Opinion
Findings of Fact
1. During period from June 11, 1946 to July 31, 1946, libelant was a member of the United States Merchant Marine and was in the employ of the respondent as a member of the crew of the S.S. John La Farge in the capacity of Second Cook and Baker, under foreign articles originating at New York, at the base wage of $167.50 per month, plus overtime at 90¢ per hour, and bonuses. Libelant's gross earnings, exclusive of found, during that period amounted to $479.48, consisting of $284.75 for wages, $49.83 for bonuses, and $144.90 for overtime.
2. During the aforesaid period, the respondent, United States of America, owned the S.S. John La Farge, which was operated in foreign commerce for the account of the United States of America and the War Shipping Administration, predecessor to the United States Maritime Commission, as a merchant vessel under a general agency agreement.
3. Libelant signed aboard at New York on June 11, 1946. The vessel stopped at Philadelphia, sailing therefrom on June 20, 1946 for Rotterdam, Holland, where she remained from July 4th to July 9th. The vessel then proceeded to Fowey, England, where she remained from July 10th to July 16th before returning to the United States. The crew was paid off on July 31, 1946 at Philadelphia.
4. Some time during the afternoon of June 29th, the chief steward, Albert G. Espeneda, assigned the chief cook, the libelant (the second cook) and the third cook to clean the vegetable storeroom. This was a routine task performed every week or two, but was performed after regular hours and compensated for as overtime. In this sense it was voluntary and if a man did not feel like working, he could refuse it. On this occasion the chief cook declined the work, leaving Soriano and the third cook to proceed alone. While three or four men were usually assigned to do this task, the job could be done by two and two were sufficient.
5. The place where Soriano was required to work at the vegetable box on June 29, 1946, was a safe place in which to work.
6. The vessel was in all respects seaworthy both as to her equipment and appurtenances and as to the crew that manned the vessel.
7. The members of the crew and the officers were competent and performed their respective duties with the care and skill required for their work.
8. The work done by the libelant and the third cook at the vegetable box on June 29, 1946, was work with which they were familiar and they went about their work in the usual way. No officer or superior gave them any instructions as to how they were to do the work and no such instructions were necessary considering the nature of the work they were to perform.
9. Libelant and the third cook proceeded with the assignment to clean the vegetable box. In doing so the third cook, who was working inside the box, brought the various items to the door of the box. Libelant, who was working in the passageway outside the box, took the various items and stacked them in the passageway, preparatory to cleaning out the box.
10. After a sufficient quantity of the contents of the box had been removed, both men went inside and cleaned the box. The libelant alone stacked the fruits and vegetables outside the box in the passageway. While the two men cleaned the box, these boxes and crates remained stacked without incident for over 45 minutes.
11. The cleaning accomplished, Soriano then proceeded to move the boxes and crates of fruits and vegetables and return them to the door of the box, where the third cook took them and replaced them inside the box. Libelant had stacked various items in the passageway so that the sacks of potatoes were piled five sacks high and boxes of apples were piled or stacked on top of them. He had placed on top of the potatoes two boxes of apples, each weighing 40 to 50 pounds, one on top of the other. As he attempted to remove the top box of apples, he dislodged the box beneath it, causing it to fall and strike his knee, shin, and finally his left big toe. After the accident, Soriano was unable to continue with the work, and the third cook finished the job alone.
12. No negligence of any of the officers or crew was a proximate cause of Soriano's accident.
13. The fall of the box of apples on Soriano's left leg and left foot was caused solely by Soriano's own negligence and resulted from the manner in which he stacked the vegetables and fruit in the passageway and the manner in which he attempted to lift the top box of apples from the stack.
14. Soriano's injury was reported to the Purser of the vessel by the third cook at or about 11:00 P.M. the same evening the accident occurred. The Purser gave the third cook epsom salts and instructions for libelant to bathe his foot in epsom salts solutions, which was done.
15. Libelant treated his left foot by bathing it in epsom salts solutions in accordance with the Purser's instructions from time to time until the vessel reached Rotterdam. 16. When the vessel arrived at Rotterdam libelant was sent ashore to a Dr. Bohre. After Dr. Bohre examined Soriano, he sent him back to the ship with a note that read:
"July 5, 1946
"S.S. John La Farge. F. Soriano, second cook is suffering from a contusion of the left foot. No sign of a fracture. I advise rest and application once every day of the prescribed ointment."
