decided.: July 14, 1954.
RED STAR TOWING & TRANSP. CO., INC.
Before CHASE, Chief Judge, and FRANK and HINCKS, Circuit Judges.
FRANK, Circuit Judge.
1. Defendant's negligence
Defendant asserts the absence of proof of its negligence, and argues that the sole legal cause of plaintiff's injury consisted of his own action in putting his foot on or outside the bow rail.*fn1 But there was evidence from which the jury could reasonably find the following: Plaintiff, acting under the orders of the Ocean King, was attempting to complete the tying up of the Kohl and the No. 55, when the accident occurred; in throwing the line to the No. 55, plaintiff braced his left foot on or against the inside of the bow rail; all the vessels were then at a standstill; the captain of the Ocean King could not see the bow of the Kohl or the stern of the No. 55, and there was no lookout on the deck of the Ocean King to signal that the vessels had been tied together as ordered, or to give warning in case of accident; with affairs in this state, and before the tying of the port corners had been completed, the Ocean King began to move in reverse without having given any warning or signal; it had not received any signal from either the Kohl or the No. 55 that the vessels were tied together; and plaintiff's expert witness testified that a tug, during such a tying up, should not start in motion without first receiving some sort of "all clear" signal. See The Pontin Bros., 2 Cir., 47 F.2d 595, where we held a lighter liable in negligence for starting in reverse without first receiving a signal from a deckhand that the typing up had been completed. We think the jury could reasonably infer that the sudden motion of the tug caused plaintiff to lose his balance, with the result that his left foot went over the bow rail. Remembering that questions of credibility are for the jury, we think that the trial judge correctly refused to direct a verdict for defendant, and that the jury could rationally conclude that defendant's negligence was the "proximate cause" of plaintiff's injury. Ondato v. Standard Oil Co., 2 Cir., 1954, 210 F.2d 233; Fodera v. Booth American Shipping Corp., 2 Cir., 159 F.2d 795, 797; Kilgust v. United States, 2 Cir., 191 F.2d 69.
2. Comparative negligence
Plaintiff, on this appeal, does not deny his contributory negligence. Defendant contends that this factor compels a 50% reduction of the damages.
The admiralty rule of evenly-divided damages in cases of injury to property*fn2 - although a highly desirable departure from the "harsh" common-law doctrine*fn3 which denies all relief to one suing for negligence if guilty of contributory negligence - has frequently received criticism as unfair. On that ground, virtually every country except ours has abandoned it.*fn4 Nevertheless, we feel obliged to apply that rule until the Supreme Court or Congress instructs us otherwise. However, we are not similarly restricted in cases of maritime tort involving personal injuries.*fn5
Apportionment of damages in such cases, on a comparative fault basis and without reliance on a statute,*fn6 began with the decision of Judge Addison Brown in The Max Morris.*fn7 On appeal, the specific ruling affirmed by the Supreme Court was that contributory negligence does not bar all recovery in a personal injury maritime tort suit; the Supreme Court said it left open the question of apportionment of damages.*fn8 Filling this gap by following Judge Addison Brown, we and several other courts, in such personal injury maritime tort cases, have applied the rule of comparative negligence.*fn9
Defendant, however, urges that each of these rulings occurred in a situation in which a contractual or quasi-contractual relation existed between the person injured and the party held liable. Defendant argues that, since no such relation existed here, damages should have been reduced by 50%.We do not agree.
True, a "status" or relation may derive from contract; and a seaman has such status in respect of his ship, based partly on contract and parly on a noncontractual relation. See Sperbeck v. A. L. Burbank & Co., 2 Cir., 190 F.2d 449.*fn10 Thanks to Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S. Ct. 872, 90 L. Ed. 1099, the courts now regard a stevedore, working on a ship, as one performing some of the traditional work of a seaman and therefore having a position of status vis a vis the ship or its owner.*fn11 However, when Judge Brown decided The Max Morris in favor of a stevedore, the Sieracki doctrine had not yet been established, and Judge Brown made no reference whatever to the stevedore's status. Nor, significantly, did the courts, in any of the subsequent cases we cited above, mention that the plaintiffs had such a contractual or other status; this goes to show that such a relation has not been deemed a necessary condition of apportionment.
In Guerrini v. United States, 2 Cir., 1948, 167 F.2d 352, plaintiff, employee of a subcontractor hired to clean a ship's boiler, sued the ship for negligently failing to provide for his safety as a result of which he suffered injury.*fn12 This court (per Learned Hand, J.) decided (p. 354) that plaintiff was unlike a stevedore, and consequently could not recover for unseaworthiness under the Sieracki doctrine.*fn13 Nevertheless, we held, 167 F.2d 352, pages 355-356, that plaintiff (on a proper finding of facts) could recover for negligence, as a "business guest," and that, as plaintiff was contributorily negligent, damages should be apportioned according to the percentage of fault.*fn14 As we then (1948) viewed such a plaintiff, he had neither a contractual nor a quasi-contractual relation with the ship or its owner; and, since plaintiff brought suit under the Suits-In-Admiralty Act, he could not avail himself of any statutory provision relative to comparative negligence. Thus this court has unmistakably sustained damage-apportionment in a personal-injury suit for a maritime tort resting on negligence only.*fn15 See also Portel v. United States, D.C.S.D.N.Y., 85 F.Supp. 458.
To be sure, were we deciding Guerrini's case today, we would hold that he had status with respect to defendant, in the light of Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S. Ct. 202. There, in sustaining plaintiff's right to recover for unseaworthiness (i.e., without proof of defendant's negligence), the Supreme Court, for the first time, explicitly assimilated a repairman (like Guerrini) to a seaman under the Sieracki doctrine. The plaintiff there also claimed for the negligence of the ship's owner. The Court, sustaining that claim, held that plaintiff's contributory negligence called for apportionment, but it treated the negligence claim and the apportionment as wholly independent of the Sieracki rationale.*fn16 Moreover, as we decided Guerrini's case some five years before the advent of Pope & Talbot, Inc. v. Hawn, supra, our decision in Guerrini is a clear precedent, in this Circuit, for apportionment, minus any contractual or other relation between the parties, and without the aid of any statute. We adhere to that precedent so far as it deals with comparative negligence.*fn17