War Shipping Administration, for any and all loss, damage or injury * * * shall be limited in dollars to the amount of insurance provided for in Paragraph 9 of this Part II.' Respondents interpret this paragraph as a contractual assumption on the part of Luckenbach for any amounts assessed against the shipowner in this action. I cannot subscribe to such an interpretation.
As was pointed out in the Lo Bue case, Paragraph 8 only binds the stevedore to indemnify the shipowner for loss to the extent that the stevedore is insured against such loss. It therefore becomes necessary to determine what type of insurance coverage the stevedore has. Under Paragraph 9, Part II, of the agreement, the stevedore is required to procure certain types of policies, the premiums on which are ultimately paid by the government under its cost-plus arrangement. Among these is the Standard Workmen's Compensation and Employer's Liability Policy, a copy of which has been stipulated into evidence in this case. It insures Luckenbach 'against loss by reason of * * * liability imposed * * * by law on account of * * * injuries' to its employees. The phrase 'liability imposed * * * by law' in the policy refers to the liability imposed upon Luckenbach by the various Workmen's Compensation laws of the states in which it conducts its operations, in addition to the Longshoremen's and Harbor Workers' Compensation Act. It does not refer to liability which is merely assumed by agreement. 'In other words, unless a third party could recover from (the stevedore) in the absence of contract, there is no insurance coverage and hence there can be no recovery over here.' Lo Bue v. United States, supra, 188 F.2d at page 803.
The case of Porello v. United States, D.C.S.D.N.Y. 1950, 94 F.Supp. 952, relied upon by respondents, is not in point, since, under the contract involved in that case, the stevedore's responsibility was not limited to risks against which it was insured.
With regard to the issue of damages, certain elements thereof have been seriously disputed. I have found that libellant has suffered an appreciable loss of hearing due to the injury to his head. It is true that the evidence on this point was conflicting. An examination of his ears, made nine days after his admittance to the St. Agnes Hospital, revealed no damage to either ear; and there was a notation on his hospital record, under the date of discharge, of 'some impairment of hearing previous to accident.' However, his record also showed a diagnosis of a ruptured left ear drum upon admittance, and a complaint of constant humming in the left ear shortly after he regained consciousness. Further, the carpenter foreman testified that libellant was bleeding from the ear when he was picked up; libellant himself testified on cross examination that he never had any trouble with his ears prior to the accident; and Dr. Myers, who qualified as an ear, nose and throat specialist, stated that in his opinion both the loss of hearing and the humming were the direct result of the fall.
Therefore, upon consideration of the record as a whole, I conclude that libellant should be compensated for a partial loss of hearing in the left ear, and for the tinnitus, or humming, which two neurologists (Dr. Wycis and Dr. Levine) stated can only be completely cured by destroying all hearing in the affected ear.
In addition to the physical injuries he suffered, libellant alleges that since the accident he has undergone certain 'personality changes', i.e., outbursts of temper and periods of depression, for which he claims indemnity. I cannot include compensation for any such 'changes' in the measure of recovery. Respondents' expert witness, Dr. Ornsteen, testified that such behavior on the part of libellant does not represent 'organic personality change due to brain cell injury', but rather 'a functional reaction * * * on the part of an unstable personality.' I have found this testimony credible.
As to asserted permanent impairment of his future earning ability, I find that he has not suffered such impairment. Moving pictures taken of him while working as a driver-salesman in October, 1947, sixteen months after the accident, conclusively established that he was quite as capable of earning a livelihood in that capacity as he was before he was injured. I therefore find that he is not entitled to any damages based upon reduced earning capacity.
Accordingly, I have found that libellant suffered damages compensable by the sum of $ 18,000.00. This figure has been reduced to 25% or $ 4,500.00 because of libellant's contributory negligence, leaving him with an award of $ 13,500.00. Since libellant has already received the sum of $ 325.00, representing payments voluntarily made by Luckenbach's compensation carrier under the Longshoremen's Act, I have reduced the award by this amount to $ 13,175.00.
I have not allowed recovery of the $ 439.35 medical expenses, since they were paid by Luckenbach's insurance carrier.
I state the following
Conclusions of Law
1. The extinguishment of the light in the shelter deck of the S.S. 'Niantic Victory' constituted negligence on the part of the original respondents' agent; and this negligence was a proximate cause of libellant's injuries.
2. Libellant, in proceeding to walk across the 'tween deck space which was in complete darkness and which he knew or should have known was dangerous by reason of the absence of one of the hatch boards, was guilty of negligence, and such negligence contributed to his injuries to the extent of 25%.
3. There was no assumption of liability by the impleaded respondent, by virtue of the contract between the two parties, for any loss due to the negligence of the original respondents.
4. Libellant is entitled to recover from the original respondent the sum of $ 13,175.00.
5. The original respondents are not entitled to any recovery against the impleaded respondent, Luckenbach Steamship Company.
6. The cause of action against the impleaded respondent should be dismissed.
Orders may be submitted in accordance herewith.