THE DIMITRIOS CHANDRIS, 79.

• Decision Date: 17 March 1942
• Docket Number: No. 79.,79.
• Parties: THE DIMITRIOS CHANDRIS. RING v. THE DIMITRIOS CHANDRIS.
• Court: U.S. District Court — Western District of Pennsylvania

43 F. Supp. 829

THE DIMITRIOS CHANDRIS RING v. THE DIMITRIOS CHANDRIS.

No. 79.

District Court, E. D. Pennsylvania.

March 17, 1942.

Krusen, Evans & Shaw, of Philadelphia, Pa. (Edwin Longcope, of Philadelphia, Pa., of counsel), for libellant.

Rawle & Henderson, of Philadelphia, Pa. (Thomas F. Mount, of Philadelphia, Pa., of counsel), for respondent.

KALODNER, District Judge.

The decision in this case, tried before me in Admiralty without a jury, hinges upon the answers to the following questions:

(a) Where one contracts to furnish personal services over a period of time for a money consideration, and through lack of care in the performance, the other contracting party suffers special damage: should the first contracting party be paid for the service?

(b) Under such circumstances, is the person furnishing the service liable to the other party for the special damage?

The facts are these:

Ring, the libellant, is engaged in the business of furnishing watchmen for, inter alia, ships, wharves and docks.

The respondent steamship or her agents requested the libellant to furnish watchmen in shifts over a period of time between October 8 and October 22, 1940.

When the vessel arrived at Philadelphia on October 7, 1940, she had on board a crew of 34 alien seamen. The United States immigrant inspector ordered them detained. On October 14, 1940, the detention order was amended by reducing the number to six seamen.

Under the law, the vessel, master and agents are subject to a fine of one thousand dollars for each detained seaman who escapes.

Ring furnished watchmen in the numbers and for the interval of time requested, in shifts, so that the vessel and the dock were constantly guarded. Nevertheless, two of the detained seamen escaped some time between the night of October 14 and the morning of October 15 — apparently between 3 A.M. and 7 A.M. of October 15th; and consequently a fine of two thousand dollars was incurred by the vessel. The fine has not yet been paid.

The libellant, Ring, at all times relevant to this discussion, knew that a fine of one thousand dollars would be laid against the vessel for any detained seamen who escaped.

On the night of the escape, the detained seamen were in the forecastle, egress from which was possible only by one means — the forecastle door, which door was or should have been under the continual observation of the watchmen, as was the dock by which the vessel was moored, and the sides of the vessel (so that no one could slip down unseen by ropes or chains). Vessel and dock were both adequately lighted at the time.

So far as the record discloses, no one knows how or exactly when the seamen escaped, except that it was some time during the night of October 14-15, and neither party offers any explanation (except by way of guess or possible inference) as to the method or manner of escape.

The agreed price for the services of the watchmen was $1,750.10, based upon the number of watchmen and the time spent by each. There is no dispute as to the calculation.

The libellant filed her libel and claimed the said amount of $1,750.10 for supplying the watchmen. The respondent (claimant and cross-libellant) defended on the ground that the services were improper, as evidenced by the fact of the escape and, as cross-libellant, claims to recover the $2,000 from the libellant because of the imposition of the fines in that amount.

In support of the conflicting theories propounded by each party, various types of evidence were introduced, some of which, however, upon analysis appears to have little bearing upon the real point at issue.

Thus the claimant attempted to show that the libellant's watchmen did not exert sufficient efforts to have the detained seamen identified to them by the officers of the ship. This is said to be important, because only some of the seamen were detained, and the others were permitted shore leave, and given passes, so that the watchmen would permit them to go. One of the seamen claimed that his pass had either been lost or stolen from him, and accordingly, the claimant evolves the theory that the escaped seamen might have found or stolen passes from others, presented them to the watchmen, and calmly walked off the ship: the fault being that of the watchmen, for failing to have all the detainees identified to them.

The claimant also argues that whenever the watchmen requested identification, they obtained it, but complained that there was lack of proper supervision over and organization of the watchmen.

This theory of the case is utterly irrelevant because it appears that on the night of the escape, only two seamen left the ship on passes, and both these seamen returned to the vessel. Consequently, the fact persists that the detained seamen left the ship without presenting passes and without being seen by the watchmen — which means, of course, that no attempt was made by the watchmen to detain them. None of the watchmen actually saw the detained seamen leave the vessel.

There was also evidence that the crew was unruly and indulged in some fighting, and that the master feared to go into their quarters to identify them to the watchmen. The libellant argues that the watchmen consequently failed to receive proper co-operation from the ship's officers in the matter of identification — thus implying an excuse for the escape.

None of these factors is important. Since the watchmen did not see the detained seamen leave the ship, it does not matter a particle whether they knew their identity or not. There is no disputing that the watchmen knew that their duty was to prevent certain men from leaving the ship, and that they knew that others were permitted to leave the ship if they had proper passes. Had the detained seamen presented themselves to the watchmen before leaving, deceived them in some way, and thus obtained permission to leave, the question of forged or stolen passes, or the presence or absence of cooperation from the officers of the ship, might become important. Under the facts as they exist, however, those phases drop out of the case.

The first real question is: in the absence of any explanation based on adequate testimony as to the method and manner of escape, is it to be found that the watchmen were guilty of dereliction of the duty they were paid to perform, if the detained seamen escaped from the forecastle of a properly lighted ship through the only exit available, which exit was, or should have been, constantly under watch?

I find that the watchmen were at fault....