Hanson v. Reiss Steamship Company

• Decision Date: 08 April 1960
• Docket Number: No. 1736.,1736.
• Citation: 184 F. Supp. 545
• Parties: Robert HANSON, Libellant, v. REISS STEAMSHIP COMPANY, a corporation of the State of Delaware, Respondent.
• Court: U.S. District Court — District of Delaware

184 F. Supp. 545

Robert HANSON, Libellant, v. REISS STEAMSHIP COMPANY, a corporation of the State of Delaware, Respondent.

No. 1736.

United States District Court D. Delaware.

April 8, 1960.

COPYRIGHT MATERIAL OMITTED

Oliver V. Suddard, Wise & Suddard, Wilmington, Del., for libellant.

William H. Bennethum, Wilmington, Del., and Lucian Y. Ray, McCreary, Hinslea & Ray, Cleveland, Ohio, for respondent.

RODNEY, Senior District Judge.

This is a libel in personam in admiralty seeking to recover damages for injuries sustained by the libellant, based on the unseaworthiness of the vessel and on negligence as well as for maintenance and cure. The facts are not complex and sufficient findings and conclusions will be found in this opinion.¹

On June 3, 1954 libellant, Robert Hanson, was employed as a temporary porter on the Steamer Reiss Brothers, a Great Lakes Freighter. One of his duties on board the vessel was daily to make the second and third mates' bunks, an upper and lower, in the same cabin. The upper bunk was 54" above the deck, 38" wide and 6' long. Due to its height and width, it was not possible for libellant to properly and completely make the upper bunk while standing on the deck.

On June 7, 1954 libellant was standing on a chair tucking in the back of the third mate's bunk when the chair slipped from under him. He tried to catch himself but bumped his back on the edge of the bunk, resulting in injury to his back.

The accident was reported during the morning of June 7 and libellant was authorized to go to the Marine Hospital in Chicago. However, he stated he preferred to wait till the vessel reached Sheboygan, Wisconsin. He was examined by the Marine Doctor in Sheboygan on June 10, 1954. The same day he returned to the vessel and continued performing his duties, with the exception of tucking in the back of the third mate's bunk. He stated his back would no longer allow him to crawl up and bend over as he had done previously while making the upper bunk. He had pain in his back, and numbness down his right leg to his toes.

Upon leaving the vessel on June 20, he returned to his sister's home in Bailey's Harbor, Wisconsin. There he secured medical treatment from the family doctor who placed him in traction for from 4 to 6 days.

Arrangements were then made for him to enter the Chicago Marine Hospital, and he was admitted there July 27, 1954. He remained till September 15, 1954, spending about 3 weeks in traction. He was discharged with a recommended 14-day convalescence period.

From November, 1954 to January, 1955 libellant was employed on a fur farm near Sturgeon Bay, Wisconsin. On March 5, 1955 he began employment with the Kohler Co., Kohler, Wisconsin, and he has worked there continuously since that time as a tank finisher and as a sprayer. From the time he left the Marine Hospital until he went to work for Kohler he received no medical treatment.

During his employment with the Kohler Co. he has had "two or three" heat treatments by Company doctors and has worn a back brace furnished by the Company on "seven or eight" occasions. In addition he was given pills to take and some ointment to have rubbed into his back by his wife. He had not had any treatment of any type during the year and a half prior to trial.

Before the accident complained of libellant had had no trouble with his back and had been able to perform unrestricted labor and engage in unrestricted sports activity. Since the accident his right leg has been numb at times and his back has troubled him sporadically. He has restricted his work to those jobs not requiring heavy lifting or bending of the back, and has had to forego certain sports activities.

On June 15, 1955 he brought suit in admiralty for unseaworthiness and negligence and maintenance and cure.

It is, of course, the duty of an employer in admiralty to furnish a seaworthy vessel and this includes such appliances as are pertinent to the ship and with which the seaman must perform his duties.²

Seaworthiness is a term difficult to define with precision and as applicable to varying situations. As applicable to appliances furnished to a seaman for the performance of his duty, it has been said to normally come within two categories. In Mesle v. Kea Steamship Corp., 3 Cir., 1958, 260 F.2d 747, 751, these categories are thus stated:

"* * * One is where the shipowner, having knowledge—actual or constructive—that certain activity will occur, is imposed with an absolute duty of supplying equipment for permitting the conduct and accomplishment in reasonable safety of that activity; liability is imposed for failure to comply with this duty, termed one of making the vessel seaworthy. The other category is where the equipment actually supplied by the owner for doing the ship's work proves incapable of performing its function in the manner for which it was designed."

