Dalton v. American President Lines, C-69-649-SC.
| Decision Date | 20 March 1972 |
| Docket Number | No. C-69-649-SC.,C-69-649-SC. |
| Parties | Ollie M. DALTON, Plaintiff, v. AMERICAN PRESIDENT LINES, Defendant. |
| Court | U.S. District Court — Northern District of California |
Martin J. Jarvis, San Francisco, Cal., for plaintiff.
Warren W. Wilson, San Francisco, Cal., for defendant.
In this proceeding under the Jones Act, 46 U.S.C. § 688, plaintiff, formerly the third assistant engineer aboard the defendant's vessel, the SS PRESIDENT TAYLOR, seeks a recovery for damages1 occasioned by an alleged substantial loss of hearing when, on November 26, 1968, another third assistant engineer undertook the task of "blowing down the water wall header" under circumstances which were not conducive to safety with respect to others in the engine room.
The issues for determination may be classified as follows: (1) Did the incident of November 26, 1968, occur; (2) Was the plaintiff injured as a result of said incident and, if so, to what extent; (3) Did the injury result in whole or in part from the negligence of Rockafellow, the third assistant engineer.
The case is based upon the alleged negligence of a fellow crew member, Rockafellow. While unseaworthiness is alleged, we find no evidence which would justify any recovery on this ground.
The plaintiff, Dalton, was born in Virginia on December 20, 1904. He initially went to sea in 1945 and received his third engineer's license in 1948. From 1946 until June 1969, he worked for the defendant, American President Lines, as a third engineer. He has the equivalent of a high school education. He took retirement in February 1970, which action he attributes to his hearing difficulties although, admittedly, he had other problems including diabetes.
While Dalton first placed the date of the incident which allegedly caused the trauma to his ears, especially the right ear, during early December 1968, it was soon ascertained that the only occasion when the water wall header was blown down was on November 26, 1968, and it is this date upon which plaintiff now relies in his proof. Dalton's discovery deposition taken on August 19, 1970, reveals that the incident occurred in early December 1968, around 9:00 a. m., during plaintiff's 0800 to 1200 watch, shortly after the vessel had arrived in the Port of Los Angeles earlier that morning. The facts are that the vessel departed San Francisco at 0730 on November 16, 1968, and arrived at the harbor of Los Angeles on November 17 at 0230. At 0400 the starboard boiler was secured and the port boiler was retained as the steaming boiler until November 26, 1968, at 1330. The record demonstrates that the vessel remained at the pier from November 17, which was a Sunday, until December 5 when it returned to San Francisco arriving at 2:06 p. m.
Although the record does not disclose that Dalton reported the incident which he states gave forth an explosion-type noise which immediately affected his hearing, Dalton stated, on discovery, that he reported the incident to "Al Sells," the first assistant engineer. He was at this time positive that this was the person to whom the injury was reported. The crew list and the testimony of Halle R. Sells reveal that Sells, a first assistant engineer, was not aboard the vessel on this voyage, and had rejoined the ship at San Francisco on December 6. After Sells gave his deposition on June 7, 1971, Dalton, at the trial one month later, claimed that he reported the incident to one Haley and that Dalton could not remember the name prior to trial. Dalton concedes that he did not report any injury to the chief mate because his hearing had been partially restored and he wanted to see Dr. Wall, his personal physician, upon his return to San Francisco and prior to sailing to the Far East, even though he was aware of the policy of reporting any possible injury to the ship's officers.
Dr. Robert F. Wall testified by deposition on June 11, 1971 — again only several weeks prior to trial. On discovery, Dalton claims to have visited Dr. Wall on some date between December 1 and December 12. He was positive in this assertion. At the trial Dalton testified that he had gone to Dr. Wall's office, after regular office hours when the doctor's staff had departed, and the doctor examined the right ear, noting that it was clear, and remarked that there was "nothing I can do" and "the injury has been done." Dr. Wall's records do not reflect this visit. In fact, no visits are shown on Dalton's records between November 11, 1968, and April 1, 1969. Dr. Wall had no recollection of seeing Dalton in December, or at anytime between November 11 and April 3, 1969.2 While it is true that Dr. Wall did testify that Dalton had mentioned his hearing difficulties on about six occasions, Dr. Wall stated that he made no notation of same as Dalton was under the care of Dr. Kramer, a specialist. It is apparent, however, that Dalton's initial mention of any hearing problem to Dr. Wall was after he saw Dr. Kramer in July 1969. The evidence adequately establishes the fact that Dalton made no mention of any complaint to Dr. Wall, involving his ear condition, in December 1968, and thereafter until he visited Dr. Kramer.
Throughout Dalton's discovery deposition he insisted that he had never had any prior difficulties with his ears other than an occasional accumulation of wax. At the trial he testified that he had had no trouble with his hearing prior to November 1968 which was "work disabling." The medical record from Children's Hospital and Adult Medical Center discloses that Dalton was a patient on June 27-28, 1968, at which time he gave a history which reads "sometimes bad hearing, it changes, ringing in the ears." The physical examination given at that time reveals "external hearing bad." Obviously, Dalton had some knowledge of hearing difficulties prior to November 26, 1968, although it is entirely possible that it may not have reached the point of being "work disabling."
On April 13, 1970, Dalton reported to the M.E.B.A. Diagnostic Center for an evaluation for total and permanent disability. His complaints included several items with the notation "marked hearing loss" among them. By this time, of course, his ear condition had been ascertained by Dr. Kramer. His prior visit on June 9, 1969, revealed nothing detrimental under "Review of Systems," except that Dalton mentioned "sinus problems and post nasal drip." However, an audiogram was conducted which disclosed a "marked hearing loss on high frequencies, both ears;" the loss being 50 decibels at 2000 frequency and 55% loss at 4000 frequency for the right ear, and 50% loss at 2000 frequency and 65% at 4000 frequency for the left ear.3
We reach the conclusion that Dalton, upon ascertaining his marked hearing loss in June 1969, then proceeded to look back upon his many days in the engine room in an effort to reconstruct an incident which would give rise to an action against the shipowner. We make this statement with full knowledge of the fact that Dalton's testimony is, inferentially at least, supported by Rockafellow's deposition. This young man, does recall an instance, unidentified by day, month4 or year, when Dalton said, "You don't need to blow it at that pressure," but asserts that Dalton made no complaint of any injury to his ears.
The procedure of blowing down a water wall header admittedly involves a loud noise. The purpose of this activity is to remove sediment from the water in the boiler, thereby permitting a specific level and control of the water. In the operation of the ship's boilers, the procedure is critical, especially with high pressure boilers which were on this vessel. There is a sharp conflict in the testimony as to the proper procedure. Plaintiff presented the testimony of Bird, a chief engineer who was purportedly familiar with B & W boilers, and who stated that it was improper procedure to blow down a boiler at 400 pounds per square inch, except in the case of an emergency. No emergency existed on November 26, 1968. Bird insists that the pressure should be reduced to 35 to 40 pounds per square inch before undertaking this task. The defendant's evidence is to the contrary. A Safety Manual for Marine Oil-Fired Watertube Boilers does not specify the accepted pressure.5 Even Dalton disagrees with his own expert, Bird, as Dalton contends that the...
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Barger v. Mayor & City Council of Baltimore
...v. Clinchfield Railroad Company, 288 F.2d 499 (4 Cir. 1961). The city cites only one case to the contrary, Dalton v. American President Lines, 339 F.Supp. 821 (N.D.Calif.1972), in which the court stated that hearing loss was an occupational disease which was not compensable under the Jones ......