Petition for Writ of Certiorari — Reilly v. United States

Supreme Court brief1976

Ask Donna

What actually matters in this document.

Text

TT EG: -

Re Mis COURT, U. ag 5 ~ 5 % 5 4 OCT 18 3975

;

)

IN THE

Supreme Court of the United States

October Term, 1975

No. T5-

WILLIAM REILLY,

Petitioner,

UNITED STATES OF AMERICA

and

MATHIASEN’S TANKER INDUSTRIES, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

Rosert C. DANIELS,

FREEDMAN, BOROWSKY AND

Lorry,

hy Lafayette Building, 8th Floor,

Chestnut Street at 5th,

a4 Philadelphia, Penna. 19106

‘ Counsel for Petitioner.

4 International Printing Co., 711 So. 50th St., Phita., Pa. 19143 — Tel, (218) 727-8711

INDEX.

Page

Coresesness Gar wees Coowms Bw «www. ccc cece cccceccs 2

POD. 6cudwi veh nudkchawiacns cava tisenseeuantenke 3

SE SN, 0G 0 Snes navi eXkikka shad baCa hairs 4

LINNEY Scent ckcces nohanddeededanchadhens 5

tt I en ee eteaea auue chee 6

Reasons RELIED ON FOR ALLOWANCE OF THE WRIT .......... vi

I. The Reversal of the District Court’s Findings of Fact,

Conclusions of Law, Verdict and Judgment in Favor

of Petitioner by the United States Court of Appeals

for the Third Circuit Undermines the Heretofore

Inviolate Province of a Trial Judge Sitting as a Fact

Finder and Rendering a Nonjury Verdict, Where

Serious Issues of Credibility and Conflicting Testi-

mony Are Involved, and Violates the Law of the

United States Under This Court’s Decisions in

Basham v. Pennsylvania, 372 U. S. 699, and Laven-

ar Wi. Tae, SIRE TE, Be I en's bs ccc na vcdxeaneass 7

Ss cnc pinhun hhbbn ceskuciduhnevenckbateckicas 12

APPENDIX A—Statutes Involved .................c0ccceeee la

APPENDIX B—Court of Appeals Opinion ................... 3a

AppenDix C—Court of Appeals Judgment ................. l5a

AppENDIx D—Court of Appeals Order Sur Petition for Re-

WE hi sine hd ca ccinnes ug thaphindcadenhataaeenioks 16a

APPENDIX E—District Court Findings of Fact, Conclusions of

OE UE NE, 86 Sie cda Racca wieatn beclecenci cee 18a

oO OTR IE PRS

TABLE OF CASES CITED.

Page

Basham v. Pennsylvania Railroad Co., 372 U. S. 699 (1963) 7

Brennan v. Midwestern United Life Insurance Company, 417

F. 2d 147 (7 Cir. 1969), cert. den. 397 U. S. 989 (1970) 10

Commercial Union Assurance Company, Ltd. v. Berry, 359

ee See ee CP GU MED A. Fo on os Coed cwndceneceases 10

Grove v. First National Bank of Herminie, 489 F. 2d 512

8 PPE er eee errr eee Pee ee errr ey 10, 11

Krasnov v. Dinan, 465 F. 2d 1298 (3 Cir. 1972) ........... 9

Lavender v. Kurn, 327 U. S. 645 (1946) ...............4.. 7,8

McAllister v. United States, 348 U. S. 19 (1954) ........... 9,11

Petition of United States, 367 F. 2d 505 (3d Cir. 1966),

cert. den. 386 U. S. 392, reh. den. 386 U. S. 1000 (1967) 6

STATUTES CITED.

Page

All Writs Statute, 98 U.S. C. A. § 1651 ..............0008 3

Public Vessels Act, 46 U. S. C. §§ 781-790 ..............0, 5,6

Suits in Admiralty Act, 46 U. S. C. § 741 et seq. ........ 5,6, 9, 11

i cs cv give vavceds 3

OER AE Al BES SLEEPS

CD OP DAD BAG:

IN THE

Supreme Court of the United States

Ocroser TERM, 1975.

No. 75-

WILLIAM REILLY,

Petitioner,

vo.

UNITED STATES OF AMERICA

AND

MATHIASEN’S TANKER INDUSTRIES, INC.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT.

To the Honorable, the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Petitioner, William Reilly, respectfully prays that a

Writ of Certiorari issue to review the Judgment Order

of the United States Court of Appeals for the Third

Circuit, entered in the above case on June 25, 1975, re-

versing the Findings of Fact, Conclusions of Law, Verdict

and Judgment of the United States District Court for the

Eastern District of Pennsylvania in favor of Petitioner and

against Respondent, United States of America.

Petition for Writ of Certiorari

OPINIONS OF THE COURTS BELOW.

The United States Court of Appeals for the Third

Circuit filed an unreported Opinion [captioned “Not For

Publication”, infra (Appendix B, p. 3a) ] on June 25, 1975,

from which Circuit Judge Weis dissented and filed a dis-

senting Opinion, reversing the Findings of Fact, Conclu-

sions of Law, Verdict and Judgment in favor of Petitioner

and against Respondent, United States of America. Said

Opinion is printed, infra (Appendix B, pp. 3a-l4a). On

the same date a Judgment Order was entered reversing

the judgment of the United States District Court for the

Eastern District of Pennsylvania in favor of Petitioner and

against Respondent, United States of America. Said

Judgment Order is printed, infra (Appendix C, p. 15a).

The United States Court of Appeals for the Third

Circuit thereafter entered an Order denying Petition for

Rehearing on July 28, 1975; no hearing was granted and

no specific reason was given for the denial. Said Order

is printed, infra (Appendix D, pp. 16a-17a).

The Findings of Fact, Conclusions of Law, Verdict

and Judgment of the United States District Court for the

Eastern District of Pennsylvania in favor of Petitioner in

the amount of $79,425.07 and against Respondent, United

States of America, was entered on June 4, 1974 and is

unreported. Said Findings of Fact, Conclusions of Law

and Judgment is printed, infra (Appendix E, pp. 18a-40a).

Petition for Writ of Certiorari 3

JURISDICTION.

The Judgment Order of the United States Court of

Appeals for the Third Circuit reversing the Judgment of

the United States District Court for the Eastern District

of Pennsylvania was entered on June 25, 1975 and is

printed, infra (Appendix C, p. 15a). The Order of the

United States Court of Appeals for the Third Circuit

denying Petition for Rehearing was entered on July 28,

1975 and is printed, infra (Appendix D, pp. 16a-17a).

The jurisdiction of this Court is invoked under 28 U. S.

C. A. § 1254(1) and the All Writs Statute, 28 U. S.C. A.

§ 1651.

SEAT IO 85 Sa 2 ee

4 Petition for Writ of Certiorari

QUESTION PRESENTED.

May the Court of Appeals substitute its findings and

judgment for the Findings of Fact, Conclusions of Law,

Verdict and Judgment of a District Court Judge sitting

in a nonjury case and reverse said findings and judgment

of the Trial Judge, where conflicting testimony and serious

issues of credibility of witnesses are presented with respect

to the facts relating to liability, when there is substantial

evidence in the trial record to support the Findings of

Fact, Conclusior . «f Law, Verdict and Judgment of the

District Court Juage:'

Petition for Writ of Certiorari 5

STATUTES INVOLVED.

The Statutory provisions involved are 46 U. S. C.

§ 741-752 and 46 U. S. C. § 781-790. The specific statu-

tory provisions applicable in this matter, 46 U. S. C. § 742,

§ 743 and § 781 are printed, infra (Appendix A, pp. la-2a).

pee ERP EN CTT

a a apna ttc aS EP DANTE

6 Petition for Writ of Certiorari

STATEMENT OF THE CASE.

On July 24, 1970, Petitioner, a merchant seaman,

while employed by Mathiasen’s Tanker Industries, Inc., as

a member of the crew of the U. S. N. S. Suamico, a public

vessel owned by Respondent, United States of America,

was caused to sustain a serious and permanently disabling

intertrochanteric fracture of the right femur while reboard-

ing the vessel, which was berthed in open waters, from a

launch at approximately 1:00 o'clock A. M. Petitioner in-

stituted suit under the admiralty law as modified by the

Suits in Admiralty Act, 46 U. S. C. §§ 741-752, and the

Public Vessels Act, 46 U. S. C. §§ 781-790.

A nonjury trial was held before the United States Dis-

trict Court for the Eastern District of Pennsylvania, in

which conflicting testimony was presented as to the man-

ner in which Petitioner's injuries were sustained. The

United States District Court for the Eastern District of

Pennsylvania resolved the factual conflicts on the issue of

liability in favor of Petitioner, found that the vessel was

unseaworthy and the owner and operator thereof negligent

and rendered a verdict and judgment in favor of Petitioner

in the amount of $79,425.07. (Said judgment was rendered

against Respondent, United States of America, alone, in

light of Petition of United States, 367 F. 2d 505 (3d Cir.

1966), cert. den. 386 U. S. 392, reh. den. 386 U. S. 1000

(1967) ).

Respondent, United States of America, appealed. The

Court of Appeals for the Third Circuit, in a two-to-one

decision with Circuit Judge Weis writing a dissenting

opinion (Appendix B, pp. lla-14a), reversed the findings,

verdict and judgment of the District Court on the ground

that the “undisputed physical facts” made the District

Court’s factual findings clearly erroneous. A Petition for

Rehearing by the Court of Appeals in Banc was denied on

July 28, 1975.

. —

Petition for Writ of Certiorari 7

REASONS RELIED ON FOR ALLOWANCE

OF THE WRIT.

