Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.
This is an appeal from a decree dismissing a libel in admiralty seeking maintenance and cure and recovery for injuries alleged to be due to unseaworthiness and negligence. The dismissal was premised on the trial court's determination that (1) the vessel was seaworthy; (2) the respondents were not negligent; and (3) "Libellant's injuries resulted solely from his intoxicated condition and, therefore, were caused solely by his own gross and wilful misconduct."
The facts are detailed in the District Court's opinion, E.D.Pa.1952, 104 F.Supp. 489, and are virtually undisputed. Briefly, they are as follows:
Libellant was a member of the crew of the merchant vessel Christian Bergh, a Liberty type ship. On Thanksgiving Day, 1948, the vessel was docked at Piraeus, Greece. Libellant went ashore on liberty in the early evening. He returned several hours later in an intoxicated condition. Wet and chilled from exposure (it had been raining and sleeting), he went directly to the recreation room to dry out his clothes and warm himself. The recreation room was ten feet wide and twenty-five to thirty feet long. It was furnished with two tables fastened to the deck, one extending forward from the after bulkhead, the other aft from the forward bulkhead.Swivel chairs were anchored on both sides of the tables. Libellant sat in one of those chairs. Its back was twelve inches from a steam radiator. The latter was comprised of separate sections, which together were nine feet long. Its top was thirty-four inches from the bottom of the deck. It was three inches wide, and was secured to the bulkhead by means of brackets in such a manner that the distance between the bulkhead and the radiator was three inches. The temperature of the radiator would have been approximately 230 degrees Fahrenheit if the steam were turned on at normal pressure. There was no evidence as to what the pressure was on this occasion but the ship's log noted that the radiator was "hot" at the time.
There was no cover or guard placed about the radiator in question or any other radiator on the vessel. Similar type vessels (Liberty ships) are equipped with covers or guards of heavy sheet metal which completely cover the front and top of their radiators and afford protection against direct contact with the radiators and from their "excessive heat". Vessels of other types are also equipped with radiator covers or guards.*fn1
Fifteen or twenty minutes after libellant sat down, he slumped, because of his intoxicated condition, against the radiator. He tried to push himself off with his hands, but was unable to do so. Some time later fellow crew members discovered him lying on the radiator. He was severely burned, having suffered third degree burns on both hands and on the right side of his face. Approximately one-half of his right ear was burned away.
As we have frequently observed, an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the district court; the findings of the latter when supported by competent evidence are entitled to great weight and should, therefore, not be set aside on appeal except upon a showing that they are clearly wrong.*fn2
In our opinion the record clearly establishes that the absence of covers or guards about the radiators created an unseaworthy condition and that the District Court erred in determining otherwise.*fn3
Further we are of the opinion that the District Court erred in concluding as a matter of law that the libellant was not entitled to maintenance and cure.
First as to the issue of seaworthiness:
These principles are well-established:
The vessel and her owner are liable to an indemnity for injuries suffered by seamen in consequence of the unseaworthiness of the ship or a failure to supply and keep in order its appurtenant appliances and equipment;*fn4 the warranty of seaworthiness "* * * is essentially a species of liability without fault * * *"; and the liability "* * * is a form of absolute duty owing to all within the range of its humanitarian policy";*fn5 it is the traditional policy of the maritime law to afford adequate protection to seamen "* * * through an exaction of a high degree of responsibility of owners for the seaworthiness of vessels and the safety of their appliances * * *"; neither assumption of risk nor contributory negligence bar recovery of indemnity by the injured seaman; contributory negligence merely serves to mitigate damages.*fn6
Applying these principles to the issue here presented we are of the opinion that the vessel and its owner failed to meet the standard of a "high degree of responsibility" and the "absolute duty owing to all within the range" of the ...