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November 13, 1957

Charles O'NEILL
UNITED STATES of America, United States Maritime Commission. Nathan R. ALLTMONT v. UNITED STATES of America United States Maritime Commission

The opinion of the court was delivered by: DUSEN

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, *fn1" no document filed by libellants, seeking discovery, appears in the Clerk's file in either case between that date and December 12, 1955, when libellants resumed their discovery efforts by filing additional interrogatories. In spite of this more than two-year hiatus in libellants' efforts to secure evidence which might be needed for trial and of several continuances granted to them in the fall of 1955 and winter of 1956, *fn2" libellants requested another continuance on May 21, 1956, when the case was reached for trial as the result of a special listing, in order to inform a recently-discovered expert of the facts on which they based their claim. The respondents strenuously resisted any further continuance on the grounds that libellants had had all the basic information necessary to prepare their case since 1949, the witnesses were becoming increasingly more difficult to locate, and the respondents' attorney handling the matter was moving to Texas during the summer so that he would not be thereafter available without considerable difficulty. *fn3" The court granted libellants' application for a continuance to the extent of postponing (a) the start of the trial for a week, until May 28, 1956, and (b) the taking of testimony of the expert witnesses until July 16, 1956. *fn4"

 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, *fn5" the court granted libellants a month within which to consult their experts and apply to the court if they wished to offer rebuttal evidence by deposition (N.T. 1283-4). Respondents were given a week to answer libellants' letter, if written, requesting leave to take rebuttal testimony by deposition, with the understanding that they could also offer evidence by deposition after hearing libellants' rebuttal evidence (N.T. 1288).

 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 further correspondence (see Exhibit A containing the above-mentioned two letters and the further correspondence), the depositions of libellants' experts were taken in December 1956, at which time additional expert testimony was offered by respondents and they requested leave to take the testimony of W. B. White, an expert in mine countermeasures and mine sweeping, if libellants would not agree to a summary of his proposed testimony to be assembled in an affidavit. As shown by the correspondence in Exhibit A, libellants would not agree to the affidavit of W. B. White and his deposition was finally taken in May 1957 and filed on June 28, 1957 (see Document No. 54 in Clerk's file, No. 287 of 1946).

 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). *fn6"

 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'), *fn7" 4, 5, 8, 9, 17, 23, 24, with the exception of the 5th sentence, 27, with the insertion in the third sentence, in place of the word 'by,' of the words 'as 'not suited for military duty' by the doctor for' (see Exhibit L-31, p. 2, and N.T. 279), and with the deletion of all words after the word 'consideration' in the third line from the end of that paragraph, 28, 30, and respondents' Requests for Findings of Fact numbered 9, modified to include the words 'weighing 2000-2300 pounds and' after the word 'mines' in line 2 and the words 'at Ancona' at the end of the words in the parentheses, *fn8" 10, 11, 1, modified to add '(see N.T. 490 and the X in a circle on L-4),' 2, 3, 4, 5, *fn9" 6, 7, 8, modified by changing 'several' to 'two,' 12, modified by inserting after the word 'maximum' in line 3 the words 'sound waves through vibrations of ship and,' 13, modified by substituting the words 'a contributing' for the words 'an actual' in line 4 of paragraph 13, 14, 15, modified to include before the word 'coarse' the words 'somewhat more,' 16, 17, 18, 19, and 20, modified by deleting the last sentence, are adopted as Findings of Fact of the trial judge.

 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. *fn10" The degaussing system was in operation during this voyage until arrival at the port of 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 28 1/2 feet.

 5. After discharging fuel oil at the north mole on November 18 and 19, the mean draft of the vessel was approximately 23 1/2 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. *fn11"

  11. Assuming the failure to post a lookout on the bow, while the lines were being coiled and stored for the sea voyage, may have made the vessel unseaworthy, such unseaworthiness was not a substantial factor in causing (a) the injuries of libellants or (b) this underwater mine explosion. Also, even if the failure to have the degaussing equipment turned on in this harbor made the ship unseaworthy, *fn12" libellants have not sustained their burden of proving, by the fair preponderance of the evidence, that such unseaworthiness was a substantial factor in causing the injuries to the libellants.

 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, *fn12" libellants have not sustained their burden of proving, by the fair preponderance of the evidence, that such negligence did contribute in some part to their injuries.

 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. *fn13"

  14. Libellant O'Neill suffered from an anxiety state (psychoneurosis) caused by the explosion under the Cedar Mills on November 19, 1945, but he had this condition under control as of the time of trial (May 1956) due to the favorable environment in which he was at that time. This anxiety state might be reactivated in the future by unfavorable environmental factors (N.T. 414 ff.).

