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Shields v. United States .

decided : May 24, 1949.

SHIELDS ET AL.
v.
UNITED STATES (TWO CASES).



Author: Mclaughlin

Before BIGGS, Chief Judge, and McLAUGHLIN and KALODNER, Circuit Judges.

McLAUGHLIN, Circuit Judge.

The subject matter of these appeals is an admiralty action against the United States as the owner and operator of the S. S. Hannibal Hamlin on behalf of a minor seaman for damages resulting from personal injuries sustained in the service of the vessel and for maintenance and cure and wages. In No. 9561 the court below found that the libellant was not entitled to recover damages. In No. 9560 the finding was that libellant was entitled to maintenance and cure and to a year's wages plus a bonus for eleven months.

On September 22, 1944, the day of the accident involved, Shields was nineteen years old. Previously he had had three months at the Sheepshead Bay training school for the Merchant Marine where he had taken the Engine Room Course. After that he had made several voyages as an oiler. Three days prior to his accident he had joined the Hamlin at Philadelphia as an oiler. He was assigned to oiling the deck winches and he did this about four or five times a day for the first two days he was aboard. The third day he reported at eight o'clock in the morning, made ready his equipment and proceeded to oil the aft winches. Finishing with these he went forward where he had the operator shut off the starboard winch, which he oiled. He then went to the port winch. He was oiling this when the operator of the winch, a stevedore employee, prematurely started it. Shields' left hand was caught and crushed in the winch; in his effort to save it, his right hand was also badly mangled. A companion suit on Shields' behalf against the stevedore company came on to trial first. It was settled after the close of the libellant's case for $30,000 and it was stipulated that the testimony in that litigation be received in this matter as part of the evidence.

Appellant's main point is that appellee violated its duty in allowing the work to be done in a dangerous fashion and in failing to provide a safe place. We agree that the ship owner's responsibility to furnish a safe place for the crew continues through any hazard created by longshoremen in loading the cargo and engaged by the owner for that purpose. In this connection, as the district judge stated, the method employed by the stevedores in operating the deck winches, if considered by itself, might well be thought dangerous to Shields in his job. The difficulty is that each winch on the deck of the Hamlin had a valve controlling the steam which powered the motor. Shields knew this; specifically he knew that shutting the steam off by turning the valve put the winch out of operation and he frankly stated that he had the right to shut off the steam if necessary in order to oil the winch. He did not shut off the steam to the forward port winch, the one which hurt him, prior to oiling it. Fifteen minutes prior to the accident, the operator of the starboard winch at Shields' direction, had shut off the power while Shields oiled it. In the situation we think it obvious that the district judge was correct in concluding that: "3. The respondent did not fail in any duty to supply a safe place for the libellant to work. The method of operating the winch adopted by the longshoreman did not render the place where Shields was working unsafe nor make it dangerous for him to oil the winch, so as to place any liability in respect of it upon the respondent."

Appellant also asserts that appellee failed in its duty to instruct him in his job. We see no merit in this point. From our own examination of the record we agree with the court below that there is nothing in the case to indicate that "any lack of experience or ignorance of the operation of the winches or of the method of oiling them on his part was in any way responsible for his injury."

Finally, on the damage appeal, appellant urges that appellee failed in its duty to provide a proper oil-can. The can Shields used had a spout which was broken off three inches shorter than the normal length. With the method used by Shields of oiling the winch through the wheel the normal size oil-can spout itself would have been too short and Shields, as the district court found, "still would have had to put his hand through the fly wheel."

Maintenance and Cure

Appellant claimed for maintenance and cure from the date of the accident to January 1, 1947, less his hospitalization period. The district court found that up to that date "he has not reached the point in his recovery where 'care and nursing' would not benefit him." The evidence at the trial indicated that both the stump of the left hand and the crippled right hand were even then in an acute condition which it would reasonably seem, could be helped by further care and treatment. Certainly it cannot be said that "no further improvement * * * is to be expected" (Muruaga v. United States, 172 F.2d 318, 321) or that Shields has been "so far cured as possible." Farrell v. United States, 336 U.S. 511, 69 S. Ct. 707, 711.

Wages and Bonus

The trial court thought that under the governing Shipping Articles, Shields was entitled to wages for the full year. The pertinent part of the Articles reads: "It Is Agreed between the Master and seamen, or mariners, of the S/S Hannibal Hamlin * * *, now bound from the Port of Philadelphia, to a point in the Atlantic Ocean to the eastward of Philadelphia and thence to such ports and places in any part of the world * * * as may be ordered or directed * * *, and back to a final port of discharge in the United States, for a term of time not exceeding twelve (12) calendar months."

The identical issue under the same Article language has now been passed upon by the Supreme Court in Farrell v. United States, supra. The court held that it obligated the seaman "* * * only for the voyage on which the ship was engaged when he signed on and that, when it terminated at a port of discharge in the United States, he could not have been required to reimbark for a second voyage. The twelve-month period appears as a limitation upon the duration of the voyage and not as a stated period of employment."

This is dispositive of the wage question before us. Under the specific directive of the Supreme Court, Shields is only entitled to wages until the actual end of the voyage for ...


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