The opinion of the court was delivered by: RAYFIEL
This is an action for personal injuries sustained by the libelant on December 27, 1944 while on board the SS Carl Schurz.
The libelant was employed by Birch, Morrison & Knudson in New York under a contract, dated July 3, 1944, under the terms of which he was employed as an asphalt plant operator in the Aleutian Islands. The said contract provided, among other things, that the employer was to pay the libelant's transportation and traveling expenses from New York to the Aleutian Islands and return.
He arrived in the Aleutians in the latter part of July, 1944, and was employed on the island of Shemya until December, 18th, 1944, when he was taken by tugboat to Attu, where he remained until December 27th, 1944, when, pursuant to orders issued by post headquarters, United States troops, Shemya, Alaska on December 15th, 1944, he and a number of other civilians were taken aboard the SS Carl Schurz. This vessel was a Liberty ship which had been converted into a troop transport.
The libelant and the other civilians were directed by the Naval personnel aboard the vessel to bunks in a compartment located two decks below the main deck. Before the civilians boarded the ship, it had taken aboard military personnel for transportation to the United States. Some of these soldiers were quartered in bunks in the compartment situated on the deck immediately above the one on which the libelant's bunk was located.
Some time thereafter mess call was sounded, and after dinner the libelant returned to his bunk. Shortly thereafter the civilians were ordered to get their mattresses and blankets. The libelant and the other civilians ascended the stairs to the deck above, proceeded through the aisles of bunks, the mess hall, and down a stairway to the bow of the ship, to the place where the mattresses and blankets were stored. The libelant was issued a mattress about six feet long, thirty inches wide and two inches thick, and one blanket. He then put the blanket inside the mattress which he then rolled up. He carried the roll under his arm, went up the stairs to the deck below the main deck, through the mess hall, and then entered the soldiers' quarters. This part of the ship consisted of tiers of bunks, four or five high, between which was an aisle, between 2 1/2 and 3 feet wide, along which he was obliged to pass in order to reach the stairway leading to the deck below, on which his bunk was located. Barracks bags belonging to military personnel were suspended from the ends of some of the bunks on both sides of the aisle, and extended into the aisle. Several barracks bags were lying on the floor of the aisle.
He had been carrying the mattress roll under his arm, but, because the aisle was narrow and obstructed, he was obliged to hold the roll in front of him in order to make progress through the aisle.
The weather was very rough, with a strong wind blowing and quite a heavy sea, causing the ship to lurch from side to side frequently. After forcing his way almost to the end of the aisle, and within a few feet of the head of the stairway leading to the deck below, his mattress roll struck a suspended barracks bag, causing him to lose his balance at the same time that the ship suddenly lurched.
He was thrown toward the stairway, struck a garbage can which stood at the head of the stairway, and was precipitated to the landing or deck below.
He was taken to his bunk, and then on a stretcher to the sick bay. He suffered pains in his back, had trouble urinating, and had some difficulty moving his legs. He also sustained two cuts on his shin. He was kept in the sick bay for two days until the ship arrived at Adak, where he was taken ashore by stretcher and taken to the Naval hospital, where x-rays were taken which disclosed a transverse fracture of the sacrum at the level of the third segment. He was placed in a cradle cast from the buttocks up to around his shoulders. He was then returned to the sick bay on board the SS Carl Schurz, where he remained until the ship arrived at Seattle about a week later. He was then taken by ambulance to the Virginia Mason hospital where he remained for about ten days. Before he left the hospital the case was removed and his back was strapped with adhesive tape.
He arrived at his home in Rockville Center, New York, on January 23rd or 24th, 1945 and was there confined until sometime in April, during the first month of which period he was confined to bed. He returned to work on May 15th, 1945, as a plumbing foreman for the Raymond Concrete Pile Company in Venezuela, and has been employed ever since.
The libelant, having failed to offer any proof that the respondent, American Mail Line, Ltd., was in possession or control of the SS Carl Schurz, or any part of it, the libel against it is dismissed.
This leaves as the sole respondent the United States of America. At the beginning of the case, libelant moved to amend the libel to plead his cause of action in the alternative either under the suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., or under the Public Vessels Act, 46 U.S.C.A. § 781 et seq. This motion was granted. The proof adduced at the trial discloses that the ship was under the jurisdiction and control of the United States Navy, and was used for the transportation of personnel and military supplies, and is therefore a public vessel and comes within the purview of the Public Vessels Act. What remains, then, is to determine whether the respondent, United States of America was negligent.
It is the libelant's contention that the respondent United States of America was negligent in that it permitted the aisle through which he was obliged to pass to be so obstructed that he could not pass through it safely carrying the mattress and blanket, and that he could not maintain his balance by reason of the fact that he had to force his way through the barracks bags which were hung on both sides of the aisle; that that condition, supplemented by the pitch of the ship as she lurched, was the proximate cause of his injuries.
The respondent United States of America contends that it was not negligent, and that the cause of the libelant's fall was the unavoidable lurch of the vessel caused by weather conditions; it contends also that the libelant was at most a mere licensee to whom the respondent owed only the duty of exercising reasonable care for his safety.
I cannot agree with the respondent's contention that it was not negligent in permitting the aisle to be obstructed by the barracks bags. The libelant had been ordered by the Naval personnel in charge of the ship to get the mattress and blanket which he was carrying. He had to carry this bulky roll through the troop compartment in order to get to the stairway which led to the deck below, where his bunk was located. The aisles should have been kept clear to permit easy and uninterrupted passage by the libelant with his mattress and blanket. The obstruction created by the presence of the barracks bags made it necessary for the libelant to push and elbow his way through the aisle while trying to steady himself against the lurching of the ship, and this ...