Bornhurst v. United States, 11577.
| Decision Date | 04 December 1947 |
| Docket Number | No. 11577.,11577. |
| Citation | 164 F.2d 789 |
| Parties | BORNHURST v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Dee B. Tanner, of Los Angeles, Cal., for appellant.
James M. Carter, U. S. Atty., Ronald Walker and Robert E. Wright, Assts. U. S. Atty., all of Los Angeles, Cal. (Lasher B. Gallagher, of Los Angeles, Cal., of counsel), for appellee.
Before MATHEWS, STEPHENS and ORR, Circuit Judges.
At all pertinent times, the tanker Puente Hills was owned, operated and employed as a merchant vessel by appellee, the United States. On and prior to May 12, 1945, appellant, Clyde Burdette Bornhurst, was employed by appellee as a seaman on board the Puente Hills, his duties being those of a wiper in the engineer's force. On May 12, 1945, while the Puente Hills was on navigable waters of the Pacific Ocean off Finschaven, New Guinea, appellant was injured when a tank top fell and struck his hands.
Thereafter appellant, by his guardian ad litem, Isabel Bornhurst,1 filed a libel in personam against appellee and others, thereby seeking to recover on account of his injuries damages in the sum of $50,000. On motion of appellant, the libel was dismissed as to all respondents except appellee. Appellee answered, and a trial was had, at the conclusion of which appellant moved for leave to file an amended libel. The motion was denied. Findings of fact and conclusions of law were stated,2 and a decree was entered in appellee's favor. From that decree this appeal is prosecuted.
The libel alleged that appellant was working in the course of his employment at the time he was injured; that "Respondents appellee and others failed to provide libellant appellant with a seaworthy ship at the beginning of the voyage on which the accident set forth herein occurred and failed to take reasonable means to insure the seaworthiness of said ship for and during the said voyage;" that "the unseaworthiness was due to improper construction of the operating gears used to raise and lower the tank tops of the storage tanks;" that, "after the voyage got under way, the respondents failed to use reasonable means to insure the seaworthiness of the said ship, in that they failed to take means to prevent the tank tops from falling down and, in particular, the tank top to No. 8 port wing tank which struck this libellant;" and that, "as a direct and proximate result of the unseaworthiness of said vessel as aforesaid," appellant was injured. The answer denied these allegations, and the court found that they were untrue.
The court further found: ...
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