The Pochasset

• Decision Date: 15 January 1924
• Docket Number: 1644.
• Citation: The Pochasset, 295 F. 6 (1st Cir. 1924)
• Parties: THE POCHASSET. v. MILLER et al. MANSON
• Court: U.S. Court of Appeals — First Circuit

295 F. 6

THE POCHASSET.

MANSON v. MILLER et al.

No. 1644.

United States Court of Appeals, First Circuit.

January 15, 1924

Silas B. Axtell, of New York City, for appellant.

Alexander L. Churchill, of Providence, R.I.(Wilson, Churchill &amp Curtis, of Providence, R.I., on the brief), for appellees.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

ANDERSON Circuit Judge.

This is a libel in rem to recover for personal injuries suffered by the appellant, who, on July 2, 1914, fell through an open hatch into the hold of the schooner Pochasset.

The Pochasset was a schooner 112 feet long, bound up the Hudson river to Albany as a part of a tow of 2 schooners and 26 barges.Manson was shipped as cook in the afternoon of July 1, while the Pochasset was in the stream off New York City.He went on board with the captain in the early evening, and turned in about 9 o'clock.He testified to the effect that he rose about 4 o'clock to get breakfast; that he went forward to the galley or kitchen; that he struck his foot against something, and fell through the open hatch to the bottom of the hold.His testimony is confusing inconsistent, and not altogether credible.About 6 in the morning, the captain found him there, practically helpless.The captain then rigged a tarpaulin with ropes, placed Manson upon it, and hoisted him to the deck.He was then put into the captain's bunk, and the captain did what he could to make him comfortable.The captain testified that he did not then know that Manson's leg was broken.

The Pochasset was about 750 feet in the rear of the convoying tug.The captain set his flag to signal the tug, and also tried repeatedly by megaphone to hail it, but did not succeed.At that time the tow was a little above Newburg, and proceeding very slowly against an ebb tide.Between 2 and 3 o'clock in the afternoon, another tug, bound down the river, saw the Pochasset's distress flag, and drew up alongside the schooner.Manson was then lowered from the schooner to the tug, and taken to Newburg; the captain of the Pochasset going with him.On telephone communication, an ambulance was sent down from St. Luke's Hospital, by which Manson was conveyed to the hospital, reaching there about 3 o'clock in the afternoon.Examination at the hospital disclosed that the right femur was broken.

There was much evidence that Manson was an unruly and difficult patient.He is described as obstreperous.His broken bone did not unite.There was 'nonunion and overlapping, with great deformity,' so that on September 26, 1914, the surgeon operated, and put Manson into a plaster cast from the toes to the waist.He remained at the hospital until June 7 1915.He was then discharged, but he was not cured.In August, 1915, he went to the Sailors' Snug Harbor, a charitable institution, where he was at the time of the trial.While there, another unsuccessful operation was performed upon his leg.But, at the time of the trial, about 8 years after the injury, there was still an open wound, discharging pus; the leg was much shortened and badly bowed.It is probable that he is permanently incapacitated for his former work as seaman or ship's cook-- possibly he may continue to need the aid of charity.But the record does not show that his general health is impaired, or that he is incapable of such physical labor as may be performed by a strong man, with one leg partially disabled.

The District Court concluded upon the whole case that the only liability of the claimant was for care, maintenance, and wages, as to which the claimant concedes liability, as follows:

To St. Luke's Hospital . . . $519.00

To Dr. C. E. Townsend . . . 50.00

And to wages to end of voyage . . . 50.00

In all . . . $619.00

In forma pauperis, the libelant appealed to this court.

While error is assigned, on the ground that the 'damages were occasioned by reason of the unseaworthiness' of the Pochasset, this contention is not urged in the appellant's careful and elaborate brief.If not waived as we might properly hold, we agree with the court below that it cannot be sustained.

The appellant's proposition, that in this court an admiralty appeal is a trial de novo, is not open to controversy.Consolidation Coastwise Co. v. Conley,250 F. 679, 163 C.C.A. 25;Irvine v. The Hesper,122 U.S. 256, 7 Sup.Ct. 1177, 30 L.Ed. 1175;City of Norwich (C.C.A.)279 F. 687;Anderson v. Steamship Kalfarli (C.C.A.)277 F. 391;The John Twohy, 255 U.S. 77, 41 Sup.Ct. 251, 65 L.Ed. 511.Recognizing the duty thus incumbent upon us, we have carefully read and considered the voluminous typewritten record, much of which is taken up with medical aspects of the case, having little, if any, bearing upon the issues before us.

The appellant's main contention is that the nonunion of the bone in Manson's leg was 'caused to a considerable extent by the long delay in getting the appellant to the hospital. 'We agree with the court below that the evidence does not sustain this contention.The overwhelming weight of the medical testimony accords with what would be the ordinary common-sense view of the layman-- that the delay of a few hours before Manson was taken to the hospital did not affect his chance of a complete recovery.Nor should we be able to find that the captain of the schooner was derelict in not getting Manson more...