This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-95-2262

Troy C. Drury,

Respondent,

vs.

Upper River Services, Inc.,

Appellant.

Filed June 4, 1996

Affirmed

Schultz, Judge*

Ramsey County District Court

File No. C2-94-1527

Darrell Hart, Hansen, Dordell, Bradt, Odlaug & Bradt, 1200 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for Respondent)

Roy C. Dripps, The Lakin Law Firm, P.C., 251 Old St. Louis Road, P.O. Box 27, Wood River, IL 62095-0027 (for Respondent)

Patrick S. Williams, Doherty, Rumble & Butler, P.A., 2800 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101-4999 (for Appellant)

James W. Herron, Jeana McFerron, Lewis, Rice & Fingersh, L.C., 8182 Maryland Avenue, Suite 400, Clayton, MO 63105 (for Appellant)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.

U N P U B L I S H E D O P I N I O N

SCHULTZ, Judge

Respondent brought an action against his employer for negligence under the Jones Act, 46 U.S.C. sec. 688 (1994), and for unseaworthiness under general maritime law. After a jury verdict in favor of respondent on both claims, the trial court granted appellant's motion for judgment notwithstanding the verdict on the negligence claim, but denied the motion regarding the unseaworthiness claim. Appellant challenges that portion of the trial court's order denying its motion for judgment notwithstanding the verdict. Respondent challenges that portion of the trial court's order granting appellant's motion. We affirm on the unseaworthiness claim and therefore find it unnecessary to address the negligence claim.

FACTS

Respondent Troy C. Drury began work as a deckhand for Upper River Services (URS) in 1991. He was a crewmember of one of URS's river harbor boats, the M/V Mary J, when he sustained a back injury while jerking wire from an allegedly defective rigging wire that he was using to couple two barges together.

At the time of Drury's alleged injury, he was working by himself because the mate, Thomas Warnock, was hung over and was either unwilling or unable to assist Drury. Drury had to use the portable rigging rather than the stationary rigging to couple the barges because the stationary rigging was kinked or snarled and was not fit for use.

Portable rigging involves the use of a heavy, 35-foot-long rigging wire and a heavy ratchet. The wire is laid around deckfittings and the slack is then jerked from the wire. Drury testified that he sustained his injury while jerking on the wire, which failed to yield the anticipated amount of slack. He testified that the reason was that the wire must have had a kink in it. On cross-examination, however, he testified that he did not see any kink in the wire while he laid it.

Pursuant to a special verdict, the jury found, among other things, that (1) Upper River Services was negligent and its negligence played a part in causing Drury's injuries, and (2) the M/V Mary J was unseaworthy and its unseaworthiness was a substantial cause of Drury's injuries.

The trial court subsequently granted Upper River Service's motion for judgment notwithstanding the verdict regarding Drury's negligence claim, but denied the motion regarding Drury's claim for unseaworthiness. Upper River Services appeals that portion of the order denying its motion. If necessary, Drury challenges that portion of the order granting URS's motion.

D E C I S I O N

1. "The granting of a judgment notwithstanding a jury verdict is a pure question of law." Edgewater Motels, Inc. v. Gatzke, 277 N.W.2d 11, 14 (Minn. 1979).

In reviewing the facts in a case where a motion for judgment notwithstanding the verdict has been denied, we must affirm if there is any competent evidence reasonably tending to sustain the verdict.

Rettman v. City of Litchfield, 354 N.W.2d 426, 429 (Minn. 1984). In order to reverse the denial of a motion for judgment notwithstanding the verdict, this court must

determine that the evidence is practically conclusive against the verdict, or that reasonable minds could reach but one conclusion against the verdict.

Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).

2. The owner of a vessel has an absolute and non-delegable duty to provide a seaworthy ship. Not only must the things about a ship be reasonably fit for the purpose for which they are to be used, but the ship must be properly manned.

American President Lines, Ltd. v. Welch, 377 F.2d 501, 504 (9th Cir. 1967) (citations omitted), cert. denied, 389 U.S. 940 (1967).

It will be a rare case where the issue of unseaworthiness as the proximate cause of an injury is to be resolved for or against a shipowner as a matter of law.

