Farrell v. United States, 214

• Decision Date: 10 May 1948
• Docket Number: No. 214,Docket 20917.,214
• Citation: 167 F.2d 781
• Parties: FARRELL v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Second Circuit

167 F.2d 781 (1948)

FARRELL v. UNITED STATES et al.

No. 214, Docket 20917.

Circuit Court of Appeals, Second Circuit.

May 10, 1948.

G. Lester W. Curry, of New York City, for appellant.

John F. X. McGohey, U. S. Atty., and Burlingham, Veeder, Clark & Hupper, all of New York City (G. Hunter Merritt, of New York City, of counsel), for appellees.

Before L. HAND, AUGUSTUS N. HAND and CHASE, Circuit Judges.

CHASE, Circuit Judge.

This appeal presents questions as to the duty of the master to warn a seaman in the Merchant Marine when granting him shore leave at a port partially destroyed during the war; the duty of the government to provide a safe route to and from his ship within the area under its control; and the seaman's right to wages and maintenance and cure after being accidently injured within that area while attempting to return to his ship.

The appellant is a seaman who enlisted in the Merchant Marine on November 15, 1942. He was then twenty-two years old. After a training period, he was assigned to a ship by the War Shipping Administration and made one coast-wise voyage of seventeen days. He later shipped at New York on the S. S. Johns Hopkins and went to Naples, Italy. While there, on December 16, 1943, he signed on the S. S. James E. Haviland as a seaman with the grade of an oiler.

That ship, for which respondent Luckenbach Steamship Company was general agent and which the respondent United States owned and operated, docked at Palermo, Sicily on February 4, 1944. This port was then in the control of United States naval forces. It had been severely damaged during its capture from the enemy and, though some repairs had been made, was still in a damaged condition. Dim-out or blackout regulations were required for security, the invasion of Italy then being in progress. The port area was enclosed and kept guarded by sentries at each of five entrance gates. On February 5, 1944, the appellant applied for shore leave late in the afternoon and this was granted, he being given a pass by the master, good until 6 o'clock that evening. The master did not warn or instruct him as to any danger. He left the ship with three companions and went out of the guarded port area by Gate 5, which except for Gate 4, was the only entrance to that part of the port area where his ship was docked. He then spent some time sightseeing in Palermo during which he had some wine and then at about 8 o'clock he started with another seaman to return to his ship. It was raining and they became lost in the city but were finally directed to the port area by a local policeman and arrived at Gate 1, about a mile distant from the gate by which the appellant had left and which they were trying to find. They were admitted to the port area through Gate 1 upon presentation of their passes to the sentry on duty and soon became lost while trying to make their way to their ship, being unaware of the fact that they could do that only by going back into the city and going to Gate 4 or Gate 5. While walking along a muddy street in the semidarkness they kept upon opposite sides in order both to be safe from approaching vehicles which would be running with dimmed or no lights and in the hope that they could obtain a ride to the dock where their ship was tied. While they were there walking some forty or fifty feet apart, the appellant's companion saw him fall over a railing and disappear. His companion went to his assistance and found that he had fallen into a graving dock which the navy was using for repairing ships. This dry dock was being used twenty-four hours a day and was surrounded by a chain strung thirty-six inches above the top of the sides of the dock and held there by steel posts. There were some lights in the area of the dock and enough lights on the floor of it to enable repair work to be done on a destroyer and a sub-chaser then in the dock. It was at least light enough for appellant's companion to be able to see him fall at a distance of forty or fifty feet.

The appellant was severely injured in the fall and as a result has become permanently blind and subject to recurring pain, especially in his head, and to epileptic attacks which may well become progressively worse as he grows older. He was given treatment in the naval hospital at Palermo and at other naval hospitals abroad and in this country until his condition had, before trial, improved as much as can be expected under medical care. Henceforth nothing can be done by further treatment except to alleviate temporarily whatever discomfort his condition may cause from time to time.

The appeal is from a final decree dismissing on the merits a cause of action under the Jones Act¹ and the Suits in Admiralty Act² and awarding wages plus bonus to the end of the voyage together with $266 for medical care and medicines and $3.50 per day for maintenance during a period of six months, which was the time found to have been required to make his recovery as complete as possible, after he left the naval hospital in this country where he last was hospitalized.

There is ample support in the evidence for the findings above outlined and they in turn support the conclusion that neither of the respondents was negligent. The master was certainly under no obligation to deny shore leave to the appellant because the port of Palermo had previously been bombed and the destruction had not been repaired. He was on the contrary bound to give reasonable recognition to the seaman's right to shore leave when off duty. Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. Nor was the master under any duty to warn the appellant that the dock area had been bombed, for that was obvious. Though much stress has been put upon the appellant's lack of experience as a seaman, there is nothing to show that he did not have the ordinary capacity of a young man of his age to realize that he was taking his leave on shore in a port partially destroyed and under limited illumination because of conditions resulting from the war and that he should govern himself accordingly. There is no proof that unusual danger in going to and from the ship by way of Gate 5 required special warning. And it cannot be said that the master was bound to foresee that the appellant might overstay his leave, lose his way, and reenter the port area at another gate a mile or so away from where he should have done so and unnecessarily subject himself to whatever danger was there. Thus it was not negligent to issue the pass and let the seaman take his leave without instructions.

It is argued that the respondent government was, because it was in control of the entire area, under the duty to maintain that area, which it permitted the appellant to enter while attempting to return to his ship, safe for that purpose.³ But the findings sustain the conclusion that it was not negligent in that respect. These findings, which cannot be said to be clearly erroneous,⁴ are that the dry dock did have a guard railing and that there was enough lighting in that area. While there was some conflicting testimony, several witnesses testified that the guard railing was put up immediately after a ship was docked and extended completely around the dock except at the water edge. One of these witnesses stated that the railing was up both a short time before and a short time after the accident. And the only eye-witness to the accident testified that the appellant fell over the chain. There was also much testimony to the effect that the area immediately surrounding the dry dock was kept lighted to a certain extent, despite the dimout or blackout in the city and the harbor area in general, since work was going on continually, night and day. The lighting consisted of flood lights around the edge of the dock directed towards the work going on in it, lights on some of the buildings in the dry dock area and on the ends of the booms of three cranes used in the repair work, and gangway lights on one of the vessels in the dock. Perhaps the lighting was insufficient on a dark and rainy night such as that of the accident to enable one to see everything in the area clearly, though the appellant's fall was seen from a distance of forty to fifty feet. But, it is to be remembered, this was war-time; Palermo was a base very near the actual theatre of operations. If dim-out or blackout regulations were required for the city itself, it could well have been thought necessary for the safety of all to keep lighting in the harbor area, perhaps the most likely target for bombing raids, to a minimum. Under these circumstances, we think that the government was not negligent in failing to guard more adequately, by lights or otherwise, against the possibility of a fall into the dry dock by a seaman...