17. On July 5, 1946, libelant delivered to the Captain or Purser the report of Dr. G. F. Bohre of Rotterdam, concerning his examination of libelant and his advice. Soriano went ashore one evening in Rotterdam for recreation.
18. Soriano's job was one that required a few hours of work in the morning, a few hours in the afternoon, and a few hours in the evening. In between the work periods, Soriano could rest, if he so desired. Soriano never reported that he was unable to perform his duties, nor did he ever ask for time off. No one ordered him to work over his protest. He earned overtime after the accident on the return voyage to Philadelphia.
19. No negligence of any of the officers of the vessel aggravated the injuries Soriano received.
20. The officers of the vessel provided Soriano with prompt and proper medical attention and care at all times after he sustained his injuries on June 29, 1946.
21. After his discharge from the S.S. John La Farge on July 31, 1946, at Philadelphia, Soriano proceeded to New York. On August 2, 1946, he went to the out-patient department of the United States Public Health Hospital at Stapleton, Staten Island. He reported there on August 5th, 9th and 16th. X-rays were taken of his feet and were negative as to any fracture, but the patient was found to have a hallus valgus, a pointing out of both great toes. On his August 9th visit, he was given an order by the orthopedist at Stapleton Marine Hospital for semi-rigid arch supports. The final note on the hospital records on August 16th states that his shoes were too small for taking the supports and he was advised to buy a new pair and report again. These shoes with arch supports were prescribed not for the left foot alone, but for both feet.
22. On October 23, 1946, the libelant reported back to the Marine Hospital, not for his feet but for his eyes. On October 31, 1946, Soriano went back to work and sailed steadily on some half dozen ships until July 17, 1947. On March 19, 1947, he reported to Stapleton. Again he made no mention of his feet, but was concerned about his eyes.
23. Between July 17, 1947 and September 15, 1947 the libelant was not employed, nor did he report for any treatment. On September 15th he reported at the Stapleton Hospital, but this was for scabies. Two days later he was back complaining about his left foot. He reported twice after this on the 23rd of September and the 6th of October, 1947. The diagnosis was a dorsal arthritic ridge of the first metatarsal head, with a bursa over it. He returned to work again on October 26, 1947.
Conclusions of Law As to both causes of action:
I. The statutory requirements for maintaining this suit have been complied with.
II. This Court has jurisdiction of the parties and of the subject matter of this action.
As to the first cause of action:
III. The injuries which libelant received while working at the vegetable box aboard ship on June 29, 1946, were not caused by any negligence of the respondent or of any of the officers or crew of the vessel, the S.S. John La Farge; or by any unseaworthiness of the vessel in any respect.
IV. The injuries which libelant received aboard ship while working at the vegetable box on June 29, 1946, were caused solely by his own negligence. V. No subsequent negligence of respondent or any of the officers or crew of the vessel aggravated any of the injuries libelant received while working at the vegetable box aboard ship on June 29, 1946.
VI. The respondent is not liable for the injuries which libelant received aboard ship on June 29, 1946, while working at the vegetable box.
VII. Libelant's first cause of action is dismissed on the merits.
As to the second cause of action:
VIII. Libelant was injured aboard the vessel, S.S. John La Farge, while employed thereon as the second cook and while working at the vegetable box on June 29, 1946.
IX. Libelant is entitled to an award for maintenance at the rate of $3.50 per day for the period from August 1, 1946 to October 30, 1946, inclusive, or a total award of $315.
X. Libelant is entitled to his legal costs and disbursements.
XI. Let judgment be entered accordingly.
Harold J. Guttman, New York City (Samuel J. Stark (of Stark and
Myles J. Lane, U.S. Atty., New York City, by Hanrahan & Brennan, New York City (Michael E. Hanrahan, New York City, of counsel), for respondents.
LEIBELL, District Judge.
The libel pleads two causes of action: the first is for damages based on the alleged negligence of the respondent; the second is for an award for maintenance.
