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OSNOVITZ v. UNITED STATES

December 18, 1951

OSNOVITZ
v.
UNITED STATES et al.



The opinion of the court was delivered by: KALODNER

This is a third party action by a longshoreman to recover for injuries allegedly suffered while loading ship's stores on board the U. S. N. T. 'Shawnee Trail'. The original respondents, the United States and American Pacific Steamship Company, have inpleaded libellant's employer as an additional respondent, under Admiralty Rule 56, 28 U.S.C. The libel was brought against the United States by virtue of the Public Vessels Act, 46 U.S.C.A. § 781.

On the basis of the pleadings, testimony and exhibits submitted to me, I make the following

 Findings of Fact

 1. On October 1, 1948, respondents, the United States and American Pacific Steamship Company owned and operated the U. S. N. T. 'Shawnee Trail' was a public vessel. The 'Shawnee Trail' was a tanker of the T-2 type.

 2. On October 1, 1948, libellant was employed as a stevedore by the impleaded respondent, Maritime Ship Cleaning & Maintenance Co., Inc. (hereinafter referred to as 'Maritime').

 3. At about 5 P.M. on October 1, 1948, libellant and other employees of Maritime came aboard the 'Shawnee Trail', and commenced loading stores into the icebox of the vessel pursuant to an oral contract entered into between Maritime and representatives of the owners and operators of the vessel.

 4. It was not yet dark when the stevedores commenced work. Shortly after they came aboard the Chief Mate of the vessel caused the lights on the ship's catwalk to be turned on in compliance with the request of Maritime's stevedore foreman. In addition to the catwalk lights there was a light on the after-housing of the vessel.

 5. The stores were brought from the dock to the icebox under the direction of the stevedore foreman. Once inside the icebox they were stowed by the stevedores at the direction of a member of the ship's galley department.

 6. At about 10 P.M., while engaged in carrying stores over the deck to the icebox, libellant caught his foot in a padeye *fn1" which was welded to the deck of the vessel, forward of the after-housing, and was caused to fall, twisting his left foot and striking his side and back.

 7. The padeye was located at a point on the deck which was not adequately lighted. The padeye was painted black and the deck was painted red.

 8. Libellant returned to work the day after the accident; but on the following day he went to see his family doctor, as his foot was still bothering him. His family doctor referred him to Maritime's insurance carrier, which in turn sent him to the compensation clinic at the Pennsylvania Hospital in Philadelphia.

 9. Libellant received outpatient treatment at the Pennsylvania Hospital from October 7, 1948, to December 15, 1948. During this period he complained only of pain in the lower shin and ankle of his left leg.

 10. On December 1, 1948, he was referred by the insurance carrier to Dr. J. R. Martin, who saw him again on December 20, 1948, and on January 31, 1949. On these three occasions libellant complained of pain in his left shin and ankle, but made no mention of any injury to his great toe.

 11. On February 4, 1949, libellant was examined by Dr. Chance, orthopedic consultant for the U.S. Public Health Service. This examination revealed for the first time that libellant was suffering from an arthritic condition known as hallux rigidis -- or a stiffening of the great toe joint -- of the ...


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