James Regnier v. Shinwa Kaiun K.K., a Japanese Corporation

429 F.2d 537 James REGNIER, Appellee, v. SHINWA KAIUN K.K., a Japanese Corporation, Appellant. No. 23252. United States Court of Appeals, Ninth Circuit. June 30, 1970. Rehearing Denied August 4, 1970. Paul C. Gibbs (argued), of Williams, Lanza, Kastner & Gibbs, Seattle, Wash., for appellant. Robert D. Duggan (argued), of Levinson & Friedman, Seattle, Wash., for appellee. Before HAMLEY, ELY and CARTER, Circuit Judges. ELY, Circuit Judge: 1 Regnier, a longshoreman, sustained personal injuries while working aboard the appellant's merchant vessel. He was assisting with the loading of heavy logs into the vessel's upper 'tween deck. After the logs were placed through the hatch and into the 'tween deck area by use of loading gear, they were brought into wing position by means of a bull winch. When one of such logs had thus been placed into position and the winch operator had slacked off the line, Regnier waited for at least a minute, removed the knob from the bell of the sling around the log, and pulled the sling free. As he moved away, downward on other stacked logs and toward the square of the hatch, the log from which he had taken the sling rolled downward, crushing one of…

Regnier, a longshoreman, sustained personal injuries while working aboard the appellant’s merchant vessel. He was assisting with the loading of heavy logs into the vessel’s upper ’tween deck. After the logs were placed through the hatch and into the ’tween deck area by use of loading gear, they were brought into wing position by means of a bull winch. When one of such logs had thus been placed into position and the winch operator had slacked off the line, Regnier waited for at least a minute, removed the knob from the bell of the sling around the log, and pulled the sling free. As he moved away, downward on other stacked logs and toward the square of the hatch, the log from which he had taken the sling rolled downward, crushing one of Regnier’s legs. After he had removed the sling and as he began to move away, Regnier had partially turned his back to the log. The only witnesses to the accident were Regnier and two of his fellow employees.

The suit was tried to a jury, which determined by response to special interrogatories, (1) that the vessel was unseaworthy; (2) that Regnier’s injuries and resulting damages were proximately caused by such unseaworthiness; (3) that the total…

(dissenting).

Appellant produced no witnesses or evidence bearing on the issue of the standard of care which Regnier could have, or should have, followed. The evidence produced in behalf of plaintiff’s ease by Regnier and his witnesses was undisputed and not in conflict. This evidence established that although the operation performed by Regnier was dangerous, he performed the work the way a longshoreman was required to perform it and that there was no other way to perform it.

Appellant contends there was evidence of contributory negligence as follows: (1) that Regnier turned his back, or more accurately, his side, to the pile of logs after he pulled the bull line free, and (2) that Regnier should have required that the bull line be pulled out with the stowing winch. The majority relies on the second contention. We discuss both.

No one disputes that Regnier was required to walk upon the logs and remove the sling. There was no other way to do the job. Having removed the sling and pulled the line free, he had to get off the pile of logs. He then had to turn his back or his side or walk off backwards. He turned his side as he walked off. The undisputed testimony was to the effect…