Before LUMBARD, Chief Judge, and FRIENDLY and SMITH, Circuit Judges.
As in Blier v. United States Lines Co., 2 Cir., 1961, 286 F.2d 920, certiorari denied 1961, 82 S. Ct. 32, the principal issue here is whether the charge of an able District Judge with respect to "transitory" unseaworthiness, given shortly before the decision in Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941, accords with the principles there stated by the Supreme Court. Although the question may be closer than in Blier, where we sustained Judge Dimock's charge, we find no sufficient basis for distinguishing that decision or, indeed, for coming to any different conclusion apart from it.
Pinto was a seaman aboard the S.S. Clovis Victory, a government owned vessel which defendant operated. While the ship was at sea, the third mate directed Pinto and a helper, Fantroy, to carry a heavy signal light from the wheel-house to the engine room for repairs. In descending the ladder leading into the engine room, Pinto slipped and fell, allegedly sustaining a serious injury to his back. The action, in which Federal jurisdiction was predicated upon the Jones Act, 46 U.S.C.A. § 688, was brought on the "law" side, with a jury trial demanded.
The case was submitted to the jury solely on the basis of unseaworthiness, a claim of negligence having been withdrawn by the plaintiff. The jury found for defendant, and judgment was entered accordingly. Only two of the three theories of unseaworthiness advanced below require consideration here*fn1 - "operating" unseaworthiness, in that some other method should have been adopted for conveying the light to the engine room, and unseaworthiness based on the alleged presence of grease or oil on the step of the ladder where Pinto slipped. Plaintiff claims error in the charge as to both; we find it in neither.
(1) The judge characterized plaintiff's claim of operating unseaworthiness as going "to the competency of the third mate in issuing the instructions to plaintiff and Fantroy to carry the blinker light down the particular stairway and in failing to supervise their activity." He reviewed the testimony of plaintiff's expert "that good seamanship required" that if Pinto and Fantroy were to carry the blinker light down the ladder, "they should have been under the direct supervision of a superior officer," but that in fact "it was unsafe to take anything down as heavy as the light without the aid of a block and fall." He then summarized defendant's evidence that the method was perfectly proper, that indeed "the third mate applied an excess of caution" in supplying a helper, and that the light "well could have been carried down by the plaintiff himself, just as the mate had done earlier." After noting what might seem the anomaly that "this conflict as to an approved and accepted method of carrying the blinker light" should be left to a jury of laymen to resolve, he then made the only remark now criticized:
"But actually, you are called upon to decide if the third mate was equal in seamanship to the ordinary men of his calling."
Plaintiff claims this to be error since, as he contends, the issue was not the seamanship of the third mate in general but the propriety of the work procedure directed here. There are several answers. The first is that the quoted sentence may not permissibly be taken in isolation; considering the charge as a whole, the jury must have understood that it was to determine the very issue that plaintiff says it should have been allowed to determine. That would be our interpretation even if the portion of the charge concluding in the sentence under attack stood alone; it is still more so in the light of the judge's earlier characterization of Pinto's claim as being "That the third mate was incompetent, in that he should not have instructed or permitted" two men to carry the lamp but should have supervised their activity and that "good seamanship dictated" use of a block and tackle - "In short, that the third mate failed to measure up to the standard of his calling, and hence the vessel was unseaworthy." Second, if plaintiff's counsel thought the jury might apply the remark now criticized in a manner different from what he believed proper, it was his duty to call the point to the judge's attention; this he did not do. Finally, the charge which plaintiff asserts should have been and, in our view, was given, was more favorable than the law warrants. Gilmore and Black, The Law of Admiralty (1957), 320 say that "The only case which is today clearly outside the scope of the unseaworthiness doctrine is * * * an injury whose only cause is an order improvidently given by a concededly competent officer on a ship admitted to be in all respects seaworthy," citing The Osceola, 1903, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760; Chelentis v. Luckenbach S.S. Co., 1918, 247 U.S. 372, 38 S. Ct. 501, 62 L. Ed. 1171; and Imperial Oil Ltd. v. Drlik, 6 Cir., 1956, 234 F.2d 4. Here, of course, the ship was not "admitted to be in all respects seaworthy," but if the other claims of unseaworthiness were determined in favor of the defendant on proper instructions, the same result must follow. On that view, plaintiff, under his claim of "operating" unseaworthiness, was entitled to raise only the mate's overall competence; to the extent that the judge went beyond that, as we think he did, it was the defendant who was entitled to complain.
(2) The evidence whether there was grease or oil on the step was in sharp conflict. The Chief Engineer had found none, either at 1:15 P.M., some fortyfive minutes before the accident, or immediately thereafter. The First Assistant Engineer testified that the ladder was constructed of grating, for the precise purpose of keeping any accumulation of oil to a minimum; that the steps had been throughly cleaned shortly before noon; and that on an inspection right after the accident, he had found no oil or grease. The Chief Mate, who inspected the ladder a half hour after Pinto's fall, found "the step was absolutely dry"*fn2; he had never seen a film of oil on the stairway though he had visited the engine room once or twice daily. As against this, Pinto insisted that he had noticed grease on the step after the injury, and Fantroy corroborated this.
After reviewing the evidence the judge charged as follows:
"Unseaworthiness is a relative concept, dependent in each instance upon the circumstances in which the ship's fitness is drawn in question. In deciding this issue you will of course bear in mind that the accident occurred on the ladder leading to and from the engine room, where the use of oil and grease is required for normal engine room functioning. In this circumstance, the mere momentary presence of oil in the area does not in and of itself render the vessel unseaworthy. Before you can find that the vessel was unseaworthy plaintiff must satisfy you by a fair preponderance of the evidence that the alleged condition of oil or grease, which he claims caused him to slip, was not a momentary phase in the normal progress of work in and about the engine room, but that oil and grease was permitted to accumulate in sufficient quantity so that the vessel was rendered unseaworthy. In other words, it is not required that the vessel have a crew member handy with a rag to wipe off oil the very minute it is placed in an area. A vessel does not become unseaworthy by reason of a temporary condition caused by a transient substance if even so the vessel was as fit for service as similar vessels in similar service. The essential test is whether, considering place and circumstance, the area was reasonably fit to permit Pinto to perform his tasks with reasonable safety. Absolute perfection is not required under the doctrine of seaworthiness. It requires reasonable fitness for intended use."
Plaintiff's counsel excepted on the basis that the judge had charged "in line with the Cookingham decision, that a transitory condition would not impose liability," whereas in fact "whether it was transitory or not wouldn't make any difference on a charge of unseaworthiness."*fn3
The judge's statement that "A vessel does not become unseaworthy by reason of a temporary condition caused by a transient substance if even so the vessel was as fit for service as similar vessels in similar service" and the sentences continuing to the end of this portion of the charge are substantially equivalent to what we sustained in Blier v. United States Lines Co., supra. If a different result is to be reached here, it must be on the basis of the judge's earlier statement that "the mere momentary presence of oil in the area [the engine room] does not in and of itself render the vessel unseaworthy" and the two sentences immediately following. To us these are no more than a permissible application of the later general statements to the particular facts. The charge seems to be good sense, and we are not persuaded that Mitchell makes it bad law, - especially when the judge followed the remarks now criticized by saying that "The essential test" was almost precisely what Mr. Justice Stewart was to say two months later, 362 U.S. at page 550, 80 S. Ct. at page 933.
In Mitchell the judge had told the jury that unseaworthiness is "quite similar to negligence" and summed up, 362 U.S. at pages 540-541, ...