I. The Reversal of the District Court’s Findings of Fact,

Conclusions of Law, Verdict and Judgment in Favor

of Petitioner by the United States Court of Appeals

for the Third Circuit Undermines the Heretofore

Inviclate Province of a Trial Judge Sitting as a Fact

Finder and Rendering a Nonjury Verdict, Where

Serious Issues of Credibility and Conflicting Testimony

Are Involved, and Violates the Law of the United

States Under this Court’s Decisions in Basham v.

Pennsylvania Railroad Co., 372 U. S. 699, and

Lavender v. Kurn, 327 U. S. 645.

Certiorari is essential to prevent grave injustice to Peti-

tioner, a merchant seaman and a ward of this admiralty

court, and to preserve the law of the United States in con-

sonance with heretofore recognized principles concerning

the scope of appellate review, as enunciated by this Court

in Basham v. Pennsylvania Railroad Co., 372 U. S. 699

(1963) and Lavender v. Kurn, 327 U. S. 645 (1946).

In Basham v. Pennsylvania Railroad Co., supra, this

Court reversed the judgment of the New York Court of

Appeals, which had affirmed the trial judge in setting aside

a jury verdict in favor of petitioner. In that FELA action

a jury verdict had been returned in favor of petitioner, a

repairman employed by Pennsylvania Railroad, on the

ground that the railroad was negligent. The railroad had

introduced evidence demonstrating that it was physically

impossible for the accident to have happened in the manner

alleged. It was on this basis that the trial judge set aside

the jury’s verdict. In reversing, this Court concluded that

“jt was error for the New York trial and appellate courts to

reevaluate the conflicting evidence and mandate a result

4 Petition for Writ of Certoran

opposite from that reached hy the jery falinen Fhere

was an evidentiary basis for | the jury's) verdiet © (9720S

TOO,. This Court coneludert. therefore that “the otute

courts improperly invaded the fonetion and provinces of

the jury in setting the verdict aside” (9720 S$ 701,

Similarly, in Lanender «5 Karn. oepra, mother RELA

action, this Court reversed the judgment of the Supreme

Court of Missouri, whieh had reversed a jury's verdict ond

judgment entered thereon in favor of petitioner whnce

decedent was a switch-tender who was killed in the ouwiteh-

yard at Grand Central Station in Meraphis Tennessee

There, petitioner's case was presented to the jury based

wholly upon cirenmstantial evidence there heing ao evye-

witnesses to the accident. Respondents produced evidence

tending to show that it was physically and mathematically

impossible for the accident to have occurred in the manner

alleged by petitioner. Nonetheless, 4 jury verdiet in favor

of petitioner was returned.

This Court reversed the Supreme Court of Vissonri

in setting aside snch jury verdict. on the ground that there

was a reasonable basis in the trial record to sunnort the

jury s verdict, even though such verdict was based anon

an interence. [n support of such conclusion, this Court

stated:

“The jury having made that inference the respondents

were not free to relitigate the factual disnute in a re-

viewing court. Under these circumstances it vonid

be an undue invasion of the jury s historic function for

in appellate court to weigh the contlicting evidence

vuudge the credibility of witnesses and arrive at a con-

clusion opposite from the one reached bv the jurv ”

327 U. S. 652, 653).

In expiaining the legai rationale for its decision. this Court

stated:

;

aN mte: nae HITT gE A oh

Petition for Welt of Corttorart i)

“Whenever fete are tn liepiite: re the evtllenee be enedy

Nat Forty orativedeed severe srnny eles lffeorent iniferenene 9

Menarire Of epertbaticnn aned eesipertire de reegeilreed erry

Hie prot of theres ovhieven Hiity i he ter wettles the Hieprerte

Viv elvevvetonge ovbint cesesnene toy threcrey fey Bree fe rrieyah prone ery

ble fiferenee Only wher there tea eerttipyletes by

aetiee OF prebative Faete ter ernpyperrt the cen deeien

teacher dome a reverettile eprer appenr Bart ovbere

#9 bere, there te an evidlertary bee ferr the jury's

vereliet, the fury te Free ter dices eve iebvediowe ovhbort

ever Prete are Ineenetetent with ite ceomeducieny (4x7

8 Am)

ae fitwlinngs c# face

antl inferences drawn therefor are entitled te the carne

welght ae the verliot ofa jury ty reviewing a judlgrrert

Of a trial eomrt, citing witht a jury ins acherrizalty. the

Court of Appeals mnay net set acide the juclgrnent belers

vnless Hie clearly errenenis” MeAllietor 1 Undted States.

VMAU 8 19, 2001954). ' gee alors Keaonem Dinan, MF

FO 1208 09 Cir 1972) and Nissenting enyitrion of Joclge

Weis in the Court below, infra (Appendix B. p ia,

As was observed by Judlye Weis in bis HNisenting

opinion in the Court belerw.

“The district court's comelusions that the defendane

was negligent and that an uineawerthry cromedition

1. In the McAllister case, supra, the District Crees neting

without a jury, entered judgment in favor of petitiemer a merchant

seaman, and against the United States onder the Suite Admuraity

Act, 46.0.8. ©. $741 et seq. As it: the instant appeal. the Com

of Appeals reversed the findings and podgment of the Dictrict

Court, on the ground that no promitnate camse was shows “pr ween

the negligence of the United States and petitioners inmries, This

Court reversed the rye A the Com & Appeais and -n-

stated the Findings of Pact and Jud & the District Court

on the ground that the District Court's Pind were Sased inon

reasonable inferences from the facts proved sccordingiy were

not clearly erroneous.

10 Petition for Writ of Certiorari

existed were supported by reasonable inferences

drawn from the testimony. The findings of fact were

not ‘clearly erroneous, and therefore I would affirm

the district court’s findings on liability.” Infra (Ap-

pendix B, p. 14a).

In light of that observation, the function of the appellate

Court below was exhausted, it being immaterial that that

Court might draw a contrary inference or feel that another

conclusion was more reasonable. Commercial Union

Assurance Company, Ltd. v. Berry, 359 F. 2d 510, 516

(8 Cir. 1966). As was stated in Brennan v. Midwestern

United Life Insurance Company, 417 F. 2d 147, 149 (7

Cir. 1969), cert. den. 397 U. S. 989 (1970).

. an appellate tribunal may not retry the case

or substitute [its] judgment for that of the trial judge.

It is he, who after judging the credibility of the

witnesses, weighing the evidence, and drawing infer-

ences, makes factual determinations. Our function

is to ascertain, after considering the record in its

entirety, whether the inferences drawn by the trial

judge have a sufficient evidentiary basis so that it

can be said they are reasonable, that is, could have

been arrived at by logical deduction. In performing

that function, we may not resolve testimonial con-

flicts or attempt to judge the credibility of witnesses”.

(417 F. 2d 149—Emphasis Added).

See also Grove v. First National Bank of Herminie, 489

F. 2d 512 (3 Cir. 1973).

The majority of the Panel of the Court below ? failed

to observe the tenets as enunciated by this Court and to

2. The decision of the Panel of the Court below reversing the

Findings of Fact and Judgment of the District Court was a two-

to-one decision, with Circuit Judge Weis dissenting.

DERI ASiN eI OP AEN

Petition for Writ of Certiorari ll

follow its own pronouncements in the Grove case, supra,

defining the scope of appellate review of findings of fact

of a district court judge sitting in a nonjury case. In so

doing the Court below has undermined the historic fact-

finding function of a district court judge sitting in a non-

jury case and has violated Petitioner's basic right to “an

appropriate nonjury proceeding in personam . . . against

the United States” which “shall be heard and determined

according to the principles of law and to the rules of

practice obtaining in like cases between private parties”,

as is guaranteed to him under the Suits in Admiralty Act,

46 U. S. C. § 742 and § 743.

In attempting to justify its reversal of the district

court’s findings and the substitution of its findings and

conclusions for those of the trial judge, the Court below

seizes upon an “undisputed physical facts” or “undisputed

physical evidence” concept, which, as Circuit Judge Weis

points out in his dissenting opinion, has no application in

this case.* Moreover, the very facts and inferences which

were found by the Court below to be “undisputed physical

facts” were not undisputed physical facts at all, but chal-

lenged testimony that was susceptible of varying inter-

pretations, the credibility of which was solely for the

determination of the trial judge sitting without a jury, as

were any inferences to be drawn therefrom.‘ See

McAllister v. United States, supra.

3. In his dissenting opinion in the Court below, Circuit Judge

Weis states:

“This is not a case for the application of the undisputed physi-

cal evidence rule because so many of the critical facts de-

pended upon estimates and were not susceptible to precise

measurements.” Infra (Appendix B, p. 13a)

4. Circuit Judge Weis, in his dissenting opinion, demonstrates

wherein the district court judge properly exercised his historic

fact-finding function in stating:

“The trial judge's findings here indicate an awareness that he

was dealing with the testimony of witnesses whose estimates

were nothing more than that and far from being exact engi-

12 Petition for Writ of Certiorari

CONCLUSION.

The decision below undermines the heretofore invio-

late province and exclusive function of a Trial Judge sit-

ting as a fact finder and rendering a verdict in a nonjury

case, where serious issues of credibility and conflicting

testimony are involved. It is directly contrary to

prior decisions of this Court. For that reason alone,

certiorari is absolutely essential to review this decision in

order that justice be done. Moreover, to allow the deci-

sion below to stand will open a pandora’s box to appeals

to the Courts of Appeals of the United States for de novo

review, in cases where the sole issue on appeal relates

to the credibility of testimony of witnesses at the trial

and the evidentiary sufficiency of the trial court record

to support the findings and verdict of the Trial Judge.

