VAN DUSEN, District Judge.
This is an admiralty action for personal injuries suffered by libellants (an able-bodied seaman and Chief Engineer, respectively) when a mine exploded under the stern of a merchant tanker (S. S. Cedar Mills) owned and operated by respondents as this ship was starting to leave the harbor of Ancona, Italy, on November 19, 1945.
I. History of the Case
Although there was extensive litigation over certain discovery aspects of these cases prior to October 9, 1953,
On the afternoon of July 18, 1956, at the conclusion of the respondents' expert testimony, libellants applied for leave to take rebuttal testimony at a later date after they had an opportunity to consult their expert witnesses (N.T. 1278 ff.). Respondents objected strenuously to the receipt of any additional testimony more than 24 hours after this Wednesday afternoon, since this week had been set aside for expert testimony, and requested the court to rule that, at the least, the libellants should be required to decide promptly (within 24 or 48 hours) whether they would offer additional testimony (N.T. 1284-5). In order to give libellants every opportunity to present their case,
By letter of August 10, 1956, libellants requested leave to offer additional testimony by deposition to be taken in Washington on September 17-18, 1956. Respondents objected, by letter of August 20, 1956, to the taking of such testimony, because of the absence of any "impelling circumstances." After some
Requests for Findings of Fact and Conclusions of Law were filed during August and September 1957, and the final brief (respondents' reply brief) was filed on October 9, 1957.
For the information of persons studying the record, there were three separate written stipulations of fact filed during the trial, as follows:
1. Stipulation of Facts of May 1956, filed August 1, 1956 (Document No. 46 in Clerk's file, No. 287 of 1946).
2. Stipulation of Facts filed and dated 7/16/56, but docketed as filed 7/19/56 (Document No. 44 in Clerk's file, No. 287 of 1946).
3. Stipulation of Facts filed 12/6/56 (Document No. 51 in Clerk's file, No. 287 of 1946).
Oral stipulations of counsel were read into the record on July 16, 1956, including the following:
A. If a representative of the British Admiralty were called to testify, he would testify that the records kept by that Admiralty indicate that all of the mines laid in Ancona approaches and harbor were German ground mines (G. C.) and that the German G. C. mine was a general purpose ground mine which could be fitted with a variety of assemblies, and it is not possible to say which particular type of mine caused the loss of the S. S. Cedar Mills (N.T. 678).
B. This representative of the British Admiralty would also testify that there is a record of the explosion of a mine (type not specified) quite close to the position where the Cedar Mills was subsequently sunk and that this mine was exploded by an LL sweep undertaken sometime between July 19, 1944, and August 18, 1944 (N.T. 680).
Evidence rulings on objections and motions made during the taking of the depositions are contained in Exhibit B attached hereto.
II. Findings of Fact
The trial judge makes the following Findings of Fact:
1. Libellants' Requests for Findings of Fact numbered 1, 2 ("6184" should read "6134"),
2. Libellant O'Neill served aboard the S. S. Cedar Mills (hereinafter called "Cedar Mills") as an able-bodied seaman and libellant Alltmont served aboard that vessel as Chief Engineer.
3. At Gibraltar, before entering the Mediterranean Sea, the Master of the vessel received charts and routing instructions (R-1, L-2, L-3) which did not contain any statement about the advisability of degaussing, but did show that the vicinity of the port of Ancona was a danger area for mines and warned mariners to keep a good lookout for drifting mines at all times (par. 15 of L-2). Floating mines were seen on no more than two occasions in the Mediterranean and the Adriatic during the voyage of the Cedar Mills from Gibraltar to Ancona.
4. On November 15, 1945, the Cedar Mills anchored in the Ancona harbor and swung from a bow anchor with the current and tide. The mean draft of the Cedar Mills while at anchorage (November 15 to November 18) was approximately 28½ feet.
5. After discharging fuel oil at the north mole on November 18 and 19, the mean draft of the vessel was approximately 23½ feet, the draft forward was 22 feet, 2 inches, and the draft aft was 25 feet (par. 1 of Stipulation docketed 7/19/56).
6. At the time the Cedar Mills left the dock, the current had a southeast set, three to four knots, and there was a slight northeast wind, with visibility one-and-a-half to two miles.
7. At the time of the explosion, the north mole was approximately broad on starboard beam of the Cedar Mills (N.T. 582) and the Cedar Mills was heading 30 to 50 degrees true.
