Carleno v. Marine Transport Lines, Inc.

• Decision Date: 29 October 1962
• Docket Number: No. 8173.,8173.
• Citation: 209 F. Supp. 859
• Parties: Joseph James CARLENO, Libellant, v. MARINE TRANSPORT LINES, INC. and United States of America, Respondents.
• Court: U.S. District Court — Eastern District of Virginia

209 F. Supp. 859

Joseph James CARLENO, Libellant, v. MARINE TRANSPORT LINES, INC. and United States of America, Respondents.

No. 8173.

United States District Court E. D. Virginia, Norfolk Division.

October 29, 1962.

Jacob Rassner, New York City, Israel Steingold, Norfolk, Va., for libellant.

Seawell, McCoy, Winston & Dalton, Charles R. Dalton, Jr., Norfolk, Va., for respondents.

WALTER E. HOFFMAN, Chief Judge.

Libellant instituted this action against Marine Transport Lines, Inc., as operator, and the United States of America, as owner, of the USNS Muir Woods, for damages allegedly resulting from the negligence of the operator, the unseaworthiness of the vessel, and the purported failure to provide medical care thereby aggravating libellant's condition. Respondent, Marine Transport Lines, has paid all maintenance from the inception of the illness on June 12, 1958, to and including December 18, 1958, at which time libellant was declared fit for duty. Libellant contends that he is entitled to maintenance for an extended period beyond that date.

On May 13, 1958, libellant was employed as a boatswain aboard the vessel. He underwent the customary pre-employment physical examination and was determined to be free from disability. On June 8, 1958, the vessel left Savannah, Georgia, en route to Aruba, West Indies. At Aruba the vessel was to take on fuel and then proceed to a rendezvous with the United States Navy fleet off the coast of Portugal and there to effectuate a fuel transfer operation. Prior to leaving Savannah a shipyard had installed additional manifolds and other special equipment for the foregoing purposes.

While the vessel was at sea between Savannah and Aruba, libellant was ordered by the chief mate to cause certain hoses to be connected with the additional recently installed manifolds. The purpose of this operation was to expedite the later fueling activities to take place off the coast of Portugal. The ship's master testified that he wanted the work completed before arrival in Aruba in order that the vessel would remain gas-free, thereby eliminating any danger of fire in dragging the hoses over the deck while taking on fuel oil at Aruba or thereafter, but it is apparent that there was no real emergency existing. The evidence supports the view that the rigging of hoses to manifolds aboard tankers is customarily done by the deck crew, under supervision of the bosun, and there was nothing particularly unusual about the job in this instance, even though it was performed in extremely hot weather. The libellant admitted that he needed no special instructions in the performance of the work, although he had earlier testified that it was the first time he had done this kind of work.

In his capacity as bosun the responsibility for choosing the particular method to accomplish the work was left to the libellant. It was his final decision as to how many men would be needed and there were six men, plus libellant, assigned to the job.

In his discretion rested the determination as to what equipment would be used. It is conceded that the vessel had aboard all of the equipment used on tankers of this type for the moving of heavy articles, including booms, winches, whips and handie-billys, all of which were in good condition. True, the booms were not rigged and, according to libellant, could not have been prepared in time. Libellant did not elect to use the ship's winches because of the danger of breaking something, but he admits that he could have rigged a whip or a fall and there is evidence to the effect that handie-billys were actually used.

Libellant concedes that he had six men available to do the work. When asked how many men he thought he needed he responded somewhat evasively, first indicating that for some jobs there is never enough help, and later estimating that the entire deck department of ten men would have been adequate. He did not object to the work order, the type of equipment on hand, the number of men available, or the time within which to complete the assigned work. The preponderance of the evidence points to the fact that from three to six men could perform the work without too much difficulty, even if no mechanical devices had been employed.

The duties of a boatswain are primarily of a supervisory nature which do not require the performance of manual labor. Nevertheless, bosuns do engage in work requiring varying degrees of physical effort, all of which is generally done on a voluntary basis to suit the bosun's convenience. His chief function is to lay out the work and to supervise its performance. Consequently, prior to June 11, libellant had not done any appreciable physical work which could be related to his subsequent heart attack.

