Cantrill v. American Mail Line

• Decision Date: 08 May 1953
• Docket Number: No. 32073,32073
• Citation: 257 P.2d 179,42 Wn.2d 590
• Parties: CANTRILL, v. AMERICAN MAIL LINE, Limited.
• Court: Washington Supreme Court

Page 590

42 Wn.2d 590

257 P.2d 179

CANTRILL, v. AMERICAN MAIL LINE, Limited.

No. 32073.

Supreme Court of Washington, en Banc.

May 8, 1953.

Kennett, McCutcheon & Soderland, Seattle, for appellant.

Bogle, Bogle & Gates and Robert V. Holland, Seattle, for respondent.

DONWORTH, Justice.

Plaintiff brought this action under the Jones Act, 46 U.S.C.A. § 688, to recover damages (including maintenance and cure) for personal injuries suffered while in the employ of defendant as a seaman. In its answer defendant denied any negligence and affirmatively alleged that plaintiff's injuries were the result of a freak wave unexpectedly striking its vessel, an event which could not reasonably have been anticipated and was a risk assumed by seamen in their hazardous calling. A second affirmative defense (relating to maintenance and cure) was that plaintiff was obligated to avail himself of free medical services at the U. S. Marine Hospital in Seattle and that he failed to do so without proper excuse.

The allegations of the affirmative defenses were denied in the reply and the case was tried before the court sitting with a jury. A verdict was rendered in favor of defendant. A motion for a new trial having been made and denied, judgment dismissing the action was entered. Plaintiff has appealed.

Appellant was a seaman of approximately twenty years' experience. He first joined the crew of respondent's ship, the S.S. India Mail, in December, 1948. He had an AB rating (meaning an able bodied seaman) although his duties were those of ship's carpenter. In September, 1949, he signed articles to serve as carpenter aboard this 9700 ton ship for a voyage from Seattle to the Orient and return. The ship left Seattle at 6:00 p. m. on September 2, bound for Yokahama and Singapore by way of the great circle route, which passes through the Gulf of Alaska northward toward the Aleutian Islands.

At the time of departure there was certain gear stored on the tonnage hatch but not lashed thereto. It consisted of canvas, rope, wire, dunnage and random lengths of lumber. It was the intention of the master that this gear was to have been put ashore in Seattle but the boatswain (whose duty it was to attend to such matters) did not sign aboard until just before the ship sailed. The watch officer overlooked the failure of the boatswain to put the gear ashore and it remained aboard after the vessel sailed.

All witnesses who testified on either side relative thereto agreed that it was the universal custom and practice among seafaring men to secure all loose gear before entering the open sea. To fail to do so would not be good seamanship. As applied to this case, this standard of care required that all loose gear on the deck of the India Mail should have been secured before the ship passed cape Flattery (127 miles from Seattle) on September 3, 1949.

There was a dispute among these expert witnesses concerning the kind of weather to be expected on the great circle route in September. Appellant and the deck maintenance seaman testified that stormy weather might be encountered there at any time of year. The captain testified that usually some of the best weather is encountered there in September. Two other experts testified that the weather in that part of the ocean is unpredictable.

On September 7, 1949, while the vessel was in the Gulf of Alaska, the barometer began to fall. By 8:00 a. m. the wind was blowing between forth and fifty miles per hour and the ship was taking some spray and 'small seas' over the port bow and fore beck. The wind continued to increase and at 8:30 a. m. appellant and three other men were ordered by boatswain (acting under orders from the mate) to lash all loose gear on the deck and make certain that it was securely fastened. This work was not ordinarily a part of the carpenter's duties but he complied with the order of the mate. They started working on the fore deck of the ship.

According to appellant's testimony, they worked for about an hour when they had become soaking wet from the spray and went inside for about half an hour to dry their clothing. They then resumed work.

There is a dispute in the evidence as to the exact time when appellant was injured. According to the ship's log it was 10:15 a. m.; appellant fixed the time as between 1:30 and 2:00 p. m.

