Willie MOORE, Plaintiff-Appellee-Cross-Appellee, v. SOUTH AFRICAN MARINE CORPORATION, LTD., and the M/V S.A. NEDERBURG et al., Defendants; SOUTH AFRICAN MARINE CORPORATION, LTD., Defendant-Third-Party Plaintiff-Appellee-Cross-Appellant, v. GULF STEVEDORE CORPORATION, Third-Party Defendant-Appellant

United States Court of Appeals for the Fifth Circuit1972-11-08No. No. 71-3317

469 F.2d 280

Summary · law.co

Holding. The trial court's jury instruction on unseaworthiness was erroneous because it failed to clarify whose negligence was relevant and allowed the jury to find unseaworthiness based on any negligence, including the plaintiff's own. The judgment was reversed and remanded for a new trial on both the longshoreman's claim and the vessel owner's third-party indemnity claim against the stevedore.

A longshoreman sued a vessel owner and stevedore after sustaining injuries during cargo operations. The jury found the vessel unseaworthy and awarded the longshoreman damages (reduced by 10% for his own negligence), and also found the vessel entitled to indemnity from the stevedore on a third-party claim. The trial court instructed the jury that any negligence, regardless of whose negligence it was, would render the vessel unseaworthy. This instruction was legally erroneous because it failed to distinguish between operational negligence and unseaworthiness, and it permitted the jury to find unseaworthiness based even on the longshoreman's own negligence.

The appellate court found the jury instruction constituted reversible error. The court rejected the vessel owner's argument that the indemnity verdict could stand even if the longshoreman's verdict was reversed, finding the connection between the two verdicts too uncertain to allow affirmance of the indemnity judgment. The court also upheld the trial court's discretionary decision to require the vessel owner and stevedore to share peremptory challenges as a single party.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether jury instruction that any negligence renders a vessel unseaworthy is legally correct
Distinction between operational negligence and unseaworthiness in maritime cases
Whether indemnity verdict can be affirmed when underlying longshoreman verdict is reversed
Trial court's discretion to require multiple defendants to share peremptory challenges

Procedural posture

The longshoreman appealed the jury verdict and damages reduction, while the stevedore cross-appealed the indemnity judgment against it.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

GODBOLD, Circuit Judge:

This is a longshoreman-vessel owner-stevedore case in which there was a jury verdict in favor of the longshoreman and of the vessel on its third party complaint for indemnity against the stevedore. Plaintiff’s damages were reduced by a finding that he was 10% contributorily negligent. The owner, South African, and the stevedore, Gulf, relied on the defense of Operational negligence, claiming that plaintiff and one or more of his immediate workers were (operationally) negligent.

In his oral charge to the jury the court stated:

Now, they are talking about seaworthiness and talking about negligence. I am going to state this to you that if there was any negligence, it would automatically make the ship unsea-worthy, in my opinion.

The court went on to define unseaworthiness but made no mention of whose negligence he had referred to and made no distinction between operational negligence and unseaworthiness. Defendant and third party defendant objected. Requested written charges on operational negligence were refused. The end result was that the jury was told that if they found any negligence, irrespective of whose negligence it might be, even that of plaintiff himself, the vessel would be unseaworthy. This was error, Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). Plaintiff acknowledges the error but asks us to hold that the oral charge as a whole was not so erroneous as to require reversal. We have read the charge but cannot say that the jury was not misled.

There was no error in the court’s requiring South African and Gulf, over Gulf’s objection, to share the same number of peremptory challenges allowed to the plaintiff. The power of the court under 28 U.S.C. § 1870 to consider several defendants as one party for the purpose of making challenges is discretionary, Nehring v. Empresa Lineas Maritimas Argentinas, 401 F.2d 767 (5th Cir. 1968); Rogers v. De Vries & Co., 236 F.Supp. 110 (S.D.Tex.1964), and the discretion was not abused.

South African would have us affirm the verdict granting it indemnity against Gulf even though we reverse the verdict for plaintiff. South African’s theory is that the jury finding of unseaworthiness was necessarily (but erroneously) based on operational negligence by plaintiff and/or one or more coworkers, and, even, if the verdict for the plaintiff must be reversed, the operational negligence of Gulf’s employees was a breach of its WWLP, fastening Gulf with liability for attorney fees and expenses. Considering the interplay of the various contentions and evidence, this is too tenuous. Along with liability, indemnity should be submitted to a new trier of the facts.

Reversed and remanded.

. Including method of stow, peculiarities of packaging of the cargo (bales of rayon pulp) required by the manufacturer or shipper, method of removal from stow, necessity of manhandling the cargo, evidence that the method of discharge was customary and evidence that it was an unsafe method.