Calmar SS Corporation v. Taylor, 6358

• Decision Date: 08 September 1937
• Docket Number: No. 6358,6419.,6358
• Parties: CALMAR S. S. CORPORATION v. TAYLOR. TAYLOR v. CALMAR S. S. CORPORATION.
• Court: U.S. Court of Appeals — Third Circuit

92 F.2d 84 (1937)

CALMAR S. S. CORPORATION v. TAYLOR.^*

TAYLOR v. CALMAR S. S. CORPORATION.

Nos. 6358, 6419.

Circuit Court of Appeals, Third Circuit.

September 8, 1937.

Freedman, Goldstein & Pechner and Howard M. Long, all of Philadelphia, Pa., for Charles W. Taylor.

Lewis, Wolff & Gourlay, of Philadelphia, Pa., and Duncan & Mount, of New York City (Frank A. Bull, of New York City, and Otto Wolff, Jr., of Philadelphia, Pa., of counsel), for Calmar S. S. Corporation.

Before THOMPSON and BIGGS, Circuit Judges, and MARIS, District Judge.

MARIS, District Judge.

Both libelant and respondent have appealed from the final decree of the court below in an admiralty case. The libelant was a seaman on respondent's steamship, Losmar, and became afflicted with Buerger's disease while in the service of the ship. Respondent's appeal complains of the allowance by the court below of the sum of $7,000 to libelant as the present value of the cost of his maintenance and cure during the remainder of his life. Libelant appeals from the action of the court below in refusing to award him damages for his injuries suffered, as he contends, because of respondent's negligence.

Libelant at the time of the trial was forty-three years old and had followed the sea for twenty-eight years. He shipped on the Losmar on October 16, 1934, as a fireman. On February 9, 1935, at about 4 o'clock in the afternoon at the beginning of his watch he proceeded into the engine room to take over his duties, and then went into the boiler room through the companionway which led from the engine room. In doing so his right foot struck against some steel retarders that were lying on the floor of the boiler room. These are used to retard the heat and gases in the boilers, and from their use become quite sharp. They are taken out from time to time when the boiler is overhauled, and are placed on the floor of the boiler room. Just as libelant was about to enter the boiler room and before his foot struck the retarders, the electric lights in the ship flickered and went out, and it was in the ensuing darkness that the accident occurred. The lights went out because at the time the electric generators which provide the current for the ship's lights were being changed from the ship's steam to compressed air furnished from the shore, the ship then being in a shipyard at Sparrows Point, Md. There was a sharp conflict in the testimony as to whether the retarders were actually on the floor of the boiler room and as to whether the ship's lights went out at the time of the accident. The court below, however, found in the affirmative as to both, and we are satisfied to accept its finding.

Libelant's testimony was that following this accident he found that his right shoe had been cut through over the small toe and that the toe had been cut, bruised, and swollen. He washed the wound with mercurochrome, and two days later went to the Marine Hospital at Baltimore where he received medication for the foot. The record of the hospital, however, does not mention a cut or bruise, but refers only to an "inflammatory lesion between fourth and fifth toes" which was diagnosed as "ringworm, right foot." It is undisputed that the condition of libelant's toe grew worse; that on a voyage of the Losmar to the West Coast it was necessary to remove him to a hospital in the Panama Canal Zone on March 12th, where he remained until May 4th, having in the meantime suffered an amputation of the toe; and that, when he was brought back to New York, he was treated at the Marine Hospitals at Ellis Island and Stapleton where he remained until October 3d. During this period his condition was diagnosed as thromboangiitis obliterans, commonly called Buerger's disease. In the course of treatment for this disease he suffered three further amputations, the last involving his entire right leg below the knee. On October 3d he was discharged to the out-patient department to return at intervals for re-examination, and later to be fitted with an artificial limb. He was so fitted in December, 1935, and obtained the limb on January 15, 1936.

On March 24, 1936, libelant filed his libel in personam, setting up two causes of action. The first was for damages under section 33 of the Merchant Marine Act 1920 (46 U.S.C. § 688, 46 U.S.C.A. § 688). In order to recover in this cause of action it was incumbent on the libelant to prove that the personal injuries which he suffered in the course of his employment on the respondent's vessel were the result of negligence imputable to the respondent in failing to provide him a reasonably safe place in which to work. The negligence charged consisted in leaving in an improper place the pile of retarders upon which libelant stubbed his toe and also in permitting the ship's lights to go out without warning. The court below was, however, unconvinced of the respondent's negligence and found as a fact that libelant's injury was not proved to have been due to any negligence imputable to the respondent. With this finding we agree. We think the evidence fairly establishes that the retarders were placed in a customary and proper location. The change of motive power for the generators from steam to compressed air, involving a temporary shutting off of the ship's lights, was also shown to be a customary and necessary operation with which libelant was thoroughly familiar. Under these circumstances we are clear that respondent did not breach its duty to libelant. It was not an insurer, being liable only if the injury was reasonably foreseeable. Pittsburgh S. S. Co. v. Palo (C.C. A.) 64 F.(2d) 198. It could not, however, have foreseen that libelant would walk into the pile of retarders just at the moment the lights went out. It follows that the court below was right in holding that there was no evidence of negligence imputable to respondent.

Libelant's second cause of action presents more serious questions. It was for maintenance and cure, which he claimed for the remainder of his life. It is not disputed that, while in the service of the respondent's vessel, libelant became afflicted with Buerger's disease, in the course of treatment for which he suffered four amputations, finally losing his right leg below the knee. Buerger's disease is an obscure disease of the arteries and veins. It was defined in this case by Dr. Buerger, for whom it was named, as an inflammatory, morbid process of the arteries and veins. Inflammation takes place on the walls of these vessels, most often in the feet and legs. Coincident with this, extensive clotting appears,...