Jefferson v. Taiyo Katun, 310 F.2d 582, 583 (5th Cir. 1962), cert. denied, 372 U.S. 967 (1963).

3. Appellant first argues that in order to prevail on his unseaworthiness claim, respondent must prove that the portable rigging wire that he was using at the time of his alleged injury was unseaworthy. We note, however, that respondent's complaint reads, in pertinent part:

That at said time and place the defendants['] vessels and/or crew, and/or vessel equipment, and/or appurtenances were unseaworthy.

At trial, respondent presented evidence of at least three different instances of unseaworthiness: (1) defective stationary rigging; (2) the lack of assistance with the portable rigging; and (3) kinked wire on the portable rigging.

URS points to Drury's testimony that he was injured because there was a defect in the rigging wire he was jerking. URS concludes that Drury is bound by this testimony and thus cannot rely on other evidence of unseaworthiness. Citing Vondrashek v. Dignan, 200 Minn. 530, 274 N.W. 609 (1937), URS maintains that a party is bound by his own statement of the facts. Vondrashek, however, limited this principle to a party's statements of "facts in regard to which he has special knowledge, such as his own motives, purposes or knowledge, or his reasons for acting as he did * * *." Id. at 534, 274 N.W. at 612. In the present case, Drury was testifying not to his own motives or knowledge, but to what he thought the cause of his injury was.

Furthermore, it is self-evident that an effect may have more than one cause. Thus, even if Drury were bound by his statement that a defect in the portable wire caused his injury, that alone would not preclude him from arguing that his injury was also the result of not being assisted by another crew member or the result of defective stationary rigging. Accordingly, we reject appellant's argument that Drury's claim is dependent on proof of a defect in the portable rigging wire prior to its being laid.

4. URS also argues that the record contains insufficient evidence of a defect in the portable rigging, and that respondent's other claims of unseaworthiness cannot be the legal cause of Drury's injuries. URS maintains that if there was a kink in the portable rigging wire, it likely developed while Drury laid the wire. Drury testified that he was able to see the wire while he was laying it and that he did not see any defect in the wire. He also testified, based on his experience, that it is possible for a kink to develop during the process of jerking slack or laying the wire.

URS contends that because Drury has not excluded other equally or more probable causes of a kink in the portable rigging wire, Drury's claim for unseaworthiness cannot rest on his assertion that the portable wire was kinked. Were it true that Drury's claim was entirely dependent on the prior existence of a defect in the rigging wire, we would be compelled to explore this issue further. In light of our decision regarding Drury's other evidence of unseaworthiness, we find it unnecessary to do so. We note that a jury might have reasonably concluded that had Drury been assisted in laying the wire, it would have been less likely for a kink to develop while it was being laid because there would have been less slack in the wire.

5. Citing Chisolm v. Sabine Towing & Transp. Co., 679 F.2d 60, 63 (5th Cir. 1982), URS argues that an unseaworthiness claim requires more than "but for" causation. In Chisolm, the Fifth Circuit rejected a "but for" standard of causation where the unseaworthy condition of the vessel, unsecured scrap metal, was not a direct or immediate cause of the plaintiff's injury. The court stated:

The "but for" argument is not applicable, because the fact that the debris was not secured had nothing to do with its being thrown overboard.

Id.

URS concludes that defective stationary rigging cannot therefore be the legal cause of Drury's injuries. In Mosley v. Cia. Mar. Adra, S.A., 314 F.2d 223 (2d Cir. 1963), cert. denied, 375 U.S. 829, 835 (1963), Judge Friendly, concurring, stated that he had doubts as to whether the plaintiff's evidence of insufficient lighting warranted submission to the jury on the issue of unseaworthiness. Id. at 229 (Friendly, J., concurring). Judge Friendly wrote:

No one can quarrel with the general proposition that proof of inadequate lighting is enough to support a finding of unseaworthiness. But here plaintiff's expert testified there was "a custom and practice" to have portable lights as part of a ship's equipment * * *. This evidence would seem to demand a further showing that the S.S. Turmoil did not have adequate portable lights at [third-party defendant] Lipsett's disposal; if she did, I would think that, on plaintiff's own theory, there was nothing to warrant the conclusion that she was unseaworthy.

