The opinion of the court was delivered by: BRYAN
Before he entered the Marine Hospital McBrien retained the firm of Miller & Seeger to prosecute any claims which he might have against the respondent. This firm has had wide experience in seamen's personal injury claims.
Libelant, a seaman, sues in admiralty for personal injuries sustained aboard the S.S. Stony Point. Respondent is the owner of the vessel.
Libelant claims liability in negligence under the Jones Act, 46 U.S.C.A. 688 § , and also that the vessel was unseaworthy. He also seeks maintenance and cure up to the date of the trial and for the future. He claims damages of $ 100,000 and maintenance and cure to date of $ 5,320. Respondent pleads a general release as a complete defense to both causes of action. Respondent also denies that it was negligent or that the vessel was unseaworthy and asserts that any injury suffered by the libelant was due solely to his own negligence.
Prior to trial respondent's motion to have the issue of release and payment tried separately was denied. At the trial respondent renewed its motion which I denied. It was plain that much of the proof going to the validity of the release would be relevant on the issues of liability and damages since a seaman's release is only valid if it was executed by the seaman with a full understanding of his rights. Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 248, 63 S. Ct. 246, 87 L. Ed. 239. See, also, Thompson v. Coastal Oil Co., 3 Cir., 221 F.2d 559, 562 (on rehearing) (dissenting opinion) reversed 352 U.S. 862, 863, 77 S. Ct. 90, 1 L. Ed. 2d 73 (per curiam). See Hume v. McCormack Lines, Inc., 2 Cir., 121 F.2d 336, certiorari denied 314 U.S. 684, 62 S. Ct. 188, 86 L. Ed. 547.
The defense based on the general release is determinative of the action, but I will make full findings on all questions so that there may be a full record in the event of appeal.
The injuries complained of were sustained by libelant in two separate accidents aboard the S.S. Stony Point on April 15 and June 15, 1953. McBrien had signed on as second pumpman on April 9, 1953, at New York for a voyage to the Persian Gulf and the Far East on the Stony Point which is a T-2 tanker. The ship is concededly owned and operated by the respondent.
On April 15, 1953, McBrien was at work in the lower engine room repairing a vacuum trap which was part of a drainage system. The ship had sailed in ballast and she was pitching and rolling. The trap was located some distance above the floor of the engine room at a height which McBrien, a man of average stature, could not conveniently reach. In order to reach the trap McBrien stood on top of a permanently installed suction valve wheel which had a metal rim and spokes. To brace himself he put one foot on a metal bracket which was about two feet away and several inches higher than the wheel. The wheel was about two or three feet in diameter and was about 3 feet above the floor and horizontal to it.
The repair job, which had taken two days, was complete and McBrien was using an open end wrench in tightening the 5/8' nuts which held the cover of the vacuum trap fast. Standing on the wheel the nuts were about chest high. The ship rolled, the wrench slipped and McBrien fell backward off the wheel, striking his upper back and neck against the metal casing of a thermometer which was attached to an auxiliary water circulator and stood vertically about two feet above the floor. The force of his fall broke the thermometer from its mounting and he landed on the floor on his back.
Libelant charges that the ship was unseaworthy because he was not provided staging on which to stand while working on the vacuum trap and because the vessel did not carry a full and proper complement of tools. He asserts that he fell when the ship rolled because of the precarious stance he was forced to assume, and that he was forced to use an open end wrench which was likely to slip.
The evidence as to these claims was in conflict. Libelant introduced evidence to the effect that the open end wrench he was using was improper for the job and that if a proper box wrench had been available, which it was not, the wrench would not have slipped when the ship rolled and he would not have fallen. Evidence was also adduced that the ship did not carry lumber with which to construct staging and that this was contrary to safe practice and custom. McBrien testified that he requested that staging be constructed for use in repair of the vacuum trap but that the first assistant engineer McNenomin, who supervised the job, told him the job had to be 'done fast' and refused to permit staging to be erected despite McBrien's protests.
Evidence was introduced by the respondent to the effect that the ship carried a full complement of wrenches, that the open end wrench McBrien used was proper for the job; that lumber was available with which to construct staging but that McBrien never requested that staging be constructed and that it was not unsafe to work on the vacuum trap without staging.
I accept libelant's testimony that he asked for permission to construct staging but that his request was refused and he was directed to proceed with the job without it.
I find that the lack of staging was the cause of McBrien's first accident. The stance which he was forced to take on the suction valve wheel was such that the slipping of a wrench or the rolling of the vessel, or both, could reasonably be expected to cause a fall. It cannot be said that McBrien was at fault. The slipping of a wrench and the rolling of a ship are normal incidents of the sea. It was respondent's responsibility to provide the necessary equipment to minimize such hazards. The evidence is uncontradicted that it is the general custom that staging be utilized on tasks of this nature. It is well settled that a seaman does not assume the risk of an unseaworthy condition when he follows orders over his protest. See, e.g., Holm v. Cities Service Transportation Co., 2 Cir., 60 F.2d 721, and the cases cited therein. See also, 2 Norris, The Law of Seamen, § 617.
The lack of staging under the circumstances was an unseaworthy condition which was the proximate cause of the accident. It is therefore unnecessary to determine whether or not the ship carried a full complement of wrenches.
After this accident McBrien was on light duty for a few days and then returned to work although he suffered from continuing back pain.
When the ship reached Sasebo, Japan, McBrien was examined in the United States Army Hospital there and X-rays of his back were taken which were negative. No full report of this examination is available but it was recommended that McBrien be kept on light duty.
On June 14, 1953, the Stoney Point left Bahrein in the Persian Gulf with a cargo of crude oil bound again for Sasebo, Japan. A routine life boat drill was held the next day on June 15. The weather was rough and the drill was confined to the port side. McBrien's lifeboat station was at the No. 4 which was the aft boat on the port side. His job at the boat was to release the forward gripe. However, due to the weather the Captain ordered that the gripes were ...