Vargas v. Mcnamara

608 F.2d 15 (1st Cir. 1979)

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Nature of the Case

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Facts

Ps were seamen employed by defendant D for a fishing trip. Preliminary to the trip, they were to perform certain repairs on D's vessel, NORA. Ps brought the NORA from Provincetown to Falmouth, docking at the boat yard of D Cape Cod Marine Service where the repair work was to be done. D instructed Ps 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. D had received this equipment from Cape Cod Marine (D). Whether or not Cape Cod Marine (D) provided any information to D as to the type of cleaning component furnished or the precautions that should be followed in using it is unknown. Ps having produced no evidence on this point. Ps worked without a respirator or other equipment to offset any toxic fumes. Ps sprayed an area of the engine room with Verisol, scraped the grime, and then applied the steam cleaner. The engine room filled with steam, Ps experienced difficulty breathing and started coughing. They took frequent breaks in the fresh air, but their symptoms worsened and other unpleasant sensations ensued. Ps were disabled from working for a period of time. 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. Ps' sued D and Cape Cod Marine (D) on allegations of negligence. Ds moved for a directed verdict. The court held that there was no evidence either D 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 (D) either furnished incorrect information or failed to pass along information in its possession. The court concluded Ps had failed to establish a prima facie case. The court sua sponte raised the issue of unseaworthiness and invited arguments from the parties on the subject. Ps requested leave to amend their complaints. The court held that even were the complaints so amended the directed verdicts would be granted because unseaworthiness had not been established by the evidence. P appealed.