Pitsillos v. THE S/S GEORGE, 7863.

• Decision Date: 11 September 1959
• Docket Number: No. 7863.,7863.
• Citation: 176 F. Supp. 351
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Petros PITSILLOS, Libellant, v. THE S/S GEORGE, her engines, boats, tackle, etc., in rem, and Puerto Seguro Cia. Nav. S.A. of Panama, a foreign corporation or association, as owners, operators and agents of said vessel, in personam, Respondents.

176 F. Supp. 351

Petros PITSILLOS, Libellant, v. THE S/S GEORGE, her engines, boats, tackle, etc., in rem, and Puerto Seguro Cia. Nav. S.A. of Panama, a foreign corporation or association, as owners, operators and agents of said vessel, in personam, Respondents.

No. 7863.

United States District Court E. D. Virginia, Norfolk Division.

September 11, 1959.

Sidney H. Kelsey, Peter K. Babalas, Norfolk, Va., for libellant.

Seawell, McCoy, Winston & Dalton, John W. Winston, Norfolk, Va., for respondents.

WALTER E. HOFFMAN, District Judge.

While the S/S George was one day out of Gibraltar en route to Hampton Roads, Virginia, libellant, whose duties were that of galley boy or second cook, sustained an injury at approximately 6:30 A.M. on July 13, 1957, when he entered the galley and allegedly slipped on cooking oil which had originally been on the stove and had, according to libellant, turned over, thereby causing the cooking oil to spill over the stove and its outer edges onto the floor. Libellant contends that he slipped and was caused to fall against the corner of a meat block in the galley, and that he sustained a serious injury to his left testicle which ultimately resulted in an operation to remove same.

The vessel was flying the flag of Liberia at the time in question and was owned by a Panamanian corporation. No testimony with respect to scrambled ownership is before the Court, and the law of Liberia controls the rights and obligations of the parties, other than as to the statutes relating to the payment of wages.

As libellant urges his right to recover under the principles of negligence and unseaworthiness, whereas respondent admits only the right to maintain an action for injuries resulting from an unseaworthy condition of the vessel, it would be necessary, if material, to consider the Liberian law which proctors agreed at the time of argument is correctly set forth in the appendix to Konstantopoulos v. Diamante Cia. De Vapores, S. A., D.C., 170 F.Supp. 662, 666, 667. It will be noted that the last cited case is in accord with respondent's contention that any right of action is limited to a recovery under the doctrine of unseaworthiness, whereas in Markakis v. Liberian S/S The Mparmpa Christos, D.C., 161 F.Supp. 487, it was held that the Liberian law permits a right of action under negligence, unseaworthiness, or both. In Markakis, however, no expert on foreign law testified, but in Konstantopoulos and in the instant proceeding a Liberian law expert expressed his views that any action was limited to that based upon unseaworthiness. Both of the foregoing cases are from the Southern District of New York. No determination is made as to the correctness of either decision for, as this Court believes, a cause of action based upon unseaworthiness may be sustained under the facts here presented.

There were no eyewitnesses to libellant's fall although one witness appeared on the scene as libellant was arising from the floor, at which time it was obvious that he was suffering acute pain in the groin. Following his confinement in bed, we find varied accounts of what libellant had related as occurring in the galley on the morning of the accident. The master stated, at the time of his first deposition, that libellant said he had bumped against the corner of a drawer; but when he again testified several months thereafter, the master gave libellant's version of the accident as having struck a doorway. Clearly, both statements are not correct and the force of the master's testimony is considerably weakened by this and other inconsistencies relating to the use of the galley during night hours and the responsibility for cleaning same.

All parties concede that it was the universal practice of the crew to visit the galley during night hours while no one was on official duty. This custom, although not followed on most vessels, was with the approval of the master and chief steward. The crew would make coffee, cook eggs, potatoes, etc. Cooking oil was frequently used in preparing the food. While no witness, other than libellant, testified as to the presence of any cooking oil on the stove or floor, much of the evidence is negative in character and the inferences from the testimony are such as to persuade that the occurrence of this essential fact (the presence of oil on the floor) was more likely or probable than its non-occurrence. This is all that is required by the term "preponderance of the evidence". United States v. Masiello, 2 Cir., 235 F.2d 279, 286. The libellant's testimony on this crucial point is positive; it is partially supported by his history given to the Public Health Service Hospital at the time of his admission, and prior to contacting any attorney; it is inferentially supported by the fact that the sea was rather calm on the morning of the accident, which makes a fall without cause highly unlikely.

Undeniably, libellant sustained an injury on the morning in controversy. The issue relates to the cause and whether the condition constituted an unseaworthy condition. There is credible evidence to substantiate the contention that the galley, on occasions following the night visits of the crew, was sometimes left in an untidy and dirty condition. It is clear that no particular individual was charged with the duty of cleaning the galley following the night visits, and apparently this was left to the individual crew members without order or direction. None of the crew members assigned to the galley were on duty following the night meal, until it became time to prepare breakfast the next morning.

Where a vessel and its owners permit the unlimited use of a galley for preparation of all types of food during night hours, with no crew member being assigned the duty of cleaning the galley following its use, if a slippery substance falls upon the floor and an accident occurs several hours thereafter as a result thereof, this can hardly be considered a transitory condition of unseaworthiness as expressed in Ross v. Zeeland, 4 Cir., 240 F.2d 820. As is suggested by Gilmore and Black, The Law of Admiralty, p. 332:

"Cases of `transitory unseaworthiness' — soap, oil, grease, jello or what not on floor, deck or steps — might be regarded as `normal perils of the sea', against which the owner does not insure, at least until someone has had time to clean up the mess. But the gradual disappearance from the unseaworthy cases of any requirement of notice, which the Boudoin opinion Boudoin v. Lykes Bros. S.S. Co., Inc., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 highlights by not even discussing the point, suggests strongly that the owner's absolute liability for anything that can be called unseaworthiness, as distinguished from a peril of the sea, will not be affected by the fact that the condition arose during a voyage, whether at a port of call or on the high seas, and whether or not the condition came, or ought to have come, to the attention of the master or an officer before the accident."

Applying this logic to the present facts, it cannot be said that a galley, left in an untidy condition with no one charged with the responsibility of cleaning up, constitutes a condition which is a "normal peril of the sea". The failure to provide a safe place to work is, in this case, a breach of the warranty of seaworthiness. In so holding, the Court does not agree with libellant's proctor who argues that a mere transitory condition of unseaworthiness gives an absolute right of recovery....