again in this motion, the plaintiff contended that the decedent must have met his death because of his intoxication, and that from the failure of the ship's officers and crew to find and assist him the jury should have been able to infer negligence or unseaworthiness. Specifically, he argued that there was evidence of negligence or unseaworthiness because the ship's officer admitted that there was no gangway watch during the period when Mr. Hines returned to the ship after lunch, and because a fellow longshoreman testified that he saw him in a slightly intoxicated condition when he returned to the ship after lunch.
Unfortunately for the plaintiff, there are a number of difficulties with this contention. The plaintiff did not raise the issue of the ship's failure to have a gangway watch before trial and therefore it was waived. See Valdesa Compania Naviera, S.A. v. Frota Nacional de Petroleiros, 348 F.2d 33 (3rd Cir.1965); S. Riggi & Son Construction Corp. v. Frouge Construction Co., 345 F.2d 654 (3rd Cir.1965); Payne v. S. S. Nabob, 302 F.2d 803 (3rd Cir.1962), cert. den. 371 U.S. 870, 83 S. Ct. 136, 9 L. Ed. 2d 107 (1962). Moreover, although Captain Doble admitted that there was no gangway watch, he further stated that the only duties of the watch were to be sure that the gangway was safe for boarding, and to be sure that no unauthorized persons were permitted on the ship. (N.T. 113, 122.) A watchman performing these duties could hardly be expected in addition to determine the extent of insobriety of each longshoreman boarding the ship. The fact that a fellow longshoreman observed Hines after returning from lunch at 1:00 P.M. with his speaking and ambulatory powers slightly impaired does not constitute notice of such deficiencies to the ship; and there is no evidence that any officer or crewman of the GLOUCESTER ever observed the decedent in an intoxicated condition.
In any event, even assuming in arguendo that these acts or omissions were in some way negligent or rendered the ship unseaworthy, there was no evidence to show that any causal relation between them and Mr. Hines' death was anything but remote and conjectural. As previously stated, there was simply no evidence presented by the plaintiff to show how or why Hines arrived at his death at the bottom of No. 5 hatch. There were no evidentiary facts upon which a jury could base a conclusion that he fell down the hatch because he was intoxicated, so that even assuming that a gangway watch would have been able to identify Hines' state of sobriety as dangerous, the jury could only have related the gangway watch's absence to Hines' death by speculation and conjecture. See Schlichter v. Port Arthur Towing Co., supra ; Dessi v. Pennsylvania Railroad Co., 251 F.2d 149 (3rd Cir.1958); Haldeman v. Bell Telephone Co., 387 F.2d 557 (3rd Cir.1968).
AND NOW, this 1st day of July, 1969, IT IS ORDERED that the motion to set aside a verdict directed in favor of the defendant and for a new trial is DENIED.
© 1992-2004 VersusLaw Inc.