McKenney v. United States, 25256-R

• Decision Date: 07 August 1951
• Docket Number: No. 25710. In Admiralty.,No. 25256-R,25256-R,25710. In Admiralty.
• Citation: 99 F. Supp. 121
• Court: U.S. District Court — Northern District of California
• Parties: McKENNEY v. UNITED STATES.

99 F. Supp. 121

McKENNEY v. UNITED STATES.

Nos. 25256-R, No. 25710. In Admiralty.

United States District Court, N. D. California, S. D.

August 7, 1951.

Albert Michelson and Newell J. Hooey, both of San Francisco, Cal., proctors for libelant.

Chauncey F. Tramutolo, U. S. Atty., Keith R. Ferguson, Sp. Asst. to the Atty. Gen., and J. Stewart Harrison, Atty., Department of Justice, all of San Francisco, Cal., proctors for respondent.

ROCHE, Chief Judge.

Libelant was employed in a civilian capacity as junior third mate aboard the USAT General C. G. Morton, a public vessel owned and operated by the respondent. On July 17, 1948, while en route in the Pacific Ocean, the master of the vessel ordered an emergency lifeboat drill to take place under the command of the libelant.

Participants in the drill consisted of the libelant, a crew of six seamen and two passengers. The libelant stood in a crouched position on the stern thwart of the lifeboat, holding on to the tiller with his left hand. Two of the crew stood in the bottom of the lifeboat, fending it off from the vessel during the lowering operations. All the other occupants appear to have been seated.

Hanging from a cable stretched between the davits were approximately four manlines which extended down into the lifeboat. These were played out and remained hanging as the boat was lowered. One of the purposes served by these lines is to provide a support for those in the boat to hang on to in case some accident occurs as the boat is being lowered.

The lifeboat involved herein had a built-in releasing gear, the purpose of which is to release the boat from the falls and enable it to become free of the vessel. This releasing gear was a manual one which required a certain physical effort to operate. The libelant had assigned the duty of operating the releasing gear to the boat-swain Nelson, a member of the lifeboat's crew.

As the lifeboat was being lowered, the boatswain Nelson tripped the releasing gear without an order to do so from the libelant. The boat thereupon dropped into the water, falling a distance which has been variously estimated as being between 7 feet and 15 feet.

The force of the fall caused the seams of the boat to split. None of the occupants of the lifeboat, except the libelant, suffered anything but slight injuries. The libelant sustained a comminuted fracture of the right ankle and the right leg above the ankle. Immediately after the accident the libelant was taken aboard the vessel and a cast was applied to his injured leg.

On the following day he was taken ashore and placed in an army hospital in Okinawa, where he remained for six days. He was then flown to San Francisco, with delays at various places, and on or about August 14, 1948, he was placed in the U. S. Marine Hospital, where he was received and treated as a seaman. He remained in the Marine Hospital until about November 14, 1948, when he became an out-patient until his discharge on or about May 31, 1949.

While the libelant was a patient in the Marine Hospital he signed a claim for compensation under provisions of the Federal Employees' Compensation Act, 5 U.S. C.A. § 751 et seq. However, he subsequently declined to accept the compensation that was tendered him in response to this application.

Although the prognosis of his physician is that the probabilities are equal as to whether his condition will improve or become worse, the libelant appears to have suffered a serious disability.

The respondent contends that this action is barred either because libelant's exclusive remedy is the Federal Employees' Compensation Act or because he made an election of remedies by receiving hospital benefits and applying for compensation under that Act. The respondent also denies liability on the grounds that libelant's negligence was the sole cause of his injuries and that libelant assumed the risks of his own negligent and improper seamanship.

The issues presented for decision are: (1) whether, for any reason, the Federal Employees' Compensation Act is a bar to the present cause of action; (2) whether there was any negligence for which the respondent is liable; and (3) whether there was any negligence on the part of the libelant.

While the Federal Employees' Compensation Act is not the exclusive remedy of the libelant in this case, Johnson v. U. S., 4 Cir., 1950, 186 F.2d 120; Gibbs v. U. S., D.C., 1950, 94 F.Supp. 586; an election to proceed under its provisions would serve to bar the instant cause of action. Dahn v. Davis, 1922, 258 U.S. 421, 42 S.Ct. 320, 66 L.Ed. 696. However, only...