Hunt v. United States

• Decision Date: 29 December 1936
• Parties: HUNT v. UNITED STATES et al.
• Court: U.S. District Court — Southern District of New York

17 F. Supp. 578

HUNT v. UNITED STATES et al.

District Court, S. D. New York.

December 29, 1936.

Herman Rapport, of New York City (Jacquin Frank, of New York City, of counsel), for libelant.

Lamar Hardy, U. S. Atty., of New York City (Kirlin, Campbell, Hickox, Keating & McGrann and Raymond Parmer, all of New York City, of counsel), for respondent United States.

Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Raymond Parmer, of New York City, of counsel), for Roosevelt Steamship Lines, Inc.

HULBERT, District Judge.

The libelant, a seaman, sues under the Jones Act (46 U.S.C.A. § 688) claiming that the action is cognizable under the Suits in Admiralty Act (46 U.S.C.A. §§ 741-752) to recover damages for personal injuries sustained in the course of his employment aboard the motorship Potter.

On July 7, 1930, the United States of America, through the United States Shipping Board represented by the United States Shipping Board Merchant Fleet Corporation, entered into an agreement in writing with the Roosevelt Steamship Company, Inc., a Delaware corporation (hereinafter called the managing operator), whereby a number of government owned merchant vessels, including the motorship Potter, were allocated to the managing operator to conduct, for and on behalf of the government, the business of the American Pioneer Line on a "berth service."

The agreement was in the nature of a bare boat charter and was modified October 26, 1931, February 12, 1932, May 2, 1932, May 9, 1935, and September 26, 1935, terminating October 5, 1935.

None of the modifications materially affected the relationship between the parties thereto except the fourth addendum dated May 9, 1935, which limited the profits of the managing operator to $30,000 per annum and, as the respondents contended upon the trial, transformed the relationship of the managing operator to that of an agent for the owner as the principal.

The libel alleges:

"Eighth: That at the time hereinafter mentioned the Libelant was a seaman and in the employ of the defendants herein on the said motorship `Potter'."

The defendants by their answers admitted employment of the libelant by the owner, but denied his employment by the managing operator, and also that he was a seaman within the meaning of the word as used in the Merchant Marine Act of 1920 (41 Stat. 988).

The motorship Potter arrived at the Port of New York, without cargo, on October 21, 1935, from India, via Cape of Good Hope and Baltimore, Md., and docked at a North River Pier. She then had aboard her usual complement of officers and crew, including six able seamen. The latter were paid off and replaced. Hunt was one of the able seamen thus engaged. He understood the vessel would make her next voyage to Australia and India, but was informed by the boatswain she would first go to drydock for repairs to engine and cargo holds, which would occupy two or three weeks. He did not sign any ship's articles, but accepted employment at the rate of $57.50 per month and found, and took his chance of being selected when the ship's articles were signed for the next voyage.

The time actually required for making repairs was ten weeks, the delay resulting from the delivery of machinery parts.

Hunt reported for duty on October 21, 1935, and was assigned as night watchman for that night; the next day the vessel cast off her lines and proceeded under her own power to a drydock in Brooklyn. On October 23, he was turned to with other able seamen in No. 2 hold cleaning out dunnage. This work was finished about noon, when he and the other five seamen aboard ship, and four or five additional seamen who had been "sent over from the office" were assigned to cleaning and scraping the skin of the ship, preliminary to painting and rat-proofing, before the intended voyage. This work was all done under the direction and supervision of the master and chief officer upon direct orders given by the latter, or through the boatswain.

No. 2 hold was 83 feet long, 53 feet wide, and 23 feet deep. On either side were upper and lower sections of cargo battens. The batten boards in each section were about 10 feet long, 6 inches wide, and 2 inches thick and were nailed about 5 inches apart to crosspieces of approximately the same dimensions. The 6-inch surface of the crosspieces were laid flat to the rear surface of the batten boards and rested upon steel beams, leaving a space or pocket of about 4 inches between the crosspieces and the skin of the ship, thus providing a receptacle for dirt and nests for rats. The instructions were to remove the lower section of the battens so that the crosspieces might be removed by the ship's carpenter and replaced to lay flat on the crossbeams filling up the space above referred to.

Libelant and others were assigned to spot rust stains on the skin of the ship between and behind the batten boards of the upper cargo section and then paint the lower sections because of the stains from the ore cargoes carried by the vessel. Hunt claims to have inquired of the boatswain if stages were to be provided, complaining that scraping the long beams was tiresome and produced cramps, and that he was informed there was no staging aboard, and that the boatswain, in fact, asked him where the material for staging could be obtained. The proof, however, is, that the men employed painting the forward bulkhead of No. 2 hold worked on a staging because of the difficulty in handling the "gun" used for spraying the paint. The evidence is, the ship's carpenter was told by the chief officer to use dunnage boards for additional staging, but that he objected to their unsuitability for that purpose, and it is not disputed that there were several boatswain's chairs aboard and that their use was suggested by the boatswain.

In some instances, the seamen stood on the crosspiece holding onto the batten board with one hand and touching up the rust spots with the paint brush held in the other. Libelant, however, was one of those who used the boatswain's chair, to which was attached a lanyard. These boatswain's chairs were used in two different ways. Upon the upper section the libelant placed the lanyard behind a batten board and over the crosspiece and then tied the loose end with two half hitches; when working on the lower section the lanyard was pulled through rings or holes in the framework of the ship and made fast to the chair.

On October 29, 1935, shortly before the accident to the libelant, all of the seamen employed in No. 2 hold had transferred from the port to the starboard side, except Hunt. He had begun work that morning at a point 15 or 20 feet above the bottom of the hold, spotting rust around rivets; about twenty minutes later, as he changed the brush from his left to his right hand, the chair gave way, he grabbed a batten board and that came loose and he fell, striking his right buttock and spine on the battens which had been removed and placed upon a pipe casing leading from No. 1 bilge.

The evidence is that nails which had been driven to fasten the batten boards were, in some instances loose, and in other cases missing, and it is the contention of the libelant that the lanyard slipped between the crosspiece and the batten board. No one else in the hold saw the accident. The attention of the libelant's fellow workmen was first attracted by the crash. The respondents attempt to excuse the liability through the witness Miller (boatswain) who testified that as soon as he reached the point of the accident, Hunt informed him that while attempting to fasten his chair in the lower section by means of putting the free end of the lanyard through a hole in one of the longitudinal beams he lost his balance and fell a much shorter distance than he now claims.

It is apparent that libelant was so severely injured that it was deemed most practical, in his condition, to remove him from the hold to the dock in a sling and, in the light of this circumstance, I am not inclined to give credence to the explanation offered by the respondents.

Libelant was taken to the Marine Hospital at Ellis Island where he was placed on a fracture board. He remained in this hospital 21 days and was then transferred to the Marine Hospital at Staten Island where two weeks later he was put back on a fracture board. On January 14, 1936, he was discharged as "fit for duty," that is, the doctor who had on that occasion examined him for the first time (relieving the attending physician who was off duty that day) explained that Hunt was able to do light duty for a while and then resume regular duty.

It was testified by the libelant that during his previous experience as a seaman he had sustained:

1. Head cut, at Antwerp, Belgium, for which he was under treatment from July 13 to 21, 1927.

2. Fell into deep tank at Dunkirk, France, and was under treatment from December 3 to 7, 1927, for fractured heel.

3. Fell into water at Havre, France, August 17, 1930, and was kept in hospital seven days for observation.

4. Skin cut on instep at Havre, France, in 1930, and was under treatment for eight days for blood...