Opinion
February 24, 1953.
Harry D. Graham, New York City, for libelant.
Kirlin, Campbell Keating, New York City (Raymond Parmer, New York City, of counsel), for claimant.
Findings of Fact
1. Libelant, a woman now 67 years of age, was at the time the libel was filed, and still is, a resident of the City of New York.
2. At all of the times mentioned in the libel, claimant, Grace Line, Inc., owned, operated, managed and controlled the combination passenger-cargo steamship Santa Luisa.
3. Estelle Ludena, the libelant, became a passenger on the S.S. Santa Luisa at Callao, Peru, on or about March 7, 1949, under a ticket-contract (Ex. A.) issued to and signed by her, which provided for passage to New York, via the Canal Zone.
4. About two days prior to meeting with her injuries, libelant was transferred from Cabin No. 5 to Cabin No. 7. This transfer has no bearing on the question of liability in this suit.
5. Cabin No. 7 is situated upon the innerstarboard passageway of the "A" deck. The door to Cabin No. 7 is located at the port end of the cabin and opens inward from the starboard passageway. (See Ex. 6.)
6. The door of Cabin No. 7 when in an open position, was equipped with a spring door-holding device consisting of an omega shaped spring clip attached to the inner face of the door at the top and a rounded notched plug, affixed to the partition behind the door, which engaged the spring clip, held the door in a wide-open position, as shown on Exhibit F, when the door was pushed back against the partition.
7. In order to release the door of Cabin No. 7 from a wide-open position, a person would have to pull upon the door so that the spring clip would spread, thus releasing the plug and freeing the door so that it could be closed.
8. The door to Cabin No. 7 also had a hook-and-eye combination, with the eye upon the outer face of the door at the top and a short hook therefor upon the jamb. When the hook was inserted in the eye on the door it held the door in a partially open position (about six inches). The hook when not in use rested in another eye on the partition near the jamb, as shown on Exhibit 1.
9. The athwartship vestibule of Cabin No. 7, into which the door opened, was not equipped with a handrail. But the passageway outside the cabin had a handrail.
10. The Santa Luisa left the Atlantic breakwater of the Canal at 11:31 p.m. on March 14, 1949, and upon entering the Caribbean Sea she encountered moderate northeasterly swells and winds which increased somewhat during the following day. On March 15th the vessel was rolling moderately in moderately rough northeasterly seas and long heavy swells until libelant met with her injuries the evening of March 15th. See ship's log, Ex. B.
11. About 7:15 p.m. of March 15, 1949, while the Santa Luisa was rolling moderately in the Caribbean Sea, libelant entered her room in order to freshen up for dinner. The temperature on deck that afternoon had been in the upper seventies. The wind force was between 4 and 5 (Beaufort scale) — moderate to fresh.
12. Libelant suffered her accident about 7:30 p.m. while leaving her Cabin No. 7 on the vessel's starboard side, when one or more fingers of her right hand were caught between the door of the cabin and the door jamb. The knob and lock were on the right hand side of the door as one faced the door from the corridor outside. The libelant, while standing in the corridor, after leaving her cabin, was grasping the door knob with her left hand and with her right hand was attempting to adjust the buttons in the door lock so that it would automatically lock when closed. While so doing, the vessel rolled toward starboard, causing libelant to push into the cabin holding onto the door to maintain her balance. When the vessel rolled to port, the libelant, still with her hands on the door in the position above described, was forced backwards to port out into the corridor, pulling the door with her until it closed on several fingers of her right hand and they were caught between the door and the jamb. It was a metal covered door of fireproof construction.
13. As a result of the accident several fingers of her right hand were bruised and the right middle finger sustained compound fractures and was almost amputated near the terminal phalanx.
14. The ship's surgeon, an employee of the claimant, was promptly called and responded, placing the libelant in her bed and, without the benefit of x-rays or other laboratory aids, with which the vessel was not equipped, straightened the finger out as well as possible; loosely sewed the skin into place; cleaned it up as well as possible, applied a sterile dressing and splint; and also treated the libelant for a mild state of shock with bed rest and a stimulant.
