167 F.2d 141 | 1st Cir. | 1948
This is an appeal from a final decree of the district court dismissing a libel brought in a proceeding under the Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., and the Clarification Act, 50 U.S.C.A.Appendix, § 1291, which in effect make the Jones Act, 46 U.S.C.A. § 688, applicable in suits against the United States. The libellant seeks to recover medical expenses, maintenance and damages for personal injuries.
The libellant joined the Merchant Marine in October, 1943, and after an eight weeks course in steward training at Sheepshead Bay, New York, was transferred to another school at Norfolk, Virginia. On December 8th at Norfolk he joined the crew of the vessel Edward Bates as a messman. The vessel was then operated by the War Shipping Administration. The ship under the command of Captain Luksich left Hampden Roads on January 14, 1944, for the Mediterranean, in a convoy of'about seventy-two ships. Before its departure it had been fitted on both sides with torpedo nets. The nets which were about 200 feet in length were furled above the deck when not being used, and when in use were lowered in the water. When lowered or streamed they were one foot above the water and twenty-five feet below. The purpose of the nets, which were made of steel wire crossed to form a mesh with openings of six feet by four feet was to offset the danger of submarine attack by deflecting, retarding or prematurely exploding submarine torpedoes. The deck officers and crew of the vessel Edward Bates had been given oral instructions by officers of the Navy on the mechanical operation of the nets when they were installed and later the captain was given written instructions as to
The district court found on the basis of expert testimony that as protection against submarine torpedoes the nets were effective in three out of four cases. There was also testimony, which the district judge accepted as correct, that the nets had been found to be of equal effectiveness against aerial torpedoes, but there was no evidence that the War Shipping Administration or Captain Luksich knew that the nets could be used as protection against aerial torpedoes.
The convoy, which had been under the command of a naval officer of the United States while in the Atlantic, proceeded under the command of a British commodore after it entered the Mediterranean. It was reduced to fifty-five vessels and of these not more than about seven or eight and maybe only two were equipped with torpedo nets. The net on the starboard side of the Edward Bates had been so damaged during a storm in the Atlantic that it could not be used, but this did not render the net on the port side unusuable. On February 1st the vessel was sailing as part of this Mediterranean convoy in a calm sea on a bright sunny day. Between four and six o’clock in the afternoon warning of a potential aerial attack was received by the commodore of the convoy and the master and chief officer of the Edward Bates. About six o’clock the navy gunners were called on deck, and at six forty-five a general alarm was sounded. The commodore did -not order nor did the master of the Edwards Bates, nor fhe master of any other vessel, request the lowering of torpedo nets. The nets on the Edwards Bates were not lowered. The district judge stated that from the evidence before him he was unable to find whether other vessels lowered their nets, or not. He did find, however, that if nets on other ships in the convoy were lowered, the master of the Edward Bates did not and from where he stood could not observe these lowered nets.
At six fifty-five the libellant had just passed the companionway when the vessel was struck by an aerial torpedo. The torpedo had been fired from an enemy airplane and had come through the place where the port torpedo net would have been hanging had it been lowered. The libellant was knocked unconscious. He was-given assistance by other members of the crew, and was removed to a life boat before the ship sank. Later he was picked up and transferred to a British destroyer and taken to Algiers. In Algiers he was operated on and placed in casts. He was transferred through various hospitals to the United States, where he underwent several more operations including the amputation of his right leg. Finally, on December 16, 1946 he was discharged from the hospital. He is seriously disabled now, and still suffers pain on occasions. He has received $5,000 under an insurance policy which was issued to him by the United States Government when he entered the merchant marine. The policy provides that acceptance of benefits under it constitutes a pro tanto release of any claim against the United States arising out of the disability for which the benefit is claimed.
The district court found that there was no reason for the master to know that the nets were effective against aerial torpedoes ; that the master was justified in awaiting instructions from the convoy commodore before lowering his nets; and that he was under no obligation or duty to request permission. It concluded there was m> negligence and dismissed the libel. It also concluded that even though there was no negligence the United States was liable for the libellant’s maintenance and cure, but he was not entitled to any additional payment since he had been furnished medical care and he had already received $5,000 which was more than the maximum amount which the evidence would allow as recovery for his maintenance.
The libellant’s other arguments may be disposed of briefly. It is clear upon a reading of the findings and conclusions of the District Court that it applied a proper standard of negligence. It did not use a subjective test, as the libellant maintains, but applied the customary and well established reasonably prudent man standard. References to the particular captain’s knowledge were no doubt only intended to indicate that he had no particular knowledge making him responsible for a high standard of care.
The libellant also argues that the captain was negligent in not streaming or at least requesting permission to stream the nets because of the danger of submarines in the area and that this failure was the legal cause of the accident. To succeed on this contention, the libellant must establish (1) that the captain had a duty to take the initiative in asking permission to stream the nets even though in convoy, and (2) that breach of this duty by the capr tain was the legal cause of the libellant’s injuries. But as we have indicated above, we do not think that a captain would be negligent in not requesting permission to stream his nets, where the convoy commodore, a naval officer, is in complete control. Furthermore, there is nothing to show that if the libellant had requested permission the commodore would have granted it.
The judgment of the district court is affirmed.