33 F.2d 539 | W.D.N.Y. | 1929
Libelant, a fireman aboard tbe respondent’s steamer, was directed by the first assistant engineer to clean out tbe baek beads and asbes in the combustion chamber of tbe fire box. After removal of tbe fire and cooling tbe fire box, it was necessary for him to enter with shovel, hose, and extension light to clean it out. Tbe fire box- is 2 to 3 feet wide, the floor of the chamber having grate bars 5 to 6 feet long, while tbe bridge wall at tbe end of tbe grate is about a foot high and a foot and a half wide at tbe top, extending from one side to tbe other. It is 1% feet from tbe top of tbe bridge wall to tbe steel ceiling, while tbe back bead or combustion chamber is about 7 feet high, 2% feet wide at tbe top, and 3 feet wide at tbe bottom. After putting in tbe shovel, libelant crawled in with a hose in bis left band and an extension light in bis right, and, after crawling along tbe grate bar and placing one leg over tbe bridge wall to get at tbe asbes from tbe baek beads to shovel over tbe bridge wall, some one outside tbe fire box turned on tbe hose, and water instantly filled tbe fire box with steam and asbes. Evidently tbe interior bad not been sufficiently cooled. In protecting bis face with bis arms, libelant’s left arm was burned, and bis back, coming in contact with tbe corrugated steel, was injured. His knee, left elbow, and right hip were also injured.
Libelant was experienced in work of this character. In fact be bad worked on steamers for a period of 12 years — most of tbe time as a fireman — and cleaning out fixe boxes was not new to him. It is claimed that tbe steamship was negligent because of its failure to- station a man outside tbe fire box to turn on tbe hose when so directed by him, and further that tbe first assistant engineer was negligent in sending him into tbe chamber before it was sufficiently cooled. Tbe steamship, however, was not unseaworthy, and no defect or impairment in her boilers or furnaces contributed to tbe injury. Assuming that there was negligence on tbe part of tbe assistant engineer, it was not, in such an action as this, an act of negligence attributable to tbe steamship or her owner. No maritime tort for which a maritime lien arose resulted from tbe remissness of tbe assistant engineer or of any member of tbe crew who were fellow servants of, libelant. For this reason there can be no recovery of indemnity for tbe injuries sustained. Nor does failure to promulgate a rule for supervising tbe cleaning out in question give cause for tbe recovery of indemnity, since tbe particular work did not endanger bis safety from unseaworthiness of tbe vessel. Failure to guard tbe hose or water tap may perhaps have been a mismanagement on tbe part of a fellow servant, but tbe omission has no relation to unseaworthiness or structural defects. The Osceola, 189 U. S. 156, 23 S. Ct. 483, 47 L. Ed. 760. I therefore rule that no ease is presented for allowance of indemnity, but I think his right to maintenance and cure is fairly supported by his version of tbe injury, although no specific demand is made in tbe libel. That be received an injury is disputed by various witnesses, but I have no doubt be sustained hurt to bis back near tbe right ilium, and a bum on bis left arm from elbow to wrist. Dr. Paul, who examined him a few days after be left the ship, gave corroboratory testimony as to tbe hurt on bis knee and tbe bum on bis arm. Tbe bum left no permanent sear, and, though at tbe time of tbe trial there was some tenderness on tbe right sacroiliac, it is believed that this condition will readily respond to treatment. Libelant did not avail himself of tbe right to obtain treatment at tbe Marine Hospital, although be twice applied to tbe master for a ticket of admission, but each time, be testified, tbe master asked him, to return later. Instead of again applying, be left tbe ship, claiming tbe chief engineer bad said be was lazy and bad threatened to beat him up. I am, however, disinclined to believe that be was threatened. He could have obtained a ticket from tbe Lake Carriers’ Association, as contended by claimant, or have gone directly to tbe Marine Hospital and sought admission; but be evidently assumed that it was necessary that tbe master of tbe steamship should issue a ticket.
The Bouker Case (C. C. A.) 241 F. 831, cited by claimant, was different from this. In that ease tbe mariner deliberately refused to avail himself of tbe hospital privilege, and I think libelant is fairly entitled to an award for cure and maintenance. Aside from tbe doctor’s fee of $69, a further award of $250 will, I think, compensate him for .any other expense for treatments to relieve bis condition.
A decree with costs may accordingly be entered.