8. The explosion of the mine under the stern of the vessel caused (a) a large crack in the ship's sides at the No. 5 tank approximately amidships, and (b) breaking of at least some of the engine room boilers or steam lines.
9. Both libellants were disabled as a result of this mine explosion. On March 19, 1946, libellant Alltmont was discharged from Staten Island (New York) Marine Hospital, fitted with a Taylor-Knight brace, and he continued under out-patient treatment until January 22, 1947, when he was discharged as fit for duty (see L-10—L-13). He was again disabled as the result of an aggravated hernia condition, which required an operation, from November 6, 1947, to December 10, 1947.
10. Libellants have not sustained the burden of proving, by a fair preponderance of the evidence, that the explosion was that of a mine having a magnetic element necessary for its detonation.
12. Assuming the failure to post a lookout on the bow, while the lines were being coiled and stored for the sea voyage, may have been negligence, such negligence did not contribute in any part to (1) the injuries of the libellants or (2) this under-water mine explosion. Also, even if the failure to have the degaussing equipment turned on in this harbor was negligence,
13. Libellant O'Neill was an aggressive, hard-working boy with a higher than average I. Q. prior to World War II (N.T. 417). During the period between December 21, 1945, when libellant O'Neill arrived back in the United States (N.T. 277), and May 1955, by which time he had recovered from the disability caused by the explosion on November 19, 1945 (N.T. 377 and 424 ff.), libellant O'Neill lived at home during all periods of disability and had not contributed any amounts to his maintenance and care, except for, at most, a period of one week.
15. Libellant O'Neill has failed to sustain his burden of proving that failure to secure psychotherapy treatment resulted from his indigence or from the failure of respondents to make Government-supported medical facilities available to him. The record indicates that his failure to secure psychotherapy treatment was due to his own unwillingness to request treatment at the Philadelphia General Hospital and that he may even have had sufficient funds to secure such treatment from a private physician.
16. The libellant, Charles O'Neill, is entitled to seven days of maintenance and cure at the daily rate of $3.50, or a total of $24.50.
All Requests for Findings of Fact not mentioned in paragraph 1 above are rejected.
III. Discussion
The trial judge believes that there is no necessity to summarize the more than 1650 pages of testimony in this trial record. His Findings and Conclusions are based largely on the acceptance of the testimony of respondents' witnesses as being more accurate than libellants' witnesses. Welsford,
Muzzey knew far more about German mines and their capabilities than libellants' witnesses. Muzzey and White (whose testimony was offered by deposition)
1. There was no negligence or unseaworthiness involved in failing to have the degaussing equipment turned on in the shallow water where the explosion occurred, since (a) the degaussed signature
2. Even if the degaussing should have been turned on and paragraph 1(b) above is incorrect, libellants have not sustained their burden of proving that this failure to have the degaussing activated contributed in some part to the explosion, since the degaussed signature of the Cedar Mills was sufficient to activate the 5-10 milligauss setting of the magnetic element in the combination magnetic-acoustic German general purpose mine (N.T. 1196).
On the basis of the testimony of Mostow, Muzzey, Gaetano and White,
1. It is most probable that all magnetic mines had been cleared from this part of Ancona harbor by the constant sweeping conducted by the British from July 1944 to November 1945 (N.T. 1494-5, Exhibit B to Stipulation of May 1956).
2. The mine causing this explosion was most probably either an acoustic ground mine or a combination acoustic-magnetic ground mine (N.T. 1495 ff.), which was only activated because of the large volume of high and low frequency sound waves resulting from this full speed ahead, hard left rudder, maneuver as the ship was starting out of the harbor (see respondents' Request for Finding of Fact No. 3, adopted in Finding of Fact No. 1 above; N.T. 573).
The legal principles applicable to this record and the Findings of Fact of the trial judge are:
A. The libellants have failed to sustain their burden of proving respondents are liable on either the ground of unseaworthiness or the ground of negligence.