15. At the time of libelant's injuries, the Santa Luisa was 20 hours from the Canal Zone, the nearest port.
16. When the wound was examined and dressed again by the ship's doctor on March 18th the distal fragment appeared viable and clean.
17. Enroute to New York, the Santa Luisa put into the port of Charleston, South Carolina, at 0446 on March 19th as a port of call and departed from Charleston at 1828 the same day. The ship's doctor did not think it necessary that the libelant go ashore for medical treatment and he so advised the Captain.
18. The ship's doctor dressed libelant's finger at 8:00 a.m. on March 20th. A mild infection, called pyocyaneus, was present, but otherwise the condition of the finger was satisfactory.
19. The vessel arrived in New York on March 21st, at 0535. Passengers went ashore at 0850.
20. Libelant went to a doctor in New York on the evening of March 21st. He gave her penicillin for her infected finger and ordered x-rays. The x-rays were taken March 24th and showed a comminuted fracture of the terminal phalanx of the middle right finger, with one fragment pointing about 30 degrees towards the lower aspect. She consulted another physician, at the suggestion of her doctor, on April 6th and his examination showed the several lacerations to be healed; that the flexion of the terminal joint was about 25 degrees from full extension, that the finger was only mildly thickened, and pain was not a prominent symptom. The consulting physician reported that she would get a sufficient range of painless motion in the terminal joint so as to be able to use her finger for any activity she was apt to engage in. An examination by respondent's doctor on September 23, 1949, showed that libelant has a permanent partial disability of the right middle finger of approximately 60% of the digit and that she can perform the duties of a governess or other similar work.
21. Libelant had not been working prior to the time of the accident. She had been a housewife and was recently separated from her husband. Her medical expense totalled $115.
22. During the voyage, the ship's doctor maintained a medical journal. He also helped prepare and signed the personal injury report on a regular form, which the Master also signed on March 19, 1949. A copy of the report was delivered to libelant aboard ship.
23. At the conclusion of the voyage, the ship's surgeon personally reported the nature of libelant's injuries to the claimant (the owner of the vessel) through its Chief Medical Officer in New York.
24. The ship's doctor did not bill or request payment from the libelant for the services which he rendered to her.
25. The ship's doctor held a license from the United States Coast Guard qualifying and authorizing him to act as a ship's surgeon in the United States Merchant Marine. He was a competent surgeon with many years experience in hospitals and as a doctor in the United States Army.
26. The vessel, including the door of libelant's cabin and the cabin's equipment, was in all respects seaworthy. No automatic door-check was required on the door of libelant's cabin. No handrail was required on the aft partition of libelant's cabin.
27. There was no negligence on the part of the vessel or any of its personnel. The accident was caused solely by the libelant's use of a door, which was capable of movement, to support herself during the vessel's rolling.
28. The libelant received prompt treatment by the ship's doctor on March 15th, shortly after the accident. The ship's doctor also treated libelant on March 18th and March 20th.
29. There was no negligence on the part of the ship's doctor, either by way of omission or commission. His good judgment and medical attention saved the top of libelant's middle finger.
30. Clause 5 of the Ticket-Contract (Exhibit "A") provided as follows:
"The shipowner does not undertake to treat and care for the passenger medically. The shipowner undertakes, subject to circumstances beyond its control, only that any surgeon or medical practitioner who shall sail with the vessel as the `ship's doctor' shall be a duly qualified physician who shall have agreed to render to the passenger upon the passenger's request such medical treatment and care as the physician may deem necessary, for which the physician shall be entitled to charge the passenger a reasonable fee. Insofar as the physician and those under his jurisdiction shall act, or fail to act, in the medical treatment or care of the passenger, they shall be considered as doing so solely for and on behalf of the passenger and not as agents of the shipowner. If there shall be such a doctor on board the vessel, any obligation of the shipowner to use reasonable care to provide the passenger with facilities for medical treatment and care, other than as hereinabove provided, shall not begin until the master of the vessel shall have received from the passenger written notice that the physician has failed to keep his agreement above-mentioned and the shipowner shall have had reasonable time, under the circumstances, to provide such facilities."