At the time of the accident the men were securing the gear on the tonnage hatch which is near the stern of the ship. The wind was blowing between thirty-eight and fifty miles per hour and the seas were increasing and spray was coming over the stern. Suddenly a large wave washed over the port side of the ship. Appellant was thrown across the deck by the force of the wave and some loose gear was cast upon him. As a result he was knocked unconscious and received injuries to his arm, chest and back, the extent of which was the subject of disputed testimony by medical experts.

The wave which injured appellant was the first one to wash over the deck that day. No further waves were taken aboard until late in the afternoon. This evidence was the basis for respondent's contention that appellant's injuries were caused by a 'freak wave' which could not reasonably have been foreseen.

Appellant was laid up in his room for a few days and performed no duties until the ship reached Yokahama. Thereafter he undertook his duties as carpenter but the chief mate assigned a man to help him with any heavy work.

Appellant's arm and chest healed in about three weeks but he continued to have paid in his back and side. When the ship reached Singapore appellant went to a doctor who took no X-rays and after a cursory examination found nothing wrong with him. The pain continued and when the ship reached Seattle in February, 1950, appellant went to the marine hospital for treatment. X-rays were taken but the doctor refused to operate and no treatment was given. Appellant returned to the hospital three times at respondents' instigation. The last time the doctor in charge gave appellant a sealed envelope and told him to deliver it to respondent. Respondent's claim agent read the report and told appellant that the doctors at the hospital could not discover anything the matter with him.

About three months after leaving the India Mail appellant found an easier job on a ship sailing between Seattle and Alaska. He remained with this ship from June to September, 1950. During this period the pain in his back and under his ribs became unbearable and when he was in Seattle between trips he went to his family doctor about ten times for shots to deaden the pain. At first these gave him adequate temporary relief but gradually they became less effective and appellant was referred by his family doctor to an orthopedic surgeon. The latter recommended an operation on the spine which was performed on October 20, 1950. Appellant was in the hospital for ten days and then was confined to his bed at home for another month.

Appellant was able to return to work in May, 1951, and for brief periods he performed light work on two other ships. Since September, 1951, he has been unable to work. At the time of the trial the mobility of his back was reduced fifty percent and he was in constant pain. He has been advised that if he continues to work as a seaman another operation may be necessary to fuse the remainder of his lower spine in which case he would be one hundred percent disabled.

We have set forth appellant's injuries in some detail because the testimony relative thereto has a bearing not only upon the issue of the amount of general damages claimed by him but also upon his right to maintenance and cure under maritime law. This right exists even in the absence of negligence upon respondent's part in causing appellant's injury if he acted in good faith in not availing himself of the free medical services at the marine hospital.

In prosecuting this appeal, appellant relies on seventeen assignments of error which we will now consider in the order in which they are discussed in his brief.

Appellant's first assignment of error is that the trial court erred in not holding as a matter of law that respondent was liable for the injuries sustained by him and in not so instructing the jury (as requested in his instruction No.2). He contends that the evidence conclusively showed that respondent had violated the standard of care required of all operators of ships when, prior to entering the open sea, it failed to secure all loose objects on the vessel against severe storms which respondent knew, or should have known, would be encountered on this voyage.

A shipowner is held to a reasonable standard of care in securing loose objects on the deck of the vessel so that they will not cause injury to employee-seamen by being thrown about the deck by the force of the wind, seas or the motion of the vessel. Evidence of the usual custom of seamen to securely lash all loose gear before entering the high seas is competent to show what constitutes a reasonable standard of care. Whether the standard had been violated in this case depended upon all the facts and circumstances.

In this case the testimony was conflicting as to whether the gear on the tonnage hatch had been secured before the accident to withstand the force of any weather which could reasonably have been expected at that time and place. Since under the evidence reasonable men could differ as to whether respondent had complied with the standard of reasonable care above referred to, it was not error to submit to the jury the issue as to respondent's negligence and whether it was a proximate cause of appellant's injuries.

Appellant attacks respondent's first affirmative defense which alleged that his injuries were proximately caused by 'a sudden freak wave' which struck the ship. It was further alleged that this even could not have been reasonably anticipated and that it was a risk assumed by seamen in their hazardous calling. (We will discuss the assumption of...