Some initial preparation was completed by the bosun's work gang on June 10, the day he received his work order. The actual work of moving the hoses commenced at 1 P.M. on the following day and was completed in approximately four hours. Although not required to perform manual labor, libellant apparently worked along with the other members of the deck department selected by him for this job. After supper that evening libellant went to the storeroom for the purpose of "straightening up a deck locker," and worked voluntarily on an overtime basis for three hours. He stopped working around 9 P.M. when he commenced feeling ill. This was apparently the initial onset of his illness, although he thereafter testified that he did not experience any symptoms of his illness until sometime between 3 A.M. and 4 A.M. the following morning, and this is the information he gave to the physicians who examined him. At that time he awakened with shooting pains in his chest, nausea, and heavy sweating. He went to the purser, who served as the ship's medical officer, and, after taking his pulse and temperature,¹ the latter diagnosed his condition as a respiratory infection. Libellant was given 250 milligrams of terramycin — an antibiotic — told to put on a heavy sweatshirt, and sent back to bed. He was instructed to remain in his cabin until the ship docked several hours later and arrangements could be made to secure medical attention. At this time the vessel was entering or about to enter the Port of San Nicolaas, Aruba.

The purser immediately reported to the officer on watch and chief mate that libellant was not fit for duty until further medical attention was given to him. At approximately 7:30 A.M., when the vessel had docked or was about to dock, the purser went to check on the libellant and found him in the messroom drinking coffee; his appearance was improved and, according to libellant, he was feeling "a lot better." Libellant was given a pass to enable him to see the ship's agents in Aruba and was told to go to the Marine Office, a distance of 200-300 yards away from the vessel. No assistance was offered and none was requested, but libellant was accompanied by another seaman, Ranke, who was in need of treatment for his eye. After visiting the offices of the ship's agents near the pier, libellant and Ranke walked approximately one mile to the office of Dr. Dussenbroek during which time libellant again felt ill. He saw the doctor at some time between 10:30 A.M. and 11:30 A.M. The Dutch physician diagnosed his condition as a kidney ailment and recommended hospitalization. Subsequently it was discovered that libellant had suffered a heart attack although, prior to June 12, 1958, libellant had experienced no difficulty with his heart, chest, lungs or respiratory system.

On his return trip from the physician's office libellant met the purser who looked at the letter from Dr. Dussenbroek recommending hospitalization. The purser told libellant to go back to the ship and pack his gear. Libellant then took a taxi back to the ship, paying for it with money given to him by Ranke. His fellow crew members packed his clothes and carried his gear while he went through Customs and on to the Marine Office. He was then sent by taxi to the hospital where his true condition was ascertained. He was 46 years of age at the time of his attack and has been following the sea for 15 years.

Libellant remained in the Marine Hospital in Aruba from June 12 until July 28 when he returned by air to New York. For a period of approximately one week he was under treatment in the United States Public Health Service Hospital in New York. He then came to Norfolk and was an outpatient at the Marine Hospital until he was discharged as "fit for duty" on December 18, 1958.

Libellant returned to the Muir Woods in the early spring of 1959, where he served as bosun for a period of four to five weeks until the vessel was withdrawn from service. He later served about 50 days as an ordinary seaman aboard the Marine Pioneer. During the year 1961 he was employed as a bosun aboard the SS IKE for two consecutive voyages consuming a total period of approximately six months. He was then advised to give up his work as a seaman.

There is no substantial controversy as to the facts or applicable law. Aside from the serious question as to whether physical exertion may cause or contribute to a heart attack, the facts of this case will not permit a recovery predicated upon either negligence or unseaworthiness. There was no improvident order; there was no command that the libellant participate in the required manual labor; there was no improper or unsafe place to work; there was no breach of any duty; there was no shortage of manpower; there was no lack of adequate and properly maintained equipment with which to do the work; the ship's owners and officers had no knowledge of any pre-existing heart disease before the libellant undertook the task of moving the hoses. In short, unless there is an existing guarantee on the part of shipowners to respond in damages for a heart attack to a seaman aboard the vessel, there can be no recovery for negligence or unseaworthiness. While it is argued that a bosun's duty is sedentary and...