Gardner v. Panama Canal Co.

• Decision Date: 24 April 1953
• Docket Number: No. 3097.,3097.
• Citation: 115 F. Supp. 687
• Parties: GARDNER v. PANAMA CANAL CO.
• Court: U.S. District Court — Panama Canal Zone

115 F. Supp. 687

GARDNER v. PANAMA CANAL CO.

No. 3097.

District Court, Canal Zone Division Balboa.

April 24, 1953.

Van Siclen, Ramirez & de Castro, Ancon, Canal Zone, for libelant.

Paul Bentz, Paul Runnestrand, David Markun, J. M. Thomson, Balboa Heights, Canal Zone, and Victor Dobrin, Los Angeles, Cal., for respondent.

CROWE, District Judge.

As stated by the Supreme Court of the United States in its opinion of November 5, 1951, 342 U.S. 29, 72 S.Ct. 12, 96 L.Ed. 31, this suit in admiralty, a libel in personam, is petitioner's third attempt to secure damages for personal injuries alleged to have been sustained while a passenger on respondent's steamship.

The first action was dismissed after the respondent had successfully maintained that the petitioner's only remedy was to sue the United States under the Tort Claims Act, as the respondent's entire stock is owned by the United States, and the second action was dismissed by the District Court before trial on its merits as Congress had amended the Federal Tort Claims Act, July 16, 1949, excluding from its coverage "any claim arising from the activities of the Panama Canal Company." 28 U.S.C.A. § 2680(m).

The case now under submission came before the Supreme Court on a writ of certiorari to the United States Court of Appeals for the Fifth Circuit on the question of laches. 341 U.S. 934, 71 S. Ct. 854, 95 L.Ed. 1363. The Canal Zone Code § 4-87, subd. 3, prescribes a one-year statute of limitations and the first two actions mentioned were filed within a year after the alleged injury.

Five days after the second action was dismissed this action was filed and the District Court and the Court of Appeals sustained the plea of respondent that as the one-year statute now barred any action at law, laches should bar any recovery in admiralty.

The Supreme Court reversed the decision of the Court of Appeals, 5 Cir., 185 F.2d 730, and the cause was remanded to this Court for further proceedings.

The present action was originally styled, Evelyn C. Gardner v. The Panama Railroad Company, but due to the reorganization of the affairs of the Panama Canal it became a part of the company and it was stipulated that the style be changed to Evelyn C. Gardner v. Panama Canal Company.

The libelant, on December 3, 1947, was a passenger on the S. S. Panama, a passenger steamship belonging to the respondent which operates as a common carrier of passengers and freight between Cristobal, Canal Zone, and New York City.

The ship pulled away from the dock at about 3:00 P.M. on the date in question and cleared the harbor and set upon its course at "roughly around five o'clock." There were no heavy seas and there was a 3 force or ten mile an hour wind which was described by the master as "moderate".

Dinner was served at about 6:00 P.M. and after dinner the libelant returned to the stateroom to get some cards and went to the bathroom. She used the toilet and being unable to locate the flushing lever from a sitting position she stood to flush it. She assumed a position facing the toilet from its front with her right foot between the toilet bowl and a 5¾ inch coaming that surrounded the shower. As she was leaning over in a position to manipulate the flushing lever which was in back of the stool and on the same level as the seat, the ship gave a "very slight lurch" and she fell over into the shower which was on her right. Her right heel "struck the coaming" and she attempted to grasp the shower curtain but it was of slick fabric that was "impossible to grasp." The libelant fell on the lower part of her spine with such force that the back of her head hit the back of the shower.

The libelant testified and produced some supporting testimony that she received injury and she sues for damages in the sum of $17,653.12. It was stipulated between the parties and ordered by the Court that, in view of the extensive medical and other testimony necessary to the trial of the issue of damages, the issues of liability be tried separately and that matter is now before the Court for determination.

Conclusions of Law

I. The first question to be determined is the one of injury and it is believed by the Court from the evidence that there was injury resulting from libelant's fall on the respondent's ship. She admitted to a previous injury from falling in October or November that resulted in pain and stiffness and for which she received $200 in settlement. Respondent argues that this creates doubt as to actual injury in the bathroom fall but the Court is of the opinion that proof of this previous injury might be used in this case only to affect the extent of injuries received on respondent's ship, for although she alone testified as to the fall and pain, her testimony is uncontradicted and the fact of injury is corroborated by the testimony of copassenger, Robert Gibbs Rennie, and the ship's steward who described her absence from the dining saloon, her appearance of injury subsequent to the time of the alleged fall, and her need for assistance in walking.

II. The next question that addresses itself to the Court is the one of negligence and libelant's case is based upon (a) her lack of knowledge that the coaming was present because it was hidden by the shower curtain, (b) the presence of the coaming as a hazard, and (c) the lack of adequate handholds and warning signs in the bathroom.

In disposing of the first question the Court is of the opinion that from the evidence, photographic, blueprint and oral, that the shower curtain is of customary design and planned to hang long enough to be within the coaming and touch the floor to prevent water from splashing on the floor outside of the shower basin. It is believed that the length of the curtain is essential to its usefulness and that this very factor is a protection to the passenger in preventing water from splashing out on the balance of the bathroom floor that is not a part of the shower basin. The use of such a curtain is akin to the coaming placed around the shower in that it contributes to the safety of the bathroom and is a part of the seaworthiness of the ship.

"The law is that the owner owes a nondelegable duty to furnish a seaworthy vessel, and is liable where the injuries result from lack of original seaworthiness". Stewart v. United States, D. C., 25 F.2d 869, 870; Henson v. Fidelity & Columbia Trust Co., D. C., 3 F. Supp. 950; Chelentis v. Luckenbach S. S. Co., 247 U.S. 372, 381, 38 S.Ct. 501, 503, 62 L.Ed. 1171.

The fact that the curtain was drawn instead of being chained back when the fall occurred over three hours after the voyage had started cannot be imputed to the respondent even though custom might dictate that to be "shipshape" and offer the accommodation to the passenger in the neatest and safest manner, the curtain should be chained back. Several people had access to the bathroom and any one of them might have used the bathroom facilities and drawn the curtain.

The presence of the coaming as a hazard cannot be believed to be in violation of the care the carrier owes to the...