The opinion of the court was delivered by: ABRUZZO
This case was tried before this court, without a jury, on November 10th, 12th, 13th, 18th, 26th and December 2, 1969, on the issue of liability only.
The deceased had been in the employ of the City of New York for some 16 years and was assigned to work as a "deckhand" in the Whitehall Terminal (where there are five ferry boat slips) on January 29, 1966, the date on which plaintiff claims the accident in question took place.
The accident in question occurred on slip no. 5 at a time when plaintiff's decedent was assisting in the tying-up of a ferry boat, the "John F. Kennedy," at about 8:30 P.M.; the "John F. Kennedy" was being tied up for the night.
Photographs in evidence, Plaintiff's Exhibit 1, and Plaintiff's Exhibit 7, indicate what plaintiff's decedent did to assist in tying-up this boat. He had to climb over a railing and then go out to what is known as a "rack" (Plaintiff's Exhibit 1). While he was on the "rack" he threw a line to a deckhand on the "John F. Kennedy" who tied that line to a hawser and thereupon the deceased carried that hawser to the dock and secured the hawser so that the ferry boat could be docked and tied up.
This action was brought in admiralty pursuant to the Jones Act, 46 U.S.C. § 688. In other words, if he is not a seaman within the purview of the Jones Act, it is conceded that the plaintiff must be non-suited. A letter from plaintiff's attorney is self explanatory and reads as follows:
Attorneys At Law -- Proctors in Admiralty
Honorable Matthew T. Abruzzo
United States District Court
Eastern District of New York
Re: Wolbert v. The City of New York
This is to reaffirm that the plaintiff, by his counsel, at the time of the institution of this suit, did not file a notice of claim against The City of New York, in compliance with the provisions of the Administrative Code of The City of New York and Section 50E of the General Municipal Law.
Defendant raises this point as a second, separate and distinct defense in its answer to plaintiff's complaint. Therefore, the plaintiff is relying wholly and solely for its liability of the defendant under the Jones Act and General Maritime Law.
Regarding the Court's inquiry of the compensation aspect, please be advised that the employer defendant, The City of New York, filed an employer's report of injury with the New York State Workmen's Compensation Board (see plaintiff's Exh. 5). However, no compensation benefits were paid, no determination was made.
Plaintiff, through his counsel, advised the Compensation Board that he was seeking a third party action against the defendant under the Jones Act and that the compensation claim should be suspended pending the determination of the third party action. No payments for compensation or maintenance and cure were made to plaintiff during his lifetime, nor to his widow since his demise.
The negligence claimed under the Jones Act is that the area the deceased worked in on the night of the accident was covered with snow and ice and there had been no attempt to remove the snow and ice. He walked on some planking which, it is claimed, was covered with snow and ice and then had stepped on a rail or plank (Plaintiff's Exhibit 7) which was not only covered with snow and ice, but worn from many years of wear. He slipped and fell on his feet. He did not fall down. He went back to work the next day. That day he realized that his foot was getting discolored, there was a streak of blood in the toes, and he failed to go back to work again. It is conceded that the deceased had been a diabetic for some 15 years. Two days after the accident he went to the Marine Hospital on Staten Island. While in that hospital, they amputated toes and eventually during the 90 days he was there, they amputated the right leg below the knee. Nine months after he left the hospital he returned to the Marine Hospital and they amputated the left leg below the knee. About a year later he died and his wife was appointed Administratrix. Her action in the administratrix capacity is for conscious pain and suffering and that the accident was the cause of his death.
The question that must be treated first is whether or not the deceased comes within the purview of the Jones Act. The defendant contends that the Jones Act does not apply to this case. In order to reach a decision on that particular question, some of the testimony in plaintiff's case must necessarily be reviewed.
John Wolbert, deceased, in his deposition of September 21, 1967, read into evidence, stated as follows:
Trial Transcript, page 38, line 16 to page 39, line 4
"Q By whom are you employed?
A The City of New York, Department of Marine & Aviation.
Q How long have you been employed by the City of New York?
Q Are you a Civil Service employee?
Q Did you take the examination?
Q In what capacity are you employed?
Trial Transcript, page 39, line 23 to page 40, line 4
"MR. SEGI (sic): Q What are your duties as a deckhand?
A. As a deckhand, I'm assigned to a vessel to load and unload passengers and cars and to act as lookout when ordered by the Captain."
Trial Transcript, page 41, line 3 to page 43, line 23
"MR. SEGI (sic): Q Now, when you entered upon your duties, were you assigned to the boat or any particular boat?
Q What was your assignment?
There are objections, it wasn't answered. I beg your pardon, the answer is, 'At the time I was employed, I was assigned to the dock.'
A My very first assigned (sic) was at the dock at Whitehall.
Q How long did you remain on the dock?
A One day. The following day I was assigned to the boat.
Q How long did you work on that dock?
A One day, I believe it was.
Q What was your next assignment?
A That I could not recollect.
Q Did you recall whether you worked on the boat for the first two years?
Q Did you have any permanent assignment on a boat?
Q For the first five years, was the situation the same?
Q How about for the first ten?
Q The entire time you worked for the City it was the same situation?
Q Now, was there a time when you worked as a chauffeur?
Q For how long were you a chauffeur?
A For the Director of Ferry Operations.
A Captain McGuire, deceased.
Q Do you recall the years during which you worked as a chauffeur?
Q Approximately, can you tell me?
A From 1953, 1954, somewhere in that time.
A That would be it, 1959, 1960.
Q Now after 1960, what duties were you assigned?
A I was assigned to the dock.
A At St. George first and then transferred to Whitehall.
Q What were your duties on the dock?
A To load and unload passengers, to assist in docking of the boats and to standby to serve as a deckhand, if necessary, on the boat."
Trial Transcript, page 45, line 5 to line 13
"Q How many times had you worked on a vessel the two months preceding January 29, 1966?
A That I couldn't tell you. I don't keep records.
Q Would you know how many times you had worked on a vessel in the year preceding January 1966, January 29 1966?
A Ten times, fifteen times."
Trial Transcript, page 77, line 17 to page 80, line 10
"Q Did you have any duty on or about the ferry boat at slip 5 at approximately 8:45 ...