Such is contrary to the present policy and needs of the

courts of the United States in their attempt to limit the

number of appeals to and workload of the Court of Ap-

peals. Accordingly, certiorari should be granted, and the

decision below reversed.

Respectfully submitted,

Rosert C. DANIELS,

FREEDMAN, BoROWSKY AND LorRY,

Counsel for Petitioner.

4. (Cont'd. )

neering measurements. The fact that this accident occurred

under poor lighting conditions at night cannot be ignored.

The district court’s findings do not accept, ipsissimis verbis,

the testimony that the LCM ‘smashed’ into plaintiff Reilly or

that the boat rose 3 to 4 feet on a wave or swell. Taking a

more dispassionate view, the trial judge simply determined

that there was an ‘impact’ between the plaintiff and the LCM,

causing him to be thrown against either the ship’s hull or the

gangway. The cause of the injury was found to have been

either the impact or the twisting which accompanied it.”

Infra (Appendix B, pp. 12a-13a, footnotes omitted).

BERYL 2 EE Oe

APPENDIX A.

46 U. S. C. 742.

§ 742. Libel in personam.

In cases where if such vessel were privately owned

or operated, or if such cargo were private owned or pos-

sessed, or if a private person or property were involved,

a proceeding in admiralty could be maintained, any ap-

propriate nonjury proceeding in personam may be brought

against the United States or against any corporation men-

tioned in section 741 of this title. Such suits shall be

brought in the district court of the United States for the

district in which the parties so suing, or any of them, re-

side or have their principal place of business in the United

States, or in which the vessel or cargo charged with

liability is found. The libelant shall forthwith serve a

copy of his libel on the United States attorney for such

district and mail a copy thereof by registered mail to the

Attorney General of the United States, and shall file a

sworn return of such service and mailing. Such service

and mailing shall constitute valid service on the United

States and such corporation. In case the United States

or such corporation shall file a libel in rem or in personam

in any district, a cross libel in personam may be filed or

a set-off claimed against the United States or such corpora-

tion with the same force and effect as if the libel had been

filed by a private party. Upon application of either party

the cause may, in the discretion of the court, be transferred

to any other district court of the United States.

Mar. 9, 1920, c. 95, § 2, 41 Stat. 525; Sept. 13, 1960, Pub.

L. 86-770, § 3, 74 Stat. 912.

| 46 U. S. C. 743.

§ 743. Procedure in cases of libel in personam.

Such suits shall proceed and shall be heard and deter-

mined according to the principles of law and to the rules

[1a]

P i sas Ri ii ji8 Sa AEE IN ETC REED RIE ABS ot

ak ee oe Ease aC Rea OF PERI Be ,

Qa Appendix A

of practice obtaining in like cases between private parties.

A decree against the United States or a corporation men-

tioned in section 741 of this title may include costs of

suit, and when the decree is for a money judgment, inter-

est at the rate of 4 per centum per annum until satisfied,

or at any higher rate which shall be stipulated in any con-

tract upon which such decree shall be based. Interest

shall run as ordered by the court. Decrees shall be subject

to appeal and revision as provided in other cases of ad-

miralty and maritime jurisdiction. If the libelant so elects

in his libel, the suit may proceed in accordance with the

principles of libels in rem wherever it shall appear that

had the vessel or cargo been privately owned and pos-

sessed a libel in rem might have been maintained.

Election so to proceed shall not preclude the libelant in

any proper case from seeking relief in personam in the

same suit. Neither the United States nor such corpora-

tion shall be required to give any bond or admiralty stipu-

lation on any proceeding brought hereunder.

Mar. 9, 1920, c. 95, § 3, 41 Stat. 526.

46 U.S. C. 781.

§ 781. Libel in admiralty against or impleader of United

States.

A libel in personam in admiralty may be brought

against the United States, or a petition impleading the

United States, for damages caused by a public vessel of

the United States, and for compensation for towage and

salvage services, including contract salvage, rendered to

a public vessel of the United States: Provided, That the

cause of action arose after the 6th day of April, 1920.

Mar. 3, 1925, c. 428, $1, 43 Stat. 1112.

Appendix B 3a

APPENDIX B.

NOT FOR PUBLICATION.

UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 74-1896.

WILLIAM REILLY

UNITED STATES OF AMERICA anp

MATHIASEN’S TANKER INDUSTRIES, INC.,

United States of America, Appellant.

D. C. Civil Action No. 70-3450.

AppEAL FrRoM THE UNrTep States District Court

FOR THE EASTERN DistTRICT OF PENNSYLVANIA.

Argued March 4, 1975.

Before ApAMs, RosENN and Weis, Circuit Judges.

WituiaM G. Downey, EsQuire,

Nicuo.as A. LEONARD, EsQuimre,

Clark, Ladner, Fortenbaugh

& Young,

Attorneys for Appellant,

Rosert C. DANIELS, EsQuIrE,

Freedman, Borowsky and Lorry,

Attorney for Appellee.

thi TE Niwa Sel Neat! ite tage aa

LAR UR te ce tai et

ae yao |

y sa - ia aie ap

Ciel nie cepetaie Reh Teed eck LRM Awan So ot

4a Appendix B

OPINION OF THE COURT.

(Filed June 25, 1975.)

RosEnn, Circuit Judge:

The United States appeals from a judgment entered

in the United States District Court for the Eastern District

of Pennsylvania on a non-jury verdict in favor of the plain-

tiff, William Reilly, a merchant seaman, for injuries sus-

tained while boarding ship. Reilly was employed as a

saloon messman aboard the U. S. N. S. Suamico, an oil

tanker owned by the United States and operated by

Mathiasen’s Tanker Industries, Inc.

On July 23, 1970, the Suamico was anchored at Ter-

rington Basin, Goose Bay, Labrador, waiting to unload its

cargo of aviation gas for the United States Air Force base.

At about 7:00 P. M., Reilly and a number of his fellow

crewmen went ashore aboard an LCM (landing craft

mechanized ). While on shore, Reilly and his friends visited

a U. S. O. Club. It is unclear whether they drank only

beer or also more potent liquor.

The LCM was operated by the Canadian Department

of Transport under contract with the United States to pro-

vide crewmen with ship-to-shore transportation. Orig-

inally designed to transport troops and equipment to beach-

heads during times of war, the LCM had a flat-bottomed

hull and a high squared-off bow. It was approximately 56

feet long, 14 feet in beam, and weighed about 28 tons.

The events occurring upon Reilly's return to the

Suamico at about 1:00 A. M. the next day are the subject

of the instant controversy. Reilly's version of the events,

confirmed by depositions of two fellow crewmen, was that

when the LCM came abreast of the SuamMico gangway, an

available boat line was not used to secure the LCM.

Rather, the LCM captain tried to maintain his position by

Fe a a ee ee

Appendix B 5a

using his controls and engines which resulted in the LCM’s

bobbing to and fro in the water. Also, the bottom of the

gangway, which had been even with the gunwale of the

LCM during disembarkation earlier that evening, was now

four feet above the gunwale.' No gangway watchman or

deck officer was present to lower the gangway.

Reilly testified that in attempting to board the

Suamico, he was forced to grab hold of the gangway’s

chain bridle with his right hand, step up with his left leg

onto the bottom of the gangway,” and then pull his right

leg even with his left. Before Reilly could pull his right

leg onto the gangway, the bow of the LCM either rose up

and threw him against the SuaMmico’s side or gangway, or

dropped away, leaving him suspended, and then returned

to throw him against the ship or gangway. After striking

Reilly, the LCM immediately pulled back, at which time

one of his fellow crewmen reached out and prevented him

from falling into the water. As a result of the blow, Reilly

suffered an intertrochanteric fracture of his right hip and a

compression fracture of his first lumbar vertebra. At the

time of the accident, Reilly was 64 years of age, six feet

one inch tall, and weighed about 130 pounds.

The United States’ version of the fall, as recounted by

the engineer of the LCM, was that a man fitting Reilly's

description fell three or four steps up the gangway. The

engineer described the fall as “queer” because the upper

body of the man twisted so that his face could be seen by

those in the LCM. The engineer did not believe that the

man had hit anything hard enough io hurt himself.

1. Plaintiff, at deposition, testified that the distance between

the gunwale and the platform of the gangway “could be five to

six feet.”

2. There is a dispute as to whether the gangway had a plat-

form. Reilly testified at trial to the absence of one. He also testi-

fied, however, that he had no recollection of his d ition testi-

mony concerning the presence of the gangway platform.

6a Appendix B

The district court accepted Reilly’s version of the fall

and found the Suamico to have been unseaworthy at the

time plaintiff attempted to board because the LCM was not

secured by the available boatline and because no member

of its crew was present to see that the bottom of the ship's

gangway was evenly positioned with the gunwale of the

LCM. The court found the United States to have been

negligent for the same reasons and also for the failure of

the crew of the LCM to have aided or assisted Reilly in his

disembarkation. Damages of $79,425.07 were awarded

against the United States," which appeals, asserting that

the district court erred in its findings of fact and computa-

tion of damages. We are convinced that the findings of

fact are clearly erroneous and reverse the judgment of the

district court.

The role of an appellate court in reviewing the factual

findings of a district court is limited of course to determin-

ing whether the findings are clearly erroneous. Fed. R.

