Opinion
No. 12189.
January 25, 1929.
G.E. Steiner and Bronson, Jones Bronson, all of Seattle, Wash., for petitioner.
Samuel B. Bassett, of Seattle, Wash., for claimant.
Petition by Axel Langnes, sole owner of the Diesel halibut vessel Aloha, her engines, etc., for exemption from or limitation of liability. Order in accordance with opinion.
Upon the hearing of the petition to limit liability to the value of the vessel (sections 4283, 4284, 4285, R.S., and amendatory and supplemental acts [46 USCA §§ 183-185]), and to test liability and the liability of the vessel for any damages for the injury, the court denied claimant's motion to dismiss the petition at the close of petitioner's testimony, and at the conclusion of the evidence of claimant, upon motion of the petitioner, dismissed the claim of liability of the claimant on the ground that no negligence was shown or any act of commission or omission of imposed duty on the part of the petitioner, and omission of claimant of imposed duty was the proximate cause of the injury.
The evidence fairly established that the petitioner, sole owner of the motorship Aloha, and claimant and three others — all fishermen — entered into an agreement for a venture in halibut fishing during the season of 1927, the petitioner to act as master. The proceeds of the venture were to be divided, one-fifth of the gross earnings to the vessel, and, after the payment of expenses, the balance to be divided equally between the petitioner and the other fishermen, one of whom also acted as engineer.
The vessel was in all respects seaworthy, efficiently manned, equipped, furnished, and fitted with suitable machinery, tackle, apparel, appliances, etc., in customary manner, suitable for the venture. The claimant had been engaged as a fisherman for many years. All of the fishermen on the said vessel were instructed by the master, petitioner, the usual and customary manner of operation of the ground line, which is a line about 1,800 feet long, to which are attached gangions 52 inches long and placed at intervals of 8 feet; to the end of the gangions halibut hooks are attached. The ground line is hauled into the vessel over rollers by use of a winch, lever-controlled. The fisherman was required to operate the winch and to disentangle the gangions from the ground line, and, if halibut were hooked, to detach them and put them in the boat. Such was the duty of the claimant at the time of his injury, and he was instructed by the owner that the usual method of doing it was by the use of both hands, and if the hooks caught in the ground line or elsewhere, and became entangled, to move the lever and stop the winch until the gangion and the hook were disentangled. One of the hooks hooked on some object on or about the vessel or ground line, and the gangion, drawn taut by the moving winch, snapped and struck claimant in the eye, causing serious injury.
When asked whether he could have moved the lever and stopped the winch, the claimant said he thought he could, that the gangions would stretch quite a little, and that he could have moved the lever, if he had attempted to do so, but did not do so. All of the dangers were known to the claimant; they were open and obvious; they were the usual and ordinary hazards necessarily attendant upon the undertaking. The vessel thus equipped had been engaged in fishing for some years, and its construction was in the usual, customary fashion.
The vessel and equipment being of customary and standard construction, and there being no act disclosed in which the petitioner lacked in the performance of duty imposed, or performed in violation of imposed duty, he is entitled to total exemption. The most perfect appliances or equipment are not required, but customary employment and good order is the test. The Ubbergen (D.C.) 30 F.2d 951; 1925 A.M.C. 557; Luckenbach S.S. Co. v. Buzynski (C.C.A.) 19 F.2d 871, 1927 A.M.C. 1185.
It may also be said that by the failure of the fisherman to use the safety appliances provided, known to him, and the violation of specific orders with relation to the employment of both hands in disentangling the hook, and not moving the lever conveniently placed and stopping the winch, when entangling hooks were apparent, pursuing unsafe methods in performance of duty, he assumes the hazards known, or open, obvious, and apparent and necessarily attendant upon the undertaking.
When a master provides safeguards against danger and specifically instructs with relation to the performance, and injury results because of omission to employ the safety appliances, or follow specific instructions for operation in usual manner, recovery for injury may not be had.
Formal order may be presented on notice.