Paul v. United States

• Decision Date: 08 June 1953
• Docket Number: No. 10895.,10895.
• Citation: 205 F.2d 38
• Parties: PAUL v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Third Circuit

205 F.2d 38 (1953)

PAUL v. UNITED STATES et al.

No. 10895.

United States Court of Appeals Third Circuit.

Argued February 6, 1953.

Decided June 8, 1953.

Rehearing Denied June 29, 1953.

Joseph Weiner, Philadelphia, Pa. (Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellant.

John B. Shaw, Philadelphia, Pa. (Gerald A. Gleeson, U. S. Atty. for the Eastern District of Pennsylvania, Philadelphia, Pa., Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellee.

Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

Other than in the immediate vicinity of a vessel's gangplank, is a shipowner under a duty to provide safe means of passage from or to the vessel over a dock area over which the shipowner has no control and/or to inspect and give warning of the conditions prevailing along the dock's passageway?

That is the primary issue presented by this appeal from the Order of the District Court for the Eastern District of Pennsylvania decreeing judgment in favor of the United States in an action in admiralty to recover damages for injuries sustained.

The facts were stipulated and appear in the District Court's Opinion, E.D.Pa.1951, 101 F.Supp. 89. They may be summarized as follows:

Libellant, in May 1946, was Chief Engineer of the SS. "William Moultrie" owned and operated by the United States. He was at the time 40 years of age and had been a merchant seaman for over 20 years. The vessel arrived at the Port of Brindisi, Italy, on the morning of May 6, 1946. It was moored at a long dock which was constructed parallel to the shore-line. A railroad track ran the length of the dock, and alongside the track and parallel to it was a cement walkway which was accessible via three or four steps. The walkway was six or seven feet wide and several hundred feet long. It had neither railings nor lights and was unguarded. About 100 feet beyond the bow of the "William Moultrie" there was a recess in the walkway about two and one-half feet square and four and one-half feet deep. The recess was a permanent part of the dock structure and was designed to contain shunting gear used in the operation of the railroad track.

Following the mooring on May 6th, the libellant went ashore during daylight hours. At that time he chose to walk along the railroad track rather than use the walkway. After dark, on the evening of May 7th, the libellant again went ashore on liberty. On that occasion he mounted to the walkway and proceeded along it until he fell into the recess previously mentioned, sustaining a contusion of his right knee and aggravation of a pre-existing arthritic condition.¹ The libellant had not been given notice of the existence of the recess by the ship's officers or crew. At the time, the Port of Brindisi was not blacked-out.

On the facts as stated the District Court found that the injuries sustained by the libellant were not caused by negligence of the United States. It should be noted that while the libel sought recovery of maintenance and cure in addition to damages for negligence, prior to the District Court's disposition the parties settled the maintenance and cure aspect of the case leaving open by stipulation only the question of damages for negligence.

On this appeal the libellant contends, as he did below, that (1) it was the shipowner's duty to provide safe egress from the vessel and that the duty was breached; and (2) it was the shipowner's duty to inspect and warn the libellant of the existence of the recess in the walkway and that this duty too, was breached.

With respect to libellant's first point, it should be observed that he maintains the duty to provide safe egress continues until the seaman reaches the public highway and is not limited to egress from the ship to the dock. Anent libellant's second point, it is his view that the shipowner's duty to give warning arises out of the parent-child, guardian-ward relationship of shipowner-seaman.

In making the contentions above stated, libellant asserts that the duty to provide a safe means of ingress to, and egress from, the vessel is part and parcel of the traditional duty on the part of a vessel to provide its seamen with a safe place in which to work.

Libellant has cited a number of cases to support his position but unfortunately for him they fail to do so.

Thus in Marceau v. Great Lakes Transit Corporation, 2 Cir., 1945, 146 F.2d 416, 418 a seaman recovered damages for injuries sustained when he slipped, while returning to work, on an accumulation of wet flour some three to five feet from the foot of an ill-lighted ladder leading from the dock to the vessel's deck. The Court held that the jury reasonably could have found that the flour was swept from the vessel to the dock and that the shipowner was negligent in causing or permitting the condition at the foot of the ladder to exist and in failing to provide proper lights under the circumstances. Moreover, the Court pointed to the fact that the seaman "was acting under orders when he returned to the ship" and "consequently at the time of the accident he was not only acting in the course of his employment but suffered his injuries while on property in the possession and under control of the defendant * * *." (Emphasis supplied.)