The facts of the present case seem to be applicable to the first category and perhaps also to the second.

We now come to some description of the place where the libellant was injured, the facilities with which he worked and some determination of the fitness of those facilities. The cabin where the accident occurred was described as "about 7' fore and aft and about 12' athwartship and about 7' high". In addition to the double-deck bunk the cabin contained two chairs, a steel desk, two chests of drawers, a wash basin and one or more throw rugs upon the deck.

When the libellant was engaged, he was instructed as to the nature of his duties, including the making up of the two bunks, but he was not particularly instructed as to the manner of performing those duties. It is in evidence that by reason of the height and width of the upper bunk it was impossible to properly "tuck in" or complete the making up of the upper bunk while standing on the deck.

The respondent has proved that it was the customary practice for porters in making up the upper bunk to stand upon a chair. No other facility for the accomplishment of the duties of the libellant, other than the chair, was present in the cabin or furnished by the respondent.

The respondent contends that a vessel owner is not an insurer of the safety of its employees and need not furnish the best, safest and most convenient equipment. The respondent also contends that a chair is the usual equipment used in performance of the duty in which the libellant was injured and that such chair is uniformly used on vessels of the same age, class and size as the vessel upon which the injury occurred.

I think it may be conceded that a ship-owner is not an insurer and is not under duty to keep the vessel accident proof. It is, however, clearly the duty of a vessel owner to keep the vessel seaworthy, furnish it with appliances reasonably fit and competent for the performance of the duties imposed upon a seaman, and to give a seaman a reasonably safe place to work.³

The fact, however, that the appliance furnished was of a similar nature to appliances used on other vessels of the same class, type and age is not determinative of the performance of the duty cast upon the present shipowner. A custom may be relevant and admissible in determining the propriety of an appliance but does not in itself determine that such appliance was entirely proper.⁴

In the final analysis it is my duty to find, as to this first branch of the case, whether a chair is a proper appliance to be furnished for a seaman to stand upon for the performance of a duty where such duty cannot be performed by standing upon the floor or deck. I cannot so find. I find that the seaman was about 6' 2" in height and weighed approximately 240 lbs. The chair was "a wooden chair 15" in height with a 33" back and 4 legs." The bunk, required to be made, was 6' long, 38" wide and 54" above the deck. It is found that the bunk could not be properly or completely "made up" by the seaman standing on the floor or deck. A chair is uniformly defined as a "seat" and not as something to stand upon. The respondent draws attention to the fact that accidents similar to the present are not confined to maritime matters but happen in a home. Such fact does not establish a chair as a proper appliance to stand upon to perform a stipulated duty.

A ship is unseaworthy if injury results from inadequate appliances. I find the respondent was negligent in failing to provide proper appliances for the performance of a stipulated duty, and the vessel, therefore, was unseaworthy.

Having arrived at the conclusion that by reason of the inadequacy of the appliances and equipment the vessel involved was unseaworthy, it becomes necessary to determine the damages. These damages consist of three main items, (a) maintenance and cure to which the libellant is entitled, (b) damages for pain and suffering and (c) damages for loss of earning power, if any, by reason of the accident.

(a) Maintenance and Cure.

The maintenance and cure to which a seaman is entitled is well defined in the law and grows out of the relationship of the seaman to the employer rather than to any unseaworthiness of the vessel or negligence of the owner.⁵ It is agreed in this case that the liability for maintenance and cure is based upon the rate of $6 per day, and only the duration of this liability is subject to present determination.

Libellant seeks compensation for maintenance and cure from the time of the accident, June 7, 1954, to March 22, 1958, being a year and a half prior to the trial, after deducting the time the seaman was still on board the vessel and the time spent in the Marine Hospital. Thus, the libellant seeks compensation for maintenance and cure for 1,320 days. The respondent admits liability for maintenance and cure but seeks to limit the liability to the date when the libellant commenced work at the fur farm.

Liability for maintenance and cure does not end with the termination of the voyage but continues for a reasonable time after the right accrues and until further cure is...