Conclusions of Law
I. This Court has jurisdiction of the subject matter of the libel, and of the vessel, the S.S. Santa Luisa, and of the claimant of the vessel, Grace Line, Inc.
II. The injuries sustained by libelant on March 15, 1949 aboard the S.S. Santa Luisa were not caused by any unseaworthiness of the vessel or by any negligence of any officer or member of the crew of the vessel.
III. The injuries sustained by libelant on March 15, 1949, were caused by the negligence of the libelant and the roll of the ship.
IV. The ship's doctor, who was competent and experienced, was not negligent in the medical care and attention he gave the libelant after her injuries.
V. Neither the S.S. Santa Luisa, nor the vessel's owner and operator, is liable for the injuries sustained by the libelant on March 15, 1949, or for the slight infection which later developed in her injured right middle finger.
VI. The S.S. Santa Luisa and its claimant, Grace Line, Inc., are entitled to a decree dismissing, on the merits, all claims of the libel.
VII. Let a decree be entered accordingly.
This is an action in rem against the steamship Santa Luisa. The libel was filed September 9, 1949, and contains two causes of action. The Grace Line, Inc., as the owner of the vessel and the claimant herein, filed an answer to the libel on October 18, 1949. Libelant was a passenger on the vessel bound from Callao, Peru, for New York. She purchased her ticket (Ex. A) and boarded the vessel on March 7, 1949. She was injured aboard ship about 7:30 p.m. March 15th. Paragraph Third of the libel alleges:
"* * * On or about March 14th, 1949, while transitting the Panama Canal, the weather was warm and the stewardess in attendance opened the libellant's door, leaving the same unhooked, or unsecured, without any warning or knowledge to the libellant, and then drew the curtain across said doorway. At about 07:30 P.M. of said day, the libellant was leaving her cabin to go to the salon for dinner, the vessel then having transitted the Canal and being upon the sea, when the aforesaid door suddenly slammed with a lurch of the vessel, throwing the libellant against the passageway bulkhead and closing upon her fingers of her right hand."
Paragraph Fourth describes her injuries as follows:
"Fourth: That as a result of the occurrences aforementioned, the libellant sustained severe lacerations and a compound fracture of the right index finger, a severe laceration of the left heal [sic] and a large hematoma of the left buttock accompanied by shock."
Libelant charges that the accident happened "solely by reason of the unseaworthiness of the Santa Luisa, as aforesaid and the negligence and incompetency of the aforesaid stewardess". She claims damages of $25,000 under the first cause of action.
A second cause of action claims damages of $10,000, based on the alleged negligence of the ship's doctor who treated her. Paragraph Seventh alleges:
"Seventh: That upon being injured as aforesaid, the libellant was taken to the vessel's doctor who sewed the tip of her finger back and set the bones of said finger in such negligent manner as to require the same to be re-broken upon arrival at New York and re-set, thereby aggravating the libellant's injuries and causing her to suffer additional intense pain and agony."
The answer, in addition to denials, pleads as a defense that libelant's injuries were caused in whole or in part by her own negligence, and that the injuries she received arose out of certain obvious risks, dangers and hazards which had been assumed by her.
At the trial the libelant gave several contradictory explanations of how the accident happened. The above quoted statement from paragraph Third of the libel was completely disproved. The doorway to her room did not have any curtain. The vessel was air conditioned. Her room had a metal door, and if anyone had wished to have the door held partly opened for any purpose there was a hook and eye at the upper part of the door and frame, the hook being on the framework and the eye on the door. (See photograph, Ex. 1.) Further, the accident happened to the libelant after she had been in her room to "freshen up" for dinner and she was on her way out to go to the dining room when she was injured. She would not be likely to have the door of her stateroom wide open while getting ready for dinner. Finally, the door could not have "suddenly slammed with a lurch of the vessel" because if the door had been fully opened so that the spring and plug fastener on the inside had snapped into position, no lurching of the vessel would have loosened the door from its catch. A photograph (Ex. 1) shows the door held back against a partition from which a plug extended, which would snap into an omega shaped appliance at the top of the inside of the door. It should also be noted that the accident happened on March 15th, when the ship was 20 hours out from Cristobal, not on the 14th soon after the vessel had passed through the canal. The whole story of the negligence of the stewardess as alleged in paragraph Third of the libel has no foundation in fact. (At the trial the libel was amended to charge a steward, not a stewardess, with the alleged negligence.)
