Bilger v. Maritime Overseas Corporation

• Decision Date: 04 February 1969
• Docket Number: No. 47450.,47450.
• Citation: 304 F. Supp. 1024
• Parties: William BILGER, Plaintiff, v. MARITIME OVERSEAS CORPORATION, a corporation, Defendant.
• Court: U.S. District Court — Northern District of California

304 F. Supp. 1024

William BILGER, Plaintiff, v. MARITIME OVERSEAS CORPORATION, a corporation, Defendant.

No. 47450.

United States District Court N. D. California.

February 4, 1969.

Jarvis, Miller & Stender, Hugh B. Miller, San Francisco, Cal., for plaintiff.

Lillick, McHose, Wheat, Adams & Charles, Warren W. Wilson, San Francisco, Cal., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TUTTLE, District Judge.

This is a seaman's action for damages for personal injury. Jurisdiction is in admiralty and recovery is claimed under the Jones Act and under provisions of general maritime law.

The following facts numbered 1 are either agreed upon between the parties or are not in dispute. Other facts will be found by the Court based upon its resolution of conflicting or disputed testimony. Such findings will be numbered 2 et seq.

FINDINGS OF FACT

1. The plaintiff was employed by defendant's vessel S. S. OVERSEAS DINNY as chief electrician. At the time of the injury he had served at sea over a period of some twenty years during which time he spent, on the average, seven to eight months out of each year afloat. At approximately 6:30 A.M. on June 6, 1967, plaintiff suffered an injury to his right foot when he was struck by the launch, on which he had just returned from a shore trip, while ascending a ship's rope ladder (hereafter Jacob's ladder) to gain the deck of the vessel. Plaintiff was helped over the side by the ship's boatswain, received rudimentary first aid from the Third Mate and was seen by the First Mate, in the absence of the Master, when the First Mate came on duty an hour and a half later.

The injuries consisted of a fractured large toe of the right foot and a severely cut heel. Subsequent surgery required two skin grafts to the heel. The injury resulted in plaintiff's being marked unfit for duty for a period of six months and nine days. Unearned wages paid reduced the period during which the injury prevented plaintiff's shipping out to five months and three days.

The ship's log discloses that from at least June 1st through June 6th it was anchored at an assigned anchorage outside the breakwater in Manila Bay while awaiting orders to proceed to discharge cargo at Saigon. The weather during the entire period was unsettled. The log disclosed that variations in wind velocity ran from force 2 to force 5.

At 5 P.M., June 1st (1700 hours according to the log), the Master caused the following notice to be posted: "Crew taking shore launch in rough seas board and embark at own risk and pre-cautioned about danger. Advising them to wait until calmer seas." The wind force at 4 P.M. (1600 hours) is shown on the log at force 3-4, and at 8 P.M. (2000 hours) as force 5.

June 3, 1967, was Saturday and plaintiff was at liberty. He left on a liberty launch for shore leave at approximately noon, at which time the wind velocity was shown on the log as force 2.

According to the Beaufort scale from which the Master and Mates designated the wind force, the following descriptions are given in relation to the different "forces" of wind utilized for log entries. Force 2 is described as "light breeze" with a velocity of 4 to 7 miles per hour and is characterized by "small wavelets still short but more pronounced; crests have a glassy appearance and do not break"; further characterized by "probable mean height of waves of 1 foot." The sea is described as "smooth." Force 3 is described as a "gentle breeze" having a velocity of 8 to 12 miles per hour; it is further characterized as a condition of "large wavelets"; crests begin to break; foam of glassy appearance. Perhaps scattered whitecaps and having a "probable mean height of waves of 2½ feet." Force 4 is described as a "moderate breeze" having a velocity of 13 to 18 miles per hour; it is characterized by "small waves, becoming longer; fairly frequent whitecaps" and having a "probable mean height of waves of 5 feet." Force 5 is described as "fresh breeze" with a velocity of 19 to 24 miles per hour and is characterized by "moderate waves taking a more pronounced long form. Many whitecaps are formed (chance of some spray)." The probable mean height of waves is 10 feet.

Plaintiff returned to the S. S. OVERSEAS DINNY on the liberty launch, a steel craft some 25 feet in length, which arrived alongside the DINNY at approximately 6:30 A.M. According to the ship's log, the wind at 4 A.M. was at force 3 and at 8 A.M. was entered as "3-4." The log showed that at 4 A.M. the weather was "overcast with small southwesterly sea and swell" and at 8 o'clock "cloudy moderate southwesterly sea and swell."

The ladder in use was on the lee side of the vessel, although, being at anchor, the DINNY did not make...