Federal Circuits, Sixth Circuit (May 20, 1987)
Docket number: 86-5452
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http://vlex.com/vid/disposition-disfavored-james-sherrill-37153328
Id. vLex: VLEX-37153328
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Before MERRITT, WELLFORD and NORRIS, Circuit Judges.
PER CURIAM.On or about June 16, 1979, plaintiff slipped, fell, and injured his back aboard the USNS Sealift China Sea (a public vessel utilized by the U. S. Navy). On February 12, 1981, he filed a complaint for damages against the United States of America, claiming a Jones Act violation (46 U.S.C. Sec .688) and unseaworthiness under the General Maritime Law. Sherrill also sought maintenance and cure, but this count was settled.Sherrill, a seaman, testified that he slipped on a foreign object that felt like a pencil while descending an internal ladder of the vessel. He also admitted that when he slipped, the stairwell involved was well-lighted, that he was holding on to the railings on the ladder with both hands, and that he was looking down the ladder as he descended. A utilityman, William C. Sanders, testified that some time after the accident he found a black government ballpoint pen on the deck not far from the location where Sherrill had been found and that the casing of the pen was cracked. He did not report this to anyone. Other witnesses testified that they searched the area after the fall and could find no reason for the fall; they noticed no pen nearby.The district court found that plaintiff failed to meet his burden of proof in regard to his Jones Act claim because he failed to prove that the ship owner had actual or constructive notice of the alleged presence of an object on the ladder, if one were located there. The court also dismissed the unseaworthiness claim because the ladder was reasonably fit for its intended use.Appellant asserts that under Federal Rule of Civil Procedure 52(a), the district court should have made a specific finding of fact as to whether a foreign object was actually on the ladder of the ship. Appellant acknowledges that the trial court is not required to make a finding on each and every fact involved in the litigation, but contends that the court erred in not making this required finding.A reasonable interpretation of the district court's findings is that plaintiff did not prove that there was a pen on the ladder. Implied in the finding that the ladder was seaworthy was the district court's conclusion that a foreign object was not proven to have been on the step of the ladder, or that plaintiff failed to prove that this was the cause of his fall and injury.Findings are to be liberally construed in support of a judgment, Triangle conduit and Cable Co. v. FTC,Try vLex for FREE for 3 days
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