Sassaman v. Pennsylvania R. Co., 3 Cir., 1944, 144 F.2d 950 on which libellant has placed great reliance is inapposite. There we merely held that for an injured employee to be able to claim a right of action under the Federal Employers' Liability Act² it must appear that his injuries were sustained either upon the premises where he normally performed duties of his employment or upon premises so closely adjacent thereto as to be part of the working premises in the sense that the employee was required to traverse them in going to or upon leaving his work. We did not hold in that case that an employer is under a duty to provide safe ingress and egress to the place of employment since the point was not in issue.³

Patrick v. Atlas Knitting Co., 164 App. Div. 753, 149 N.Y.S. 845, 847, is likewise not in point. There the employee was killed while crossing the New York Central's tracks adjoining the factory and the Court held that an actionable claim was presented. However, the record disclosed that the only means of egress from the employer's premises was over the railroad tracks and on that score the Court said: "It will not answer for the master to turn his employes out at twilight upon the tracks of the most used railroad in the United States, where the swiftest trains in the world are constantly passing and repassing. This does not comply with the law."

In Walton v. Continental S.S. Co., D.C. Md.1946, 66 F.Supp. 836, the seaman on his return to his ship in the dark mistook a coal chute for the gangway which was some 20 feet distant and was injured. The chute belonged to or was under control of the dock and had no relation to the ship. The Court held the evidence was sufficient to establish a slight degree of negligence on the part of the shipowner in that a gangway watchman whose duty it was to guide seamen across the gangway with a flashlight was absent from his post at the time of the accident. Rather pointedly, however, the Court stated 66 F.Supp. at page 839: "I find no negligence attributable to the ship with respect to the coal chute. It belonged to or was under the control of the dock owner." (Emphasis supplied.)

As evidence of the duty of the shipowner to exercise "parental care" towards seamen, libellant has cited cases in which liability was imposed under the Jones Act, 46 U.S.C.A. § 688, for assaults committed on seamen by fellow crew members while ashore. With respect to them the District Court properly held they "may be considered as sui generis and have no bearing on the problem before me."⁴ 101 F.Supp. 92.

As was stated by the District Court, the libellant has failed to cite a single case which supports his position.

A number of cases have evidenced a contrary viewpoint although none of them may fairly be said to be four square with the issue here presented.

In Todahl v. Sudden & Christenson, 9 Cir., 1925, 5 F.2d 462, 464, a seaman was injured by falling into a hole on the dock when returning to his ship after going ashore to make some private purchases. The dock was in control of a charterer of the vessel. In a suit against the charterer and the owner, a demurrer by the owner was sustained. Affirming the trial court, the Court said:

"The owners of the steamship owed him the duty of providing a safe place in which to perform his work as a seaman. That duty did not extend to his protection when going beyond the premises of his employment for purposes of his own and over premises of which his employers had no dominion or control." (Emphasis supplied.)

Also militating against appellant's position is the case of Lemon v. United States, D.C.Md.1946, 68 F.Supp. 793, where it was held that there is no obligation upon the shipowner to furnish transportation to and from shore to seamen granted shore leave when their ship is far from dock. The seaman in that case returned to the ship in an unseaworthy launch, of his own choosing, and upon arrival at the ship, was found dead in the cabin of the launch. The cause of his death was asphyxiation by fumes of carbon monoxide gas which had enveloped the cabin of the launch. To recover against the shipowner it was necessary to show an obligation to provide safe transportation for the members of the crew. But the court held that there was no obligation to provide transportation at all. A fortiori, it would seem, there was no duty to inspect the various launches to ascertain their safety. See also Lilly v. United States Lines Co., D.C. S.D.N.Y.1941, 42 F.Supp. 214, 215;⁵ Kuhn v. P. J. Carlin Constr. Co., 1937, 274 N.Y. 118, 8 N.E.2d 300, where the Court applied the principles and rules of substantive maritime law.⁶

In the instant case the Stipulation of...