Vargas v. McNamara

608 F.2d 15, 1981 A.M.C. 130
CourtCourt of Appeals for the First Circuit
DecidedOctober 30, 1979
DocketNos. 79-1216 to 79-1220
StatusPublished
Cited by62 cases

This text of 608 F.2d 15 (Vargas v. McNamara) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vargas v. McNamara, 608 F.2d 15, 1981 A.M.C. 130 (1st Cir. 1979).

Opinion

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiffs appeal from the district court’s granting of defendants’ motions for directed verdict in this personal injury action.

From the evidence viewed in the light most favorable to plaintiffs, the following could be found. Plaintiffs Vargas and Baker were seamen employed by defendant McNamara1 in contemplation of an upcoming fishing trip. Preliminary to the trip, they were to perform certain repairs on defendant’s vessel, NORA. Vargas and McNamara brought the NORA from Prov-incetown to Falmouth, docking at the boat yard of defendant Cape Cod Marine Service where the repair work was to be done. McNamara instructed Vargas and Baker to clean the engine room and provided them with the equipment for the task which consisted of a spray gun with hose attachment, an unlabeled five gallon bucket of a cleaning agent known as Verisol, and a steam cleaner. Defendant McNamara had received this equipment from defendant Cape Cod Marine. Whether or not Cape Cod Marine provided any information to McNamara as to the type of cleaning component furnished or the precautions which should be followed in using it is unknown, plaintiffs having produced no evidence on this point.

In accordance with McNamara’s instructions plaintiffs proceeded to spray an area of the engine room with Verisol, to scrape the grime, and then to apply the steam cleaner. They worked without a respirator [18]*18or other equipment to offset any toxic fumes. Soon after commencing work, the engine room began to fill with steam, and plaintiffs experienced difficulty breathing and started coughing. Although they took frequent breaks in the fresh air, their symptoms worsened and other unpleasant sensations ensued. As a consequence of this experience, plaintiffs were disabled from working for a period of time.2

An assistant professor of occupational medicine testified that Verisol is a toxic industrial solvent which may have a harmful effect on the body according to the length and intensity of exposure. It is particularly hazardous to use in spray form because droplets of solvent are absorbed via the respiratory system if no respirator is worn.

Plaintiffs’ complaints against both their employer and Cape Cod Marine were based solely on allegations of negligence. At the close of plaintiffs’ evidence, defendants moved for a directed verdict. In allowing the motion, the district court observed that there was no evidence either defendant knew or should have known the toxic qualities of Verisol or the circumstances under which it should be used, nor was there evidence that Cape Cod Marine either furnished incorrect information or failed to pass along information in its possession; consequently, the district court concluded plaintiffs had failed to establish a prima facie case. The court then raised the issue of unseaworthiness itself, although the matter had not been pleaded, and invited arguments from the parties on the subject. While poorly articulating any coherent theory of unseaworthiness, plaintiffs did request leave to amend their complaints to add a count therefor. The court responded that even were the complaints so amended the directed verdicts would be granted because unseaworthiness had not been established by the evidence. Plaintiffs construe the court’s ruling as a denial of their motion to amend and now argue that the court erred in denying that motion and in directing verdicts for both defendants on the negligence counts.

Fed.R.Civ.P. 15(a)3 provides that “leave [to amend] shall be freely given when justice so requires.” The motion to amend ordinarily should not be denied “[i]n the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. . . [Emphasis added].” Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). Here, the reason given for denying the amendment was futility, a valid reason in general, but, we think, incorrect in the circumstances of this case.4

There was, in fact, sufficient evidence from which a factfinder could conclude the vessel was unseaworthy. Unseaworthiness may arise from the employment of an unsafe method of work such as the shipowner’s failure to provide adequate equipment for the performance of an assigned task or necessary safety equipment. Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 327, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960) (vessel has duty to furnish seamen with tools reasonably fit for their intended use); see Webb v. Dresser Industries, 536 F.2d [19]*19603 (5th Cir. 1976), cert. denied, 429 U.S. 1121, 97 S.Ct. 1157, 51 L.Ed.2d 572 (1977) (failure to provide proper foot apparel for ice and snow conditions to seaman ordered ashore to pick up supplies); White v. Rimrock Tidelands, Inc., 414 F.2d 1336, 1339 (5th Cir. 1969) (absence of adequate safety equipment — rubber boots); Ferguson v. Erie Railroad Co., 235 F.Supp. 72, 76 (S.D.N.Y.1964) (ship unseaworthy because of failure to provide protective glasses); IB Benedict Admiralty § 24, pp. 3-74 to 3-81 (7th ed. 1976). Here, the factfinder could conclude that the procedure McNamara directed for cleaning the engine room was unsafe. There was evidence that the use of Verisol in spray form increased plaintiffs’ exposure to its toxic fumes. Whether a toxic solvent in spray form should have been utilized at all in the poorly ventilated room is debatable, but at the very least, or so a factfinder could permissibly conclude, protective masks should have been provided. That McNamara did not know, or in the exercise of reasonable care would not necessarily have known, that the modus operandi he prescribed was unsafe or that protective masks were required, is irrelevant, for liability under unseaworthiness principles is not dependent upon fault. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).

While the reason stated for denial of plaintiffs’ motion to amend was therefore erroneous, it does not follow that the motion should be granted. In Hayes v. New England Millwork Distributors, Inc., 602 F.2d 15 (1st Cir. 1979), we stated that where a considerable period of time passes between the filing of the complaint and the motion to amend, courts have placed the burden upon the movant to show some valid reason for his neglect and delay. There, movant’s proffered reason for delay — developments in the law applicable to his ease— was unsupported. Id., at 20. Furthermore, defendants would have suffered some prejudice had the amendment been allowed, for discovery had apparently already been completed by the time movant sought to add both a new defendant and additional allegations against the original defendant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ciolino v. Keystone Shipping Co.
D. Massachusetts, 2024
Lath v. City of Manchester, et al.
2018 DNH 075 (D. New Hampshire, 2018)
Jones v. FMA Alliance Ltd.
978 F. Supp. 2d 84 (D. Massachusetts, 2013)
United States v. Lopez-Diaz
940 F. Supp. 2d 39 (D. Puerto Rico, 2013)
Ramirez-Lluveras v. Pagan-Cruz
862 F. Supp. 2d 82 (D. Puerto Rico, 2012)
Vargas v. Potter
792 F. Supp. 2d 214 (D. Puerto Rico, 2011)
Frank Drapela v. United States
419 F. App'x 500 (Fifth Circuit, 2011)
Adrian v. Mesirow Financial Structured Settlements, LLC
647 F. Supp. 2d 126 (D. Puerto Rico, 2009)
Resnick v. Copyright Clearance Center, Inc.
422 F. Supp. 2d 252 (D. Massachusetts, 2006)
Cape Fear, Inc. v. Martin
312 F.3d 496 (First Circuit, 2002)
American River Transportation Co. v. Phelps
189 F. Supp. 2d 835 (S.D. Illinois, 2001)
Underwriters at Lloyd's v. Labarca
260 F.3d 3 (First Circuit, 2001)
Tingley Systems, Inc. v. CSC Consulting, Inc.
152 F. Supp. 2d 95 (D. Massachusetts, 2001)
Dal-Tile Corp. v. United States
63 F. Supp. 2d 1341 (Court of International Trade, 1999)
Bohn v. Park City Group, Inc
Tenth Circuit, 1996
Glassman v. Computervision
First Circuit, 1996

Cite This Page — Counsel Stack

Bluebook (online)
608 F.2d 15, 1981 A.M.C. 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vargas-v-mcnamara-ca1-1979.