O'NEILL v. United States

• Decision Date: 13 November 1957
• Docket Number: No. 287 of 1946,287 of 1947.,287 of 1946
• Citation: 157 F. Supp. 193
• Parties: Charles O'NEILL v. UNITED STATES of America, United States Maritime Commission. Nathan R. ALLTMONT v. UNITED STATES of America United States Maritime Commission.
• Court: U.S. District Court — Eastern District of Pennsylvania

157 F. Supp. 193

Charles O'NEILL v. UNITED STATES of America, United States Maritime Commission.

Nathan R. ALLTMONT v. UNITED STATES of America United States Maritime Commission.

Nos. 287 of 1946, 287 of 1947.

United States District Court E. D. Pennsylvania.

November 13, 1957.

Milton M. Borowsky, of Freedman, Landy & Lorry, Philadelphia, Pa., for plaintiffs.

Henry J. Morgan, Asst. U. S. Atty., Philadelphia, Pa., Leavenworth Colby, Chief, Admiralty Section, Dept. of Justice, Washington, D. C., Rollins M. Koppel, Sp. Atty., Dept. of Justice, Washington, D. C. (now in Harlingen, Texas), for defendants.

VAN DUSEN, District Judge.

This is an admiralty action for personal injuries suffered by libellants (an able-bodied seaman and Chief Engineer, respectively) when a mine exploded under the stern of a merchant tanker (S. S. Cedar Mills) owned and operated by respondents as this ship was starting to leave the harbor of Ancona, Italy, on November 19, 1945.

I. History of the Case

Although there was extensive litigation over certain discovery aspects of these cases prior to October 9, 1953,¹ no document filed by libellants, seeking discovery, appears in the Clerk's file in either case between that date and December 12, 1955, when libellants resumed their discovery efforts by filing additional interrogatories. In spite of this more than two-year hiatus in libellants' efforts to secure evidence which might be needed for trial and of several continuances granted to them in the fall of 1955 and winter of 1956,² libellants requested another continuance on May 21, 1956, when the case was reached for trial as the result of a special listing, in order to inform a recently-discovered expert of the facts on which they based their claim. The respondents strenuously resisted any further continuance on the grounds that libellants had had all the basic information necessary to prepare their case since 1949, the witnesses were becoming increasingly more difficult to locate, and the respondents' attorney handling the matter was moving to Texas during the summer so that he would not be thereafter available without considerable difficulty.³ The court granted libellants' application for a continuance to the extent of postponing (a) the start of the trial for a week, until May 28, 1956, and (b) the taking of testimony of the expert witnesses until July 16, 1956.⁴

On the afternoon of July 18, 1956, at the conclusion of the respondents' expert testimony, libellants applied for leave to take rebuttal testimony at a later date after they had an opportunity to consult their expert witnesses (N.T. 1278 ff.). Respondents objected strenuously to the receipt of any additional testimony more than 24 hours after this Wednesday afternoon, since this week had been set aside for expert testimony, and requested the court to rule that, at the least, the libellants should be required to decide promptly (within 24 or 48 hours) whether they would offer additional testimony (N.T. 1284-5). In order to give libellants every opportunity to present their case,⁵ the court granted libellants a month within which to consult their experts and apply to the court if they wished to offer rebuttal evidence by deposition (N.T. 1283-4). Respondents were given a week to answer libellants' letter, if written, requesting leave to take rebuttal testimony by deposition, with the understanding that they could also offer evidence by deposition after hearing libellants' rebuttal evidence (N.T. 1288).

By letter of August 10, 1956, libellants requested leave to offer additional testimony by deposition to be taken in Washington on September 17-18, 1956. Respondents objected, by letter of August 20, 1956, to the taking of such testimony, because of the absence of any "impelling circumstances." After some further correspondence (see Exhibit A containing the above-mentioned two letters and the further correspondence), the depositions of libellants' experts were taken in December 1956, at which time additional expert testimony was offered by respondents and they requested leave to take the testimony of W. B. White, an expert in mine countermeasures and mine sweeping, if libellants would not agree to a summary of his proposed testimony to be assembled in an affidavit. As shown by the correspondence in Exhibit A, libellants would not agree to the affidavit of W. B. White and his deposition was finally taken in May 1957 and filed on June 28, 1957 (see Document No. 54 in Clerk's file, No. 287 of 1946).

Requests for Findings of Fact and Conclusions of Law were filed during August and September 1957, and the final brief (respondents' reply brief) was filed on October 9, 1957.

For the information of persons studying the record, there were three separate written stipulations of fact filed during the trial, as follows:

1. Stipulation of Facts of May 1956, filed August 1, 1956 (Document No. 46 in Clerk's file, No. 287 of 1946).

2. Stipulation of Facts filed and dated 7/16/56, but docketed as filed 7/19/56 (Document No. 44 in Clerk's file, No. 287 of 1946).

