Haddock v. North Atlantic & Gulf SS Co.

• Decision Date: 20 December 1948
• Docket Number: No. 2982.,2982.
• Citation: 81 F. Supp. 421
• Parties: HADDOCK v. NORTH ATLANTIC & GULF S. S. CO.
• Court: U.S. District Court — District of Maryland

81 F. Supp. 421

HADDOCK v. NORTH ATLANTIC & GULF S. S. CO.

No. 2982.

United States District Court D. Maryland.

December 20, 1948.

Paul Berman and Eugene Alexander, 3d., both of Baltimore, Md., for libellant.

Francis E. Pegram, Jr., (of Eckhardt & Pegram) of Baltimore, Md., for respondent.

CHESNUT, District Judge.

This is a libel in personam by a seaman to recover damages for personal injury, maintenance and cure allegedly resulting from negligence of the shipowner in failing to provide a safe place for work and safe equipment for the seaman. 46 U.S. C.A. § 688. The case has been submitted for final determination upon the pleadings, evidence and arguments of counsel. From the evidence I make the following findings of fact:

The libellant is a seaman of ten years or more experience, and is about 46 years of age. On November 15, 1946 he was employed on the respondent's ship on a voyage from the United States to Trieste. While in the Mediterranean Sea he was ordered to do some chipping of rust. While performing this work one or two particles of rust accidentally got into his right eye and to this he now attributes a cataract which is slowly but substantially impairing the vision of that eye. He specifies negligence on the part of the ship in not furnishing him with goggles while doing the work. He says he asked the boatswain for them but was told that they were not immediately available and that the boatswain would look for them and give them to him later. As a fact, I find that there were adequate goggles on shipboard and the libellant could have obtained them upon application to a superior officer of the ship, as, for instance, the First Mate. But the libellant says that he did not feel at liberty to make the demand for them in view of the boatswain's order.

After receiving the rust particles in his eye he at once complained and was given some boracic acid by an officer of the ship and one or more particles of rust were removed from his eye. There was no particular force occasioned by the settlement of the rust in his eye. Apparently he asked for an opportunity to consult a doctor on shore and there is conflict in his evidence and that of another witness whose deposition was taken as to whether or not this opportunity was afforded him. When the ship next made port at the Island of Cyprus he did consult a doctor whose deposition has not been taken but whose memorandum of the result of the examination was filed in evidence which I found to be quite inconclusive.

When the ship returned to Baltimore on January 19, 1947 the libellant went to the local Marine Hospital for further eye examination. Glasses were prescribed. He was examined from time to time without diagnosis of any traumatic condition of the eye, until July 22, 1947. In the meantime he made claim upon the respondent and went to the office of the Company in New York. They sent him to a Dr. Dugdale who was an experienced surgeon in the treatment of traumatic conditions. Dr. Dugdale took the history of his complaint and examined his eyes on February 7, 1947. He reported that there was no trouble with the man's eyes. His deposition has been taken at some length and is to that effect.

In the meantime, or shortly thereafter, the libellant employed Messrs. Hillman and Hillman, experienced admiralty lawyers in Baltimore, to press his claim. They endeavored vigorously by correspondence and telephone communications with a representative of the Company in New York to obtain a settlement. The Company steadfastly refused to make any substantial payment but had paid $49 to the plaintiff for maintenance and cure and offered to pay $150 additional for full release from all claims. After repeated conferences with his attorneys he agreed to accept this settlement and gave a release. At the time he said he was in pressing need of money owing to accumulated debts and the sickness of his wife. He executed the release which was offered in evidence, in the presence of his attorneys and acknowledged it before one of them who is a notary public, on July 15, 1947. The Company's check for $150 was received by his attorneys, Hillman and Hillman, on or before July 23, 1947, and on that date the check was cashed and $100 paid to the libellant, the attorneys retaining the balance of the $150 for their disbursements for telephone calls, etc., leaving them a balance of about $35 as a fee. The evidence of the senior partner made it very clear that the settlement was the free and voluntary act of the libellant not induced in any way by pressure either from his own attorneys or from the respondent's attorney. In fact the whole matter was handled for the libellant by his own attorneys. At the time of the settlement the attorneys had filed and there was pending in this court the plaintiff's suit against the respondent, Admiralty Case No. 2131, in which the libel made a claim for the substantial amount of $7500 damages for the accidental injury to the plaintiff's eye, maintenance and cure. When the plaintiff signed the release he also signed an order later filed in the case by his counsel, whereby the case on the docket was entered "Agreed, Settled and Satisfied upon payment of costs by respondent".

The libellant had continued from time to time on frequent occasions to make visits to the Marine Hospital and to receive advice from them. He says that on July 23rd he was awaiting a further report from the Marine Hospital, an abstract of which he had asked for but which had not been given to him; but that later that day he called at the hospital and received the report which, for the first time, indicated that he had a slowly forming cataract on the right eye. He says that he then went to see his attorneys and told them of this new development and asked what could be done about it. He puts the time of this visit at only a day or two after the settlement. Mr. Hillman said that it was a substantial time thereafter, possibly two months. At all events Mr. Hillman advised him that he considered the case closed so far as he was concerned, that he did not feel at liberty to attack the release which he had negotiated fairly for his client. Mr. Hillman suggested that if further action was to be taken the libellant should see other counsel. This the libellant did and in consequence thereof the present suit was filed in this court on November 29, 1947, Admiralty No. 2982.

The critical issues in the case are —

1. Has the libellant shown by a preponderance of the evidence that the injury to his eye from the rust was due to the negligence of the respondent;

2. Has the libellant shown by a preponderance of the evidence that the present condition of his right eye was proximately due to the chippings of rust, and

3. If both of these facts are found in favor of the libellant, was the release valid and binding.

I will discuss these three issues in their order with further reference to the facts found from the evidence.

1. As to the alleged negligence; and in this case was there contributory negligence of the libellant although if so it would only affect the amount of the recovery and would not be a bar to any recovery. As I have said, the evidence shows that the ship did have goggles on board and they could have been procured if the libellant had insisted thereon. In this connection he was an experienced seaman and particularly the importance of having goggles for such work had been brought to his attention in 1936 when he was employed on another ship and while chipping rust without goggles had sustained an injury to his left eye, for which he brought suit against the shipowner but lost the case, as he says, when it was found the ship had goggles on board. It does not appear what was the extent of the damage to his left eye claimed by the libellant in that case. I refer to this only as bearing on the libellant's possible contributory negligence in not insisting upon having the goggles before starting the work.

Judging the case from the aspects most favorable to the libellant on this point, I have concluded that the order or directions of the boatswain to him to go...