Irwin v. United States, A 19221.
| Citation | 1953 AMC 913,111 F. Supp. 912 |
| Decision Date | 29 April 1953 |
| Docket Number | No. A 19221.,A 19221. |
| Parties | IRWIN v. UNITED STATES et al. |
| Court | U.S. District Court — Eastern District of New York |
Bertram J. Dembo, New York City, Jacob Rassner, New York City, for libelant.
Haight, Deming, Gardner, Poor & Havens, New York City, Frank J. Parker, U. S. Atty., Brooklyn, N. Y., J. Ward O'Neill, New York City, for respondent.
Kirlin, Campbell & Keating, New York City, Raymond Parmer, New York City, for respondent-impleaded.
This is an admiralty cause in which the libelant seeks recovery because of personal injury suffered by him on January 26, 1949, while he was assistant surgeon on the passenger steamship Marine Perch (to be called the Perch), owned by the United States and operated by American Export Lines, Inc., as agent.
A motor lifeboat No. 4 on the port side was being launched from the Perch for the purpose of removing an injured mate of the Greek ship Nicholaou Maria (to be called the Maria) and bringing him aboard the former so that he might be under the care of a ship's surgeon, with which the Greek ship was not manned.
The Maria had communicated by radio with the United States Coast Guard to report an injury suffered by her mate, and to ask for advice, since he was suffering from an apparent brain injury as the result of his falling to the deck of his ship and striking his head. The Coast Guard instructed the Perch as the nearest available ship to proceed to a meeting place with the Maria which was accomplished in a few hours (latitude 32.14N, longitude 38.32W), in the general vicinity of the Azores, early in the morning of the day in question. This was not less than 1,000 miles east of the Gulf Stream, contrary to libelant's contention on that subject.
The Maria seasonably requested the Perch to send her own motor lifeboat rather than use the former's ordinary lifeboat, and that request was acceded to; the Perch's lifeboat was put overside at about 3:18 A.M. GMT, and it was that operation which resulted in the injury to the libelant, who was present in the boat along with the ship's surgeon, but why two medical officers were required has not been made clear.
At that time the two ships were a distance of not less than one-half mile or more than one and one-half miles apart and their relative positions and headings are shown on U. S. Exhibit 5.
The libelant's cause as asserted is based upon:
(a) Alleged unseaworthiness of the Perch in the matter of the failure and neglect of the respondent to keep the Perch and its appurtenances in a seaworthy condition and a reasonable state of repair. This refers to the davits and lowering gear of lifeboat No. 4, port side; and
(b) Negligence in the conduct of the lowering operation and a delay in returning the libelant to the ship immediately following his sustaining the injury in question.
The second cause is for maintenance and cure, as to which only the amount of the award requires consideration.
The owner of the Maria was brought in by the respondent under the Admiralty Rule 56, 28 U.S.C.A., and the petition asserts negligence on the part of the Maria in connection with the injury to the mate, and failure to maintain the ship in a seaworthy condition as the result of which the impleaded-respondent is asserted to have agreed to indemnify the respondent in connection with the incidents of the service which the latter rendered in taking the mate of the Maria on board the Perch.
The question of unseaworthiness of the Perch has probably been abandoned but it will be briefly treated in the findings for the sake of completeness. The only material controversy is over the way in which the operation of lowering the boat was conducted, and criticism of her failure to return to the Perch immediately upon discovery that one or more of the occupants of the lifeboat had suffered injury in consequence of improper handling, as alleged, of the operation. That aspect of the controversy will be made the subject of findings, and in connection therewith explanatory comments will be offered.
Findings.
1. At 3:18 A.M. GMT, these vessels were substantially in the position shown in U. S. Exhibit 5, the wind being out of the NNE of a force 2 on the Beaufort scale, and in those headings the port side of each vessel was the lee side.
2. During the ensuing five hours the direction of the wind did not materially change, but the force gradually rose to about 5 at 8:00 A.M.
