined by the general maritime law and not by the law of the state within whose waters the accident occurred.

That case, of course, is not squarely in point here, but in the Court’s opinion 346 U.S. at page 409, 74 S.Ct. at page 205 it is said by way of dictum that “Even if Hawn were seeking to enforce a state-created remedy for this right, [referring to his right of recovery for unseaworthiness and negligence] federal maritime law would be controlling.” Indeed, in our opinion it would be incongruous to hold, in conformity with Pope & Talbot, Inc. v.

Hawn, supra, that the maritime law determined the respective rights of the parties in the event of personal injuries short of death, but that state law determined their rights in the event of injuries resulting in the ultimate consequence of death.

And, it would be even more incongruous to hold that the husband’s right of action, which the plaintiff here asserts in her count two under the local survival statute, is to be determined under the rule of Pope & Talbot by the maritime law, but that the right of action arising out of the same accident conferred directly upon her by the local death act is to be determined by local law. Furthermore, as the Supreme Court pointed out in Chelentis v. Luck-enbach S. S.

Co., 1918, 247 U.S. 372, 384, 38 S.Ct. 501, 62 L.Ed. 1171, the saving clause reveals no intention that liability as well as remedy shall be determined by the common law rather than the maritime law, and to apply state substantive law to determine the rights of the parties would create divergence in a field where uniformity has long been considered important. See also Chief Judge Magruder’s discussion in Doucette v. Vincent, 1 Cir., 1951, 194 F.2d 834, 839 et seq. In this case, however, we do not, and indeed we cannot except by dictum, pass upon the question of the law applicable to count one.

The reason for this is that we do not see how on the evidence a finding of the defendant’s causal negligence could reasonably be made under either local or maritime law. Wherefore we do not reach the question of contributory negligence wherein local and maritime law differ radically in that under the former such negligence provides a complete defense whereas under the latter it serves only to mitigate damages. Pope & Talbot v. Hawn, supra. The plaintiff’s theory of the accident is that the decedent descended the escape ladder to the after port

section of the floor of the lower hold and in groping his way forward in the darkness to help O’Halloran in the forward starboard deep tank fell into the aft port deep tank where his hat and the footprints were found, from which he extricated himself by standing on the top of the 2% inch verticle pipe therein and jumping to grasp the coaming and pull himself out.

It stretches our credulity to the breaking point to see how a man 5 feet 7 or 8 inches tall weighing between 210 and 220 pounds, however strong, could in strange surroundings find his way in darkness to a 2% inch vertical pipe two or three feet high which he did not know was there, and then, in spite of a fractured skull which made him delirious and unable to walk without staggering, stand, necessarily on the ball of one foot on top of the pipe and jump high, enough, not merely to touch but to. grasp, a coaming at least 3 feet higher than his head and 1 or 2 feet away, and then, having accomplished that feat, pull himself out of the' tank.

Furthermore, there was no evidence of any mark or marks in the lime in the bottom of the tank such as would necessarily have been made by the body of a person falling into it, and certainly such marks had they been there would be as clearly visible as the footprints which were seen. We do not need to speculate, however, as to the precise way in which the decedent met with his fatal injuries, for we cannot see how whatever may have happened could reasonably be attributed to the shipowner’s fault. No claim is made that the vessel involved was unseaworthy in any respect.

Both counts sound in negligence generally, that is, without specification of any precise fault, so we must look to see whether there is any evidence from which a jury might reasonably find that the defendant shipowner was negligent in the performance of any duty of care it owed to the decedent as an employee of an independent contractor. The vessel arrived fitted to receive a cargo of grain in her No. 4 hold and the deep tanks thereunder and the master stevedore was so informed.

This implied that the covers of those tanks had been removed, and, indeed, when the hatch was opened it could be seen that that was in fact the case as to the forward tanks. And since all four tanks were to be filled, it must have been obvious that in all probability the covers of the after tanks were also off. The other obstructions in the hold, the shifting board and the feeder box, were also to be expected, were constructed in accordance with usual practice, and were obvious.

There is no substantial evidence of anything unusual about the structure of the ship or in the way she was fitted to receive the cargo to be loaded, and although the fittings may have created' some hazard, they created no unexpected or extraordinary hazard, and none which light would not disclose in all its details. The hold was dangerous only because it was dark, and certainly there was nothing hidden about that danger. Thus any finding of the defendant’s negligence must be predicated on a duty to light.

But, under the arrangement with the master stevedore, and in accordance with the practice generally followed, the ship’s duty was only to provide an adequate number of suitable lights, and the electric power to operate them (and, perhaps, to connect them), while it was the master stevedore’s duty to request such lights as he thought were required and to place them where he thought they were needed. On the evidence it could not be found that the shipowner failed in the performance of its duty.

That is to say, there is no evidence that suitable lights were not available on the ship in adequate quantity, or that the lights supplied were defective, or that current was not continuously available to operate them. On the contrary, it appears that the boss stevedore on the job asked the ship’s mate on duty for a light, received it, and lowered it into the forward starboard deep tank, and that after the accident he asked for more lights and received all the lights he wanted.

Lighting the hold was an incident of the stevedoring operation over which the shipowner retained no control, and if there was any breach of the duty to light, the breach was that of the master stevedore, not that of the shipowner. Cf. Brabazon v. Belships Co., 3 Cir., 1952, 202 F.2d 904, 909; see Berti v. Compagnie De Navigation Cyprien Fabre, 213 F.2d 397, decided by the United States Court of Appeals for the Second Circuit May 26, 1954.

Under these circumstances the plaintiff must be content with her remedies under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. §§ 901 — 950, without what Mr. Justice Jackson dissenting in Pope & Talbot, Inc. v. Hawn, supra, 346 U.S. at page 419, 74 S.Ct. at page 210 referred to as “a bonus recovery over and above the statutory scale of compensation that Congress has established for injured harbor workers in general”. The judgment of the District Court is affirmed. . A “feeder box" is a large bottomless wooden box, measuring about 8 by 25 feet, set inside a

section of the batch between the top deck and the ’tween deck, through which grain is féd into the hold. Usually it is filled with grain so that as the cargo below settles during the voyage grain will be fed into the hold as needed to keep the vessel in balance.