The opinion of the court was delivered by: MOTLEY
Plaintiff is a 47 year old seaman who has been going to sea since age 15. Beginning December 13, 1961, he was employed as a deckhand on the S. S. George Whitlock, a small tanker owned and controlled by defendant Diesel Tankers, Ira S. Bushey, Inc.
On January 5, 1962, the vessel loaded oil and proceeded to Port Jefferson, Long Island, arriving at the entrance to the harbor in the late afternoon shortly before 5:00 o'clock. Dead low tide that day was at 4:48 P.M. Despite the low water, the Captain (who had full discretion to wait longer) decided to take the tanker into the Swezey Oil Company dock to discharge his load. Official charts of the area indicate that the depth of the water around the dock at low tide is 11 feet. The draft of the tanker was 14 feet. As the vessel approached the dock it went aground at an angle, with the bow being closer to the dock than the stern.
From the bridge the Captain attempted to maneuver the vessel to the dock in such a position that the hose could be hooked up and the fuel discharged. He ordered plaintiff to put out a yellow polypropylene line from the forecastle head at the bow; plaintiff complied. The Captain then surged the vessel against this line, going forward and backwards, in order to force the stern closer to the dock.
The Captain was familiar with the characteristics of polypropylene lines, in relation to other lines used on vessels, namely that they were much more elastic, tended to jump and stick to the bitts. By the Captain's own admission, the polypropylene line is not the type of line to take a heavy strain or to be used as a "spring line." By "spring line" the Captain meant a line going from forward of the vessel to the dock backwards at an angle used to bring a vessel in closer to a dock by use of a vessel's power.
The general use of synthetic ropes was relatively new in the New York harbor area at this time. The S. S. George Whitlock had only been outfitted with polypropylene lines a short while. Plaintiff had not used this type of line before going aboard this vessel. However, he received neither instructions in handling this type of line, nor warnings about its potentially dangerous characteristics.
Plaintiff had the line wrapped around bitts on the bow of the vessel, with the after end of the line behind him. By this time of day it was dark and the Captain was using a searchlight to aid him in directing the docking maneuvers. This light was the only illumination and it was not played on plaintiff. As the Captain worked the engines, he put a heavy strain on the line plaintiff was tending. Had this line broken the tanker might have gone ahead and run into fuel lines at the adjoining dock. While the line was under this heavy strain, the Captain gave an order to slack off the line. As plaintiff let the line slacken, it whipped and struck plaintiff's left forearm, elbow and wrist with great force. The blow broke plaintiff's wrist watch and caused his arm to become red and swollen. The Captain had not been observing the strain put on the polypropylene line before the accident and did not actually see the line strike plaintiff. The Captain did, however, hear the line crack and turned to see plaintiff shaking his arm in apparent pain. Both the Captain and Donald Drotar, another hand on deck at the time, were aware of the accident immediately after its occurrence.
Plaintiff soaked his arm and had it bandaged soon after the accident, but did not get medical attention until January 17 when he came off the vessel and went to the government clinic on Hudson Street.
Plaintiff received treatments at the government clinic during January and February of 1962. From March to July, 1962 for reasons of convenience, he received treatment from a private physician near his home in New Jersey. Defendant authorized this treatment, but so far has paid only part of the bill.
Plaintiff received further treatment at Hudson Street in July. He was an inpatient at the U.S. Public Health Service Hospital at Staten Island from August 13 to August 21, 1962 and from August 28 to September 28, 1962. The injury which plaintiff suffered on the vessel and which troubled him since the occurrence of the accident was diagnosed as a severe contusion of the left wrist and forearm with traumatic derangement and traumatic sinovitis in the left wrist. There was also a contusion of the left elbow with bursitis, superimposed on a previously existing olecranon spur. There was some indication of osteoporosis or demineralization of the bone. These conditions necessitated surgery which was performed at the hospital in Staten Island. Plaintiff was operated on for a bone marrow aspiration and excisions of the distal ulna and styloid of the left wrist, and an olecranon spur at the left elbow. Plaintiff was given a leather gauntlet at the hospital and future surgery for a wrist tendon operation was suggested as a possibility. After leaving the hospital in September, 1962, plaintiff had out patient treatment through May, 1963.
Plaintiff had a childhood injury to the left wrist, for which he had been treated but not hospitalized. In X-Rays it appeared as an old ununited fracture, but it was a long resolved injury by the time of the accident. At the time of the accident, plaintiff had worked as a seaman almost thirty years without any wrist disability.
Under plaintiff's union contract he is entitled to $8.00 per day while disabled, except for time spent as an inpatient in a government hospital. He has yet to receive any maintenance payments from his employer, though he made a demand at least as early as June 28, 1962. The defendant's knowledge of plaintiff's condition is reflected in the "sick" notation entered next to plaintiff's name in the employer's records some time after June 2, 1962.
Plaintiff first left the vessel May 26, 1962, but had a week's leave to June 2, 1962. He was out of work from June 2, 1962 to May 24, 1963 except for a period of February 21, 1963 ...