Gibson v. American Export Isbrandtsen Lines, Inc.

• Decision Date: 17 February 1987
• Citation: 125 A.D.2d 65,511 N.Y.S.2d 631
• Parties: John GIBSON, Plaintiff-Respondent, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 631

511 N.Y.S.2d 631

125 A.D.2d 65

John GIBSON, Plaintiff-Respondent, v. AMERICAN EXPORT ISBRANDTSEN LINES, INC., Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Feb. 17, 1987.

[125 A.D.2d 66] Kenneth Heller, New York City, for plaintiff-respondent.

Stephen K. Carr, of counsel (Joseph V. Fleming and Geoffrey D. Ferrer, with him on brief; Haight, Gardner, Poor & Havens, New York City), for defendant-appellant.

Before SANDLER, J.P., and KASSAL, ROSENBERGER and WALLACH, JJ.

KASSAL, Justice.

Plaintiff, a seaman, commenced this action to recover for personal injuries under the Jones Act (46 U.S.C. § 688), allegedly sustained on February 1, 1970 when he suffered a myocardial infarction while employed as a night relief engineer aboard defendant's container vessel, The C.V. Seawitch. Plaintiff had been licensed as a third assistant engineer since 1944, but claimed to be unfamiliar with the engine room aboard The Seawitch, an automated vessel, although he had previously served aboard the ship as a night relief engineer and as an engineer on its second or third voyage.

He reported for duty, boarding the vessel at 9:00 p.m. on January 31, 1970. Shortly thereafter, he noticed that one of the three feed water pumps in the engine room was leaking lubricating oil. He claims he reported this to one of the ship's regular engineers who was leaving the ship and who told him, "[D]on't worry about it; we will take care of it; it's our job." As a result, he took no steps to correct the condition nor did he make a notation in the engine room logbook. He did, however, make a note on the blackboard--"Feed pump leaking"--before being relieved by another port relief engineer at midnight.

On February 1, 1970, plaintiff again reported for duty, this time at noon, relieving the Seawitch's port relief night engineer. On making his rounds, assisted by a deck engine mechanic ("DeMac"), he discovered that the feed pump was still leaking. He instructed the DeMac to keep an eye on the oil level in the pump, which would have to be checked with a dip stick. At about 2:15 or 2:30 p.m., he checked the feed pump and learned there was no lubricating oil, a condition which admittedly could have disastrous consequences in terms of the security and safety of the vessel. Next to the pump, he found a one quart can of oil, which was empty. "At that moment, I was beside myself so I ran up the ladder--I was very concerned would be a better way to put it--so I ran up the ladder--that would be one flight up to the machine shop--to get oil." The machine shop was locked, so, as a result, he ran about the ship, up and down stairs, about six levels, to locate a can of oil. Finding none, he went back down to the main engine room to look for the DeMac. Failing to locate him, he tried the C.O.2 room, also to no avail--"I was really desperate for oil at this point." Finally, in another room aft of the machine shop, he found a partially filled five gallon can of oil, which he "grabbed", ran to the engine room, and "dumped it into the hole" of the feed water pump.

Immediately, thereafter, he began to experience chest pains, sweating and shortness of breath,--"I sat down and as I sat down, I got the weirdest sensation that ever happened to me. I got such a crushing pain in my chest and I started to sweat and shortness of breath and thought I was going to throw up * * * And my arm hurt * * * I was really in pain." He did not, however, report the incident to his relief night engineer--"I didn't even see him."

The next day, February 2, 1970, plaintiff returned to the Seawitch, which was moored at Staten Island, and stood an eight hour watch, from 4:00 p.m. to midnight. During the next two days, February 3 and 4, 1970, he unsuccessfully attempted to report to the ship, which had been shifted to an anchorage near the Verrazano Bridge. On the first day, February 3, the sea was too rough for a water taxi to take him to the ship. On the second day, February 4, plaintiff returned to Pier 84 on the Hudson River, where the ship was to have been, but the Seawitch did not appear at its berth. When he arrived home on February 4, 1970, he began to experience "severe" pain and, as a result, his wife took him to During the ensuing months, plaintiff was unable to obtain employment because of his cardiac history and, it appears, he did receive maintenance and cure of $12 per day, until he was notified that defendant's physician had found him permanently unfit for duty, at which point he had already received total benefits of $2172. Defendant's claims adjuster, Trimis, allegedly advised plaintiff on August 24, 1970 that the shipowner's cardiologist, Dr. Eugene Clark, had classified him permanently unfit for sea duty. Trimis proposed an additional payment of $2160, an amount equivalent to six months future sick pay. It appears from the record that, subsequently, plaintiff did consult an attorney, the law firm of Zwerling & Zwerling, which notified Trimis that it had been retained. However, more than two months later, on November 5, 1970, the same law firm advised Trimis that it no longer represented plaintiff.

