GEORGE H. BARLOW, JR., Plaintiff-Appellant,
LIBERTY MARITIME CORP., LIBERTY STAR SHIPPING CORP., LIBERTY SUN CORP., LIBERTY SHIPPING GROUP L.P., LIBERTY SHIPPING GROUP LLC, in personam, THE M/V LIBERTY SUN, HER ENGINES, TACKLE AND EQUIPMENT, in rem., Defendants-Appellees
Argued November 15, 2013
As Amended March 10, 2014.
George H. Barlow, Jr. appeals a judgment entered following a jury trial in the United States District Court for the Eastern District of New York (Viktor V. Pohorelsky, Magistrate Judge) on claims arising out of injuries he suffered while working aboard the Motor Vessel Liberty Sun. Barlow assigns two errors to the district court. First he asserts that the district court should have instructed the jury on the " maritime rescue" doctrine, under which Barlow could only be held contributorily liable if the jury found his actions were not only unreasonable, but reckless. Barlow also claims that the district court erred in failing to grant his post-trial motion for judgment as a matter of law regarding his " unseaworthiness" claim. We decline to adopt the maritime rescue doctrine and hold that in maritime injury cases, the proper standard of care is that of a reasonable mariner under the circumstances. We also hold that Barlow was not entitled to judgment as a matter of law on his unseaworthiness claim.
RALPH J. MELLUSI, Tabak Mellusi & Shisha LLP, New York, N.Y. (James Michael Maloney, Port Washington, N.Y. on the brief), for Plaintiff-Appellant.
ELIZABETH A. MCCOY, (Gregory W. O'Neill, Thomas M. Rittweger, on the brief), Hill, Betts, & Nash, LLP, New York, NY, for Defendants-Appellees.
Before: POOLER, RAGGI, AND WESLEY, Circuit Judges.
Wesley, Circuit Judge.
George Barlow started going to sea as a deck hand in 1974. He was twenty-three. In 1986, after working aboard ships for more than a decade, and without ever having attended college, he passed the merchant marine officer's exam, licensing him to serve as an officer aboard U.S. flagged cargo vessels. In 1992 he received his master's license, the merchant marine equivalent of a captain's qualification. Now retired, Barlow never actually took command of a ship, but did spend his whole career at sea aboard various vessels. In March 2007, Barlow took a job as third mate on the last of these vessels, the Motor Vessel Liberty Sun, a 33,000-ton, 738-foot-long cargo ship.
Two months after Barlow took the job, the Liberty Sun steamed up the Amazon River to the Hermasa floating grain elevator in the port of Itacoatiara, Brazil. Feeder barges bring grain, or in this case soy beans, from shore to the terminal to be loaded onto larger seagoing vessels like
the Liberty Sun, which moor in the river alongside the terminal.
On May 21, 2007 the Liberty Sun tied-up alongside Hermasa. To control her fore and aft movement, the Liberty Sun had three lines forward secured to mooring buoys, two lines aft to mooring buoys, and one line off the port quarter, also to a mooring buoy. She also had two starboard breast lines -- lines perpendicular to the ship that control distance from the pier -- that were married to lines from the shore. Additionally, there was one tug boat on the starboard bow at all times to fend the ship off the terminal.
Three days after mooring, at about 5:15 AM, the forward breast line parted. There was no wind or wave action at the time. The only forces acting on the ship were the four-knot current moving from bow to stern and the forward tug. The tug was pushing away from the shore, exactly opposite to the now-parted breast line.
The second mate, Timothy Schloemer, was the watch officer when the line parted. He immediately notified Captain Donald Grosse who instructed Schloemer to assemble the crew and re-attach the line.
The Captain also ordered the Chief Engineer to start the engines. Meanwhile, the remaining lines came under additional strain and approximately five minutes after the breast line parted, the starboard bow line parted.
Schloemer noted that the remaining forward lines were also in danger of snapping. He described them as " running against brake[s]." We understand him to mean that the winches used to control the lines were turning as a result of the increased tension and that the lines were paying out slowly in spite of the fact that the winch brakes were engaged. Schloemer ordered the boatswain to slacken the lines. In the meantime, the rest of the crew began to assemble.
Barlow was the last crew member to arrive on the scene. He was outranked by Schloemer. Nonetheless, Barlow tried to take charge. First, he argued with Schloemer about how best to slacken the line. Schloemer told him that others were dealing with the problem and ordered him to do nothing. Barlow initially tried to get the captain to intervene, but was unable to reach him on the ship's internal telephone system. He then sought to take matters into his own hands, and proceeded to one of the winches that controlled the forward mooring lines.
The standard method for operating a winch is to first start the motor, and next put it in gear. Only then does one release the brake, and either pay out or take in line using the motor to control the rate at which the line pays out. Barlow decided to use his own method of operation, which he calls " bumping the brake." Barlow " bumped" the brake handle to loosen the brake's grip on the winch, without first engaging the motor. He hoped that, freed from the brake's grip, the line would slacken and that he would then be able to re-engage the brake. In Barlow's mind, " bumping the brake" was quicker than the standard operation of the winch, and would save him from greater danger by making it unnecessary to reach under the winch -- near the dangerously taut line -- to engage the motor.
Alas, even the best-laid plans of mariners go awry. After Barlow bumped the brake, the line paid out uncontrollably. As it did, it whipped around the winch and hit him. After the injury, Barlow remained aboard the Liberty Sun for a week, receiving treatment locally. His wound soon ...