Comment:
This finding is based on such conflict in the testimony as is shown in a comparison of U. S. Exhibit 5 and Libelant's Exhibit 1, being the sketch accompanying the deposition of Costas Mitropoulos who was the master of the Maria (Taken November 26, 1952, 2 years and 11 months after the event). The former exhibit is preferred because it is the testimony of this witness that when the launching of the lifeboat from the Perch took place it was from the windward side, which is not only contradicted by all who had charge of that operation, but is also opposed to the plainest teachings of common sense; moreover, since this witness' post of observation was not less than a half a mile distant from the Perch, and the operation was conducted in the darkness (although the Perch was using floodlights), that particular aspect of his testimony cannot be accepted.
3. At about 3:18 A.M. GMT, motor lifeboat No. 4 on the port side of the Perch, having been in all respects properly equipped and manned, was lowered on the lee side of the ship as the first step in undertaking the transportation from the Maria to the Perch of the injured mate of the former. This was pursuant to an arrangement between the masters of the two ships reached through an interchange of radio communications.
4. The lifeboat was in command of the witness Walsh, who has held a master's license for twelve years and who was chief officer of the Perch. A volunteer crew of 13 manned the boat, among whom were Marken, first assistant engineer of the Perch (a witness), the junior third mate Andresen, the ship's surgeon Goehausen (a witness), and the libelant Irwin (also a witness), who as stated was assistant ship's surgeon.
5. This lifeboat was carried at the level of the boat deck in the new type Welin gravity type davits, and at the inception of the lowering operation both davits were in all respects in good operating condition.
6. The mechanical operation of lowering involved the following:
(a) The arms of the davits swung out clear of the ship's side, and the lifeboat descended to the level of the boat deck, where the lockbar was manually removed by the second officer, at which time some of the crew were in the boat;
(b) Then the second officer released the brake to lower the boat to the A deck where the remainder of the crew entered the lifeboat;
(c) The lowering thereafter continued, the boat being in a level position, until it was within from one to two feet of the surface of the water;
(d) The lowering was completed as hereinafter stated, without damage to either fore or aft ring bolt attached to the davits, or either fall.
Comment:
The foregoing reflects a choice between the testimony of the libelant's witness Lashewitz, whose deposition was taken May 24, 1952, over three years after the happening, and the oral testimony of Redmond, the master of the Perch, Walsh, the first officer, and Marken, the first assistant engineer.
Lashewitz, who was the chief electrician of the Perch, had charge of the floodlights which were turned on in aid of the launching of the lifeboat. He stood by No. 4 as it was launched and continued on deck throughout the night and until the ultimate return of that lifeboat with the patient from the Maria. He described the launching above referred to, the personnel in the boat, the lowering, and the operation of the release gear (later to be stated). A comparison between the opening statement of libelant's counsel and the testimony of Lashewitz reveals a possible difference on the subject of which ring bolt according to Lashewitz broke, in the final stage of the lowering operation; but whether there is such a conflict or not is unimportant since I am satisfied that no such breaking took place until many hours later when the lifeboat returned from the Maria and the effort was made to hoist it on board; that effort proved to be unsuccessful because at that time, due to a bent davit and the impact of a heavy swell, the forward ring bolt was broken. An additional reason for viewing Lashewitz' testimony somewhat askance is that he had two personal claims pending against the American Export Lines when testifying.
7. While so suspended ( 6-c), a swell struck the lifeboat near its bow, raised it and caused it to strike against the hull of the Perch; the stern being lower than the bow at that instant, the boat in settling upon the water suffered what is described as a sudden jerk, which threw several of the occupants about, and the chief surgeon Goehausen was actually thrown overboard. The libelant was tossed from one side of the boat to the other and thereby sustained injuries to his left shoulder, arm and left side, which constitute the basis of his claim in this cause.
8. As the lifeboat became waterborne, the mate gave the order to release the falls, which was speedily accomplished, and the boat being then all clear of her rigging, the motor—which had been operating in neutral during the descent—was put in gear and movement away from the side of the ship promptly ensued.
9. Good seamanship required that the lifeboat be moved away from the side of the Perch at once.
10. At about the time that the lowering operation started, the wind was out of the NNE, Force 2, and during the ensuing five hours it gradually increased to Force 4 or perhaps 5. There was a swell in the sea during the entire time, which took effect on the starboard side of both vessels, but during the interval the condition which prevailed could not be accurately described as that of...
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