Lumbard, Chief Judge, and Medina and Smith, Circuit Judges. J. Joseph Smith, Circuit Judge (dissenting).
James J. Waldron, an able seaman and a member of the crew of the SS Mormacwind, fell and injured his back as he and another member of the crew were hauling a heavy manila mooring line along the deck of the vessel during a docking operation. The issue of negligence and several features of the issue of unseaworthiness, as claimed by Waldron, were submitted to the jury who returned a verdict for defendant. One of the unseaworthiness claims against the shipowner having been dismissed and the motion for a new trial denied, the seaman appeals. The sole question before us on this appeal is whether the trial judge committed error when he refused to permit the jury to pass upon Waldron's additional claim of unseaworthiness based upon an order of the third mate that 2 men were to carry the line from where it was coiled on a grating on the deck to a mooring chock approximately 56 feet away. There was expert evidence to the effect that 3 or 4 men rather than 2 were required to carry the line in order to constitute "safe and prudent seamanship." It is not disputed that the vessel was properly and fully manned and that the crew, including the officer who gave the order, were in all respects competent to perform their duties.
The findings implicit in the verdict are: (1) that the order given by the third mate was not a negligent order, that is to say, plaintiff failed to convince the jury that under the circumstances a reasonably prudent man would not have given such an order; and (2) that the vessel was not unseaworthy because the deck was tacky from wet paint or was wet and slippery. No shore workers are involved nor is there any claim of a defect in the vessel or any of its gear, equipment and appliances.
According to the log, the docking operation of SS Mormacwind at her Brooklyn pier was consummated in 11 minutes, between 1:20 and 1:31 P.M. on May 8, 1960. Coast Guard regulations required the vessel to carry on deck, in the unlicensed category, 6 able seamen and 3 ordinary seamen. In fact, she carried a boatswain and two deck utility men in addition. Thus the SS Mormacwind had three more unlicensed deck crewmen than her certificate required and all of them were on board during the docking operation.
Waldron was working in the aft docking gang on the starboard side of the ship, inboard, under the command of Tarantino, the third mate. The usual complement of this gang was 3 able seamen and 2 ordinary seamen. On this particular occasion, Tarantino had under his orders 4 able seamen, including Waldron, and 1 ordinary seaman.
As the operation progressed with the requisite dispatch, the officer on the bridge decided another mooring line was necessary as a spring line and the order was passed on to Tarantino. As all the other men were occupied with urgent tasks connected with the other lines, Tarantino assigned to Waldron and another able seaman, who was exceptionally strong and capable, the task of putting out this new line "as quickly as possible." The other seaman took the eye of the line, threw about 15 feet of slack "over one shoulder and over the other," and had reached the chock. Waldron was tugging at the top of the coil, attempting to flake some slack along the deck, when he slipped and fell.
Waldron's position on the particular phase of the claim of unseaworthiness that Judge Tenney refused to submit to the jury was very clear to the effect that "it is a question of how many men were assigned to this particular job." It made no difference how well the vessel was manned. Nor was it of consequence that an adequate number of competent seamen were assigned to the group handling the lines aft under the direction of the third mate. "There could have been a hundred men on the stern, or five." Similarly, he contended that other factors, such as the urgency of getting out the new line, the tasks being performed by the other men, the condition of the current, wind and so on, were absolutely irrelevant to the issue of unseaworthiness, even though they did have a bearing on the issue of negligence.
We agree with Judge Tenney, whose short memorandum opinion is not reported, and we affirm.
The doctrine of unseaworthiness has had a long history. The so-called warranty of seaworthiness in early American law has its roots in contracts of marine insurance and affreightment, under which liability was conditioned on the vessel being "sufficient in all respects for the voyage; well-manned, and furnished with sails and all necessary furniture." 1 Conkling, Admiralty Jurisdiction, 164-5 (1848). A similar requirement, stemming from the ancient codes, was implied in contracts for the carriage of goods and passengers by sea. Abbott, Merchant Ships and Seamen, 178-9 (1802); see The Caledonia, 1895, 157 U.S. 124, 15 S. Ct. 537, 39 L. Ed. 644. This duty to provide a seaworthy vessel was absolute, see Work v. Leathers, 1878, 97 U.S. 379-380, 24 L. Ed. 1012; Abbott, Merchant Ships and Seamen, supra, at 178, 181; and, even in its early foundations, seaworthiness was a threefold concept: the vessel must be "tight and staunch," her gear, equipment and appliances must be serviceable and in good order, and the crew, including the master and his subordinates, must be competent and sufficient in number to man the ship. 1 Parsons, Maritime Law 122 (1859); Desty, Manual of the Law Relating to Shipping and Admiralty, Section 232 (1879); Lord v. Goodall S.S. Co., C.C.D.Cal., 1877, 15 Fed.Cas. pp. 884, 887-888 (No. 8,506), aff'd on other grounds, 1880, 102 U.S. 541, 26 L. Ed. 224; In re Meyer, N.D.Cal., 1896, 74 F. 881, 885; The Gentleman, S.D.N.Y., 1845, 10 Fed. Cas. pp. 190, 192 (No. 5,324), rev'd on other grounds, C.C.S.D.N.Y., 10 Fed. Cas. p. 188 (No. 5,323); Tait v. Levi, [K.B. 1811] 14 East 481.
For a variety of reasons, historical, ethical, sociological and others, we should not be surprised to find that the interests of cargo owners and passengers were paramount in the early days just referred to. Humanitarian considerations were not in vogue. Although the unseaworthiness of a vessel gave a seaman the right to abandon ship without penalty and to be paid his wages, see Dixon v. The Cyrus, D.Pa., 1789, 7 Fed. Cas. p. 755 (No. 3,930); Rice v. The Polly and Kitty, D.Pa., 1789, 20 Fed. Cas. p. 666 (No. 11,754), and mariners were entitled to maintenance and cure for injuries suffered in the service of the ship, see Harden v. Gordon, C.C.D.Me., 1823, 11 Fed.Cas. p. 480 (No. 6,047), the early maritime law afforded no remedy by way of compensatory damages for personal injuries. See Lucas, Flood Tide: Some Irrelevant History of the Admiralty, 1964 Supreme Court Review 249, 299; Smith, Liability in the Admiralty for Injuries to Seamen, 19 Harv.L.Rev. 418, 431 (1906).
From 1903 and the much discussed dictum of The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L. Ed. 760, through the Jones Act in 1920, 41 Stat. 1007, 46 U.S.C., Section 688, the long series of longshoreman cases, down to Mitchell v. Trawler Racer, Inc., 1960, 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941, and beyond, there has developed a vast body of federal law concerning the right of a seaman, or a person performing the traditional duties of a seaman, to recover compensatory damages for injuries caused by the unseaworthiness of the vessel. It no longer matters in these personal injury cases whether the unseaworthy condition was caused by the negligence of the shipowner or anyone else. The rule that the so-called warranty applies only to the vessel as she left her home port at the commencement of the voyage, which posed the problem we found so vexing in Dixon v. United States, 2 Cir., 1955, 219 F.2d 10, has, at least in some respects, been blown away by the winds of time. But the basic threefold concept of a sound ship, proper gear and a competent crew has remained unchanged. Each of these contributes in a special way to provide "a vessel reasonably suitable for her intended ...