Rahway Memorial Hospital in New Jersey. An electrocardiogram on February 6, 1970, revealed an acute anterior wall myocardial infarction. He remained hospitalized until February 28, 1970, thereafter receiving outpatient treatment.

On December 1, 1970, after being advised that his maintenance and/or sick benefits had terminated, plaintiff entered into discussions with defendant concerning a proposed settlement in the sum of $2500. Defendant's claims agent, who was also an attorney, Tellefsen, offered $2500 for plaintiff's executing a general release, which included a waiver of any further claims against the ship. Tellefsen admitted at his examination before trial that, before the release was signed, he did not show Dr. Clark's report to plaintiff nor did he explain to him the contents of the report and the opinion therein that he had sustained a major heart attack, had a high degree of cardiac disability and would probably never work on a ship in the future. While Tellefsen admitted that he did not discuss these matters with plaintiff, he claimed that plaintiff knew this in any event. The record does not reflect whether he fully explained all of the rights and remedies being surrendered as a result of the settlement and the release, including any remedy under the Jones Act, although, at one point in the transcript of his deposition, Tellefsen states that, at the time, he considered that there was no liability.

Special Term struck the affirmative defenses of contributory negligence and general release, holding, as to the former, that defendant had not offered any evidence to establish that plaintiff was negligent and, as to the latter, that the release was invalid on the facts adduced. In so concluding, it observed that the release had been executed at a time when plaintiff was not represented by counsel and was procured by defendant's claims agent, who was also an attorney, without disclosing to the seaman the contents of his medical reports as to the extent of his disability or fully apprising him of the legal rights which would be lost as a result of the settlement.

While we recognize that it is defendant's burden to establish at trial that plaintiff was contributorily negligent and, as to the release, there is a heavy burden imposed on the shipowner, especially since seamen are wards of admiralty--cestuis que trustent--in a fiduciary relationship with the shipowner,--these factual issues must await trial. They cannot be finally resolved on the papers before Special Term.

RELEASE

As to the general release, it is well established that releases by seamen are subject to careful scrutiny by the courts. The shipowner must establish that the release was freely executed, without deception or coercion, and that it was made only after a full disclosure and with a full understanding of the rights relinquished thereby (Garrett v. Moore-McCormack Co., 317 U.S. 239, 247-248, 63 S.Ct. 246, 251-252, 87 L.Ed. 239; Waters v. United States, 191 F.2d 212, 215 (9th Cir., 1951); Bay State Dredging & Contracting Co. v. Porter, 153 F.2d 827, 833 (1st Cir., 1946); The S.S. Standard, 103 F.2d 437, 438-439 (2nd Cir., 1939); Spillers v. South Atlantic S.S. Co. of Delaware, 45 F.Supp. 2, 6-7).

Thus, in Garrett v. Moore-McCormack Co., supra, the United States Supreme Court, with reference to the validity of a release, held that the shipowner "must affirmatively show that no advantage has been taken; and his burden is particularly heavy where there has been inadequacy of consideration." (317 U.S. at 247, 63 S.Ct. at 251) Justice Black, writing for the unanimous Court, observed:

"The wardship theory has, as was recognized by the courts below, marked consequence on the treatment given seamen's releases. Such releases are subject to careful scrutiny. "One who claims that a seaman has signed away his rights to what in law is due him must be prepared to take the burden of sustaining the release as fairly made with and fully comprehended by the seaman." Harmon v. United States, 59 F.2d 372, 373 [5th Cir., 1932]. We hold, therefore, that the burden is upon one who sets up a seaman's release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights. The adequacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing the release are relevant to an appraisal of this understanding. (id. at 247-248, 63 S.Ct. at 251-252)

Thus, these and other cases are uniform in holding that the validity of the release is, in large part, dependent upon the sufficiency of the disclosure to the seaman, so that it may be determined whether the release was executed freely and with a full understanding of rights. Plainly, taking into account defenda...