Civ. P. 52(a). Krasnov v. Dinan, 465 F. 2d 1298, 1302

(3d Cir. 1972). Our role is subject to the same limitation

in reviewing the judgment of the district court, sitting with-

out a jury, in admiralty. We realize that the trier of fact

has the primary responsibility of weighing the evidence,

selecting from the conflicting inferences those he considers

most reasonable, and determining the credibility of the

parties. Nonetheless, the “clearly erroneous” standard of

review requires that a finding of fact must be based on

proof, not intuition or speculation; the probative facts must

be capable of supporting with reason the conclusions ex-

pressed in the verdict. In re Leichter, 197 F. 2d 955, 957

3. The parties agreed at the beginning of the trial to the dis-

missal of Mathiasen Tanker Industries, Inc., as a main defendant

in light of this court’s decision in Petition of the United States, 367

F. 2d 505 (3d Cir. 1966), cert. denied, 386 U. S$. 932 (1967).

PHN NTP AE POR Toe RIT PUNO Theat)

Appendix B ae

(3d Cir., cert. denied, 344 U. S. 914 (1952). Moreover,

when the undisputed physical facts make the credibility of

the oral testimony very doubtful, the findings of the trial

court, although based on the credibility of the witnesses,

may be held to be erroneous. Oliver J. Olsen & Co, v.

Luckenbach S. S. Co., 279 F. 2d 662, 668 (9th Cir.), cert.

denied, 364 U. S. 881 (1960). Thus, a finding is clearly

erroneous “when although there is evidence to support it,

the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been com-

mitted.” United States v. Oregon Medical Society, 343

U. S. 326, 339 (1952); McAllister v. United States, 348

U.S. 19, 20 (1954); O'Neill v. United States, 450 F. 2d 1012

(3d Cir, 1971), After a careful review of the record, we

are convinced that the undisputed physical evidence con-

flicts with Reilly's version of the accident and supports the

version of the United States.

The district court found that the LCM threw Reilly

against the Suamico’s side or gangway as he attempted

to mount the gangway from the LCM. Reilly and one

crewman testified that the LCM “smashed” into Reilly

as he had the left foot on board the gangway and his

right leg suspended in the air. Reilly testified that the

LCM struck him in the right hip or upper right leg area;

the crewman could not see what part of the body was

hit. The other crewman testified that the side of the

LCM hit Reilly in the right hip and upper leg area. An

examination, however, of the right hip and upper right

leg by Air Force doctors the next morning revealed no

echymosis or bruising. Moreover, Reilly's medical expert

testified that the type of fracture incurred “is not from a

direct blow, it is from a twisting of the hip.” Reilly

offers no explanation of how a 28-ton boat could smash

him into the Svamico, not leave a bruise, not cause a

Si spe io SE ALANA LOCA =

Shia hip Ee AP te aa

BM eee ee

8a Appendix B

fracture, and still be the instrumentality responsible for

his condition.‘

The district court found that Reilly was struck by

the bow of the LCM. Although the two crewmen testi-

fied that they disembarked from the bow, the description

of the LCM in evidence reveals that it would have been

hardly possible to leave the LCM from the closed bow

in view of its height and the grating above. Disembarka-

tion would have been extremely difficult from anywhere

forward of an opening located near the cabin, about 50

feet aft of the bow, because of a deep well running from

the bow to the cabin, Reilly testified that, to the best

of his recollection, he disembarked at a point near the

pilot's cabin which he placed about midship, The engi-

neer confirmed Reilly’s account. We find it inconceivable

that the LCM could have jumped back some forty to

fifty feet and stricken Reilly with its bow in the time it

would have taken him to board the gangway.

Had Reilly been struck by that part of the LCM

from which he disembarked, it is still highly unlikely for

the accident to have occurred as he described. Reilly

testified that the bottom of the Suamico gangway was

four feet above the gunwale of the LCM. One crewman

placed the gangway bottom three to four feet above the

gunwale; the other stated that the distance was great

enough so that one could not step up easily. Reilly, with

his left foot on the ship’s gangway and right hand on the

chain bridle, claimed he was in the process of swinging

his right leg over the gangway when struck by the LCM

in the right hip or upper right leg area. Reilly’s right

hip must have been at least level with the bottom of the

4. The medical evidence could be consistent with a fall occa-

sioned by Reilly's losing his balance due to the bobbing of, or being

azed by, the LCM. The testimony of the witnesses, however,

oes not support these versions of the accident.

St aie kaha a A a

Appendix B 9a

gangway because he testified that he was struck while

bringing his “right leg over to put it beside [his] left on

the gangway.” One crewman confirmed that the right

leg was in the air; the other testified that the LCM pulled

back leaving Reilly's right leg in the air before smashing

him into the Suamico, The LCM, then, must have risen

at least three to four feet" in the water in the short time

necessary for Reilly to swing his right leg onto the

gangway.

One explanation offered by Reilly for this dramatic

upheaval of the 28-ton LCM was that the sea was choppy

and rough. The testimony of the eyewitnesses to the

accident was contradictory, the crewmen testifying that

there were two-to-three-foot waves, while the LOM

engineer testified that he had never seen two-to-three-foot

waves in Terrington Basin, absent a wind of 30 to 40

miles per hour. The chief meteorologist of the Philadel-

phia station of the United States Weather Service calcu-

lated, however, from the topography of Terrington Basin

that the approximately ten-knot wind prevailing the night

of the accident would have had no “significant effect on

the water surface” other than to produce a “light chop.”

The other explanation offered, credited by the dis-

trict court, was that the running of the LCM’s engines

to keep it abreast of the gangway caused the craft to

bob back and forth and up and down. This explanation

was offered by an expert testifying on behalf of Reilly,

but his testimony was unclear as to whether the wash

generated by running the engines in a calm sea could

have caused the greater than three-foot rise required to

support Reilly’s version of the accident. On the other

5. It is probable that the LCM would have had to rise more

than three to four feet because to the extent that Reilly, six feet,

one inch tall, had straightened his left leg, his right hip would have

been elevated that much more above the bottom of the gangway.

—_— 7

ge 2 FSP Se

tte

10a Appendix B

hand, the engineer testified that an LCM traveling from

ship to shore creates waves of only six inches, and very

little turbulence would be created when the propellors

were turning slowly. We believe it incredible that the

use of the engines necessary to keep the LCM abreast

of the ship's gangway would have caused a 28-ton vessel

on a calm sea to rise and fall distances in excess of three

feet.®

A final difficulty with Reilly’s version of the accident

is his explanation of why the ship’s gangway was rigged

so that the bottom end hung three to four feet above the

gunwale of the LCM. Reilly and the two crewmen testi-

fied that the bottom of the gangway had been level with

the gunwale when they had left the Suamico earlier in the

evening. One crewman testified that the ensuing three-

to-four-foot gap was caused by a rise in the tides. A more

plausible explanation offered was that the discharge from

the Suvamico of the cargo aviation gas caused the rise.

The United States showed, however, that a malfunction

in hose coupling delayed the commencement of gas dis-

charged until nearly 12:00 midnight. Assuming that the

ship discharged the maximum amount possible per hour,"

the ship could have risen no more than 13 inches by the

time of Reilly’s accident at about 1:30 A. M. Another

possible explanation was that the gangway was raised by

a member of the crew. No reason is given, however, why

the gangway would have been raised. The LCM’s ap-

parently were the exclusive means by which crew mem-

6. It might be argued that the LCM was bobbing in the water

as a result of swells caused by its approach . the Suamico.

Reilly was preceded up the gangway, however, at least two

other crewmen. Any turbulence caused by the teat S approach

to the ship would have subsided by the time Reilly started up

the gangway.

7. It is unlikely that discharge of the maximum amount was

possible since testimony indicated that the ship did not pump any-

where near capacity at the commencement of discharge.

Appendix B lla

bers traveled ship to shore that night. Even if other

launches were used, and no evidence indicates that they

were, the launches were smaller vessels than the LCM’s,

and the gangway would have had to have been lowered,

not raised, to reach the gunwales of the launches.

In sum, the absence of any signs of a bruise the next

morning, evidence that the fracture was caused by a

twisting rather than a direct blow, the implausibility of

the wash from the LCM’s propellers raising the 28-ton

craft in excess of three feet in a calm sea, and the lack of

any explanation why the bottom of the gangway, level

with the gunwale at the time of departure, had risen at

least three feet above the gunwale at the time of the al-

leged accident, convinces us that Reilly’s injury was not

attributable to a blow from the LCM. No other explana-

tion for the injury was offered by Reilly. He had the

burden of proving that unseaworthiness or negligence

caused his injuries. Ramos v. Matson Navigation Co.,

316 F. 2d 128, 131 (9th Cir. 1963). We conclude, there-

fore, that the weight of the physical evidence supports

the engineer’s version of the accident and that the findings

of fact of the district court were clearly erroneous. The

evidence is insufficient from which to find that Reilly's

injuries, either in whole or in part, were caused by any

unseaworthiness of the Suamico or negligence of the

United States. In the absence of such evidence, we may

not impose liability on the United States.

In view of our disposition of the liability question,

we do not consider the remaining issues raised by the

United States.

The judgment of the district court will be reversed.

Wes, Circuit Judge, dissenting:

Like most accidents which underlie negligence cases,

this one happened very quickly and unexpectedly. The

€

“

nsalsias e

pa aes

‘

12a Appendix B

impressions of witnesses to such occurrences understand-

ably vary, and the ability to perceive what actually oc-

curred depends upon such crucial factors as sensory con-

centration, the presence of warnings which alert persons

to the impending mishap, and limitations on observation

at critical times caused by physical obstructions or light-

ing conditions. In addition, a witness’ memory, bias, or

background may hamper an accurate articulation of pos-

sibly imperfect perceptions. For these reasons, courts ex-

tend great deference to the findings of juries in negligence

cases. A jury is not bound to accept the version of either

party to a dispute but is free to conclude that the truth

falls somewhere between the extremes espoused by the

adverse parties.

