Michael J. Ryan v. Pacific Coast Shipping Co., Liberia

509 F.2d 1054 Michael J. RYAN, Plaintiff-Appellee, v. PACIFIC COAST SHIPPING CO., LIBERIA, Defendant-Appellant. No. 73--2742. United States Court of Appeals, Ninth Circuit. Jan. 2, 1975. Kenneth E. Roberts (argued), Souther, Spaulding, Insey, Williamson & Schwabe, Portland, Or., for defendant-appellant. Raymond J. Conboy (argued), Portland, Or., for plaintiff-appellee. Before LUMBARD, * KOELSCH and WRIGHT, Circuit Judges. OPINION LUMBARD, Circuit Judge: 1 Defendant Pacific Coast Shipping Co. (Pacific Coast), a shipowner, appeals from a judgment entered May 23, 1973, in the District Court of Oregon, Robert C. Belloni, J., awarding plaintiff Michael J. Ryan (Ryan), a longshoreman, damages for personal injuries in an amount of $53,129.05 plus costs and interest. The judgment awarded Pacific Coast damages in the amount of its liability to Ryan, plus its costs and interest, from Scrap Loaders, Inc., Ryan's employer. Scrap Loaders does not appeal. 2 The judgment of the trial court was virtually identical to the first judgment which it entered in this case on June 6, 1969. The earlier judgment was affirmed by this court on September 8, 1971. 448 F.2d 525 (1971). 1 However, on January…

Defendant Pacific Coast Shipping Co. (Pacific Coast), a shipowner, appeals from a judgment entered May 23, 1973, in the District Court of Oregon, Robert C. Belloni, J., awarding plaintiff Michael J. Ryan (Ryan), a longshoreman, damages for personal injuries in an amount of $53,129.05 plus costs and interest. The judgment awarded Pacific Coast damages in the amount of its liability to Ryan, plus its costs and interest, from Scrap Loaders, Inc., Ryan’s employer. Scrap Loaders does not appeal.

The judgment of the trial court was virtually identical to the first judgment which it entered in this case on June 6, 1969. That earlier judgment was affirmed by this court on September 8, 1971. 448 F.2d 525 (1971). 1 However, on January 17, 1972, the Supreme Court vacated our judgment, 404 U.S. 1035 , 92 S.Ct. 713 , 30 L.Ed.2d 727 and the case was remanded to us for reconsideration in light of Usner v. Luckenbach Overseas Corp., 400 U.S. 494 , 91 S.Ct. 514 , 27 L.Ed.2d 562 (1970), and Victory Carriers, Inc. v. Law, 404 U.S. 202 , 92 S.Ct. 418 , 30 L.Ed.2d 383 (1971). We in turn remanded the case to the district court for reconsideration in light of Victory Carriers on August 25,…

(dissenting):

The trial judge, as the majority recognizes, was well aware of the nice distinction between operational negligence and unseaworthiness. That being true, I share the view of the Second Circuit in Radovich v. Cunard Steamship Co., 364 F.2d 149, 152 (2d Cir. 1966), that

*1058 It is well to note that the evidence in this record was essentially uncontradicted and that the crucial findings of fact, now rejected by the majority, concern motive and intent — matters of a kind which sometime elude easy perception in cold records, which generally tend to lack flavor.

Given the undisputed fact that “lengths of pipe must be straightened before they can be loaded in the cars,” does it necessarily follow that all operators act alike in aligning their loads. Or is it inconceivable because no operator during the six prior shifts had performed the operation by slamming his load against the gondola car, and that no one had previously observed this done, that Bono’s act was not “conscious and intended,” as the court found. Or can we unhesitatingly say that the fact-finder was nonetheless mistaken when he further found that “The procedure employed would have been, in all likelihood,…