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Piechoski v. Grace Lines Inc.

decided: April 8, 1969.


Van Dusen, Aldisert and Stahl, Circuit Judges.

Author: Van Dusen


VAN DUSEN, Circuit Judge.

This is a longshoreman's appeal from the denial of his alternative motions for judgment n.o.v. or a new trial following a judgment entered against him and in favor of the defendant, Grace Lines, Inc., after a jury verdict in a maritime personal injury action tried on theories of negligence and unseaworthiness. The plaintiff was injured when struck by a lanyard that was being returned to the ship by winches after it had been used, without incident, in the removal of two of three pontoon hatch coverings which protected the hatch where plaintiff was working. As the lanyard, suspended by wires, was being swung back over the ship preparatory to removing the third pontoon, it became entangled in lashings used to secure certain containers near the edge of the vessel's deck and whipped free of the lashings, striking plaintiff on the head.*fn1 Plaintiff's theory at trial was that the winches were defective; the container which was lashed on the inshore side of the deck should have been removed before the pontoons were taken off; and the lashings should have been removed before the operations began.*fn2 Each of those questions of fact was properly submitted to the jury, whose verdict was supported by adequate evidence so that there was no error in denying plaintiff's motion for judgment n.o.v.

Plaintiff now claims that the trial court erred in failing to charge that the stevedoring company's method of operation, uncorrected by defendant, constituted negligence and unseaworthiness. This argument fails because plaintiff did not base his claim on that theory either in his pretrial memorandum*fn3 or during the presentation of the evidence to the jury. Captain Wheeler, defendant's witness upon whom plaintiff has placed substantial reliance, stated, in answer to the question whether he considered the method of operation unsafe, "No. It is perfectly safe and perfectly proper to handle cargo over a deck cargo of 8 feet high. Many times a shipload of lumber will be 15 feet high * * * and you are transporting cargo over top of the deck load".*fn4 The District Court committed no error in failing to give general instructions that the overall method of operation might be found to be a basis of liability, since the theory underlying such an instruction would have had no support in the record. Southern Pacific Company v. Villarruel, 307 F.2d 414 (9th Cir. 1962); see, also, Atkinson v. Roth, 297 F.2d 570 (3rd Cir. 1961). The failure to follow the alleged "usual practice" to double up the hooks and hook them back into the rings was also not one of the asserted grounds of liability until the requests for charge were submitted to the trial judge.

On the day before the receipt of evidence was concluded, and the case was submitted to the jury, the trial judge advised counsel for plaintiff that he would not read each of his 38 points for charge to the jury, but consideration would only be given to a reasonable number of specific points (N.T. 287-8, 350-2 and 347).

Although most of the generally stated requests for charge would properly have been construed by the trial judge to refer to physical conditions existing on the ship, such as the lashings, height of the containers, length of the ropes and lanyards, etc.,*fn5 the following paragraphs 33 and 37 of the requests can be construed as a specific reference to a method of operation which the evidence might have justified the court's concluding was a possible basis of liability:

"33. Lanyards and gear must ride free over the deck cargo when being brought aboard the ship from the pier. The lanyards and gear did not clear the deck cargo thus making the ship unseaworthy.*fn6

"37. When a ship knows or should have known, that the stevedore's method of discharging its cargo does not conform to the standard of reasonable care, and thereby created a hazardous condition, the ship is negligent when it does not forbid the use of the method. Ferrante v. Swedish American Lines (3 Cir., 331 F.2d 571) (1964)."

When counsel for plaintiff was pressed to make his requests for charge specific, he made one specific reference to the request in paragraph 1, which was denied, so that it is clear that he could have objected to the failure to charge these requests (33 and 37) before, as well as after, the charge.

We have concluded that the procedure followed by the court was reasonable in the light of the limited number of issues involved in this case and the number of requests submitted.*fn7 See Charles A. Wright, Inc. v. F. D. Rich Co., 354 F.2d 710, 712-713 (1st Cir. 1966).

The trial judge also said prior to the closing arguments of counsel (N.T. 352):

"When I have charged the jury I will send the jury out and if you have any objections, I want them specific and to the point, not in generalities. And I am not going to allow objections to failing to charge every point that either of you have submitted. If you want objections you will have to put them on the record specifically and to the point."

Plaintiff failed to take any specific exceptions to the charge. Rule 51 of the Federal Rules of Civil Procedure, 28 U.S.C., requires that a specific exception be taken. McPherson v. Hoffman, 275 F.2d 466 (6th Cir. 1960); Brown v. Moore, 247 F.2d 711, 723, 69 A.L.R.2d 288 (3rd Cir.), cert. den. 355 U.S. 882, 78 S. Ct. 148, 2 L. Ed. 2d 112 (1957). In the absence of a specific exception, no appeal will lie. Palmer v. Hoffman, 318 U.S. 109, 63 S. ...

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