The findings of a judge have not been given as much

weight as those of a jury,’ but his factual determinations

must be accepted by an appellate court unless they are

clearly erroneous, Krasnov v. Dinan, 465 F. 2d 1298 (3d

Cir. 1972). The trial judge, just like jurors, is expected

to sift back from hyperbole and distinguish reality from

revisionism in weighing the testimony.

The trial judge’s findings here indicate an awareness

that he was dealing with the testimony of witnesses whose

1, Judge Jerome Frank took note of this anomaly in Orvis v.

Higgins, 180 F. 2d 537, 540 n. 7 (2d Cir.), cert. denied, 340 U. S.

810 (1950), as follows:

“A wag might say that a verdict is entitled to high respect

because the jurors are inexperienced in finding facts, an

administrative finding is given high respect because the

administrative officers are specialists (guided by experts )

in finding a particular class of facts, but, paradoxically, a

trial judge’s finding has far less respect because he is

blessed neither with jurors’ inexperience nor administra-

tive officers’ expertness.”

Interestingly enough, the biographical data of the trial judge reveal

that he was an officer in the United States Navy during World

War II, and he stated on the record of this proceeding that he was

familiar with the LCM.

Pe CREST ASS

Appendix B 13a

estimates were nothing more than that and far from being

exact engineering measurements. The fact that this acci-

dent occurred under poor lighting conditions at night can-

not be ignored. The district court’s findings do not ac-

cept, ipsissimis verbis, the testimony that the LCM

“smashed” into plaintiff Reilly or that the boat rose 3 to 4

feet on a wave or swell.?, Taking a more dispassionate

view, the trial judge simply determined that there was an

“impact” between the plaintiff and the LCM, causing

him to be thrown against either the ship’s hull or the gang-

way. The cause of the injury was found to have been

either the impact or the twisting which accompanied it.

Mathematics may cast some doubt upon the accuracy of

plaintiff's estimates of size, distance and time, but lack of

precision does not prove that Reilly's general description

of what occurred is incredible. Similarly, an absence of

bruises on the plaintiff's hip—if that be accepted as fact—

does not preclude a fracture caused by a twisting motion.

The plaintiff did not have the burden of explaining

why the gangway was at a greater height above the water

when he returned to the ship than it was at the time of his

departure earlier in the day. It was enough to show that

the condition existed and that the defendant had failed

to correct it. It is, therefore, immaterial that the plain-

tiffs theories on why the condition existed may be some-

what weak.

This is not a case for the application of the undisputed

physical evidence rule because so many of the critical facts

depended upon estimates and were not susceptible to pre-

cise measurements.

2. With a landlubber’s background, I must confess that I am

unable to conclude that it was “incredible” that the flat-bottom

landing craft would bob up and down to some degree under the

conditions existing at the time the accident took place. I also note

that the district court, rather than locating the gangway at a

specific height, found simply that it “was some distance above the

gunwale of the L.C. M.. . .”

ews eh ge een

LOTTO Te oe

eRe Te ere ee

Pek ee

Sch ONLI heel TAY AS PRA DDAE

14a Appendix B

The district court’s conclusions that the defendant

was negligent and that an unseaworthy condition existed

were supported by reasonable inferences drawn from the

testimony. The findings of fact were not “clearly erro-

neous,” and therefore I would affirm the district court’s

findings on liability. Since the majority’s decision makes

it unnecessary to discuss the question of damages, I like-

wise refrain from doing so, other than to indicate that my

position on liability is not an approval of all of the trial

court’s rulings of law on damages.

NRRCE Ie

Appendix C 15a

APPENDIX C.

UNITED STATES COURT OF APPEALS

For THE TuHirRD Circuit

No. 74-1896.

WILLIAM REILLY

UNITED STATES OF AMERICA anp

MATHIASEN’S TANKER INDUSTRIES, INC.,

UNITED STATES OF AMERICA,

Appellan:.

(D.C. Civil Action No. 70-3450 )

On APPEAL FROM THE UNITED STATES Districr Court

FOR THE EASTERN DisTRICT OF PENNSYLVANIA

Present: ADAMs, RosENN and Wels, Circuit Judges.

JUDGMENT.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Pennsylvania and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said Dis-

trict Court, entered June 6, 1974, be, and the same is hereby

reversed. Costs taxed against appellee.

ATTEST:

Tuomas P. Quinn,

Clerk.

June 25, 1975.

—

ee hte

AE SBA a RDPB CAE REA TAOEE

ET MALIK

NSE ik AL ih le AE PRB

16a Appendix D

APPENDIX D.

UNITED STATES COURT OF APPEALS

For THE Tuirp Circuit

No. 74-1896.

WILLIAM REILLY

UNITED STATES OF AMERICA,

Appellant,

AND

MATHIASEN’S TANKER INDUSTRIES, INC.,

ORDER

SUR PETITION FOR REHEARING.

Present: Srrtz, Chief Judge, VAN DusEN, ALDISERT, ADAMS,

Grppons, RosENN, HunTER, WEIs and

Garth, Circuit Judges.

The petition for rehearing filed by William Reilly, ap-

pellee, in the above entitled case having been submitted

to the judges who participated in the decision of this court

and to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

Ne ceases meer tn nae NS gree 5

i ee Was

Appendix D 17a

having voted for rehearing by the court in banc, the peti-

tion for rehearing is denied.

By THE COURT,

Max RoseEnn,

Judge.

Dated: July 28, 1975.

epee RONES

: 18a Appendix E

he iee

Sard

APPENDIX E.

IN THE

UNITED STATES DISTRICT COURT

For THE EASTERN District OF PENNSYLVANIA

Civiz Action No. 70-3450.

WILLIAM REILLY

UNITED STATES OF AMERICA

AND

MATHIASEN’S TANKER INDUSTRIES, INC.

RR ad nn ea Binnie TOE GSS LORIE Os

FINDINGS OF FACT AND CONCLUSIONS

: OF LAW.

3 (AS AMENDED )

NEWCOMER, J. June 4, 1974

FINDINGS OF FACT.

1. Plaintiff, William Reilly, was born on January 31,

1906 in New York City, New York.

2. Plaintiff is presently 68 years old and has a life ex-

pectancy of 11.4 years.

3. Since 1930, plaintiff's primary employment has

been as a merchant seaman, although from time to time

he has engaged in other employment shoreside.

4. Between 1962 and July 24, 1970, plaintiff's sole

employment was as a merchant seaman, with continuous

unbroken sea service during this nine (9) year period of

time.

LS ERNE ISR BNE eR fla NA BES

Appendix E 19a

5. As of July 24, 1970, plaintiff was a member in good

standing of the National Maritime Union and had earned

nine (9) years of the fifteen (15) years of service credit

required in order to qualify for the minimum National

Maritime Union retirement pension of $150.00 per month,

after fifteen (15) years of continuous service as a merchant

seaman.

6. Plaintiff joined the USNS Suamico, a public vessel

owned and operated at all times material hereto by de-

fendant, United States of America, on June 25, 1970, as a

member of the crew of that vessel, in the capacity of a

saloon messman.

7. During the period of his service aboard the USNS

Suamico, between June 25 and July 25, 1970, plaintiff well

and truly performed all of his duties and was obedient to

all lawful commands of the Master and the other officers

of the vessel.

8. Between June 25 and July 23, 1970, plaintiff per-

formed all work required of him as a saloon messman

aboard the USNS Suamico without any physical inca-

pacities or disabilities.

9. Prior to plaintiff's joining the USNS Suamico on

June 25, 1970, he, at defendant’s request, underwent a

pre-sign-on physical examination by Dr. Joseph J. Tritico,

a physician selected by defendant.

10. Following said pre-sign-on examination by Dr.

Tritico, plaintiff was certified as being physically fit to per-

form all duties required of him as a saloon messman

aboard the USNS Suamico and was found not to have any

impairments or disabilities with respect to any portions of

his body, including his right hip and both lower extrem-

ities.

= >

20a Appendix E

11. At the time that plaintiff joined the USNS Suam-

ico and during the period of his service aboard that ves-

sel between June 25 and July 23, 1970, plaintiff was phy-

sically fit and capable of performing each and every duty

and function required of him in his employment capacity

as a merchant seaman and, more specifically, as a saloon

messman.

Sh SAD FARR

_—. '

pig DIR CEA PREBLE SLE ER: eh ities AIEEE Sc OR NEES LLL ALDI To

12. On the evening of July 23, 1970, plaintiff, prop-

erly and lawfully, took shore leave from the USNS Suam-

1co, along with a number of other crewmen aboard the

vessel, while the vessel was moored in waters off of Goose

Bay, Labrador, Canada.

13. In order to gain egress from the USNS Suamico

to shore and return, while the vessel was moored in the

waters as aforesaid, plaintiff was required to utilize the

transportation provided for him and his fellow crew mem-

bers by defendant.

14. This transportation consisted of an L. C. M. (Land-

ing Craft Mechanized) vessel, which was approximately

56 feet long and 14 feet in beam. This vessel was flat bot-

tomed and squared off at the forward end, without the

traditional pointed bow present on most motor launches

used in the transport to and from shore of merchant sea-

men from a vessel moored in waters.

