The opinion of the court was delivered by: LUONGO
This matter was tried to the court on September 15-17, 1976. On the pleadings and proof, I make the following
1. Plaintiff Michael J. Baczor is a resident of Bridgeton, New Jersey.
2. Defendant Atlantic Richfield Company (ARCO) is a corporation having its principal place of business in Philadelphia, Pennsylvania.
3. During 1970, 1971, and 1972, defendant owned and operated certain vessels, including a tugboat known as Atlantic Tug No. 5, on the navigable waters of the United States.
4. During 1970, 1971, and 1972, plaintiff was employed by ARCO as a cook/deckhand aboard Atlantic Tug No. 5. His duties included handling tow lines.
5. At all times material to this action, Atlantic Tug No. 5 was equipped with several tow lines which were stowed in coils atop a grated wooden platform. The platform was raised about four inches above the tug's deck, and the tow lines were coiled to a height of approximately eighteen inches, as measured from the bottom of the platform. One half of a canvas tarpaulin was placed between the platform and the coiled lines; the other half was folded back over the top of the lines to protect them from the natural elements. A shackle and hook, each weighing approximately four to six pounds, were placed atop the upper portion of the canvas to prevent it from blowing off. The shackle and hook were not tied down or secured in any way and were kept in place solely by virtue of their weight.
6. There were alternate methods of protecting the lines, including use of canvases with grommets at their ends, with which the canvases could be tied down with rope. Alternatively, the shackle and hook used to weigh down the canvas could be tied down and secured in place. Such methods were not used aboard Atlantic Tug No. 5.
8. Plaintiff did not report the incident to the tugboat's master, Nasa Williams.
9. Plaintiff presented evidence that as a result of this incident, he did not report for work on November 16, 1970.
10. Plaintiff presented evidence that, while he was absent from the job, he called ARCO's Fort Mifflin dispatch office and informed the dispatcher of his absence due to disability.
11. One of ARCO's dispatchers, George B. Barbarick, testified that he remembers being told that plaintiff had sustained injury from the dropping of a shackle, but cannot recall exactly when he was told, noting that it may have been as early as 1968.
12. Plaintiff visited Dr. Stanley Bernstein on November 10 and 20, 1970, for treatment of his foot. Although it was Dr. Bernstein's normal practice to take a history from his patients to enable him to determine etiology and to make a diagnosis, Dr. Bernstein's notes contain no mention of a history of traumatic injury to plaintiff's foot.
13. Plaintiff reported to ARCO's dispensary on November 23, 1970, in anticipation of returning to work on the following day. For that visit, the following entry was made in ARCO's medical record pertaining to plaintiff:
"Man was treated for infection & cellulitis rt. 4th toe -- says he struck it & then became infected -- Treated by Dr. Bernstein."
The injury was classified as "non-industrial." (Exhibit P-1)
14. Plaintiff returned to work on November 24, 1970.
15. Plaintiff presented evidence that at some time during December 1970 or January 1971 -- plaintiff has failed to establish the date precisely -- plaintiff was again preparing to ready the tow lines on Atlantic Tug No. 5. As he did so, an unsecured shackle atop the tarpaulin slid off and landed on his right foot.
16. Plaintiff did not report this incident to the tug's master.
17. Plaintiff suffers from diabetes mellitus.
18. Plaintiff presented evidence that as a result of either the incident of November 1970 or that of December 1970 or January 1971, or of both, he sustained injuries to his right foot which did not easily heal because of his diabetic condition.
19. Plaintiff presented evidence that as a result of his injuries he was absent from work commencing on January 8, 1971.
20. Plaintiff presented evidence that while he was absent from work in 1971, he telephoned ARCO's Fort Mifflin dispatch office from time to time and informed the dispatcher of his absence due to disability.
21. On January 19, 1971, plaintiff visited Dr. Bernstein for treatment of his foot. Dr. Bernstein diagnosed the problem as osteomyelitis. He immediately admitted plaintiff to Bridgeton Hospital, Bridgeton, New Jersey, where a further diagnosis of diabetes mellitus was made. Neither Dr. Bernstein's own records nor those of the hospital contain any notation of an accident in the history. (See Exhibit P-7, P-10, D-28)
22. On March 5, 1971, plaintiff's right third and fourth toes were amputated by Dr. Sherman Garrison. (Exhibits P-7, P-10, D-26, D-28)
23. Plaintiff was discharged from Bridgeton Hospital on March 17, 1971. He continued to see Dr. Bernstein regularly until May 19, 1971, the date of his last visit to Dr. Bernstein. (Exhibits P-7, P-10)
25. On June 17, 1971, at the request of Dr. Garrison, a surgeon, plaintiff went to Intercounty Orthopedic Association for x-rays and an examination. During that visit, the following history was recorded:
"Injured rt. foot in Nov. 1970 -- treated by Dr. Bernstein -- banged it on a barge at work, reinjured it in December, 1970, was on a cruise, got back on Jan. 8 . . .."
26. Plaintiff was under the care of Dr. Serri and Dr. Jerome Cotler of the Intercounty Orthopedic Association throughout the summer of 1971. (Exhibits P-6, P-11, D-34)
27. Following a September 9, 1971 examination by Dr. Cotler, plaintiff was informed that he could return to work, and he did so on the following day. Upon his return, the following notation was made in ARCO's medical file:
"Man out since Jan. 8 -- probable diabetic ulcer -- Now on insulin -- Under ...