Smith v. Marilyn M. Fishing, Inc.

Plaintiff Herschel Smith appeals a judgment on special verdict favoring defendant Marilyn M. Fishing, Inc., on his complaint for damages for personal injuries.

I

Smith was a crewman on defendant’s tuna fishing vessel. Smith claimed he injured his back while lifting porpoises from the vessel’s hopper, dragging the porpoises to a discharge hole on the vessel’s side and dumping them overboard.

Smith sued defendant, alleging the vessel was unseaworthy because safely lifting, dragging and discharging porpoises was normally a two-man job and the vessel’s unusual structure forced him to work alone in a confined space large enough for only one person. Before working on defendant’s vessel, Smith had suffered back pain and undergone back surgery. He alleged defendant’s vessel’s unseaworthiness aggravated his preexisting back condition. Defendant conceded the doctrine of unseaworthiness allows recovery by a crewman whose preexisting disability is aggravated by a vessel’s unseaworthy condition.

The matter was tried to a jury. The parties presented conflicting evidence about the vessel’s unseaworthiness. By special verdict the jury found the *456 vessel was not unseaworthy. The…