15. The L. C. M. was operated by the Canadian De-

partment of Transport, and was contracted for and pro-

vided by defendant as transportation for the members of

the crew of the USNS Suamico to gain access to shore and

access to the vessel from the shore.

sh Sar stor

16. This L. C. M. was not the traditional type of

motor vessel or motor launch used to transport merchant

seamen from a vessel moored in waters to and from shore,

PSSA tc inate enya an SH

Appendix E 2la

but had been traditionally used for purpose of the trans-

portation of troops, vehicles, equipment and supplies dur-

ing time of hostilities when it was necessary to land on

beachheads. Due to the size, shape and configuration of

the L. C. M., as described above, it was not as manuver-

able a type of craft as was the traditional motor vessel or

motor launch used to transport seamen from a vessel

moored in waters to and from shore.

17. While on shore, plaintiff and some fellow crew

members visited a USO club. It is unclear whether they

drank only beer or more potent liquor as well.

18. Some time between 0000 hours and 0100 hours on

July 24, 1970, plaintiff returned from shore in Goose Bay,

Labrador to the USNS Suamico aboard the L. C. M. de-

scribed above.

19. The L. C. M. in question had a crew consisting of

three men, a Captain, a deck man and an engineer.

20. When the L. C. M. arrived alongside of the USNS

Suamico, the L. C. M. was not in any way moored, se-

cured or tied up to the USNS Suamaco or its gangway,

although there was a boat-line available, attached to and

hanging down from the vessel’s gangway, the use or func-

tion of which was to moor and secure crafts, such as the

L. C. M. in question, coming alongside of the vessel to

the vessel or its gangway.

21. The Captain of the L. C. M., rather than mooring

or tying up the L. C. M. to the USNS Svamico or its

gangway, at the time that the crew members were de-

barking the L. C. M. and boarding the USNS Suamico, by

use of the boat-line, attempted to keep the L. C. M. close

to the vessel's gangway by jockeying the L. C. M. back

and forth in the water.

be een |

Ree ea

Sela PR ROR RSE

2p gS a AEE ES ie

es Pee

csigah area RoHS

teh eee iia

22a Appendix E

22. As plaintiff was about to debark the L. C. M. and

step onto the bottom of the gangway of the USNS SuaM-

ico, none of the three personnel that comprised the crew

of the L. C. M. in any way assisted or aided plaintiff in his

stepping off of the L. C. M. and up onto the bottom of the

vessel's gangway.

23. When the L. C. M. arrived alongside of the

USNS Suamico there was no gangway watchman or deck

officer present at the head of the gangway of the USNS

_SUAMICO.

24. At the time that plaintiff and his fellow crew mem-

bers were debarking the L. C. M. and ascending the ves-

sel’s gangway there was still no gangway watchman or

deck officer at the head of the gangway to see that the

gangway was safe for boarding or to assist plaintiff onto

and up the vessel’s gangway.

25. At the time that plaintiff was debarking the

L. C. M., the height of the bottom of the gangway of the

USNS Suamico was some distance above the gunwale of

the L. C. M., by reason of the fact that there was no gang-

way watchman or deck officer present at the head of the

ganway at the time to adjust the height of the gangway

by lowering it to a position even with the gunwale of the

L. C. M.

26. If there had been a gangway watchman or deck

officer present at the head of the gangway of the USNS

Suamico at the time of the arrival of the L. C. M. along-

side of the vessel, the height of the vessel’s gangway could

have been easily adjusted downward and the bottom of

the gangway could have been made level with the gun-

wale of the L. C. M. by simply having one man lower the

gangway.

EE PEM SEE ART IP RAT LL NTAL FSS te90

Appendix E 23a

27. Because the height of the bottom of the gang-

way of the USNS Suamico was some distance above the

gunwale of the L. C. M., plaintiff, in his attempt to

debark the L. C. M. and step up onto the bottom of

vessel's gangway, had to grab hold of the gang-

way’s chain bridle with his right hand, step up with his

left foot onto the bottom of the gangway and then pull

his right leg and foot and himself up onto the bottom of

the gangway.

28. There is conflicting testimony among plaintiff's

witnesses about what happened to plaintiff as he attempted

to climb onto the gangway from the L. C. M. It appears

that plaintiff had secured hold of the chain bridle and had

already stepped up to the bottom of the gangway with his

left foot, when the bow of the L. C. M. either rose up and

threw him against the ship’s side or gangway, or dropped

away, leaving plaintiff suspended, and then returned to

throw him against the ship or gangway.

29. It appears that the motion of th L. C. M. that re-

sulted in plaintiff's being thrown against the ship’s side or

gangway was caused by the L. C. M. operator’s attempt to

stay close to the vessel’s gangway by use of its controls and

motors.

30. Immediately after the L. C. M. struck plaintiff, the

L. C. M. pulled back, at which time one of plaintiff's fellow

crew members reached out and grabbed hold of plaintiff,

in order to prevent plaintiff from falling into the water.

31. At the time that plaintiff was struck by the

L. C. M., plaintiff felt an excruciating pain all over his

body.

32. As a result of his impact with the ship or gangway

which resulted from the impact with the L. C. M., or

merely from the twisting that accompanied these impacts,

24a Appendix E

plaintiff suffered an intertrochanteric fracture of his right

hip and a compression fracture of his first lumbar vertebra.

33. Following this incident, plaintiff was unable to

walk and was carried up the gangway of the USNS

Suamico and placed on the main deck of the vessel in a

prone position on his back. While so situated, plaintiff was

in a semi-conscious state and felt pain throughout his

entire body during his conscious moments.

34. Plaintiff was then carried, by a number of his

fellow crew members aboard the USNS Suamico, down to

his foc’sle, where he remained in bed, throughout the night

and until the following morning, in a semi-conscious state.

35. During the night, whenever plaintiff had conscious

moments he was in a great deal of pain, which required

injections of codeine and administering of phenobarbital

by the Chief Mate for purposes of alleviation of the same.

36. Some time between 0700 hours and 0900 hours on

July 24, 1970, plaintiff was removed on a stretcher from the

USNS Svamico and was transported to the United States

Air Force Hospital in Goose Bay, where a diagnosis of

“{ntertrochanteric fracture right femur” was made shortly

following his admission to that hospital at 0930 hours.

37. Plaintiff was repatriated to the United States from

the United States Air Force Hospital in Goose Bay aboard

a United States Air Force cargo plant.

38. Shortly following his arrival back in the United

States on July 25, 1970, plaintiff was admitted as an in-

patient to the United States Public Health Service Hospital

in Staten Island, New York, where he remained confined

until September 25, 1970.

39. On July 27, 1970, while hospitalized at the Staten

Island Public Health Service Hospital, plaintiff was op-

“nya Mahi gars —

Appendix E 25a

erated on in order to repair the trochanteric fracture of his

right hip.

40. This operation involved making an incision 9%”

long along the shaft of his right femur, cutting through the

various layers of skin down to the femur in the greater

trochanteric area, aligning the fracture and placing a

guide-wire into the femoral head and then tapping a 4%”

Jewett nail into place, following which five screws were

screwed down tightly in order to secure the position of the

Jewett nail.

41. Following this operative procedure for the reduc-

tion of the intertrochanteric fracture of plaintiff's right hip

by the internal fixation of the Jewett nail, plaintiff con-

tinued on bed rest and traction and then started on physical

therapy with crutch walking during the remainder of his

stay at the Staten Island Public Health Service Hospital

until September 24, 1970, on which date he was dis-

charged as an inpatient.

42. During the period of plaintiff's inpatient hospitali-

zation from July 25 to September 24, 1970, he experienced

significant physical pain, discomfort and suffering, for the

alleviation of which he was administered demerol and

codeine several times a day.

43. Plaintiff was readmitted as an inpatient to the

United States Public Health Service Hospital in Staten

Island, New York on October 17, 1970, where he remained

confined until January 29, 1971, for the purpose of re-

ceiving physical therapy treatments in an effort to alleviate

his limited range and restriction of motion of his right hip.

44, Between January 29 and July 2, 1971, while plain-

tiff continued under the care of the United States Public

Health Service Clinic in Staten Island, New York, on an

Bie oo aac a anaes mace ee er eS .

26a Appendix E

outpatient basis, he began to experience stiffness in and

flexion contracture of his right knee, with limitation of

knee extension, as a result of which he developed a limp.

This flexion contracture was caused, at least in part, by

plaintiff's lengthy immobilization due to his hospitaliza-

tions for treatment of his hip fracture.

45. By September, 1971, it had been determined by

all orthopedic medical specialists who had had any oppor-

tunity to treat or examine plaintiff for his right hip condi-

tion and his right knee flexion contracture that plaintiff had

been in the past and was going to be in the future totally

disabled from and unable to ever return to his former

employment as a merchant seaman.

46. Plaintiff remained on a “not fit for duty status” ac-

cording to the certification of the United States Public

Health Service in Staten Island, New York, from July 24,

1970 through May 25, 1972 and for a projected period of

three months thereafter.

47. Between July 29, 1971 and June 27, 1972, during

the period of plaintiff's outpatient treatment at the United

States Public Health Service clinic in Staten Island, New

York, various therapeutic and rehabilitative suggestions and

procedures were initiated and prescribed, such as exercising

and the wearing of a spring loaded knee brace, in order to

attempt to improve, alleviate and benefit plaintiff's physical

condition, insofar as his right hip disability and limitation

and right knee flexion contracture was concerned.

48. In June, 1972, a spring loaded knee brace was

prescribed, fitted and worn by plaintiff, which involved a

considerable amount of physical pain, annoyance and dis-

comfort to him.

