Haughton v. Blackships, Inc.

• Decision Date: 16 June 1971
• Docket Number: Civ. A. No. 69-C-161.
• Citation: 334 F. Supp. 317
• Parties: William O. HAUGHTON v. BLACKSHIPS, INC.
• Court: U.S. District Court — Southern District of Texas

334 F. Supp. 317

William O. HAUGHTON v. BLACKSHIPS, INC.

Civ. A. No. 69-C-161.

United States District Court, S. D. Texas, Corpus Christi Division.

April 30, 1971.

Supplemental Order June 16, 1971.

David Yancey White, Corpus Christi, Tex., for plaintiff.

R. W. Woolsey, Corpus Christi, Tex., for defendant.

MEMORANDUM

OWEN D. COX, District Judge.

Plaintiff, William O. Haughton, at the time of his injury, was the bos'n (boatswain) on the vessel "THE PANTHER," an oil tanker owned by Defendant Blackships, Inc. This vessel was at the dock in Philadelphia, Pennsylvania, on the morning of February 17, 1967. After instructions from the chief mate, the Plaintiff and two other seamen loaded two new coils of mooring line. Under the direction of the Plaintiff, these coils were placed on the deck on the starboard side of the vessel in a corner by the shelter deck. After the coils of line had been secured, at least the Plaintiff thought so, the first mate directed him to move the mooring line to the forepeak of the vessel.

The Plaintiff testified that he complained to the first mate about moving the line because there was snow and ice on the deck and the condition was hazardous. The first mate told him it was the captain's orders. Plaintiff made no further objection, nor did he suggest any precautionary measures, but went ahead with the work.

The two coils of line, one at a time, were "flaked" out on the afterdeck, that is, rolled down the deck and back again several times so that the mooring line was completely uncoiled. When the first coil was "flaked" out, a hoisting line (gantline) was connected to one end of it and, by action of a winch near the forepeak, pulled the mooring line through the shelter deck (a part of the mid-house) to the foredeck of the vessel, and placed in a cargo hold. The second coil was handled in the same way.

After the first coil was "flaked" out, the Plaintiff walked up to the forepeak of the vessel and supervised the final loading of the mooring lines. During this procedure, which obviously required the bos'n and the two seamen helping him to walk in the snow on the deck, no one fell. After the mooring line was finally stored, there was nothing else to be done by the bos'n and the crew. The job for the morning had been completed without mishap.

In returning to the mid-house, Plaintiff took a different route than he had previously used and walked from the winch back toward the shelter deck on the port side of the vessel. Just before he got where he was going, he fell and, as the testimony indicates, he hurt his back and neck. He reported the fall and stayed in his bunk for a day or so. Then, he went back to work. Plaintiff did, shortly after the accident, see a doctor in Fort Lauderdale, Florida, and was given some pills for pain, but continued to work for about a year and a half before seriously attempting to obtain medical attention.

There is no dispute that Plaintiff fell and was injured. But, whether he or the Defendant, or both, must bear the responsibility for the fall is in question, as well as whether or not his actions, or his failure to act, after the accident and the receipt of his National Maritime Union pension, might limit, to some extent, Plaintiff's right to or the amount of his recovery.

The evidence established there was snow on the deck. The snow had not been there the night before but it was there when the bos'n and his crew of two other seamen commenced loading the coils of new mooring line. There is a conflict in the Plaintiff's testimony as to how deep the snow was. However, apparently the deck was covered. The testimony as to an icy condition was not convincing, but snow can be slippery. The Court is of the opinion that the condition of the deck was such that, under Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960), the vessel was not seaworthy and this Court so finds. The question of whether the Defendant was negligent in not requiring the deck to be cleaned of snow and ice seems unimportant at this point.

Plaintiff, being fully aware of the condition on the deck, had complained about it being hazardous, but took no precautionary measures, except, as Plaintiff testified, to work more slowly. After the work was finished, Plaintiff started back to the mid-house over a route on the deck which he had not traversed before. He said he did this because the area where he and his crew had been working had become slushy, which implies melting snow. This, when taken with the fact that it had just recently snowed, indicates to the Court the snow was not deep and there was not an icy condition. There is no testimony that Plaintiff made any particular effort to be careful in the manner in which he walked on his way to the mid-house and it is difficult for the Court to accept any premise which assumes Plaintiff, who was an experienced bos'n, could not have walked, by being careful, back to the mid-house without mishap.

Under such facts, and the direction of Symonette Shipyards, Ltd., v. Clark, 365 F.2d 464 (5 Cir., 1966) and McBride v. Loffland Brothers Company, 422 F.2d 363 (5 Cir., 1970), the Court finds that Plaintiff was at fault and his fault contributed fifty percent (50%) to the fall and the injuries he received.

Plaintiff, as a result of his fall, suffered injury to the C-5-6 cervical (neck) intervertebral disk. Defendant contends that Plaintiff's failure to submit to a spinal graft and fusion prevents Plaintiff's recovery of any damages which such operation would have alleviated. The case of Murphy v. American Barge Line, 169 F.2d 61 (3 Cir., 1948), says the authorities are uniform that, except in grave and severe operations, the injured party must follow the recommendation of an expert. However, in the case of Cline v. United States, 270 F.Supp. 247 (S.D.Fla., 1967), the Court required the operation, but only after concluding "that a reasonably prudent person acting under the facts and circumstances which were developed by the trial of this case would submit to the operation which has been prescribed." The Texas case of Thompson v. Quarles, Tex.Civ.App., 297 S.W.2d 321, err ref'd, applies the same rule. This Court proposes to follow Cline and Thompson and there being no jury, decide the matter by a finding of fact.

Dr. Jackson Upshaw, a medical doctor who has specialized in orthopedic surgery for over twenty years, testified regarding his examination of Plaintiff on April 19, 1969. His findings were compatible with the C-5-6 cervical intervertebral disk degeneration, and, based on the history given him, Dr. Upshaw attributed that injury to the fall which the Plaintiff received on the 17th of February, 1967.

Dr. Upshaw testified by deposition that in his opinion, based upon reasonable medical probability, that surgical intervention was necessary for relief of Plaintiff's pain and discomfort, and that Plaintiff would probably have the operation if he hurt bad enough. Dr. Upshaw testified that there is a certain inherent risk in any surgery, but that in this particular case, the operation would be an acceptable risk; but, that, in his opinion, Plaintiff would get relief from pain and suffering if he had the surgery, would have very good recovery and would be able to do the same kind of work he had been doing up to the time he got hurt.

Dr. Ray, as a general practitioner, who had referred Plaintiff to Dr. Upshaw, was considerably more cautious about the operation, although he, too, said having such an operation would depend on how bad the Plaintiff was hurting.

This Court feels that the evidence presented by the orthopedic specialist should be given more weight than that of the general practitioner; but even so, when you consider the age of Plaintiff, who was about fifty-one (51) years of age at the time of injury, apparently fifty-four (54) at the time of trial, and that he is able to work at less strenuous jobs and does...