Carroll v. United States
| Decision Date | 09 February 1943 |
| Docket Number | No. 121.,121. |
| Citation | 133 F.2d 690 |
| Parties | CARROLL v. UNITED STATES et al. |
| Court | U.S. Court of Appeals — Second Circuit |
Russell C. Gay, Mathias F. Correa, U. S. Atty., and Silliman, Gay & Silliman, all of New York City (Sherwood E. Silliman, of New York City, of counsel), for appellants.
Silas B. Axtell, of New York City (Dominick Blasi, of New York City, of counsel), for appellee.
Before L. HAND, CHASE, and CLARK, Circuit Judges.
This is an appeal by the United States and the Waterman S. S. Agency, Ltd., from a decree in the admiralty awarding damages against both respondents for personal injuries suffered by the libellant while he was a steward on board the S. S. "Gallant Fox," a vessel owned by the United States, and operated by the Agency under the Panamanian flag. The libel was filed under the Suits in Admiralty Act, 46 U.S. C.A. § 741 et seq., and alleged that the vessel at the time of the filing of the libel "is in or soon will be within the jurisdiction of the United States and of this Court": i. e. the Southern District of New York; and that the libellant had been scalded by hot coffee while on duty as a steward on the 4th day of December, 1941, his injuries being caused by negligently putting a coffeepot upon the floor of the galley during a storm. The libel contained a second count for failure to give medical care to the libellant while on board and after the ship docked, and a third count for maintenance and cure. The libel was filed on March 10th, 1942 and was amended at the trial on June 23, 1942, by striking out an allegation that the libellant elected to proceed in rem, and adding that the suit was brought, not only under the Suits in Admiralty Act, but under the Jones Act, § 688, Title 46 U.S.C.A., and under "General Maritime Law." The case was tried to a judge and the following facts appeared:
The libellant, a citizen of Eire where he had a wife and family, signed articles as captain's steward for a voyage on the "Gallant Fox" on the 19th of November, 1941. The ship left port on the 28th and experienced very heavy weather on the 4th of December, with winds of hurricane force which made her roll 45 degrees or more. On the morning of that day the cook had for safety set a pot of coffee on the floor of the galley, taking it from the range where he thought that it would be more likely to upset. The libellant went into the galley to get the captain's breakfast and, while so engaged, a roll or lurch of the ship sent the coffee-pot sliding along until it struck his right foot and upset the coffee into his boot, seriously scalding him. He suffered great pain from the burn and from such dressings as the master and officers were able to give him, until the ship reached New York on the 23rd. He was not taken ashore till the evening of the next day, when he was removed to the Broad Street Hospital, and two days later to the Marine Hospital, where he was treated until February 17, 1942, when he was discharged with the prognosis that he would be able to walk after about three weeks. While in the hospital he was treated in various ways, among others by injecting alcohol into the nerve ganglia which control the blood vessels of the ankle; the effort being in this way to improve the circulation. In April and May he got jobs as a waiter in the City of New York; but in each case after at the most three days he suffered so much from pain and the swelling of his ankle that he was unable to keep on.
Several doctors testified to the extent of his injuries: one, called by him, swore that, having suffered a third degree burn, his disability would be permanent and that he would never be able to stand for seven or eight hours upon his foot. (That he had suffered a third degree burn appeared from the records of his case in the Marine Hospital.) The respondents, on their side, called three doctors; the first of whom said that the libellant had suffered no worse than second degree burns, but who did not undertake any prognosis. The other two also said that he had only second degree burns, but these said that he had suffered no permanent loss of function. His pay upon the "Gallant Fox" was $45.00 a month, plus $45.00 war bonus. He had intended to return to Eire with the ship, and, after his discharge from the hospital, his further stay in New York was not accounted for.
The ship was not in the United States when the libel was filed; but upon the trial the parties stipulated that she was then "in the Harbor of New York at Jersey City." The judge found that the libellant had been "since December, 1941, a resident of the United States and of the Southern District of New York." He also found that the suit was properly brought under the Jones Act in personam and under the Suits in Admiralty Act, and that the cook had been negligent in putting the coffee-pot upon the floor of the galley while the ship was rolling so heavily. He awarded the libellant for his pain, past and future, $5,000; he found that he had suffered a permanent disability of one-third of his earning power, which was about $1,400 a year, and that his disability amounted to $480 a year, which, capitalized at 4%, came to about $8,000; and he therefore made a total award of $13,000.
As against the United States the decree must be reversed and the libel dismissed. Blamberg Bros. v. United States, 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346, decided that it was a condition upon substantive jurisdiction under the Suits in Admiralty Act that the vessel should be within the United States when the libel was filed. The "Gallant Fox" was not shown to have been within the United States at that time and the district court was without jurisdiction. This would be equally true, even though we were to construe the condition as applicable only when the right asserted against the United States is in rem. We do not mean to suggest that the condition is so limited, but we need not decide the question, because, so far as appears, the acts of the Waterman Steamship Agency would not have charged the United States in personam if it had been a private owner. The contract is not before us and upon this record the only possible liability would have been in rem. It is true that the...
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