Cortes v. Baltimore Insular Line

• Decision Date: 25 July 1933
• Docket Number: No. 357.,357.
• Parties: CORTES v. BALTIMORE INSULAR LINE Inc.
• Court: U.S. Court of Appeals — Second Circuit

66 F.2d 526 (1933)

CORTES v. BALTIMORE INSULAR LINE Inc.

No. 357.

Circuit Court of Appeals, Second Circuit.

July 25, 1933.

Hunt, Hill & Betts, of New York City (George Whitefield Betts, Jr., and H. Victor Crawford, both of New York City, of counsel), for appellant.

Jesse L. Rosenberg, of New York City (Basil O'Connor and William F. Snyder, both of New York City, of counsel), for appellee.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

Victor Manuel Santiago shipped as a seaman on the appellant's vessel for a voyage from New York Habor to Boca Grande, Fla., and return. On the return voyage he became ill of pneumonia, from which he died shortly after reaching the home port. This action was brought by his administrator under section 33 of the Jones Act (46 USCA § 688).

In a former opinion we held that the plaintiff could not maintain an action under the Jones Act for death alleged to have resulted from the shipowner's failure to perform its duty to furnish "maintenance and cure." 52 F.(2d) 22. This construction of the statute was reversed in Cortes v. Baltimore Insular Line, 287 U. S. 367, 53 S. Ct. 173, 77 L. Ed. 368. Stating that our opinion had assumed without decision that the care of the seaman had been negligent and that there was a causal relation between the negligence and the death, the Supreme Court remanded the cause to this court in order that these disputed issues of fact might be determined.

The vessel left Boca Grande in the late afternoon of Tuesday, October 16, 1928. Santiago reported himself sick the next day. Although disputed, there is some evidence that he was required to work on Wednesday morning after he had told the mate that he was sick. At noon he went to bed in his bunk in the forecastle, and his temperature was taken at 5:45 p. m. and was entered in the log as 104 degrees. It dropped to 102 degrees at midnight and rose again to 104 at 7 a. m. on the 18th. On the 19th at the same hour it was 103 degrees and was found to be the same on each morning thereafter during the voyage; that is, to and including Monday, October 22d. The vessel anchored off the mouth of the Raritan river at 6:35 p. m. on Sunday, where she lay until 6 a. m. on Monday, when she proceeded to her dock at Carteret, N. J., arriving about 8 a. m. At 3 p. m. an ambulance was called to take Santiago to the United States Marine Hospital. When he arrived at the hospital shortly before 6 o'clock, he was found to have lobar pneumonia with consolidation on both sides. The prognosis was expected mortality within twenty-four hours. He died early the next morning.

When Santiago took to his bed, the officers diagnosed his illness as a severe cold with fever, and gave him the customary treatment of quinine and cathartics and a light diet. The steward testified that he prepared special food, such as soups and orange juice, and sent it up by the mess boy. Some of the sailors denied seeing special food served to him. He was allowed to remain in the forecastle, and it is contended that these quarters were cold, damp, unsanitary, and equipped with insufficient bedding. No one was assigned to give him special care, except that the third mate administered medicine twice a day and the steward prepared his special food. There is testimony that he was unable to go to the toilet and that his clothing and bedding became filthy. Sometimes when he coughed he raised blood, and, after eating, vomited, but it does not appear that these facts were brought to the knowledge of the officers. He complained to them of aching head and aching bones such as might accompany a cold. It is contended that the forecastle was dangerously cold and damp because of open portholes and a defective drainage pipe, and that an additional blanket or heat from the steam pipes should have been supplied. But, in view of the outside temperatures which only once fell as low as 60 degrees and in view of the medical testimony that fresh-air treatment is desirable for pneumonia patients, the jury would not have been justified in finding negligence in this latter respect. In general the charges of negligence are that the officers should have appreciated that the seaman was dangerously sick and should have given him better attention on board, or have made for an intermediate port to land him, or have obtained aid from passing vessels during the voyage, and, on arrival off the Raritan river, should have immediately summoned medical aid. Although the ship's officers cannot be held to the skill of expert physicians in the matter of diagnosis, we think there was evidence which justified submitting to the jury the question whether they used reasonable care in looking after the sick seaman. Certainly the jury might have found that it was negligent not to get him to a hospital more promptly, either Sunday evening after the vessel anchored, or Monday after she docked. While there was testimony that Santiago was seen on deck Sunday afternoon and the...