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 longshoremen 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.
4. The respondent cannot be charged with liability for the negligent act of the winch operator or the signal man in starting the winch while Shields was working on it.
5. The libellant is not entitled to recover damages.
Maintenance, Cure and Wages.
The libellant's right to cure and maintenance and wages is based upon a legal obligation which is an incident of his contract of service with the vessel. It is imposed upon the shipowner and no one else, and has nothing in common with the seaman's right of action for injuries caused by negligence. It was entirely outside of the libellant's cause of action against Sobelman, could not have been involved in that suit and, consequently, was not, and was not intended to be, released by the instrument which settled that case. See Jones v. Waterman S.S. Corp., 3 Cir., 155 F.2d 992.
The libellant claims for maintenance and cure from the date of the accident up to January 1, 1947, less the period of time which he spent in the hospital, or a total of 736 days. The respondent contends that in no event is the libellant entitled to maintenance and cure beyond the date when he ceased to receive medical attention as a result of the accident, or February 1, 1945. The only general rule as to the extent of the obligation for maintenance and cure that can be gathered from the decisions is that it may extend beyond the termination of the voyage and depends upon the seaman's need or, as was stated in The Point Fermin, 5 Cir., 70 F.2d 602, 604, 'for a reasonable time and until it became apparent that the injury could not be bnenefited by further treatment.' In The Bouker No. 2, 2 Cir., 241 F. 831, 835, the Court stated 'We hold that * * * the duty of the ship and owner persists for a reasonable time after the termination of voyage and wage relation' and further, ' * * * that the limits of cure or care, both as to kind of treatment and time of continuance, must always depend on the facts of each particular case.'
The libellant still has difficulty in using his right hand, which may be slightly helped by treatment. The stump of the left arm gives him considerable trouble and, particularly when jarred, is painful. Further treatments have been recommended for the purpose of removing this undue sensitivity and, though I am not ruling whether or how long the libellant will be entitled to maintenance and cure in the future because of this condition, I believe that up to the date for which he claims maintenance and cure, he has not reached the point in his recovery where 'care and nursing' would not benefit him.
Under the circumstances of this case and in view of the holding of the Circuit Court of Appeals in Loverich v. Warner Co., 3 Cir., 118 F.2d 690, I am of the opinion that the obligation to provide maintenance and cure extends to the point of time for which the libellant contends. He is entitled to $ 3.50 a day which is the amount established by the regulations of the War Shipping Administration, or a total of $ 2,576.
As to wages: I think he is entitled to wages for the full year. His obligation under the Shipping Articles was to serve on a voyage from Philadelphia to Orts in any part of the world as the master might direct 'and back to a final port of discharge in the United States for a term of time not exceeding twelve calendar months.' The fact that the 'Hannibal Hamlin' actually returned to a port of discharge in the United States, where the crew was paid off, on December 31, 1944, does not limit the right to wages for the entire year.
There seems to be no important difference between the terms of these articles and those construed by the Circuit Court of Appeals in Jones v. Waterman S.S. Corp., supra. When a seaman is injured in service of the ship he is entitled to wages for the term of his obligation. To hold otherwise, the Shipping Articles would have to be interpreted as also meaning that after leaving Philadelphia the first port in the United States that is called upon could be the termination of the voyage and the seaman would be free to leave her. This was obviously not the intention of the parties nor do I think that the words admit of this construction.
Conclusion of Law.
In the present case the libellant is entitled to wages for a year, plus bonus for eleven months, or until the end of the war in August, 1945. The total wages amount to $ 2,530 which will be awarded to him.
Damages and Contributory Negligence.
I have found that the libellant is not entitled to damages. However, I think it proper to make a finding as to the amount of damages incurred by him, so that, in the event that an appellate court should come to a different conclusion, the case would not have to be remitted for further findings. This makes it incidentally necessary to deal with the question of contributory negligence.
As has been said, there were two causes co-operating to produce this accident. One was the premature and negligent starting of the winch by the winch operator. The other was the fact that Shields had put his hand through an opening in the flywheel in order to reach a bearing on the shaft.
As to the first, it could have been completely eliminated had Shields closed the steam valve, for it would then have been just as safe for him to oil with his hand through the flywheel as any other way.
As to the second, the testimony is not altogether clear on the point but, from it, I find that Shields could have reached the bearing which he wished to oil in two ways, neither of which would have compelled him to put his hand through the flywheel. He could have reached over the wheel and before so doing he could have put up a guard with which it was supplied but which was down at the time. He could also have stepped between the hatch combing and the winch and oiled the bearing directly. That might have been rather close quarters, but I am satfisfied that it was entirely possible to do it that way. If he had adopted either of these methods, the starting of the flywheel would not have caught his hand and the operation would have been safe, particularly if he had put up the guard to protect the flywheel. He was clearly guilty of contributory negligence.
Taking all elements of damages into consideration including loss of earning power and pain and suffering and reducing the figure by an amount which represents the extent to which the libellant's own negligence contributed to his injury, I find that the libellant has suffered damages in the amount of $ 45,000. Of this amount he has received $ 30,000.
A decree may be submitted in accordance with the findings and conclusions stated in this opinion.
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