49. On July 16, 1972, plaintiff suffered a cerebral

vascular accident (stroke) while walking along the street.

Appendix E 27a

He was immediately admitted to St. Luke’s Hospital

Center in New York City, New York.

50. Although at the time of his admission to the St.

Luke’s Hospital plaintiff was totally paralyzed, with an

inability to move any of his upper or lower extremities

and an inability to speak, by the time of his discharge

from the hospital on October 17, 1972, the only residual

deficit from the stroke was that of “minimal residual weak-

ness R leg, increasing ability to walk & physiotherapy.”

(Discharge note of October 17, 1972 in the St. Luke’s Hos-

pital records ).

51. Plaintiff was transferred from St. Luke’s to St.

Barnabas’ Hospital for Chronic Diseases in Bronx, New

York, on October 18, 1972 following his stroke.

52. During the period of plaintiff's hospitalization at

St. Barnabas Hospital, he was noted to lack about 40°

full right knee extension and, therefore, had a much more

pronounced right knee flexion contracture than he had had

in the several months prior to his stroke.

53. During November and December, 1972, while

he was hospitalized at the St. Barnabas Hospital, plain-

tiff consulted and was examined by several orthopedic

and surgical specialists who suggested surgical procedure

(hamstring tenotemy and post capsulotomy ) for the alle-

viation of plaintiff's right knee flexion contracture.

54. During the period of plaintiff's hospitalization

at the St. Barnabas Hospital, he experienced and was sub-

jected to considerable physical pain and discomfort in

connection with the exercise and physical therapy that he

was subjected and exposed to for purposes of stretching

the right knee flexion contracture.

55. At the time of plaintiff's discharge from the St.

Barnabas Hospital on December 14, 1972, he had a sig-

* m PR i on beet ol c

28a Appendix E

nificant right knee flexion contracture, but had no disabil-

ity, neurological deficit, restriction or limitation of motion

or any contracture of his left lower extremity, which was

totally fit and sound.

56. Plaintiff was admitted as an inpatient to the

United States Public Health Service Hospital in Staten

Island, New York on March 22, 1973 because of his in-

aiblity to walk due to flexion contractions in both knees.

He had had to confine himself to bed approximately three

weeks prior to his admission to the hospital and upon

beginning such bed rest a limited range of motion devel-

oped in his left knee and got progressively worse until the

time of his admission.

57. Plaintiffs left knee flexion contracture was sec-

ondary to his right knee flexion contracture, which had

caused plaintiff to confine himself to bed with a resultant

disuse of the left lower extremity and the left knee and

knee joint.

58. During plaintiff's confinement as an inpatient at

the United States Public Health Service Hospital in Staten

Island, New York, from March 22 to June 21, 1973, he

underwent a regimen of progressive bi-lateral knee stretch-

ing exercises and was at one point placed in knee splints,

which he could not tolerate due to the severe pain that he

experienced when wearing the same.

59. On June 21, 1973, plaintiff was discharged as an

inpatient from the United States Public Health Service

Hospital in Staten Island, New York and was certified as

“permanently not fit for duty” by his treating physicians

at that facility. Since then, plaintiff has been “perma-

nently not fit for duty” and will remain so for the re-

mainder of his life.

Appendix E 29a

60. Plaintiff was hospitalized at the Bellevue Hospital

in New York City, New York from September 28, 1973 to

February 2, 1974, inclusive, during which time he under-

went intensive and extensive physical and rehabilitative

therapy, the purpose of which was to alleviate and im-

prove his now bi-lateral knee flexion contractures. The

course of therapy received by plaintiff during his inpatient

hospitalization at the Bellevue Hospital consisted of exer-

cises, ambulation with the aid of parallel bars and ambula-

tion with the aid of a walker and crutches.

61. Despite the course of rehabilitative and physical

therapy received by plaintiff while he was hospitalized as

an inpatient at Bellevue Hospital, he still continued to

have bi-lateral knee flexion contractures at the time of his

discharge from the hospital on February 2, 1974 and was

able to walk only with the use of a walker or a standing

cane.

62. Plaintiff has continued to experience physical

pain, discomfort and annoyance at and over the operative

site of where the Jewett nail was internally fixed and still

continues to remain since the time of the internal fixation

of the Jewett nail on July 27, 1970 and up to and includ-

ing the present time and will continue to experience such

pain, discomfort and annoyance for the remainder of his

life, as the Jewett nail will permanently remain inside

his body for the remainder of his life.

63. At the time of plaintiff's accident and injuries of

July 24, 1970, he then being 64 years of age, had a work-

life expectancy, according to the Life Expectancy Tables

of the United States Department of Health, Education and

Welfare, of 5.5 years and required another 6 years of addi-

tional continuous sea service in order to qualify for the

30a Appendix E

minimum monthly National Maritime Union retirement

pension of $150.00 per month, payable to a merchant sea-

man after 15 years of continuous sea service.

64. Had plaintiff not been disabled, due to the in-

juries he sustained while attempting to board defendant's

ship, and the complications which resulted therefrom,

plaintiff would have continued in his employment as a

merchant seaman for the remainder of his work life ex-

pectancy.

NV MAS SAPO et OE LA NLL BO CIE TEE ne |

SPINY iat

65. We cannot find as a fact that plaintiff would have

continued working the six additional years necessary to

become eligible for his minimum National Maritime Union

pension of $150.00 per month.

PACT ERE WS

“ites }

66. Plaintiff is entitled to receive the value of his con-

tributions to his welfare and pension under the applicable

National Maritime Union contracts.

soe

67. During the period from July 25, 1970 through

June 15, 1974, under 4 separate National Maritime Union

contract years (all of which were based upon eight (8)

months work years), the following wage rates have pre-

vailed for messmen, such as plaintiff, serving aboard

United States flag tanker vessels:

Base Wel-

Dates Wage Overtime Vacation fure Pension Monthly

* 7/25/70-

6/15/71 .. $386.44 $302.66 $167.44 $48.00 $343.67 $1,248.21 $ 9,985.68

6/16/71-

6/15/72 .. 409.63 340.20 17749 48.00 400.50 1,375.82 11,006.56

aU FS EGES PEON ALLIES ES

Annual

Ratios:

~6/15/73 .. 430.11 355.31 207.73 66.60 410.70 1,470.45 11,763.60

6/15/74 .. 451.62 371.17 22477 66.60 42685 1,541.01 12,328.08

Appendix E 3la

68. Accordingly, plaintiff's total past loss of earnings

as a result of his inability to sail as a merchant seaman,

i.e. a saloon messman, aboard United States flag tanker

vessels between July 25, 1970 and June 15, 1974, four full

National Maritime Union contract years, is in the amount

of $45,083.92.

69. Plaintiff, as of June 15, 1974, has a remaining

work-life expectancy of 19 months.

70. Under the applicable and projected National

Maritime Union contract agreements for two years in the

future, plaintiff would have earned the following amounts:

Base Wel-

Dates Wage Overtime Vacation fare Pension Monthly Annual

6/16/74-

6/16/75 $474.20 $387.82 $242.31 $66.60 $433.50 $1,604.43 $12,835.44

6/16/75-

1/16/75 497.91 407.21 253.38 66.60 433.50 1,658.60 7,740.25

(7 months )

71. When plaintiff's loss for future impairment of his

earning capacity is reducted to its present value at the rate

of 6% interest, it is computed as follows:

6/16/74-6/16/75 — $12,065.32

6/16/75-6/16/76 — 7,275.83

$19,341.15

72. Plaintiff's present medical condition, insofar as his

right hip and the limitation of motion and the use thereof

and his bi-lateral knee contractures, will never improve

but may become progressively worse. Plaintiff is presently

unable to bear any weight whatsoever on his right leg due

to the deteriorated condition of his right hip and the per-

manent flexion contracture of his right knee, but is able to

Stan,

CPE . ' a . meee psacry Se a eee

32a Appendix E

bear some weight on his left leg even with the left knee

flexion contracture, and such conditions are permanent in

nature.

73. Plaintiff's life expectancy, according to the Life

Expectancy Tables of the United States Department of

Health, Education and Welfare, is presently 11.4 years.

74. Plaintiff is awarded the sum of Ten Thousand

($10,000) Dollars to compensate him for all of the physi-

cal pain, suffering, and discomfort which he has suffered

in the past and for all of the physical pain, suffering and

discomfort which he may endure in the future as a result

of being struck by the L. C. M. on July 24, 1970.

75. Plaintiff is awarded the sum of Five Thousand

($5,000) Dollars to compensate him for the permanent

physical injuries and damage that will endure for the re-

mainder of his life and cause him permanent limitation of

motion and inability of use of his right hip, permanent

right knee flexion contracture and permanent inability to

walk or ambulate by himself without the use of a walker

or a standing cane.

76. Plaintiff is awarded damages in the total amount

of Seventy Nine Thousand Four Hundred Twenty Five

Dollars and Seven Cents ($79,425.07) to compensate him

for the following items of damages:

(a) Past loss of earnings: $45,083.92

(b) Future impairment

of earning capacity: 19,341.15

future pain and

suffering: 10,000.00

(d) Permanent physical

injuries: $5,000.00

Appendix E 33a

CONCLUSIONS OF LAW.

1. Jurisdiction over this case is based on 28 U. S. C.

§ 1333.