The temperature outside that afternoon ranged from 72° to 79°. There was a moderate to fresh breeze.
The story which libelant finally told, towards the end of her cross-examination, was that while she was going out the door of her stateroom a roll of the ship flung her out and across the passageway outside her room and up against the partition on the other side of the passageway (See photograph, Ex. 1); that she struck that partition with her left hand and hip; that then a roll of the ship in the opposite direction sent her back into her room again; that she then grasped the edge of the door of her room, which was opened back against the wall; and that another roll of the ship sent her back again into the passageway and as she held onto the edge of the door it closed upon her fingers.
The injuries report signed by the ship's doctor says nothing about any injury to her hip or heel.
Dr. Farley whom she visited on the evening the vessel arrived in New York (March 21st) did not testify to any heel or hip injury. When she was examined by Dr. Balensweig, the respondent's doctor, on September 23, 1949, she claimed that she had "suffered injuries to her upper right arm in addition to the right middle finger, the left hip and the left ankle." Dr. Balensweig reported that "there are no objective findings relative to these parts of her anatomy except for the right middle finger".
A steward testified that he saw libelant catch her fingers in the door; that she was opening the door, with her left hand on the knob, and was snapping the lock with her right hand on the button, when the ship rolled to starboard and she and the door pushed inside the room; that the ship then rolled to port and the door slammed on her hand. The steward went to her assistance and got the ship's doctor.
The Captain testified that when he visited the libelant in her room after the doctor had treated her, he asked her how the accident happened, and she testified that she was pressing the lock on the door and the ship rolled, catching her finger. The injury report which the Captain signed on March 19th stated that the accident happened as follows: "The sea was rough and the ship was rolling moderately. She was standing by the door attempting to change the snap on the facing of the lock so that the door would spring-lock. An unexpected roll forcibly slammed the door upon the fingers of her right hand".
I am satisfied that this unfortunate accident was not due to any unseaworthiness of the vessel, or to any negligence of the steward or of any officer or member of the crew of the vessel. The fact that the vessel did not have a handrail on the aft partition of the cabin (there was a handrail on the outside common passageway) or an automatic check on the cabin door did not make the vessel unseaworthy. There was no expert testimony on that question. Nor did the absence of either constitute negligence. I have been unable to find a case which holds that a handrail on the side wall of a cabin is required for the protection of the passenger.
As to the alleged need for an automatic door check, libelant's counsel cites the case of Osipuk v. Oceanic Steam Nav. Co., Ltd., 2 Cir., 64 F.2d 478, 479, but it is not in point. In that case the door in question was a heavy door which opened on the deck of a ship with a high sill, in constant use by the passengers. The court held that such doors are "necessarily heavy, and the high sills to prevent the entrance of water from the decks make it an awkward matter to pass through them." The court held that such doors "should be furnished with automatic controls, and that without such a control the door in question was unsafe."
Libelant's attorney refers to a picture on Exhibit 6 (a Grace Line circular) which shows a door with an automatic door check. But that is a door which opens onto an outside deck lounge and it is equipped with an automatic door check in accordance with the opinion in the Osipuk case. The door in the case at bar is an inside cabin door, not exposed to the wind or seas, with an ordinary sill. The vessel was not unseaworthy in not having that door equipped with an automatic door check and there was no negligence on the part of the claimant (Grace Line) or its officers and crew in failing to have it so equipped.
This was an unforeseeable accident — that the passenger would keep one hand on the edge of the door and the other on the knob while the vessel was rolling, and that thus she would pull the door shut upon her hand. The Santa Luisa was a good ship. She was 459 feet long and had a displacement of 14,945 tons. She could carry only 52 passengers, but their accommodations were exceptional. She was principally engaged in the carriage of freight to and from the West Coast of South America through the Panama Canal.
