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It is the opinion of the Commissioner of Lighthouses that her fall was caused by a cleat on the wooden walk and that inasmuch as the cleats were placed on the walk as a precaution against accidents in wet and freezing weather, the Department should not be held liable for the accident. However, the Commission also admits that they know of no one who actually witnessed the accident, but that this is their assumption.
After a study of all the available facts surrounding the claim, your committee feel that the claim is justified and compensation due.
Report of the Commissioner of Lighthouses is appended hereto, together with other pertinent papers.
DEPARTMENT OF COMMERCE,
OFFICE OF THE SECRETARY,
Washington, March 25, 1935. Hon. AMBROSE J. KENNEDY, Chairman, Committee on Claims,
House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: In your communication of February 19, 1935, you requested the opinion of the Department concerning H. R. 3913, a bill for the relief of Edith M. Powell.
Enclosed are pertinent papers and a memorandum from the Commissioner of
Daniel C. ROPER,
Secretary of Commerce. DEPARTMENT OF COMMERCE,
BUREAU OF LIGHTHOUSES,
Washington, March 21, 1935. SECRETARY OF COMMERCE:
1. Reference is made to memorandum of February 25, 1935, from the Assistant Solicitor relating to H. R. 3913, a bill for the relief of Edith M. Powell.
2. It appears from the records of this office that on the morning of August 5, 1926, Mrs. Edith M. Powell, a visitor at the Yaquina Head Light Station, Oreg., caught the heel of her shoe on a cleat on a wooden walk and fell, thus causing the alleged injury. None of the personnel of the light station actually witnessed the accident but rendered all assistance possible when it was brought to their attention. The walk where the accident occurred is on an incline and was so placed by employees of the Lighthouse Service to enable keepers of this station to wheel fuel and other supplies about the reservation, the cleats having been placed on one-half of the inclined walk as a precaution against accidents in wet and freezing weather, and investigation did not disclose any evidence that this walk was either in a defective condition or of faulty construction. As many as 20,000 people have visited this station during. 1 year, and on some days as many as 2,000 have visited the station, without a single accident. It is the opinion of this office that neither the Government nor any of its employees was negligent in this matter, and the Bureau accordingly does not feel justified in recommending that the bill be approved.
3. A similar bill" (H. R. 15430) was introduced in the House of Representatives in 1927, and similar report was made to the Department at that time. Copies of previous papers relating to this matter are herewith for information.
G. R. PUTNAM, Commissioner of Lighthouses.
IN THE MATTER OF THE APPLICATION OF Edith M. POWELL FOR RELIEF FROM
THE GOVERNMENT OF THE UNITED STATES BECAUSE OF INJURY SUFFERED IN AN ACCIDENT INCURRED ON GOVERNMENT PROPERTY NEAR NEWPORT IN
LINCOLN COUNTY, OREG., ABOUT THE 2D DAY OF August 1926 STATE OF OREGON,
County of Multnomah, ss: I, Edith M. Powell, being first duly sworn, upon oath depose and say that on or about the 2d day of August 1926, while at Newport, Oreg., I visited the lighthouse operated by the Federal Government on territory belonging to it, and while undertaking to pass over a certain walk leading to the said lighthouse the defective construction of the sidewalk over which I passed caused me to fall. The
planks of which said walk was constructed were laid end to end, and it seemed at the juncture with the ends of planks there was an imperfect jointure of a plank above the level, and I struck this as I walked, and this caused me to fall. That these planks placed end to end and the plank on the left hand of the walk leading from the lighthouse at the farther end has got out of place, so as to not support the end of the plank, or that the plank from wear and time had become rotten so that no solid support rested on the crosspiece, and by this condition when weight was placed on said plank by one walking thereon it would sag down and then regain its former position after the pedestrian had passed on.
I further aver and say that this defect in the walk was not apparent when one proceeded away from the lighthouse on account of the plank springing back into position and the hazard not being thereby apparent or visible, that by stepping upon the plank it would give way, and that was the proximate cause of the affiant falling therefrom, which caused the fracture to the tibia and fibula bones of the left leg.
I further declare and say that I have been subjected to the following expenses in connection with said accidental injury: Hospital and medical fees, $375; servant hire, 7 months, $140; or a total of $515.
