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February 7, 1949


The opinion of the court was delivered by: KAUFMAN

This is a suit in admiralty brought under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq. Libellant, an employee of Zalud Marine Corporation, sues the United States of America for personal injuries alleging that it failed to furnish him with a safe place to work. The United States answered and impleaded Zalud Marine, claiming the accident was caused solely by the latter's negligence and, in any event, that the United States is entitled to indemnity or contribution. By stipulation the question of indemnity in so far as it arises under the terms of a written contract between the United States and Zalud Marine, has been withdrawn.

At the conclusion of the trial, I dictated a memorandum on the record of which the following is a part:

'The Court: I think it would be very helpful if that were done at this time. I will tentatively make some observations in this case, and I am prepared to do it now.

 'It seems to me from the evidence in this case, particularly from the evidence of Mr. Smythe and Mr. Stafford, that the owners of the vessel, if they were under a duty in law to provide a safe place for business guests to work in, failed in that duty.

 'I am inclined to feel also that the Zalud Marine Corporation, the contractor through its foremen, Mr. Reichert, whose testimony I have read, had been reckless in permitting men to go to work under the circumstances narrated here, with the meagre investigation that he made, if any, and I do not credit, in the light of all the facts in this case, his testimony that he was advised that the starboard boiler had been put out eight to ten hours prior to the time when he ordered his men to work.

 'I find also that the libelant by his actions contributed largely to the happening of this accident. I do not quite understand his testimony to the effect that after he slackened up the nuts and took them out that he kicked this bonnet, but under the law as I understand it, contributory negligence is not a defense but merely goes to the minimization of damages.

 'Tentatively those are going to be my findings in this case.

 'I have given no consideration up to this time, and I should like to have help from counsel for both respondents, on the question of liability over.

 'I would like to have the benefit of a brief from you on the extent of minimization of such damages as the libelant may be entitled to by reason of his contributory negligence, I might as well state here and now that as to the extent of the damages sustained by the libelant:

 'I will find that the libelant sustained serious injuries; that they consisted of first, second and third degree burns, which covered from 30 to 40 per cent of his body, including his genital organs.

 'I will find that the libelant endured very great and serious pain and suffering for a period of approximately six weeks, three weeks beyond the 23 days that he was in the hospital.

 'I will find that he has made an excellent recovery, although at the present time he has a number of disfiguring marks on his body, and that his face and ears have healed up completely.

 'I will find that the libelant has lost approximately $ 650 in earnings. I will find that the libelant has not had any medical bills. I will find that the libelant is entitled to recover damages for his loss of earnings, plus compensation for his tremendous pain and suffering during the six-weeks' period, and in addition, some compensation for the disfiguring marks on his body which are permanent, less such amount as must be deducted by reason of his contribution to the cause of this accident.

 'I will find that the libelant has totally failed to sustain the burden of establishing that the impotency either exists or that it was a result of the accident, if it does exist. I have very serious doubt as to the existence of impotency. I predicate that finding on the impression made on me by the libelant and his wife during the course of their testimony.'

 Counsel have submitted findings of fact and conclusions of law which I find only to the extent as herein indicated.

 Findings of Fact

 1. At all times herein material, the respondent was the operating owner of a Liberty type merchant vessel, known as the S.S. Kavanaugh; which vessel had not been taken out of navigation, was on the navigable waters of the United States and was manned with officers and crew, including a chief as well as assistant engineers.

 2. Prior to August 18, 1944, the respondent entered into a contract with the respondent-impleaded for certain repairs aboard the vessel, including the overhauling and repair of various valves in the engine room pursuant to certain written specifications.

 3. On August 16, 1944 at 4:00 P.M., the S.S. Kavanaugh arrived at and was berthed at an open pier in the Hudson River, on the Manhattan side ...

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