2. On July 24, 1970, at the time and place that plain-

tiff, William Reilly, was injured, the USNS Suamico,

together with its appliances, gear and appurtenant equip-

ment (including the L. C. M. involved herein) was unsea-

worthy by reason of the presence of the following unsafe

and dangerous conditions:

(a) an L. C. M. that was jockeying in the waters

adjacent to and abreast of the gangway of the vessel

in an attempt to remain close to the gangway during

the time that plaintiff was debarking the L. C. M. and

stepping up onto the vessel’s gangway;

(b) an L. C. M. that was not in any way moored,

seured or tied up to the USNS Suamico or its gang-

way by use of the available boat-line, during the time

that plaintiff was debarking the L. C. M.;

officer at the head of the gangway of the USNS Sv-

amico, from the time that plaintiff and his fellow

crew members arrived back along-side of the vessel

in the L. C. M. up until the time that plaintiff was

disembarking the L. C. M.; and

(d) a gangway, which plaintiff was required to

pull himself up onto and then ascend after dis-

embarking the L. C. M. in question, that was rigged

and positioned in such a manner so that the height of

its bottom was some distance above the gunwale of

the L. C. M. from which plaintiff had to step up in

order to gain access to the bottom of the gangway.

1 ae

34a Appendix E

3. Defendant, United States of America, was negli-

gent, through its agents, servants, officers, crew members

and employees (including the crew members and person-

nel of the L. C. M. involved herein), and breached its

non-delegable duty and obligation to provide plaintiff

with a reasonably safe place within which to work and

with a reasonably safe means of ingress to the USNS

Suamico by reason of its failure to exercise due care as

follows:

re)

;

cy ak

(a) the jockeying of the L. C. M. back and forth

in the waters in an attempt to keep the L. C. M. close

to the gangway of the USNS Suamico during the time

that plaintiff was in the process of debarking the

L. C. M. and stepping up onto the bottom of the

vessel's gangway;

(b) the failure to moor, secure or tie up the

L. C. M. to the USNS Suamico or its gangway by use

of the available boat-line;

te fa oe ety sgt DP

bee SiR NASER EN AOR (6h gb RELA HERE ELE EF Pe

of the L. C. M. to in any way aid or assist plaintiff in

disembarking the L. C. M. and stepping up onto the

bottom of the gangway of the USNS Suamico;

(d) the absence of a gangway watchman or deck

officer at the head of the gangway of the USNS

Suamico at the time that plaintiff and his fellow crew

members arrived back alongside of the vessel in the

L. C. M.;

Oy bi aos a mor

epelve PG

(e) the presence of a gangway, which plaintiff

was required to pull himself up onto and then ascend

after disembarking the L. C. M. in question, that was

rigged and positioned in such a manner so that the

height of its bottom was some distance above the

gunwale of the L. C. M. from which plaintiff had to

Appendix E 35a

step up in order to gain access to the bottom of the

gangway; and

(f) the absence of a gangway watchman or deck

officer at the head of the gangway of the USNS Suam-

ico at the time that plaintiff was disembarking the

L. C. M., whose duty it was to see that the gangway

was safe for boarding and who, if present, could have

easily adjusted the height of the gangway downward

by lowering it so that the bottom of the gangway

would have been level with the gunwale of the

L. C. M.

4. The injuries and conditions with which plaintiff has

been and continues to be afflicted, including the inter-

trochanteric fracture of his right hip and the permanent

limitation of motion and disability of the same, the now

permanent flexion contracture of his right knee and the

compression fracture of his first lumbar vertebra, with all

of the attendant physical pain, suffering, discomfort, limi-

tation of motion and mental anguish which plaintiff has

suffered in the past and which he may endure in the future,

were directly and proximately caused by the unseaworthi-

ness of the USNS Suamico, the negligence of the de-

fendant and the failure of the defendant to provide

plaintiff with a reasonably safe place within which to work

and a reasonably safe means of ingress to its vessel on

July 24, 1970, when plaintiff was struck by the L. C. M.

while in the process of disembarking the same and stepping

up onto the bottom of the gangway of the USNS Svamico.

5. The progressive worsening and deterioration of the

condition of plaintiffs right lower extremity and in par-

ticular his right knee flexion contracture subsequent to

December 14, 1972—with plaintiffs consequent inability to

walk or ambulate by himself, without the use of a walker or

36a Appendix E

a standing cane—was caused, at least in part, by the negli-

gence of the defendant and its failure to provide plaintiff

with a reasonably safe place within which to work and a

reasonably safe means of ingress to its vessel on July 24,

1970, when plaintiff was struck by the L. C. M. while in

the process of disembarking the same and stepping up onto

the bottom of the gangway of the USNS Suamico.

6. Plaintiff has suffered permanent physical injuries

and damage that will endure for the remainder of his life

and cause him permanent limitation of motion and in-

ability of use of his right hip, permanent right knee flexion

contracture and permanent inability to walk or ambulate

by himself without the use of a walker or a standing cane,

all of which permanent injuries have been caused, at least

in part, by the negligence of the defendant and its failure

to provide reasonably safe means of ingress to its vessel on

July 24, 1970, when plaintiff was struck by the L. C. M.

while in the process of disembarking the same and stepping

up onto the bottom of the gangway of the USNS Suamico.

7. A verdict is entered in favor of plaintiff, William

Reilly, and against defendant, United States of America, in

the total amount of Seventy Nine Thousand Four Hundred

Twenty Five Dollars and Seven Cents ($79,425.07).

MAINTENANCE AND CURE.

1. Plaintiff, William R. Reilly, served aboard the

USNS Svamico in the capacity of saloon messman from

June 25 to July 25, 1970.

2. Defendant, United States of America, owned, op-

erated, managed, possessed and controlled the USNS

Suamico and for purposes of the within action is respon-

sible to plaintiff for any contractual responsibilities of an

employer to a merchant seaman working aboard its vessel.

Appendix E 37a

3. On July 24, 1970, plaintiff was injured while return-

ing to the USNS Suamico from shore.

4. The National Maritime Union contract applicable

provides for the payment of maintenance and cure benefits

to a seaman who is injured or becomes ill while employed

aboard a vessel at the rate of eight dollars ($8.00) per day.

5. Between July 25, 1970 and March 5, 1972, plaintiff

was paid maintenance and cure benefits by defendant for

all periods of time during which he was appropriately en-

titled to maintenance and cure payments under the ap-

plicable National Maritime Union contract.

6. Defendant terminated maintenance and cure pay-

ments to plaintiff on March 5, 1972, on which date plaintiff

was still “not fit for duty” according to the medical certifica-

tion of the United States Public Health Service Hospital in

Staten Island, New York.

7. Plaintiff continued on a “not fit for duty” status,

according to the United States Public Health Service Hos-

pital in Staten Island, New York, from March 5, 1972

through June 21, 1973.

8. Dr. Beller testified that, as of September 23, 1971

plaintiff had reached a plateau of medical care for recovery.

At that time plaintiff was having only follow-up visits at

three month intervals with the Public Health Service and

was not undergoing active treatment or therapy, but merely

observation. On May 30, 1973, plaintiff was re-examined

by Dr. Beller, whose findings were essentially the same as

those of September, 1971. Plaintiff still had a right knee

contracture of 20°. Dr. Beller testified that his findings on

May 30, 1973 confirmed and reinforced his prior opinion

that plaintiff had reached a point of maximum cure in

September, 1971. Dr. Beller also concluded on May 30,

1972 that plaintiff would not benefit from further treatment.

£ et £ARAIEEASG«

Nite te ee 288

38a Appendix E

On May 25, 1972, the orthopedic examination sug-

gested that “perhaps a spring loaded knee brace would

help.” Accordingly, he was fitted with a knee brace on

June 27, 1972. Three weeks later, plaintiff had a stroke on

July 16, 1972. At trial, Dr. Beller testified that, in his

opinion, plaintiff's condition would not improve, even with

a spring loaded knee brace, as a knee brace would not aid

significantly in stretching a two year old contracture on a

66 year old man, and in any event, would require 6 weeks

to 3 months of continued use before any improvement is

possible in a likely candidate. Dr. Klinghoffer admitted

that, in the three week period from the time of receiving

the brace on June 27, 1972 to the day of his stroke on July

16, 1972, plaintiff would have achieved little, if any, ben-

efit or improvement in plaintiff's right knee, even if plaintiff

had used the knee brace for the full period, which plaintiff

did not do. It is obvious therefore that the knee brace could

not have aided plaintiff in this period as he discarded its

use within 19 days of receipt.

We find therefore that plaintiff had reached a state of

maximum possible cure by September 21, 1971 when plain-

tiff was found to have a 20° right knee flexion contracture.

Plaintiff's condition would not, and in fact did not, improve

after that time. However, as plaintiff continued to receive

maintenance and cure until March 6, 1972, and since plain-

tiff had reached the point of maximum cure before that

date, plaintiff is not entitled to recover any additional sums

in this action for unpaid maintenance and cure.

hy ne

Appendix E 39a

CONCLUSIONS OF LAw.

1. As a result of plaintiff's service aboard the USNS

SuaMico and as a result of his being injured while attached

to and employed upon such vessel, he is entitled to main-

tenance and cure payments at the rate of eight dollars

($8.00) per day.

2. Plaintiff reached maximum cure before March 5,

1972, the date on which defendant terminated his main-

tenance and cure payments.

PELE BE LADEN CIES DE TOES

= Be a ee

a Ree ER GEERT OEE

Appendix E

ORDER.

And Now, to wit, this 4th day of June, 1974, it is

hereby Ordered that judgment be entered in favor of plain-

tiff and against defendant in the sum of Seventy Nine

Thousand Four Hundred Twenty Five Dollars and Seven

Cents ($79,425.07).

AND It Is So Orpverep.

CLARENCE C. NEWCoMER

Clarence C. Newcomer, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.