In addition thereto I have suffered great pain and misery for over a period of months and years, and do so still suffer, and that I have a permanent disability by reason of the fact that there never has been a complete recovery or healing of said fractured leg. That I have at all times been compelled and do now wear an elastic brace around the said ankle and knee. That for a period of at least 2 years I was unable to get about without assistance, being unable to use the leg in ordinary walking and going about the house for a long period of time, and it was necessary to be assisted in going up and down stairway in my home. That by reason of the said permanent disability in my leg, I claim damages therefor in the sum of $1,485, or a total of $2,000.
EDITH M. POWELL. Subscribed and sworn to before me this 4th day of May 1935. (SEAL)
W. H. FITZGERALD, Notary Public. My commission expires October 7, 1935.
STATE OF OREGON,
County of Multnomah, 88: I, Will F. Powell, being first duly sworn, depose and say that on or about the 2d day of August 1926 at Newport, Oreg., I was accompanying my wife, and 2 or 3 feet behind her, and saw her fall and assisted her thereafter and that I did not observe the defect in the walk by reason of the fact that the plank showed no defect until Mrs. Powell proceeded to walk thereon and the end sank down on account of the weight thereon and caused her to fall and cause the injury.
I further state to my own personal knowledge Edith M. Powell expended on account of said injury for hospital and medical fees the sum of $375 and the further sum of $140 for servant hire, or a total of $515.
I further state that to my own personal knowledge I was in a position to notice pain and suffering endured by Mrs. Powell and for a period of 2 years or longer I had to assist her about the house and especially up and down stairs and that to my own personal knowledge I know she is still compelled to wear an elastic support on her knee and ankle. Further deponent saith not.
Will F. Powell, Subscribed and sworn to before me this 4th day of May 1935. (SEAL)
W. G. FITZGERALD, Notary Public. My commission expires October 7, 1935.
STATE OF OREGON,
County of Multnomah, 88: I, Laura L. Shaw, being first duly sworn, upon oath depose and say that I am the record librarian of the Good Samaritan Hospital located in Portland, Oreg.
That on August 27, 1926, Mrs. Edith M. Powell was admitted to the said hospital and there received diagnosis of an injury she had received some time before, and the record discloses and the diagnosis so states:
"Fracture of the tibia and fibula near ankle, left." Operation: "Application of plaster cast to left leg.”
X-ray report: "There is a long oblique fracture in the fibula centering about 24 inches above the level of the ankle joint. There is an oblique fracture through the posterior articulating portion of the tibia into the ankle joint.”
I further state that the above and foregoing is a full disclosure of the reports of the hospital concerning the said Edith M. Powell without any additions thereto or alterations.
LAURA L. Shaw. Subscribed and sworn to before me this 25th day of October 1933.
B. F. MULKEY, Notary Public. My commission expires June 30, 1937.
STATE OF OREGON,
County of Multnomah, 88: 1, Dr. R. B. Northrup, being first duly sworn, depose and say that I am a regularly licensed practitioner of osteopathy and have so practiced in the city of Portland, State of Oregon, for 32 years. That I am a graduate of Pacific College of Los Angeles, Calif., and I am in active practice at this time. That on or about the 7th day of June 1932, Mrs. Edith M. Powell came to me for treatments. That at that time she was suffering from an injury to her knee.
I treated her daily during the remainder of the month of June and during July, August, September, and the first half of the month of October of that year. After that time I continued to treat her from one to two times a week up until the month of May 1933.
I found Mrs. Powell's left knee swollen with an inflammation and found the same to be a form of synovitis which was the beginning of arthritis. The joint of her knee is enlarged due to the inflammatory process. The bones were also affected, swollen, and enlarged. There is a shortening of her left leg due to the tilting of the left innominate, probably a permanent injury.. The histology of the case of Mrs. Powell shows she was injured in a fall sometime before and she had suffered since that time. Waile Mrs. Powell is improved she still occasionally must come and does come to me for treatments. Further deponent saith not.
R. B. NORTHRUP, D. 0. Subscribed and sworn to before me this 26th day of October 1933.
B. F. MULKEY, Notary Public. My commission expires June 30, 1937.
LUCKENBACH STEAMSHIP CO., INC.
FEBRUARY 9, 1945.-Committed to the Committee of the Whole House and
ordered to be printed
Mr. McGEHEE, from the Committee on Claims, submitted the
[To accompany H. R. 1484)
The Committee on Claims, to whom was referred the bill (H. R. 1484) for the relief of Luckenbach Steamship Co., Inc., having considered the same, report favorably thereon with an amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Page 1, line 6, after the figures “$1,577.74", strike out the period and insert comma, then strike out the words "Such sum represents the amount” and insert in lieu thereof the words "in full settlement of all claims against the United States for reimbursement of said sum of which was”.
