THE ALPHA

• Decision Date: 28 April 1942
• Docket Number: No. 5.,5.
• Citation: 44 F. Supp. 809
• Parties: THE ALPHA. FINLEY v. DALY TANKSHIP CORPORATION et al.
• Court: U.S. District Court — Western District of Pennsylvania

44 F. Supp. 809

THE ALPHA FINLEY v. DALY TANKSHIP CORPORATION et al.

No. 5.

District Court, E. D. Pennsylvania.

April 28, 1942.

Abraham E. Freedman and Freedman & Goldstein, all of Philadelphia, Pa., for libellant.

John Breck Shaw and Krusen, Evans & Shaw, all of Philadelphia, Pa., for respondents.

LEAHY, District Judge.

I. On the evening of November 12, 1939, the steamship Alpha was proceeding to the port of Houston, Texas. The libellant¹ had just finished his watch from 4 to 8 p. m. With his watch partner, Clark,² he proceeded aft to the messroom and his quarters, which were located under the poop deck at the extreme aft end of the vessel. Preceding Clark, libellant descended the stairway from the poop deck. When part way down — according to the story of libellant and Clark — one of the metal treads of the stairway broke, causing libellant to fall the remaining distance in a sitting position with his right leg twisted beneath him. Clark assisted him to the messroom where he complained that his right leg was injured.³

He did not report the injury or the defect in the stairway to any officer of the ship until the next day. The ship arrived in port, but Finley did not go ashore for treatment. He testified that he received no medical treatment from the officers of the ship, and was furnished no medical supplies. But the Captain testified that he visited libellant the day after the accident occurred; that he noticed Finley's right knee was swollen; and that he, himself, applied hot packs to the injured knee. The Captain further testified that he examined the injured leg periodically throughout the entire voyage.

It appears that Finley did sustain some form of injury. Clark, Captain Kehoe and Chief Mate Tweekrem all testified that libellant's right knee was swollen. The testimony of the Second Mate Deal that there was "no evidence of swelling or bruises" and that the knee "appeared perfectly normal" is inexplicable in the light of the testimony of his fellow officers. In any event, I think it fair to state that respondents have impliedly admitted the fact of injury; their challenge is to the extent of injury and to the existence of a violation of any duty to libellant.

By negative testimony, respondents deny the right to indemnity by attempting to show that the accident occurred in some manner other than as related by libellant. They do not show under what circumstances the injury did in fact occur. But they do show that Finley related to the Captain and the Chief and Second Mate inconsistent stories of the manner and place on the ship where the accident happened.⁴ However Clark is the only percipient witness. Respondents warn the court that this witness' testimony should be scrutinized because in other phases of his testimony he exaggerated and was inconsistent. Moreover, at the time of trial, the witness was an "inmate in the Eastern State Penitentiary."⁵ Nevertheless, absent proof by respondents as to how the accident happened, and passing for the moment the oscillating tale of libellant, I accept the testimony of Clark as to how the injury occurred.

There is one further fact which leads me to Clark's testimony. As stated, there were many versions of the story of Finley's injury told to the officers of the ship. Although required by law⁶; the Master made no entry⁷ in the log of the "injury * * * and the medical treatment" given. The failure to make an appropriate log entry, where it is reasonable to foresee that the ship's liability may later be questioned certainly creates an inference against the ship's defense, especially where no reasonable explanation is given for the absence of such entries.⁸

I find, therefore, that Finley did, in fact, sustain an injury to his right leg, and in the manner as related at the trial by him and Seaman Clark.

Under the law of the sea, the burden on the shipowner is different from that imposed on others engaged in commerce. He is under the absolute duty, in contradistinction to the duty to exercise reasonable care, to make the vessel seaworthy and to provide for the crew a safe place to work. The H. A. Scandratt, 2 Cir., 87 F.2d 708; The Seeandbee, 6 Cir., 102 F.2d 577. Hence, we turn to the question: Did the respondents fail to maintain the stairway from the poop deck to the mess and seamen's quarters in a safe and proper manner? The testimony of Second Mate Deal as to the condition of the stairway is far from satisfactory.⁹ The testimony of Chief Mate Tweekrem falls into the same category.¹⁰ Clark, of course, testified to the poor condition of the stairway. Johansson testified that some of the treads were missing, some had nails missing, and that the stairway was repaired a few days after the accident. The testimony of the ship's Carpenter, Holmstrom, it seems to me, approaches the fact of the condition of the stairway. He said the stairway was in bad condition — some of the brass pieces were worn out, some were loose, and some had no plates whatsoever. Although he could not remember when, he said the Chief Mate had ordered him to repair the stairway.¹¹ On cross-examination, the proctor for respondents forced the witness to admit that he had no present recollection as to when the repairs took place. The crux of the matter obviously is not when the repairs to the stairway occurred. On the contrary, the essential worth of Holmstrom's testimony rests on the fact that he was aware of the condition of the stairway both prior to and subsequent to the accident.

