States SS Co. v. Berglann
| Decision Date | 09 June 1930 |
| Docket Number | No. 6069.,6069. |
| Citation | 41 F.2d 456 |
| Parties | STATES S. S. CO. v. BERGLANN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wood, Montague & Matthiessen and Erskine Wood, all of Portland, Or., for appellant.
Lord & Moulton, of Portland, Or., for appellee.
Before RUDKIN and WILBUR, Circuit Judges, and KERRIGAN, District Judge.
This was an action at law, brought by Berglann, a seaman, under section 33 of the Merchant Marine Act of 1920 (46 USCA § 688), for personal injuries received by him on the steamship Illinois. The owners of the Illinois appeal from a judgment for plaintiff.
The Illinois is a steel cargo steamer of the three-island type with the usual well decks. The crew's quarters are aft under the poop-deck and on the same level as the well deck. The galley is amidship. At the time when plaintiff's injuries occurred, the vessel was four days out from Japan, homeward bound. The well deck was empty of cargo. For several days previously the water pipes in the crew's quarters had been frozen, so that the men had been in the habit of going forward to the galley to get fresh water in buckets, crossing the well deck for this purpose. On the day in question, Berglann, having completed his day's work, went forward to the galley to get a bucket of warm water to wash up with. At that time the wind and sea were striking the vessel on her port side about abeam, and occasional seas were breaking over the well deck from that side. Berglann secured the water and descended to the well deck, immediately preceded by another seaman who had been on the same errand. The two had practically completed their journey across the well deck, when Berglann saw a sea about to break over the deck and shouted to the man ahead of him to hurry. The latter had just reached the heavy iron door leading from the well deck into the crew's quarters and opened it. He succeeded in entering. Berglann, however, as the sea broke, seized the handles of the door. His left hand held a handle on the inner side of the door, with the result that, when the sea struck the open door, it slammed shut, jamming Berglann's arm between the door and its casing, and causing the injuries complained of.
Three grounds of negligence are alleged: First, failure to have a manrope or life line strung along the well deck for the protection of seamen crossing; second, negligent delay on the part of the seaman preceding plaintiff across the deck in entering the door on the well deck, blocking plaintiff's escape from the sea; third, permitting a scuttle door on top of the poop deck which would afford plaintiff an alternative and safer way of entering the crew's quarters to become out of repair so that it had to be lashed shut and could not be used to avoid danger. The chief question on this appeal is as to the assumption of risk of injury from these various conditions by his crossing the well deck as he did.
Appellant contends that the risks assumed by plaintiff are to be measured by the rule recently declared by the Supreme Court in Delaware, L. & W. R. Co. v. Koske, 279 U. S. 7, 49 S. Ct. 202, 204, 73 L. Ed. 578, as to railroad employees, namely, that the employee assumes, "when obvious or fully known and appreciated, * * * the extraordinary risks and those due to negligence of his employer and fellow...
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