A similar bill was favorably reported by this committee in the Seventy-eighth Congress.
The facts will be found fully set forth in House Report No. 503, Seventy-eighth Congress, which is appended hereto and made a part of this report.
(H. Rept. No. 603, 78th Cong., 1st sess.)
The purpose of the proposed legislation is to pay to Luckenbach Steamship Co., Inc., the sum of $1,577.74, in full settlement of all claims against the United States for reimbursement of said sum which was actually expended by said company in error, upon the instructions of the Immigration Service, on account of the hospitalization and death of one John Marcusson.
STATEMENT OF Facts The steamship Dorothy Luckenbach, owned by the claimant, left New York about August 16, 1940, and proceeded to San Diego, Calif., via the Panama Capal.
It stopped at a Canal Zone port to discharge a seaman for hospitalization and arrived in San Diego on September 4, 1940. Upon examination by the United States Public Health Service, John Marcusson, an alien of Norwegian
nationality and a member of the crew, was certified to be afflicted with a loathsome and contagious disease.
Under existing law, the owner of a vessel arriving from a foreign port is required to pay all expenses for treatment and burial in event of death of a seaman afficted with such a disease. It is also provided that a vessel shall be denied clearance unless such expenses are paid or appropriately guaranteed (U. S. C., title 8, secs. 169-171).
Since no adequate hospital facilities were available at San Diego, the officers of the steamship Luckenbach were instructed to place the seaman in the Seaside Hospital at Long Beach, Calif., when the vessel arrived at San Pedro. These instructions were complied with. Bills were sent to the claimant from time to time for payment of the hospital expenses but no payment was made until March 19, 1941, when the claimant, under protest, in order to obtain a clearance for the vessel, paid the sum sought to be recovered.
The seaman was hospitalized upon the instructions of the Immigration Service, and the claimant assumed that the expenses thereof would be borne by the United States Public Health Service, it being the position of the claimant that the ship was not arriving from a foreign port, the nature of her transit of the Panama Canal not interrupting the continuity of her domestic voyage. In other words, the contention of the claimant is that at the time the vessel arrived at San Diego, it was not a vessel arriving from a foreign port since it stopped at the Canal Zone port merely to discharge a seaman for hospitalization.
The Immigration Service took the contrary position, claiming that the vessel's transit of the Panama Canal changed the voyage of the vessel from a domestic to a foreign one, and that thus the vessel was arriving from a foreign port when it reached San Diego.
As stated, in order to obtain clearance, the claimant paid the expenses of hospitalization, and also of burial, since the seaman subsequently died. Payment was made under protest. The total of expenses is $1,577.74, and receipts showing payment thereof by the claimant are on file with your committee.
Your committee feel that the vessel's transit of the Panama Canal, and its momentary pause in the Canal Zone to discharge a seaman for hospitalization, did not change the character of the voyage from domestic to foreign, but that the voyage was a continuing domestic one, and that the ship was not one arriving from a foreign port when it reached San Diego. They further feel that the voyage being a domestic one, the claimant was under no obligation to pay the expenses in question, but that they should have been borne by the United States Public Health Service.
Your committee, therefore, recommend favorable consideration of the proposed legislation.
Appended hereto is the report of the Attorney General, together with other ertinent evidence, all of which is made a part of this report.
OFFICE OF THE ATTORNEY GENERAL,
Washington, D. C., April 2, 1943. Hon. Dan R. McGEHEE, "House of Representatives
, "Washington, D. C. MY DEAR MR. CHAIRMAN: This acknowledges your letter of February 18, 1943, requesting my views relative to a bill (H. R. 1890) to provide for the payment to the Luckenbach Steamship Co., Inc., of the sum of $1,577.74, said to bave been expended by that company on the allegedly erroneous instructions of the Immigration Service in connection with the hospitalization and death of one John Marcusson.
It appears from the files of the Immigration and Naturalization Service of this Department that the steamship Dorothy Luckenbach, owned by the claimant, left New York about August 16, 1940, and proceeded to San Diego, Calif., via the Panama Canal. It stopped at a Canal Zone port to discharge a seaman for hospitalization and arrived in San Diego on September 4, 1940. Upon examination by the United States Public Health Service, John Marcusson, an alien of Norwegian nationality and a member of the crew, was certified to be afflicted with a loathsome and contagious disease.
Under existing law, the owner of a vessel arriving from a foreign port is required to pay all expenses for treatment and burial in event of death of a seaman afflicted with such a disease. It is also provided that a vessel shall be denied clearance