3. Stipulation of Facts filed 12/6/56 (Document No. 51 in Clerk's file, No. 287 of 1946).

Oral stipulations of counsel were read into the record on July 16, 1956, including the following:

A. If a representative of the British Admiralty were called to testify, he would testify that the records kept by that Admiralty indicate that all of the mines laid in Ancona approaches and harbor were German ground mines (G. C.) and that the German G. C. mine was a general purpose ground mine which could be fitted with a variety of assemblies, and it is not possible to say which particular type of mine caused the loss of the S. S. Cedar Mills (N.T. 678).

B. This representative of the British Admiralty would also testify that there is a record of the explosion of a mine (type not specified) quite close to the position where the Cedar Mills was subsequently sunk and that this mine was exploded by an LL sweep undertaken sometime between July 19, 1944, and August 18, 1944 (N.T. 680).⁶

Evidence rulings on objections and motions made during the taking of the depositions are contained in Exhibit B attached hereto.

II. Findings of Fact

The trial judge makes the following Findings of Fact:

1. Libellants' Requests for Findings of Fact numbered 1, 2 ("6184" should read "6134"),⁷ 4, 5, 8, 9, 17, 23, 24, with the exception of the 5th sentence, 27, with the insertion in the third sentence, in place of the word "by," of the words "as `not suited for military duty' by the doctor for" (see Exhibit L-31, p. 2, and N.T. 279), and with the deletion of all words after the word "consideration" in the third line from the end of that paragraph, 28, 30, and respondents' Requests for Findings of Fact numbered 9, modified to include the words "weighing 2000-2300 pounds and" after the word "mines" in line 2 and the words "at Ancona" at the end of the words in the parentheses,⁸ 10, 11, 1, modified to add "(see N.T. 490 and the X in a circle on L-4)," 2, 3, 4, 5,⁹ 6, 7, 8, modified by changing "several" to "two," 12, modified by inserting after the word "maximum" in line 3 the words "sound waves through vibrations of ship and," 13, modified by substituting the words "a contributing" for the words "an actual" in line 4 of paragraph 13, 14, 15, modified to include before the word "coarse" the words "somewhat more," 16, 17, 18, 19, and 20, modified by deleting the last sentence, are adopted as Findings of Fact of the trial judge.

2. Libellant O'Neill served aboard the S. S. Cedar Mills (hereinafter called "Cedar Mills") as an able-bodied seaman and libellant Alltmont served aboard that vessel as Chief Engineer.

3. At Gibraltar, before entering the Mediterranean Sea, the Master of the vessel received charts and routing instructions (R-1, L-2, L-3) which did not contain any statement about the advisability of degaussing, but did show that the vicinity of the port of Ancona was a danger area for mines and warned mariners to keep a good lookout for drifting mines at all times (par. 15 of L-2). Floating mines were seen on no more than two occasions in the Mediterranean and the Adriatic during the voyage of the Cedar Mills from Gibraltar to Ancona.¹⁰ The degaussing system was in operation during this voyage until arrival at the port of Ancona.

4. On November 15, 1945, the Cedar Mills anchored in the Ancona harbor and swung from a bow anchor with the current and tide. The mean draft of the Cedar Mills while at anchorage (November 15 to November 18) was approximately 28½ feet.

5. After discharging fuel oil at the north mole on November 18 and 19, the mean draft of the vessel was approximately 23½ feet, the draft forward was 22 feet, 2 inches, and the draft aft was 25 feet (par. 1 of Stipulation docketed 7/19/56).

6. At the time the Cedar Mills left the dock, the current had a southeast set, three to four knots, and there was a slight northeast wind, with visibility one-and-a-half to two miles.

7. At the time of the explosion, the north mole was approximately broad on starboard beam of the Cedar Mills (N.T. 582) and the Cedar Mills was heading 30 to 50 degrees true.

8. The explosion of the mine under the stern of the vessel caused (a) a large crack in the ship's sides at the No. 5 tank approximately amidships, and (b) breaking of at least some of the engine room boilers or steam lines.

9. Both libellants were disabled as a result of this mine explosion. On March 19, 1946, libellant Alltmont was discharged from Staten Island (New York) Marine Hospital, fitted with a Taylor-Knight brace, and he continued under out-patient treatment until January 22, 1947, when he was discharged as fit for duty (see L-10—L-13). He was again disabled as the result of an aggravated hernia condition, which required an operation, from November 6, 1947, to December 10, 1947.

10. Libellants have not sustained the burden of proving, by a fair preponderance of the evidence, that the explosion...