Walton v. Continental SS Co.

• Decision Date: 01 April 1946
• Docket Number: No. 2652.,2652.
• Citation: 66 F. Supp. 836
• Parties: WALTON v. CONTINENTAL S. S. CO. et al.
• Court: U.S. District Court — District of Maryland

66 F. Supp. 836

WALTON v. CONTINENTAL S. S. CO. et al.

No. 2652.

District Court, D. Maryland.

April 1, 1946.

I. Duke Avnet, of Baltimore, Md., for plaintiff.

Ober, Williams & Stinson, of Baltimore, Md. (Southgate L. Morison, of Baltimore, Md., of counsel), for defendant Continental S. S. Co.

Bernard J. Flynn, U. S. Atty., and C. Ross McKenrick, Asst. U. S. Atty., both of Baltimore, Md., for defendant United States War Shipping Administration.

CHESNUT, District Judge.

In the above case a seaman is suing to recover for personal injuries caused by the alleged negligence of the Continental Steamship Company. The suit is brought under section 33 of the Merchant Marine Act of 1920, Jones Act, 46 U.S.C.A. § 688. For a separate cause of action the seaman demands reimbursement for maintenance and cure.

In addition to the Continental Steamship Company other respondents are the United States of America and the United States War Shipping Administration, both of whom have filed motions to dismiss against them respectively, and have not answered on the merits. When the case was recently called for trial the libelant elected to proceed to trial against the Continental Steamship Company alone without further delay which would be incident to a ruling on the motions to dismiss. At the hearing there was testimony in court given by the libelant in person and by two medical witnesses whose testimony related to the libelant's physical condition. The depositions of the master and chief mate of the ship were also submitted.

From the evidence in the case I find the following are the material facts.

1. The Continental Steamship Company is the owner of the SS "Bruce" which, at the time of the libelant's injury, was under time charter in customary form to the War Shipping Administration of the United States. It was conceded by counsel for the Steamship Company that the liability, if any in this case, is upon the Steamship Company under the time charter.

2. The libelant, Walton, was employed on the "Bruce" as a pantry man from May 6, 1943 at wages of $87.50 per month and subsistence, with additional bonus when applicable. The ship sailed from New York on May 6, 1943 and arrived at St. Nicholas Bay, Aruba, in the West Indies, on May 23, 1943. It was docked at a dock owned or operated by the Lago Oil Company. The dock was a concrete structure about 35 feet wide parallel to the shore and joined at one end by a pier which led perpendicularly from the dock to the shore.

3. Walton went ashore on shore leave about dusk on May 24, 1943. He traversed the pier in doing so. He returned to the dock about 11.30 P.M., the same night to board the ship. On reaching the pier he passed through a gate where the guard examined some packages he carried, by the aid of a light which, according to Walton's testimony, was maintained constantly at night. The dock was otherwise totally dark in accordance with Naval blackout regulations. Walton walked to the end of the pier and turned right along the dock toward the ship which lay some 200 or 300 feet away parallel to the dock on the outshore side. The ship had a gangway of usual construction from the deck of the ship (an oil tanker) to the dock. When Walton had reached a point about 20 feet away from the gangway, he called out for the exhibition of a flash light by one of the ship's watchmen who he understood was stationed at or near the gangway for the convenience of the members of the crew returning from shore leave. There was no immediate response to his call, and without again calling or waiting in the darkness for a light to be given, he sought to find the gangway in the darkness. He said that he did not call again or wait for the watchman's return to the gangway because he thought the watchman might be elsewhere for a considerable period of time. The gangway had not been moved since he had left the ship, and he was able to find its approximate location by observing the ship's outline against the sky.

4. There was an old "coal chute" lying across the dock about 20 feet from the gangway and apparently approximately parallel to it. Walton mistook this coal chute for the gangway and proceeded to walk in it toward the ship. This coal chute was described as about 20 feet long and of width approximately equal to that of the gangway and with side walls no higher than four inches. It lay entirely upon the dock and extended toward the water within a distance of two or three feet short of the edge of the dock. Walton felt the chute with his foot, thought it was the gangway, walked toward the ship from the edge of the dock and fell into the water about 20 feet below, striking his knee and shoulder as he fell. The splash he made in falling was heard by some dock watchmen on or near the dock and he was promptly rescued.

5. After the accident the master of the ship made a typewritten report of the accident, based on verbal reports given to him by others, which stated, among other things, the following:

"Walton, upon returning to the ship evidently became confused and fell overboard from the dock. Harbor blackout regulations were observed at the time. Gangway watch was maintained throughout the night. The watchman failed to hear his approach.

"Q. What action was taken to prevent recurrence of the accident? A. The chute on dock was removed.

"Q. What statement did injured give as cause of the accident — Due to the blackout I mistook a chute next to the gangplank, which led to edge of dock, for the gangplank and stepped off the dock into the water."

6. At the time of the accident the ship had completed her loading, and no work was being done in that connection. The coal chute had not been used at any time on the two days that the "Bruce" was docked at Aruba either in connection with the "Bruce" or any other ship. It was described by a witness as an old piece of junk, lying on the dock. It had no relation in any way to the "Bruce".

7. As a result of his fall into the water with an oily surface, a good suit of clothes that libelant was wearing, and a watch became a total loss, of a valuation of about $100. He suffered a severe sprain of his right shoulder and left knee. Medical testimony shows that at the time of the trial, about two years after the accident, there was impaired mobility of about 10% in the shoulder and 20% to 25% limited motion in the knee, the principal incapacity in the latter being manifest on walking up steps.

8. The ship sailed from Aruba the next day, arriving at Bayonne, New Jersey, on June 6, 1943, when the crew was paid off. Walton received hospitalization at government expense at various hospitals or seamens' rest centers until he was finally discharged from the Gladstone New Jersey Convalescent Camp on August 19, 1943, with the recommendation for sea duty, unless arrangements were made for an "upgrade school". He did attend an upgrade school and resumed sea duty on another ship in September 1943 at a better rate of pay than that received on the "Bruce". He is presently employed as chief steward on a ship.

Counsel for the libelant contends that negligence on the part of the ship has been shown in two respects: (1) permitting the coal chute to remain upon the dock and (2) the absence of the watchman from the gangway and his failure to answer Walton's call and show a flash light.

I find no negligence attributable to the ship with respect to the coal chute. It belonged to or was under the control of the dock owner. It had no relation to the ship in any way. Although the master's report of the accident states that the chute had been removed, it seems entirely clear from the evidence that if there was any duty with respect to the chute it was on the dock owner and not on the ship as the chute had not been used by the ship. Walton says in the dark he mistook the coal chute for the gangway. This was indeed a regrettable and extraordinary occurrence. It was not reasonably foreseeable by anyone. The construction of the chute was materially different from that of the ordinary ship's gangway which, as described in the evidence, was of wooden construction perhaps 36 inches wide by 35 feet long and had ropes on both sides and cleats or slats over the floor, the slats running lengthwise and the cleats across the floor of the gangway. The coal chute, while of the approximate width and length of the gangplank, had side walls only a few inches high and no side ropes and presumably no cleats. Even in...