Although the ship is not an insurer of the safety of its passengers, it "does owe the duty to exercise a very high degree of care for the safety of its passengers." Moore v. American Scantic Line, 2 Cir., 121 F.2d 767, 768. The accident was due to libelant's own negligence and the roll of the ship.
The first cause of action must be dismissed on the merits.
The second cause of action is based on the alleged negligence of the ship's doctor, set forth in paragraph Seventh of the libel quoted above. The doctor was highly competent. He had been a doctor for ten years. After receiving his M.D. at the Emory University School of Medicine located in Atlanta, Georgia, in June 1939 he came north and served a two year rotating surgical internship at Kings County Hospital at Brooklyn, New York. He served in the Medical Corps of the United States Army from June 1941 until October 1945, when he was discharged with the rank of captain. He then took a basic surgeon's course at the Graduate School of Medicine, University of Pennsylvania from October 1945 to May 1946. Next, he spent a year as resident in general surgery at St. Joseph's Infirmary at Atlanta. From June 1947 to November 1948 he served as a resident and as an assistant resident in neurological surgery at the Brooklyn Hospital and at the Kings County Hospital. Apparently he then became a ship's surgeon for the Grace Line for a short time and was so employed on the Santa Luisa in March, 1949.
His treatment of libelant on March 15th and the good judgment he exercised saved the top of her middle finger. I quote the following from his deposition:
"(b) On the 15th day of March 1949 I was called to see Mrs. Ludena. She stated that she was standing by the door to her stateroom attempting to change the lock so that the night latch would be operative when the ship took an unexpected roll and forcibly slammed the door on the fingers of her right hand.
"I found that several of the fingers of the right hand were severely bruised and there was probably more than one fracture.
"The right middle finger near the terminal phalanx had been partially amputated. The finger was attached by a pedicle of soft tissue on the little finger side of the middle finger. The distal fragment at the end of the finger, which was the portion partially mashed off, was bruised as if its blood supply was cut off and might not be sufficient the finger dying off and becoming gangrenous.
"There was quite a problem whether I should attempt to save this finger or whether in a lady of sixty odd years I should completely amputate it, which could have been done with one swipe of a pair of scissors.
Because the finger appeared to have a little blood supply, although obviously inadequate, I made the decision to try to save the end of the finger rather than amputate immediately.
"That decision was made because I had an ample supply of penicillin and other antibiotic drugs which I could administer to her in an amount sufficient to prevent infection, and in addition, my experience and the experience of other surgeons at sea has been that severe infections are relatively uncommon in accidents at sea.
"Of course, if I had been ashore this decision would have been considerably simple because I would have had the benefit of x-rays and other laboratory aids which would have helped me arrive at the proper decision.
"I, therefore, straightened the finger out as well as possible and loosely sewed the skin into place. I cleaned it up as well as possible and applied a sterile dressing and a splint.
"This patient, of course, was in a mild state of shock and I treated her for that with bed rest and a mild stimulant."
Dr. Stump, who examined the libelant on April 12, 1949, at the request of her doctor, found the several lacerations to be healed and reported that "surgery is not indicated at present and I doubt that it will be in the future". There is nothing in the record to show that libelant's finger had to be re-set.
During the trial, on the cross-examination of the Captain, libelant's attorney urged that the libelant should have been taken ashore at Charleston on March 19th for medical treatment and x-rays. The Captain stated that the ship's doctor said that it was not necessary. The ship's doctor had dressed the finger the day before (March 18th) and found the wound to be clean. It was not until March 20th that an infection was noted and the vessel docked in New York the following morning.
The claimant, Grace Line, Inc., selected a competent doctor for the benefit of the passengers aboard the Santa Luisa. Entirely apart from clause 15 of the steamship ticket, there is no liability on the part of the ship or the owners. [See the cases cited in footnote No. 2 of De Zon v. American President Lines, Ltd., 318 U.S. 660, 63 S.Ct. 814, 87 L.Ed. 1065.]
The second cause of action is dismissed on the merits.