The libellants have not sustained the burden of proving, by the fair preponderance of the evidence, that any unseaworthiness or negligence existed
The evidence in favor of libellants on the liability issues does no more, at best, than raise a doubt in the fact finder's mine which he is unable to resolve. It has been consistently held that the party having the burden of proof must do more than raise a doubt in the mind of the fact finder. See Thomas Roberts & Co. v. Calmar S. S. Corp., D.C.E.D.Pa.1945, 59 F.Supp. 203, 207; Burch v. Reading Co., 3 Cir., 1957, 240 F.2d 574, 579,
The libellants' primary contentions have been that negligence contributing in part to, and unseaworthiness causing, the explosion consisted of (a) the failure to post lookouts and (b) the failure to turn on the degaussing mechanism. The trial judge rejects contention (a) because the evidence overwhelmingly shows an under-water explosion from a mine which could not have been seen by lookouts, even if they had been posted. Contention (b) is rejected because of libellants' failure to sustain their burden of showing, by the fair preponderance of the evidence, either that failure to have the degaussing equipment on at the time and place of the accident was negligence or unseaworthiness, or that such failure (even if it were unseaworthiness or negligence) contributed in any part to the accident, since the degaussed signature of the Cedar Mills was sufficient to detonate a German combination magnetic-acoustic mine of the type involved here even if such mine was the type involved in this case. Unless the mine which was detonated at Ancona harbor contained a magnetic element, contention (b) cannot be sustained. Libellants have, at most, raised a doubt in the trial judge's mind on this fact issue.
Furthermore, since the same facts which support the inference that a mine with a magnetic element was present support equally the inference that a mine with an acoustic element only was present, the libellants have not sustained their burden of proof.
B. Maintenance and cure
1. Libellant O'Neill
Since libellant O'Neill was furnished maintenance and cure by his family during his periods of disability prior to May 1955 (see Finding of Fact No. 13 above) and since he had no disability between May 1955 and the time of trial (May 1956), he is only entitled to maintenance and cure for one week, as stated in the above-mentioned Finding of Fact No. 13. It has been consistently recognized that a seaman is not entitled to maintenance and cure during the period that he has lived at home with his family. Johnson v. United States, 1948, 333 U.S. 46, 50, 68 S.Ct. 391, 92 L.Ed. 468; Stolper v. United States, 1950 A.M.C. 551 (E.D.Pa.1950); Nunes v. Farrell Lines, Inc., D.C.D.Mass.1955, 129 F.Supp. 147.
2. Libellant Alltmont
Libellant Alltmont was disabled from the time he left the Public Health Hospital in the New York area on March 19, 1946, until January 22, 1947, when he was given a "fit for duty" classification (see Exhibit L-11). He was also disabled as the result of this explosion which activated a pre-existing hernia condition, which required surgery, from October 27, 1947, to November 6, 1947 (see Exhibit L-14). He was disabled
He is entitled to maintenance and cure for these two periods—namely, 310 days and 34 days, respectively, or a total of 344 days.
C. Liability for consequential damages resulting from failure to pay O'Neill maintenance and cure.
It is clear that a shipowner is liable for any damages resulting from his failure to provide maintenance and cure promptly, where he was given notice that such maintenance and cure was required and the seaman was unable to procure proper care due to indigence. Sims v. United States, 3 Cir., 1951, 186 F.2d 972; Graham v. Alcoa S. S. Co., 3 Cir., 1953, 201 F.2d 423, 425. Libellant O'Neill contends that the filing of the libel in this case on December 11, 1946, gave respondents notice that he required psychiatric medical treatment for his mental condition.
The record also indicates that libellant was paid approximately $500 when he was paid off in December 1945 (see Amended Answer to Requests for Admission No. 8, filed 11/4/55). He had also earned the following amounts between December 1945 and the time he filed his complaint in 1946, alleging that the refusal of the respondents to furnish him maintenance and cure had aggravated his anxiety state:
Board of Education, April 1946-July 1946 $290.5531 Philadelphia Record, September 1946-January 1947 (17 weeks × $22.00; see N. T. 293) 374.00 _______ Total $664.55 -------
Under the authorities binding on this court, it seems clear that this libellant is not entitled to recover the consequential damages he claims for at least two reasons:
(a) He has not shown that his indigence prevented him from getting the necessary psychotherapy. He was living in Philadelphia and there is no showing that he did not have sufficient carfare to get to the Philadelphia General Hospital. In fact, he may well have had sufficient funds to secure psychotherapy treatment from a private doctor, as there is nothing in the record to indicate how often he would have had to go for the out-patient treatment recommended by Dr. Levine (N.T. 415).
(b) Hospital treatment was recommended to him, both in December 1945 by the representatives of the ship owner and by the Public Health Service sometime in 1946, prior to his first examination by Dr. Levine (N.T. 421). The Philadelphia General Hospital was fully available to him and he declined to take advantage of this for reasons of his own.