 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. *fn14"

 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. *fn15"

 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, *fn16" and to a lesser extent Bauer, was by far the most alert and accurate fact witness who took the stand. Mostow and Muzzey were by far the most accurate, best qualified, and most credible expert witnesses to appear before the trial judge. Mostow's elaborate and clear testimony persuaded the trial judge that the damage to the Cedar Mills on November 19, 1945, was caused by an under-water explosion under the after 100 feet of the ship, which resulted in not only the initial shock wave but also the often more damaging bubble pulse (or pulses) causing pitching, flexual vibration, and then heaving (collectively called a whipping motion). *fn17" Mostow's testimony conclusively refuted the testimony of libellants' expert Hinckley that the explosion was from a mine which touched the ship or from one which had an antenna that touched the ship. *fn18" For this reason, any negligence or unseaworthiness in failing to have a bow lookout posted prior to the explosion did not contribute in any degree to the injuries, since a lookout could not have seen a mine more than two fathoms below the surface.

 Muzzey knew far more about German mines and their capabilities than libellants' witnesses. Muzzey and White (whose testimony was offered by deposition) collectively knew more about mine sweeping than libellants' witnesses, Hinckley and Mooers. On the basis of Muzzey's very able testimony, the trial judge has concluded that:

 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 *fn19" of the Cedar Mills would have detonated a magnetic ground mine, and (b) the activation of degaussing would have resulted in a magnetic mine being detonated nearer the hull (thereby doing greater damage) than would have been true if the ship was not degaussed (N.T. 1234-6 and 1520 ff.).

 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, *fn20" the trial judge concludes that:

 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). *fn21"

  The testimony of libellants' expert Hinckley is of limited usefulness, since he admittedly had no knowledge of the setting of German mines (N.T. 1349-1352) or of the British sweeps under operational conditions (N.T. 1342 and 1386). Also, their expert Mooers had no knowledge of the type of German mines used at Ancona (N.T. 1457) and admitted that if the German mine was set at less than the degaussed signature of the Cedar Mills (44 to 85 milligauss), then the degaussed 'ship will probably activate the mine' (N.T. 1473). *fn22" In view of this lack of Mooers' qualifications, his answers the hypothetical questions are of very little weight (N.T. 1441 ff.). *fn23"

 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 *fn24" which contributed in any part to the injuries. See Tennant v. Peoria & P.U. Ry. Co., 1944, 321 U.S. 29, 32-33, 64 S. Ct. 409, 88 L. Ed. 520; Eckenrode v. Pennsylvania R. Co., D.C.E.D.Pa. 1947, 71 F.Supp. 764, 768, affirmed 3 Cir., 1947, 164 F.2d 996, affirmed 1948, 335 U.S. 329, 69 S. Ct. 91, 93 L. Ed. 41; cf. Rogers v. Missouri Pacific R. Co., 1957, 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493. *fn25"

 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, *fn26" certiorari denied 1957, 353 U.S. 965, 77 S. Ct. 1049, 1 L. Ed. 2d 914; Commercial Molasses Corp. v. New York Tank Barge Corp., 1941, 314 U.S. 104, 112, 62 S. Ct. 156, 86 L. Ed. 89.

 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. *fn27" See Pennsylvania R.R. Co. v. Chamberlain, 1933, 288 U.S. 333, 339-340, 53 S. Ct. 391, 77 L. Ed. 819; Kehoe v. Commissioner, 3 Cir., 1939, 105 F.2d 552, 555, reversed on other grounds *fn28" Helvering v. Kehoe, 1950, 309 U.S. 277, 60 S. Ct. 549, 84 L. Ed. 751; McAllister v. United States, 2 Cir., 1953, 207 F.2d 952, 954; Stirk v. Mutual Life Insurance Co. of New York, 10 Cir., 1952, 199 F.2d 874, 877.

 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. *fn29"

 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 after this surgery from November 6, 1947, to December 10, 1947.

 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. *fn30" He was advised by the representatives of the respondents to go to a doctor about this condition when he signed off in December 1945, but did not do so because he thought it would pass off (N.T. 277-8). This libellant applied for 'medical help' for the care and cure of his anxiety state (see Finding of Fact No. 14) in 1946, prior to his original examination by Dr. Levine on September 10 of that year. He was advised by the Public Health Service to go to the Philadelphia General Hospital, but he did not do so for these reasons (N.T. 421):

 'He didn't want to consider himself a charity case, and he had a lot of feeling about being considered a mental case. It was for these reasons that he avoided seeking any specific help.' 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 n31 $290.55 Philadelphia Record, September 1946-January 1947 (17 weeks X $22.00; see N.T. 293) 374.00 Total $664.55


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