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March 13, 1954


The opinion of the court was delivered by: Wham, Chief Judge.

James S. Cowan, libelant herein, filed suit under the general maritime law pursuant to provisions of Suits in Admiralty Act, 46 U.S.C.A. § 741 et seq., for damages sustained as a result of personal injuries which he received while he was employed as a deckhand by the Inland Waterways Corporation, a wholly owned instrumentality of the United States, which said corporation operates vessels as a commercial carrier of freight on the navigable inland waters of the United States.

Respondents contested the jurisdiction of this court and libelant's right to maintain this suit both by exceptions and by answer asserting that libelant's exclusive remedy for such injuries was to be found pursuant to the provisions of the Federal Employees Compensation Act, 5 U.S.C.A. § 751 et seq., as libelant was an employee of the United States by reason of the fact that he was in the direct employment of an agency of the United States. The exceptions were overruled and the case proceeded to trial.

At the trial libelant presented evidence upon the questions of unseaworthiness of the vessel, how injury to libelant occurred, and the amount of damages sustained by him. Allegations of the amended libel charging negligence and seeking recovery for maintenance and cure were withdrawn.

The evidence shows that James Cowan was employed as a deckhand by the Inland Waterways Corporation, and commenced to work on board the towboat M/V Harry Truman on September 4, 1950. He was to be paid at the rate of $6.97 per day, and to receive subsistence and quarters while on the boat evaluated at the rate of $6 per day. For each day of active duty on board the vessel, libelant was to receive one-half day shore leave at full pay. While on shore leave he would not receive his subsistence and quarters. Under this arrangement libelant would, while steadily employed, receive full pay for every day and subsistence and quarters for two-thirds of the days of his steady employment. Libelant had previously worked as a deckhand for respondents and for various other employers, but this was his first day as an employee of the respondents under the employment agreement under which he was employed when injured.

On September 5, 1950, the said vessel was engaged in moving a tow of barges in a northerly direction up the Mississippi River from Alton, Illinois. The barges in the tow were coupled together by means of wire cables which were attached to certain fittings on the decks of the barges, and such cables were then drawn tight to secure the barges together in a compact tow by means of a manually operated winch fastened to the deck of the barge.

The winch here in question consisted of a cog wheel attached to the end of a metal drum, to which the end of the steel cable was fastened. This drum was mounted in a horizontal position within a heavy steel framework and was rotated by means of detachable cranks which were engaged with a shaft running horizontally through the steel framework over and above the metal drum. Cog wheels on the said shaft meshed with the cog wheel on the drum forming a system of gears which transmitted the power exerted on the cranks to the drum, causing the same to rotate and draw taut the steel cable which coupled the barges together. A dog, fastened to the frame of the winch, was positioned to catch in the cog wheel on the end of the drum and thus secure the drum in position after the cables were taut and the power manually transmitted through the cranks had been withdrawn and to prevent the drum from rotating in a reverse direction when the cranks were removed. The winch was also equipped with a braking device which was controlled by foot pedals located on three sides of the winch intended to hold the drum in position and prevent the drum from rotating when such brake was applied. Before the occurrence at a time unknown to libelant the brake on the winch in question had been unshipped and was not effective or in use at the time of the occurrence. This left the dog as the only remaining means of controlling the drum or holding it when the power transmitted through the cranks was lessened or withdrawn.

At about 8:30 a.m. on September 5, 1950, libelant and two other deckhands were engaged in tightening the cables between the barges by means of the winch. Two cranks were attached to the shaft of the winch, one crank at either end and on opposite sides of the framework. Libelant and a deckhand by the name of Luster operated one of the cranks, and a deckhand by the name of Jones operated the crank on the opposite end of the shaft. When the cable had been drawn in by the rotation of the drum to the desired tension, Jones detached the crank which he was operating, placed the dog in position to hold the drum and it held momentarily. Luster took his hands from the crank handle and libelant was in the act of detaching the crank which he and Luster were using when the dog slipped and failed allowing the drum to spin, causing the crank handle to strike the libelant with great force just above the left temple rendering him unconscious and resulting, as learned later, in a compound, comminuted depressed fracture of the skull and serious brain injury.

The above forms were received by libelant with a letter dated November 10, 1950, signed by C.S. Murray, personnel officer, by J.S. Sheehan, personnel assistant, with request to sign and return and after being signed they were returned pursuant to the request in the letter.

A "Claim for Continuance of Compensation on Account of Disability" dated February 28, 1951 and bearing a handwritten signature of libelant was forwarded to the United States Employees' Compensation Commission. On February 19, 1951 an award of compensation was made by the Bureau of Employees' Compensation of the Department of Labor, wherein libelant was awarded an amount of $623.28 to cover the period from September 5, 1950 to February 7, 1951, and provision was made for future compensation at the rate of $112.24 for each four weeks from February 7, 1951. Pursuant to this award checks were forwarded to the libelant and were endorsed with his name in the total amount of $1,081.24. The last check so endorsed bears the date of May 31, 1951. Further checks were issued in the amount of $112.24 each, dated June 28, 1951; July 26, 1951 and August 23, 1951, but were not cashed by libelant. On July 19, 1951 the present action was filed in this court. Checks in the total amount of $1,859.27 were also issued to cover the doctor and hospital bills of libelant.

Since the date of the injury libelant has been totally and permanently disabled from performing any useful or remunerative employment. He is unable to talk plainly or coherently, comprehends very slowly and with great difficulty what is being said to him and is unable to answer questions until after long thought and then very slowly and only in part. Libelant has suffered serious impairment of body and mind, has undergone personality changes, is subject to seizures in the nature of epilepsy which affect the right side of his body and result in loss of consciousness. Since receiving the injury he has changed from an ordinarily healthy, happy, gregarious individual to a person who is weak, inactive, morose, irritable and depressed. The evidence shows that as a result of the injury he suffers from a severe aphasia and from post-traumatic epilepsy with impairment of memory and intelligence.

The issues presented in the case are: (1) Did the libelant have a choice of remedies? (2) Did the libelant make an election of remedies which precludes him from recovering damages in this action? (3) Did the respondents furnish libelant with an unseaworthy appliance with which to perform his duties and if so was such unseaworthy equipment the proximate cause of the injury to libelant? (4) What amount of damages should be awarded to libelant, if any?

Under the evidence each of the issues must be decided favorably to libelant. Libelant is entitled to a proper award of damages in an amount to be determined from the proof.

That libelant had a choice of remedies was decided prior to the trial in the court's memorandum filed herein on July 2, 1953 which overruled exceptions to the libel asserting want of jurisdiction. By agreement of counsel, after said exceptions were filed, this case had been delayed to await a decision of the United States Court of Appeals in the case of Inland Waterways Corp. v. Doyle involving the same jurisdictional question. On June 16, 1953 that case, 8 Cir., 204 F.2d 874, was decided unfavorably to the government's contention. The libelant who, as in this case, had been injured in course of duty while on a merchant vessel owned and operated by the Inland Waterways Corporation, as distinguished ...

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