Id. Likewise, in this case, we agree with URS that the fact that the stationary rigging was defective would not itself support a claim of unseaworthiness if there were adequate portable rigging available and adequate assistance had been provided.

We note, however, that "[w]hether unseaworthiness or negligence are a proximate cause of the accident are questions of fact." Lieberman v. Matson Navigation Co., 300 F.2d 661, 662 (9th Cir. 1962) (citing Borgen v. Richfield Oil Corp., 257 F.2d 505 (9th Cir. 1958)). As Drury argues, if an unseaworthy condition exposed him to another danger that caused his injury, there will be liability. See Johannessen v. Gulf Trading & Transp. Co., 633 F.2d 653, 656-57 (2d Cir. 1980) (whether ice-obstructed valve in gas tank was cause of death was fact question for jury). We hold that it would be permissible for a jury to conclude that defective stationary rigging, in light of Warnock's failure to assist, was a legal cause of Drury's injuries because it exposed him to the danger of laying portable rigging wire without adequate assistance. [1]

6. In light of our above analysis, Warnock's failure to assist Drury is a crucial factor in this case. That fact, when coupled with Drury's other evidence of unseaworthy conditions, provides more than adequate support for the jury's verdict. Whether crewmember Warnock's failure to assist Drury in coupling the barges with the portable rigging constituted an unseaworthy condition is a question of fact for the jury. See American President, 377 F.2d at 504 (whether dismantling and repairing oil pump and carrying pistons and crosshead was a two-man job is a fact question); Jefferson, 310 F.2d at 583 (whether broken dunnage board constituted unseaworthy condition was question for jury).

We note that in Borgen, the Court of Appeals for the Ninth Circuit stated:

We do not and cannot decide that the condition proved to exist at the time of appellant's fall did or did not proximately cause appellant's fall, or play any part at all in plaintiff's injury, nor that there was or was not negligence in the operation of the vessel or that an unseaworthy condition existed. These are questions of fact for the jury and cannot, in view of the evidence introduced in this case, be decided by the judge as a matter of law.

Borgen, 257 F.2d at 507.

URS maintains that there is insufficient evidence in the record from which the jury could conclude that Warnock's failure to assist Drury constituted an unseaworthy condition. The trial transcript, however, suggests otherwise. Captain Thornton testified:

If a wire is in real good shape one man can do it, possibly, but it is normally a two-man job just to jerk it up because of the weight of the ratchet and the whole thing. It is just normally two men does it.

We note that the fact that one man can do the job would not preclude the jury from concluding that it ought to be done by two men. Captain Thornton testified that the job was "[d]efinitely a two-man job." We note that the jury was shown exhibits of the portable rigging equipment and that the task performed by Drury was explained to them in detail.

URS argues that Drury's task is often done by one person and that crewmembers are expected to be able to perform such a task without any assistance. Compliance with industry practice, however, will not preclude liability. Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347, 353 (4th Cir. 1968). We conclude, therefore, that there is ample evidence in the record from which a jury could conclude that Warnock's failure to assist Drury resulted in an unseaworthy condition. See June T., Inc. v. King, 290 F.2d 404, 407 (5th Cir. 1961) ("[T]o be inadequately or improperly manned is a classic case of an unseaworthy vessel.")

URS argues that the mere fact that Mr. Warnock was not present to help Drury is an insufficient basis for liability because hard work is a part of river employment. However, Drury's claim was not based on the fact that he was required to do hard work. Drury's claim was based on the existence of an unseaworthy condition, a question that was properly submitted to the jury.

We hold that the trial court did not err in denying URS's motion for judgment notwithstanding the verdict. In light of our holding, we find it unnecessary to address the question of whether judgment notwithstanding the verdict was properly granted with respect to Drury's negligence claim. The decision of the trial court is affirmed.

Affirmed.


Footnotes

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, ' 10.

[1] We recognize that such a conclusion would depend on there being enough evidence in the record to support a finding that laying portable rigging wire without assistance is a dangerous condition. We conclude that the evidence was sufficient in this regard.