The cases have consistently held that a seaman's right to maintenance and cure is forfeited by voluntary rejection of hospital care on his part (see Luth v. Palmer Shipping Corp., 3 Cir., 1954, 210 F.2d 224, 228, and cases there cited). It seems to have been consistently recognized that a seaman is not entitled to reject free services available from Government maintained hospitals (such as those maintained by the Public Health Service or the Philadelphia General Hospital, supported by the City of Philadelphia) without showing that the treatment available there is inadequate, and there is no such showing in this record. See The Bouker No. 2, 2 Cir., 1917, 241 F. 831, certiorari denied 1917, 245 U.S. 647, 38 S.Ct. 9, 62 L.Ed. 529, cited with approval in The Balsa, 3 Cir., 1926, 10 F.2d 408, and Murphy v. American Barge Line Co., 3 Cir., 1948, 169 F.2d 61, 63, certiorari denied 1948, 335 U.S. 859, 69 S.Ct. 133, 93 L.Ed. 406.
The trial judge makes the following Conclusions of Law:
1. Libellants' Requests for Conclusions of Law Nos. 1 and 2, and respondents' Requests for Conclusions of Law Nos. 1, 2 and 4 are adopted as Conclusions of Law of the court.
2. Neither the failure of the respondents, and their agents, servants or employees, to have the degaussing equipment of the vessel turned on at the time and place of the explosion in question, even if this should have constituted negligence, nor their failure to post lookouts, even if this should have constituted negligence, contributed in any part to the injuries suffered by the libellants.
3. Neither the failure of the respondents, and their agents, servants or employees, to have the degaussing equipment of the vessel turned on at the time and place of the explosion in question, even if this should have constituted unseaworthiness, nor their failure to post lookouts, even if this should have constituted unseaworthiness, was a substantial factor in causing the injuries suffered by the libellants.
4. The respondents are not liable for any consequential damages to the libellant, Charles O'Neill, on the alleged ground of failure to supply him maintenance and cure promptly in the form of psychotherapy.
5. The libellant, Charles O'Neill, is entitled to recover $24.50 for maintenance and cure, together with interest at 4% from December 11, 1946, and costs, without prejudice to his right to claim maintenance and cure for any period after June 1, 1956, in another action.
6. The libellant, Nathan R. Alltmont, is entitled to recover $2,236 for maintenance and cure, together with interest at 4% from December 10, 1947, and costs, without prejudice to his right to claim maintenance and cure for any period after June 1, 1956, in another action.
Libellants may submit an appropriate order for the entry of judgment in each of the above cases, after sending it to respondents for such comments as they may care to make on the form of the proposed order.
Exhibit B
Rulings on Objections to Evidence Made During the
Taking of Depositions (N. T. 1305-1624)
--------------------------------------------------
Page
No. Ruling
----- ------
1305 Objection overruled, with comment that the answer has very
little, if any, weight due to the witness' admitted lack of familiarity
with German mines (N. T. 1349, 1351-2, 1365,
1387, 1389, 1399) and his admitted lack of familiarity with
British mine-sweeping techniques in general (N. T. 1380)a
and, in particular, with the sweeping done at Ancona from
July 1944 to November 1945 (N. T. 1342).
1308 Objection overruled. (See comment re 1305.)
1309 Objection overruled. (See comment re 1305.)
Page No. Ruling ---- ------ 1314 Objection overruled. (See comment re 1305.) 1318 Objection overruled. (See comment re 1305.) 1334 Objection withdrawn by objecting counsel, interrupting with his own question. 1337 Objection overruled. 1376 Objection overruled. 1378 Objection overruled. 1410 Objection overruled. 1411 Objection overruled. 1412 Objection overruled. 1414 Objection overruled. 1440- 1443 Objections overruled with important qualification that answers have little or no weight in view of (a) the fact found by the trial judge that the milligauss setting of German magnetic mines dropped in Ancona harbor was 5 to 10 milligauss and witness based his answer on milligauss setting of 25 to 75, and (b) witness' admitted lack of knowledge of German mines and British Mine Sweeping techniques. b 1447 Mooers Exhibit 3—Objection sustained as this document not properly proved under any of the exceptions to the hearsay rule. 1444a- 1448 Objections overruled, with important qualification that answers have very little weight for the reasons given in connection with the previous ruling and the fact that the hard left rudder could well have resulted in the bow not passing over the same area which the stern passed over. 1457 Objection overruled. 1474 Objection overruled. 1477 Objection overruled. 1487 Objection overruled. 1490 Objection overruled. 1492 Objection overruled and motion to strike denied. 1494 Objection overruled. 1496 Objection overruled. 1499 Objection overruled and motion to strike denied. 1502 Objection overruled. 1545 Objection sustained.
