Appeal from Circuit Court, Multnomah County. Berkeley Lent, Judge.
Alex L. Parks, Portland, argued the cause for appellant. With him on the briefs were White, Sutherland, Brownstein & Parks, Portland.
Burl L. Green, Portland, argued the cause for respondent. With him on the brief were Green, Richardson, Griswold & Murphy, Portland; and John J. Haugh, and O'Connell, Goyak & Haugh, P.C., Portland.
This is an action for damages for personal injuries suffered by plaintiff while working aboard the defendant's 85-foot tug, the Honcho. A jury returned a verdict for plaintiff and defendant appeals.
The accident occurred while plaintiff was employed as first mate on defendant's tug. The Honcho, carrying a crew of seven, was towing an empty barge from Hawaii to Oregon. The towline was a steel cable one and three-fourths inches in diameter which was wound onto a large horizontal winch mounted on the stern of the Honcho. The barge was several hundred feet astern.
The master, or captain, of the Honcho asked plaintiff to attach a holding block on the towline to keep the towline a few inches from the deck. It was first necessary to hook an eyebolt around the towline with a nylon line from the eyebolt down through a U bolt welded to the steel deck. By pulling the line through the U bolt the crewmen could draw the towline close to the deck and allow plaintiff to connect the holding block, which was coupled to the same U bolt. When the nylon line was released the holding block would tether the towline within a few inches of the deck.
Normally the crewmen pull the nylon line through the U bolt with the help of a capstan. However, the capstan was not operating properly and lacked sufficient power.
On three previous occasions the crew had been able to accomplish this by wrapping the nylon rope tightly around coils of cable on a windlass and slightly turning the windlass. However, as the testimony showed, using the windlass instead of the capstan created a substantial risk as the nylon line would bind and slip on the steel cable. Testimony also established that the recognized practice is to slow the tug to get slack on the towline, thereby making it easier to pull the towline down. On this occasion, the speed of the Honcho was not reduced.
Two other crewmen held the line and operated the windlass. While plaintiff was fastening the block the nylon line slipped, causing the towline to snap back. The holding block was thrown off the cable and struck plaintiff in the face, causing severe injuries.
Plaintiff alleged that his injuries were caused by the negligence of defendant or because of the unseaworthiness
of the Honcho. Defendant's answer charged plaintiff with contributory negligence.
The first assignment of error is based on the court's denial of defendant's motion for a directed verdict. Defendant argues that because plaintiff was in control of the operation of tethering the towline, plaintiff's injuries were caused by his failure to carry out a duty which he had consciously assumed as a term of his employment, and not by defendant's negligence or because of the unseaworthiness of the vessel.
Defendant's argument is based principally on the case of Walker v. Lykes Bros. S.S. Co., 193 F2d 772 (2d Cir 1952). In Walker, a master of a vessel brought an action under the Jones Act,*fn1 alleging that a defective latch on a filing cabinet had allowed one of the drawers to fall on his leg. The master knew of this condition and had requested the crewmen to fix it but all attempts, both at sea and in various ports, failed. The court reversed a judgment for the master, stating:
"* * * We shall therefore accept the conventional rubric and think of contributory negligence as the breach of a duty to the wrongdoer. The important thing in situations like that at bar is to distinguish between such a duty, which the law imposes upon the injured person, regardless of any conscious assumption of a duty towards the wrong-doer, and a duty which the injured person has consciously assumed as a term of his employment. By 'contributory negligence' which results in no more than reducing the amount of an employee's recovery, the Act means the first; the second is a bar to any recovery. * * * The theory apparently is that a momentary inattention to one's own safety -- the kind of thing of which we are all guilty every
day -- should not be treated as so serious a fault as the breach of a duty assumed by the employee for the protection of others, although incidentally it is for his own benefit too. For this reason courts have imputed to Congress an intent to use the term, 'contributory negligence,' only in the first sense. In the case at bar, since the plaintiff was master of the ship, he fell within this doctrine, because it is well settled that the 'duty of the master in the case of damage to the ship is to do all that can be done towards bringing the adventure to a successful termination; to repair the ship, if there be a reasonable prospect of doing so at an expense not ruinous;' just as it is his duty to care for the cargo, or not to overload the ship. Thus, if the plaintiff failed to repair the catches, although he was able to do so, his failure was not only 'contributory negligence' in the first sense, but also a breach of his duty to the defendant which barred his recovery absolutely. * * *" Id. at 773-74.
There has been a mixed reaction to what has come to be known as the "Walker doctrine," that a party may not recover where his injury is the result of his own failure to carry out a duty which he has consciously assumed as a term of his employment. In Barrell v. Brown, 261 Or 463, 471, 495 P2d 733, 737 (1972), we noted that Walker had been criticized as being "incompatible with the congressional mandate that contributory negligence and assumption of risk shall not bar a recovery in a Jones Act case," quoting Dunbar v. Henry DuBois' Sons Co., 275 F2d 304, 306 (2d Cir 1960), cert denied 364 U.S. 815, 81 S Ct 45, 5 L Ed 2d 46 (1960). See also, Chesapeake & Ohio Railway Co. v. Newman, 243 F2d 804, 808 (6th ...