
    SULLIVAN v. UNITED STATES.
    District Court, S. D. New York.
    Jan. 13, 1947.
    Paul C. Matthews, of New York City (Archibald F. McGrath, of New York City, of counsel), for libellant.
    John F. X. McGohcy, U. S. Atty., of New York City (Kirlin Campbell, Hickox & Keating and Walter X. Connor, all of New York City, of counsel), for respondent.
   LEIBELL, District Judge.

Libellant has sued for maintenance only. There was no dispute as to the period, the 443 days while he was an outpatient at the Marine Hospital at Hudson and Jay Streets, Borough of Manhattan; or as to the rate, $3.50 a day. I believe he is entitled to a judgment against the respondent for $1,-515.50 for the following reasons: He was working aboard the ship while in port and received an allowance for lodging ashore and for meals. He was returning to his ship, where he was to stand the watch from midnight to 8 A.M., when he was attacked and robbed by several men within 225 feet of the entrance to the dock at about 10:00 P.M. He was upon the ship’s business when returning to the ship to stand his watch. He was badly beaten and the tibia of his right leg was broken. At the time he was attacked he was not exactly sober, but he was able to take care of himself and knew what he was doing. The injuries he received were not due to his own vices. Some thugs who beat and robbed him were the cause of his injuries. His right to a judgment for maintenance is supported by the principle of liability stated by Mr. Justice Rutledge in Aguilar v. Standard Oil Co. of New Jersey, 318 U.S. 724, at page 733, 63 S.Ct. 930, 87 L.Ed. 1107 as explained and applied in Kyriakos v. Goulandris, 2 Cir., 151 F.2d 132, at page 138.

Findings of Fact.

1. Libellant’s permanent home is Newport, Rhode Island, with his mother. He is a merchant seaman and usually ships out of New York. In May 1943 he had a room on West 20th Street, Borough of Manhattan, where he kept his clothes. He was hired by the respondent as fireman and watertender on board the steamship “Charles Goodyear” on May 28, 1943. Pie was not hired for any voyage and signed no articles. The hiring was through the Union. Libellant received a slip at Union Headquarters and after getting his clothes joined the ship at Jersey City.

2. He was told at the Union Hall that his pay was to be $110 a month. He received an allowance of $2 for sleeping ashore and an additional sum for meals. Nevertheless he had a bunk on the ship. His watch was 12 midnight to 8 A.M.

3. The steamship “Charles Goodyear,” at the time the libellant went aboard, was lying at a dock in New Jersey. The following day she moved to a drydock of the Bethlehem Steel Company at the foot of 27th Street, Brooklyn, New York, for repairs. The nature of the repairs was not shown. The vessel was afloat alongside the company’s dock. The ship had an engine room crew and maintained steam on a boiler for the winches, dynamos and pumps.

4. On June 3, 1943, libellant finished his work at 8:00 A.M. and went to sleep on board the ship. About 3:00 P.M. he went ashore with permission and proceeded to the Union Hall at West 17th Street, New York City. . He then visited a bar and grill across the street where he had his dinner and drank some beer. Leaving there he went to another bar and grill on 23rd Street, at Eighth or Ninth Avenue, where he met a friend and drank some more beer. He then proceeded to a bar and grill in the vicinity of South Ferry to meet another friend and he drank more beer. He had about 18 or 20 glasses of beer before he started back for his ship from South Ferry about 9 P.M. He took the BMT subway at Whitehall Street, Manhattan, to 25th Street and Fourth Avenue, Brooklyn. He proceeded along Fourth Avenue and bought a magazine and newspaper. He walked down 27th Street towards Third Avenue. It was about 10 P.M. The libellant was “feeling good.” He was not exactly sober but he was not “stupid drunk.” He knew what he was doing and was headed for his ship.

5. The steamship “Charles Goodyear” was lying at a pier in the drydock of the Bethlehem Steel Company at the foot of 27th Street. The entrance to the drydock was about 175 feet from the westerly side of Third Avenue and 27th Street. The ship was lying about 200 feet from the entrance. Third Avenue is 80 feet wide.

6. At the intersection of 27th Street and the easterly side of Third Avenue, libellant wast “jumped,” i.e. attacked, by two or three men. He was struck over the head and knocked down. As a result of the attack he sustained a fractured right tibia, lacerations of the face and contusions of the head. His assailants robbed him and escaped. Some persons carried him to a bench near the shipyard.

7. About 11 P.M. an ambulance was called and he was taken to the United States Marine Hospital, Hudson and Jay Streets, New York City; from there he was brought to the United States Marine Hospital, Stapleton, Staten Island.

8. He was a patient at Stapleton until August 9, 1943. He was then transferred to the Merchant Marine Rest Center at Gladstone, New Jersey, and remained there until August 30, 1943. He was then re-transferred to Stapleton and remained there until September 23, 1943, when he returned to the Merchant Marine Rest Center at Gladstone and remained there until October 14, 1943. He received outpatient treatment at the United States Marine Hospital, Hudson and Jay Streets, New York City, for an ulcer on his broken right leg from October 14, 1943, to December 20, 1944. He was then declared cured but his right leg is short about two inches.

9. The fair and reasonable cost of maintaining the libellant during the period of his disability, while he was an outpatient and received no maintenance, amounts to $1,515.50, for 433 days at $3.50 a day.

10. The libellant was engaged in the course of his duties on the night of June 3, 1943, while returning to the steamship “Charles Goodyear,” which was docked at the foot of 27th Street, Brooklyn, to go on his customary watch.

11. The libellant was not injured through his own vices or because of the beer he had consumed but through a separate, independent and intervening cause, a brutal attack by two or three men who robbed him of $8 at the intersection of 27th Street and Third Avenue, a distance of only 225 feet from the entrance to the dock at which his ship was berthed.

Conclusion of Law.

1. The libellant is entitled to a judgment against the respondent for $1,515.50 for maintenance.  