With the issues of injury and culpability so defined, the sole question remains, — what is the quantum of the libellant's recovery? Bluntly, an examination of the evidence with respect to injury discloses that Finley consciously felt various physical sensations. Whether he was injured as badly as he thought he had been, can only be answered by a resort to the record.

Finley sustained his injury on the evening of November 12, 1939. From then on, and during the voyage home from Houston, he performed no duties as a seaman, although there was some evidence that he could be about. On November 24, 1939, libellant was discharged at Staten Island. As he left ship, the Captain gave him a certificate of hospitalization. Finley immediately went to his boarding house in Marcus Hook, Pennsylvania, without attempting to obtain treatment at either Staten Island, New York, or Philadelphia. Then, four days later, he proceeded to the United States Marine Hospital at Baltimore, Maryland. He remained there for four days.

The clinical chart of those four days, is, it seems to me, of high significance.¹² Upon admission, the swelling of libellant's right leg had subsided; but, according to his statements, the knee would not bend.¹³ He was held under observation for a ruptured lateral semilunar cartilage of the right knee. The physical examinations showed a considerable muscle spasm, "but the leg can be fully extended and fully flexed if worked with to overcome muscle pull which appears to be voluntary * * * Pt. patient may also be somewhat of a malingerer."¹⁴ (Italics mine.) Later, the chief surgeon examined the libellant. His report states:

"On inspection the knee joint appears perfectly normal. On palpation the kneecap is freely movable, no evidence of excessive fluid in the joint, slight thickening of the infra patellar fat pad, also slight thickness over the anterior tip of the internal semilunar cartilage. Motion normal, slightly painful on acute flexion. The knee joint is stable, there being no excess anterior posterior motion or lateral motion. The power in the quadriceps tendon is good.

"Patient given Ace bandage and advised as to exercise of knee joint. It is my opinion that complete recovery will take place. Estimated length of disability 30 days."¹⁵

Ten days later, Finley submitted to an examination by a physician selected by respondents. That examination, with its findings, was in accord with that reported by the doctors of the United States Marine Hospital at Baltimore. Libellant had been given, at that institution, a disability of thirty days. Respondents' physician gave libellant two further weeks of disability from the date of his examination.¹⁶

The next day, however, libellant went to his private physician for examination. Whereas the physician for the respondents had found neither a pathological nor a traumatic condition of Finley's right leg, the libellant's own physician gave detailed findings of injury. He found that Finley had a swollen ankle and calf, but, apparently, the right knee was not swollen. The doctor made a most precise anatomical measurement of both legs. His diagnosis was that libellant had a sprained ankle joint and sprained tendon. Finally, he "strapped his (libellant's) ankle and foot; strapped his calf in what we call the equinas position, and applied a thickened heel pad to keep his foot in downward position; also gave him diathermic treatment." Libellant returned for treatments and was finally discharged on March 12, 1940. At this time his physician thought that his injury — to quote from the brief of the proctor of libellant — "would be entirely cured." Months later, and after the institution of the present suit, libellant, working on another ship, attempted to lift a tank cover weighing 500 pounds and sustained a further injury to his right leg. He returned to his private physician and reported that, as he lifted the tank cover, his right leg "buckled under him and gave way; the tank cover fell and struck his right leg above the knee." This particular accident occurred more than a year and a half after Finley's injury on the Alpha.

So, without stating the effect or result of this later injury, and without designating whether the present disability occurred as a result of slipping on the stairway of the Alpha, or as a result of attempting to lift the 500 pound tank cover, libellant's private physician gave his opinion that Finley's right knee is now permanently injured "unless...