It was, in fact, in no hazardous position at either time. It had all its witnesses and all its records.
Laches may not be determined in this case simply as a mechanical matter. Pinion v. Mississippi Shipping Co., D.C. 156 F.Supp. 652. Neither can laches be based upon or determined from the mere reference to the calendar. Walle v. Dallett, D.C., 135 F.Supp. 390. The passing of three years and thirteen days based upon the Jones Act limitation of actions, does not condemn this action. And while delay may defeat a claim, prejudice must inevitably follow such a delay. But in this case, there is no reflection of any prejudice from the date when the accident occurred to the time when the action was filed or afterwards, insofar as the rights of the defendant are concerned. The entire record in this case rebuts any possible presumption of prejudice against this respondent. This Court, accordingly, finds that this action should not be dismissed because of any laches.
At approximately 6:30 o'clock A.M. on January 13, 1953, the libellant along with Frank Sibula, a fellow seaman, working on the steamer, Mongah, was ordered to pump water from the starboard head barge which was leaking and the mate ordered the libellant to place a pump. After the pump was placed in the forward line deck of the barge, the libellant was ordered to start removing some of the coal out of the leaking barge and deposit the coal on the steel line deck of the barge, for the purpose of creating a dam to keep the water from flowing from the leaking barge into the adjoining barge.
The line deck was covered with coal which had been scattered from a hopper. The line deck hatch or hatch cover protruded above the deck one-quarter of an inch, and the hatch cover, itself, was perhaps one-half inch thick, supported by lugs below the surface of the deck. It was locked by placing a wrench in a square hole in the middle of the lid. There appeared to be four lugs on the hatch cover, itself, and four lugs on the deck for the purpose of holding the hatch cover and keeping it from shifting. The hatch, itself, was approximately eighteen inches wide and the cover was a little larger because it had a one-half inch ledge all the way around to keep it from going all the way down into the barge.
Libellant could not see the hatch cover because coal had been scattered on the line deck, and when he unknowingly stepped on the hatch cover, which had been so covered by coal, it flipped up and both his feet fell into the hole as his legs straddled the hatch cover, resulting in injuries to the libellant's groin and back. While there is no evidence that the hatch cover or its appurtenances were defective it is obvious that a failure to keep the hatch cover properly fastened and plainly visible, and permitting the coal to gather over it, and obscure the cover amounted to unseaworthiness in method and procedure. Samad v. The Etivebank, D.C., 134 F.Supp. 530; Lundy v. Calmer S.S. Corp., D.C., 96 F.Supp. 19; The Emmy, D.C., 55 F.Supp. 60.
Three elements then existed which caused the accident and injuries to the libellant -- an unfastened hatch cover, obscured by coal, during darkness where a seaman was sent to perform his task of pumping an accumulation of water from a barge with a hand flashlight. These presented an unseaworthy condition.
The libellant complained of pains in the area of the groin and back for which he received medical treatment and for which he expended his own money. While undoubtedly the libellant did suffer pains because of the injury, and the accident which occasioned the injury, it is significant that he lost no time from work, and in fact took on extra work. The court finds that he should be compensated reasonably for such pains as he suffered, and is of the opinion that he is entitled to compensation in the sum of $ 3500.00. There is no evidence in this record to support libellant's claim for maintenance and cure, and accordingly, the same is hereby dismissed.
Findings of Fact and Conclusions of Law are contained in this opinion.
ORDER OF COURT
AND NOW, this 27th day of June, 1962, judgment is hereby entered in the amount of $ 3500.00 in favor of John A. Wounick, Libellant, and against Pittsburgh Consolidation Coal Company, Respondent.
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