No. 25, Docket 20257.
October 30, 1946.
Appeal from the District Court of the U.S. for the Southern District of New York.
Action by Robert L. Darlington against National Bulk Carriers, Inc., to recover for injuries sustained while serving at sea as boatswain on defendant's boat. From a judgment for defendant, plaintiff appeals.
Reversed and remanded.
Plaintiff was injured while serving at sea as boatswain on defendant's S.S. Pan Delaware. His complaint set forth two causes of action under the Jones Act, and a third (not involved in this appeal) for maintenance and cure. The case was tried before a jury.
According to plaintiff's testimony, he received an injury to his knee while using a defective paint-spray gun, and also contracted asthma because he was required to use the gun without being furnished a mask. There was evidence from which the jury could reasonably have inferred that, before these untoward consequences had occurred, he had used the gun, without a mask, although he was aware of the gun's defect, and aware also of the danger of not wearing a mask, but that he did so under orders from his superior, the chief officer, and after protesting. Plaintiff testified that in his long experience on other ships, masks were always supplied to him or others using paint-spray guns; that there was such a mask on defendant's ship, but that it was broken; that, when he asked the chief officer for a mask, he was ordered, as a substitute, to put wool in his nostrils and a rag in his mouth, and that that substitute was an inadequate protection. Plaintiff also testified that, after the knee injury and after use of the gun was making him ill (so that he expectorated blood), he refused to continue to use the gun, despite further orders to do so given by the chief officer who threatened to discipline plaintiff for disobedience, and that plaintiff then saw the master to whom he repeated his refusal, but that he was not disciplined and received no further orders to use the gun.
The judge instructed the jury that defendant owed plaintiff a duty "to provide a safe place to work or to provide safe proper and adequate tools," adding, "In signing on this ship, the plaintiff, under the law, as I have charged you, had the right to assume that reasonably safe tools and appliances to carry out the work at hand would be supplied him." The judge then continued in his charge as follows:
"What do we mean by `reasonably safe'? It does not mean that a man can stand there like a dummy and do nothing; that he has no responsibility of his own. Of course not. That could not be the law. In line with that I have been asked by the plaintiff to charge you that this plaintiff owed a blind and unreasoning obedience to whatever orders were given to him regardless, as I understand the request to charge, of manifest danger to life and limb involved. I charge you that that is not the law. It could not be.
"Let us consider the facts for a minute. We are all landsmen, I assume. You have got to consider the problem of operating a ship at sea before you understand the real rationale concerning this question of orders. You have got to apply common sense. It is obviously true that no officer of a ship would be justified in telling a seaman, during a raging sea, to jump overboard. It would be a silly law that held that. But it is quite obvious that if the ship were in peril, in danger of disaster, and I am standing on the bow and one of the officers says to me, `Jump over and make this line fast before we sink,' that then I would have to jump over. And if I were killed in the act people would say, `He was killed in the performance of a proper order.' The plaintiff there is not chargeable with anything for having obeyed the order. So we have to consider the surrounding circumstances in solving this duty of obedience or disobedience to orders. What are the surrounding circumstances? What kind of work was this plaintiff doing? Routine work involving painting. Who gave him this, as he claims, unreasonable order to use a manifestly defective appliance, and to go to work without a mask? The chief mate. Who is the chief mate? The first officer of the ship. Has he a superior? Yes. Who? The skipper. Do you believe that the plaintiff under any and all circumstances should carry out a routine order, an unreasonable, silly and dangerous order, and say, `Well, all right; if it kills me, I will do it. I will get this turret painted even if it kills me. I won't go to the skipper about it.'
"In this case did he go to the master? Was he threatened with being logged by the chief, on his own evidence? `Logged' means a disciplinary action, to give you a D on your report card. Was he logged when he complained of an unreasonable order? My recollection is that he was not. My recollection is that he says he did not use the gun after that complaint, and that nothing happened to him. But your recollection will govern. So much for orders. Use your common sense about that question of orders."
The judge refused plaintiff's request to charge as follows: "The plaintiff was bound to obey the orders of his superiors on board the vessel. The chief officer was the plaintiff's superior and plaintiff was bound to obey the orders of the chief officer. Even though the orders of the chief officer required him to work with unsafe tools or under unsafe conditions, the plaintiff was obliged to obey the orders and did not assume any risk of obedience to orders."
Plaintiff's counsel excepted to the portion of the charge above quoted and to the refusal to give the requested charge.
The jury returned a verdict for defendant on the first two causes of action. The trial judge, having refused to grant plaintiff's motion to set aside this verdict, entered judgment thereon for the defendant.
In an opinion, delivered in connection with the refusal to set aside the verdict, the trial judge said: "Plaintiff's testimony makes it clear that he knew it was dangerous to use the spray gun, and also knew that he should have used a mask while painting, but he asserted that he was compelled by the order of the chief officer to do both. The latter was not available at the trial. In the course of his testimony, plaintiff said that he had complained to the chief officer about the gun and also about the failure to provide a mask, that the chief officer then threatened to log him, and that he (plaintiff) went to the master and complained to him. Plaintiff said very definitely that he had then stopped using the gun, and that he was not logged. Against this background, I was asked by plaintiff's attorney to charge the jury that plaintiff was bound to obey the orders of his superiors, and that even though the orders of the chief officer required him to work with unsafe tools, the plaintiff was obliged to obey such orders and did not assume any risk of obedience to orders. I refused to charge that request. I said in terms that the defendant owed a higher degree of care than employers ashore, and I distinctly told the jury that seamen do not assume risks arising from their occupation. On the subject of duty to obey orders, I instructed the jury that they should analyze the facts disclosed by the plaintiff's testimony and apply their common sense. I directed their attention to the fact that plaintiff's claim that he was compelled to use the spray gun related to a matter of ordinary routine on board ship and not to any emergency." After citing cases, the opinion continued as follows: "I think the rationale of all these cases is that seamen, so far as assumption of risk is concerned, are protected by the law where they obey orders. I do not believe however that it is fair to give a jury the impression that a ship's officer has the right to blind obedience of even wanton and reckless orders, and that the mere giving of the orders releases the seamen of all responsibility."
George J. Engelman, of New York City, for plaintiff-appellant.
Reid, Cunningham Freehill, of New York City (Frederick H. Cunningham, of New York City, of counsel), for defendant-appellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
The cases make it clear that the safety of ships at sea might be seriously endangered were the rule in accordance with the judge's charge and not as stated in the requested charge. We need not consider whether, in extraordinary circumstances, the well-settled rule might perhaps be inapplicable if orders given were outrageously absurd, for here there were no such circumstances or orders.
Masjulis v. U.S. Shipping Board Emergency Fleet Corp., 2 Cir., 31 F.2d 284; Reskin v. Minnesota-Atlantic Transit Co., 2 Cir., 107 F.2d 743, 745; Storgard v. France Canada S.S. Corp., 2 Cir., 263 F. 545.
We disagree with B.A. Carroll Stevedore Co. v. Makinda, 1 Cir., 20 F.2d 19, so far as it suggests a contrary rule.
It is immaterial that plaintiff was not disciplined when, after the injury, he refused to continue to obey the order; for he was not obliged to conjecture what would be the response of his superiors to disobedience, especially before the occurrence of injuries resulting from his compliance with the order.