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January 13, 1959

Preston Lee TYNDALL

The opinion of the court was delivered by: EGAN

This is an admiralty action in personam. Libellant's case follows the usual pattern in that it charges that the carfloats on which libellant was working at the time he suffered injury were unseaworthy; also that respondent was negligent in failing to provide libellant, among other things, with a safe place to work; and that libellant is entitled to maintenance and cure, both past and future.

It was tried to a judge without a jury over a period of three days. It was well presented by able counsel on both sides. Briefs have been filed and argument has been heard and it is ripe for decision.

 The Court makes the following

 Findings of Fact.

 1. Libellant resides at Milford, Delaware, and is 48 years of age and has a life expectancy of 24 1/2 years.

 2. On September 9, 1955, the date of the accident, and for about five years prior thereto, libellant was employed by respondent.

 3. Respondent is a Pennsylvania corporation engaged in the general contracting business, including the building of bridges on, along and across navigable streams, and engages in dredging operations in connection therewith.

 4. On the date mentioned, and in addition to the two carfloats in question, respondent owned the dredge Biff and the workboat or barge Harry, Jr. *fn1" The Biff was registered under the U.S. Customs Service but the Harry, Jr. was not. Registration of a carfloat or barge is unnecessary where used only for freight in the harbor.

 5. On the date mentioned, libellant's duties were twofold: As Chief Engineer of the dredge Biff they consisted of maintaining and operating the engines which worked the cutting and suction equipment and the various pumps necessary to prime the engines and cool them; maintaining and operating the winches controlling the lines which enabled the dredge to 'walk' at the site of operations by means of spuds; secondly, as Master of the Harry, Jr. they were to tow the dredge Biff from place to place, and to transport and deliver materials used in dredging operations. At the time in question, the dredge Biff was working in navigable waters back of Atlantic City, N.J. (N.T.139).

 6. On or about July 19, 1954, respondent purchased from the surplus property of the Pennsylvania Railroad two carfloats known as Penna. Railroad No. 585 and Penna. Railroad No. 586, respectively (herein for brevity 585 and 586). They were purchased on the premise that they might be of use to respondent if it obtained a job on the river, with no specific job in view. The carfloats were each approximately 175 to 180 feet long and 30 to 35 feet wide.

 7. At the time of their purchase, they were tied up at the old ferry boat wharf in the Delaware River at Camden, New Jersey. Both carfloats were towed from the wharf at Camden by Sheridan Transportation Company, which is not involved in these proceedings, up the Delaware to an old Warner Company dock in a basin or lagoon connected by a channel or passage with the Delaware near Tullytown, Pennsylvania. After they were tied up at the Warner Company dock, they were never again moved by human hands until some time after a violent storm struck in August 1955.

 8. Prior to this storm and in August 1955 while the two carfloats were moored to the Warner Company dock, both carfloats had taken on water and the crew of the Biff, including libellant, were sent to the scene to work on them and to raise, repair and restore them. A 3-inch pump was being used and 585 was almost pumped dry and preparations were made to pump out 586.

 9. After the storm struck, 585 was found to have been washed high and dry athwart the pilings which edged the shore of the basin with her bow extending out over the water beyond the pilings just above 586. The latter remained in the water below and had sunk in approximately 12 to 15 feet of water. The deck and hull of the 585 were caused to sag and belly approximately 2 feet in the center.

 10. When the damage caused by the storm had been surveyed, then, on or about August 31, 1955, the crew of the Biff was again dispatched to the carfloats. Carfloat 586 was pumped dry and floated and was left tied up to the offshore side of 585.

 11. Thereafter, from about September 2, 1955, the 586 was capable of being towed and libellant was assigned by Krantz, the respondent's superintendent, to go aboard the 586 for the purpose of keeping her pumped out, caulking her seams and to perform whatever was necessary to maintain 586 afloat. Libellant alone performed this job from day to day until the accident and was visited on various occasions by Krantz.

 12. On September 9, 1955, the conditions of wind and tide were such that carfloat 586 began to float in broadside under the bow of 585 which extended from the pilings above and threatened to collide with her, with possible damage to 586.

 13. To guard against this, libellant alone undertook such preventive measures as were possible. He traveled to Tullytown in his own motor car without tools or equipment of any kind, except a hammer and nails and some odd tools which he personally carried in the back of his car.

 14. After appraising the situation at the scene, he took some heavy planks from the deck of 585, procured his hammer and some nails and nailed three planks at various distances to the fully exposed side of 585 to act as a fender or buffer to protect 586 in case she washed in.

 15. Not being satisfied, he decided to extend the fender or buffer and to add another plank to the end of one of the three planks already nailed in place. He stood on the deck of 586 and was in the act of nailing the fourth plank in place when the wind and tide carried 586 up against one of the plank buffers on 585 and he sustained the injuries complained of, including a crushed right knee.

 16. Since libellant was alone on the job at the time, he managed, with extreme difficulty, to pull himself up across 585 and the pilings to the shore where his cries for help were answered by some persons fishing nearby.

 17. They summoned the police and libellant was assisted to the Lower Bucks County Hospital. There it was determined that he had suffered a comminuted fracture of the proximate end of the tibia and fibula of the right leg and a full leg cast was applied. Thereafter, on the same day, he was taken by ambulance to his home in Milford, Delaware, where he went under the care of his family physician, Dr. W.T. Chipman.

 18. Libellant wore the cast for about eleven weeks and when it was removed, he wore a leg brace up to April 6, 1956. During the period he wore the cast, there was an effusion of fluid in the soft tissue in the popliteal area and a window was cut in the back of the cast and the fluid was withdrawn.

 19. During the months of January to March 1956 inclusive, libellant underwent a course of physio-therapy treatments in an attempt to overcome a foot drop and ankylosis. In March 1956, Dr. Chipman advised him to see a specialist.

 20. In April 1956, he was X-rayed and examined by Doctor Ralston, a specialist retained by respondent's compensation carrier, who prescribed hot compresses and a course of exercises. Libellant did not seek further medical advice, although it was suggested he do so, but continued applying hot compresses and taking the exercises for a period of approximately three months thereafter.

 21. Libellant has a limitation of motion of the knee and ankle of the right leg which will be permanent in nature. It is doubtful that any further cure could be effected even if he submitted to additional medication. There is a marked atrophy of the muscle of the right side of the right leg and a one-half inch shortening thereof. The tibia has healed with a tilt which affects the knee joint and the motion of the ankle joint. The right knee buckles under weight and libellant has not been able to accommodate his right foot to uneven surfaces. He suffered intense pain and still suffers pain when walking, stooping, squatting and kneeling. 22. Prior to the date of the accident, his earnings, with overtime, averaged $ 7,000 per year. On that day he was paid at the rate of $ 2.35 per hour. Since then the rate of hourly pay for dredge workers has increased as follows: Effective July 1, 1956 $ 2.65 " September 30, 1957 2.80 " April 1, 1958 2.85 " September 30, 1958 3.05


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