Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
Other than in the immediate vicinity of a vessel's gangplank, is a shipowner under a duty to provide safe means of passage from or to the vessel over a dock area over which the shipowner has no control and/or to inspect and give warning of the conditions prevailing along the dock's passageway?
That is the primary issue presented by this appeal from the Order of the District Court for the Eastern District of Pennsylvania decreeing judgment in favor of the United States in an action in admiralty to recover damages for injuries sustained.
The facts were stipulated and appear in the District Court's Opinion, E.D.Pa.1951, 101 F.Supp. 89. They may be summarized as follows:
Libellant, in May 1946, was Chief Engineer of the SS. "William Moultrie" owned and operated by the United States. He was at the time 40 years of age and had been a merchant seaman for over 20 years. The vessel arrived at the Port of Brindisi, Italy, on the morning of May 6, 1946. It was moored at a long dock which was constructed parallel to the shore-line. A railroad track ran the length of the dock, and alongside and track and parallel to it was a cement walkway which was accessible via three or four steps. The walkway was six or seven feet wide and several hundred feet long.It had neither railings nor lights and was unguarded. About 100 feet beyond the bow of the "William Moultrie" there was a recess in the walkway about two and one-half feet square and four and one-half feet deep. The recess was a permanent part of the dock structure and was designed to contain shunting gear used in the operation of the railroad track.
Following the mooring on May 6th, the libellant went ashore during daylight hours. At that time he chose to walk along the railroad track rather than use the walkway. After dark, on the evening of May 7th, the libellant again went ashore on liberty. On that occasion he mounted to the walkway and proceeded along it until he fell into the recess previously mentioned, sustaining a contusion of his right knee and aggravation of a pre-existing arthritic condition.*fn1 The libellant had not been given notice of the existence of the recess by the ship's officers or crew. At the time, the Port of Brindisi was not blacked-out.
On the facts as stated the District Court found that he injuries sustained by the libellant were not caused by negligence of the United States. It should be noted that while the libel sought recovery of maintenance and cure in addition to damages for negligence, prior to the District Court's disposition the parties settled the maintenance and cure aspect of the case leaving open by stipulation only the question of damages for negligence.
On this appeal the libellant contends, as he did below, that (1) it was the shipowner's duty to provide safe egress from the vessel and that the duty was breached; and (2) it was the shipowner's duty to inspect and warn the libellant of the existence of the recess in the walkway and that this duty too, was breached.
With respect to libellant's first point, it should be observed that he maintains the duty to provide safe egress continues until the seaman reaches the public highway and is not limited to egress from the ship to the dock. Anent libellant's second point, it is his view that the shipowner's duty to give warning arises out of the parent-child, guardian-ward relationship of shipowner-seaman.
In making the contentions above stated, libellant asserts that the duty to provide a safe means of ingress to, and egress from, the vessel is part and parcel of the traditional duty on the part of a vessel to provide its seamen with a safe place in which to work.
Libellant has cited a number of cases to support his position but unfortunately for him they fail to do so.
Thus in Marceau v. Great Lakes Transit Corporation, 2 Cir., 1945, 146 F.2d 416, 418 a seaman recovered damages for injuries sustained when he slipped, while returning to work, on an accumulation of wet flour some three to five feet from the foot of an ill-lighted ladder leading from the dock to the vessel's deck. The Court held that the jury reasonably could have found that the flour was swept from the vessel to the dock and that the shipowner was negligent in causing or permitting the condition at the foot of the ladder to exist and in failing to provide proper lights under the circumstances. Moreover, the Court pointed to the fact that the seaman "was acting under orders when he returned to the ship" and "consequently at the time of the accident he was not only acting in the course of his employment but suffered his injuries while on property in the possession and under control of the defendant * * *."
Sassaman v. Pennsylvania R. Co., 3 Cir., 1944, 144 F.2d 950 on which libellant has placed great reliance is inapposite. There we merely held that for an injured employee to be able to claim a right of action under the Federal Employers' Liability Act*fn2 it must appear that his injuries were sustained either upon the premises where he normally performed duties of his employment or upon premises so closely adjacent thereto as to be part of the working premises in the sense that the employee was required to traverse them in going to or upon leaving his work. We did not hold ...