Page No. Ruling ---- ------ 1547 Objection overruled. (Last objection overruled solely to permit rebuttal to cross-examination at N. T. 1539-40; motion to strike denied for same reason, as counsel for libellants brought up the question and referred to the book at 1539.) 1549 Objection overruled. 1551 Objection overruled. 1552 Objection overruled. 1553 Objection overruled. 1559-6 Objection overruled. 1563 Objections overruled. 1565 Objection overruled. 1573 Objection overruled. 1574 Objection overruled. 1575 Objections overruled. 1582 Objections sustained. 1583-4 Objections sustained. 1603 Objection sustained. 1609- 1624 All objections overruled.
FootNotes
"* * * if a libellant cannot make out on the facts a case on which recovery can be granted, necessarily the legal problems disappear."
Libellants, in several places in their brief, argue that inferences be drawn from facts which they assume but which they have not sustained the burden of establishing by the fair preponderance of the evidence. For example, they assume that ships went back and forth in the harbor of Ancona during the period from July 1944 to November 1945 with degaussing equipment turned on, but there is no evidence in the record that the vessels using Ancona harbor had their degaussing equipment turned on or off. The only evidence on the point shows that the instructions issued to the Cedar Mills required the degaussing equipment to be on only "in the ports of Venice or Trieste." See respondents' Requests for Finding of Fact 3, adopted in paragraph 1 above.
Depth Undegaussed Degaussed
Bow Stern
40' 172 mg 187 mg 75 to 85 mg
42' 158 mg 171 mg 65 to 74 mg
45' 140 mg 152 mg 53 to 60 mg
48' 128 mg 138 mg 44 to 45 mg
"* * * as a result of which libellant became mentally and physically affected. Respondent thereafter failed and refused to provide prompt and adequate medical attention and required him to return prematurely to the United States, as a result of all of which libellant's mental condition was aggravated and prolonged and he sustained the injuries which are hereinafter more specifically set forth.
* * * * *
"* * * repondents * * * were careless and negligent and the vessel was unseaworthy in:
* * * * *
"(j) failing to provide libellant with proper and adequate medical care, attention, treatment and maintenance for the alleviation and cure of libellant's condition;
"(k) compelling libellant to make the return trip to the United States while still suffering from the effects of his nervous breakdown and nervous condition, thereby aggravating his mental condition;
* * * * *
"* * * By reason of the negligence of the respondent * * * libellant suffered a nervous breakdown; his nervous system became impaired; he became subject to nightmares and insomnia; he has suffered vague feelings of inexplicable fear with extensive perspiration and depression; he sustained a severe anxiety psychoneurosis; * * * he has in the past and will in the future, be compelled to expend large sums of money for medicine, medical care and treatment, * *."
Photo Copy Company, 4/1947-6/1947 $ 249.39
Art Loom Co., 10/1947-11/1947 85.02
Deweys', Inc., 5/1948 17.50
Pioneer Suspender Co., 5/1948-6/1948 148.67
Publicker Industries, 9/1948-10/1948 124.07
Sun Shipbuilding Corp., 11/1948-12/1948 312.79
Sun Shipbuilding Corp., 1949 2,498.15
Sun Shipbuilding Corp., 1/1950-4/1950 518.24
Publicker Industries, 7/1950-12/1950 1,762.49
Publicker Industries, 1/1951-3/1951, 6/1951, 8/1951-9/1951 1,276.31
United Parcel Service, 11/6/51-11/19/51 75.27
Publicker Industries, 6/1952-8/1952 496.95
Oscar Mayer & Co., 9/24/52-12/1952 731.22
Oscar Mayer & Co., 1/1/53-5/22/53 1,243.41
Publicker Industries, 6/1953-12/18/53 1,609.54
Publicker Industries, 4/15/54-8/30/54, 9/9/54-11/30/54 2,342.23
See Requests for Admissions filed 4/6/55 (Document No. 34 in Clerk's file, No. 287 of 1946) and Answers to these Requests filed 5/6/55 and 11/4/55 (Documents Nos. 35 and 36 in that file).
"I was primarily concerned with degaussing, most certainly, and I did peripheral work with sweeping; but my information in connection with mines was only most fragmentary and the laboratory at times, was reluctant to even give much information on milligauss settings for mines. We were given certain targets, in terms of milligauss values, but the explanation of those targets tended to be withheld."
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