As appears from the above findings, the libelant was a seaman aboard the respondent's vessel, the S.S. John LaFarge and he was injured on the evening of June 29, 1946, while working at the vegetable box. At the time, the vessel was enroute from Philadelphia to Rotterdam. The alleged negligence of the respondents, their officers and agents is specified in the following subdivisions of paragraph 7 of the libel
'(a) failing to provide a reasonable and safe place for libellant to perform his duties;
'(b) failing to provide careful, competent, proper and skillful coemployees and superior officers;
'(c) directing the work to be done in an improper and unsafe manner;
'(d) failing to provide sufficient number of men to do the work;
'(e) requiring libellant to return to duty despite his disability;
'(f) failing to provide proper and adequate medical care and attention and maintenance for the alleviation and cure of libellant's injuries;
'(g) failing to provide libellant with a safe and seaworthy vessel and safe appurtenances, and to keep the same in a safe and seaworthy condition.'
There was no evidence to support the allegations of subparagraphs (a) and (g). The vessel was seaworthy and libelant was working in a safe place.
In support of the allegations in subparagraphs (b), (c) and (d) libelant testified that the chief steward ordered him and the third cook to do the job of cleaning out the vegetable box (a chill box or refrigerator in which vegetables and fruits were stored for the meals of the crew during the voyage) although four men were required to do that work. I have found that two men could do the work; that the chief steward originally ordered the chief cook to help do the job, but that he declined it. This was an overtime job, which afforded them a chance to make some extra money. The men could not be required to do the work. Accepting the assignment was purely voluntary.
It was not work that called for a superior officer to supervise it. Cleaning out the vegetable box was a job that was done every two weeks. If four men, two teams, worked on it, the job could be done in half the time, but each man would earn that much less overtime. Two men could do the job easily and they would earn more overtime because it would take more time. In fact, after the libelant hurt his left foot the third cook was able to finish the job alone.
Libelant and the third cook could have worked as a team, carrying the sacks of potatoes and the boxes or crates of vegetable and fruits to the door of the vegetable box and then piling them in the passageway in stacks. The vegetable box would then be ready for cleaning. After it was cleaned out the two men, working together, could have lifted the boxes of apples down from the top of the stacks and carried them into the vegetable box. If that had been done the box of apples would not have fallen on libelant's foot. Libelant and the third cook decided to divide the work; the third cook working inside the box and the libelant working outside in the passageway.
If the two boxes of apples were not securely stacked on top of the sacks of potatoes in the passageway, that was libelant's fault. He stacked them. If he stacked them too high, that was also his own fault. If in lifting the top box of apples off the box beneath it he loosened the under box and caused it to fall, that too was libelant's fault.
Libelant and the third cook were experienced men. Libelant does not charge the third cook with any negligence. Nobody told libelant that he had to stack the vegetables and fruit in the passageway as high as he did or in the place where he stacked them or in the manner in which he dit it. This was a job that was done regularly every two weeks, and any one working in the steward's department would know how to do it.
Items (e) and (f) of paragraph 7 of the libel relate to the alleged failure of the respondent to provide libelant with proper and adequate medical care and attention, and for aggravation of libelant's condition by requiring him to return to work while disabled. The believable testimony is to the contrary. When the third cook reported libelant's injury to the Purser about 11:00 P.M. on June 29th, the Purser directed that libelant bathe his foot in a solution of epsom salts which he supplied. When the vessel reached Rotterdam, the libelant was promptly sent ashore by the Master to see a doctor. There was no negligence on the part of the Purser or the Master in following that course. Evidently the libelant was not in any pain because he could go ashore on his own to see the doctor at Rotterdam, and even went ashore at that port one evening for recreation.
The doctor recommended the use of an ointment and rest. Libelant's job did not require long periods of work. He worked three times a day in the preparation of meals and he rested in between meals. The chief steward's deposition shows that libelant never asked to be relieved from duty. In fact libelant worked worked overtime on the return voyage from England. I do not believe the libelant's story that he was required to work despite his protests after the accident and on the return voyage.
I have therefore concluded that the libelant's first cause of action, based on the alleged negligence of respondent and the alleged unseaworthiness of the vessel, should be dismissed on the merits.
The libelant was injured while in the service of the vessel and accordingly is entitled to maintenance during the period he was receiving medical attention and until he received the maximum of cure possible in his case. He was an out-patient at the Stapleton Hospital at various times in August and September 1946. He returned to sea on October 31, 1946. His maintenance for that period, at the then allowable rate of $3.50 a day, amounts to $315 and that is the sum which I have awarded him. There is no basis for the claim for maintenance in 1947, from July 18th to October 26th. If his feet were bothering him then, it was due to an arthritic condition common to both feet.