Dora Mayer and Simon Mayer, Libelants-Appellants v. Zim Israel Navigation Co., Ltd.

FRIENDLY, Circuit Judge.

Mrs. Mayer embarked at Haifa, Israel, as a passenger on the respondent’s vessel, S.S. Israel, destined to New York. She was assigned an upper berth. As the ship was leaving Haifa, she fell from the berth and suffered a serious fracture of the left leg at its junction with the hip. She claims damages for her injuries, as does her husband for loss of services and consortium.

Mrs. Mayer’s testimony was that the ladder by which she had climbed to the upper berth was movable and that she fell while reaching for it in order to descend. Her claim appears to be that it was negligent to have a movable ladder, or at least to have one positioned as she stated this to have been, with no instructions given as to how to reach the ladder and no bell available in the upper berth. She testified also that, after the fall, the ship’s doctor violently rotated the injured leg for several minutes; that four men then dragged her along the deck to the ship’s hospital, where she remained until taken from the boat at Naples for surgery; and that her request to the doctor to be put ashore at Haifa for immediate medical attention was refused. The steward testified that the ladder was permanently affixed to the berth at a place easily reached. Two fellow passengers in the same cabin gave testimony which the judge, in his opinion dictated at the close of the trial, characterized as to the same effect, although cross-examination had developed that their only unqualified assertions related to the ladder which served another berth. And defendant contended that photographs of the cabin showed it was physically impossible for the ladder to have been where Mrs. Mayer claimed.

Judge Dawson dismissed the libel. He declined to accept Mrs. Mayer’s testimony that the ladder was not affixed to the berth. He found her claim as to having been dragged along the deck to be “so utterly inconceivable as to be unworthy of credence” and to cast doubt on all her testimony. He rejected her testimony that the doctor had rotated the injured leg for a number of minutes. He did not discuss the claim that respondent breached its duty by failing to heed Mrs. Mayer’s request to be put ashore.

Plainly the trial judge’s refusal to accept Mrs. Mayer’s version of the cause of the accident and to credit her testimony as to being dragged along the deck was not clearly erroneous. We likewise cannot find it was clearly erroneous to refuse to credit her testimony as to the overly energetic and prolonged manipulation of the injured leg, even though this was uncontradicted and an inference favorable- to her might have been drawn from respondent’s unexplained failure to produce the testimony of the ship’s doctor. For “The witness’ demeanor, not apparent in the record, may alone have ‘impeached’ him,” Broadcast Music, Inc. v. Havana Madrid Restaurant Corp., 2 Cir., 1949, 175 F.2d 77, 80. Cf. Dyer v. MacDougall, 2 Cir., 1952, 201 F.2d 265, 269. Here, in addition, there was what the judge was warranted in finding to be the incredibility of Mrs. Mayer’s testimony as to the dragging and the contradiction of this by other passengers and by her own deposition, as well as statements on her part as to the time she had held her ticket in advance of sailing, as to the duration of the voyage to Naples, and as to the length of her hospitalization there, all of which, to say the least, were proven to be inaccurate in a sense uniformly favorable to her case. We, therefore, do not reach the interesting question whether the decision in Laubheim v. DeKoninglyke N. S. M., 1887, 107 N.Y. 228, 13 N.E. 781, that “If, by law or choice, the defendant was bound to provide a surgeon for its ships, its duty to the passengers was to select a reasonably competent man for that office, and it is liable only for a neglect of that duty,” still represents the common law of New York, or constitutes a correct interpretation of general maritime law¹ applicable to passengers although it surely does not with respect to seamen suing for maintenance and cure or under the Jones Act, 46 U.S.C.A. § 688, see DeZon v. American President Lines, Ltd., 1943, 318 U.S. 660, 666-668 and note 2, 63 S.Ct. 814, 87 L.Ed. 1065.

Neither do we find reversible error in the judge’s failure to hold that defendant breached its duty by refusing to heed Mrs. Mayer’s request to be put ashore while the boat was still near port at Haifa, or at least to make a finding on that issue; for there was no evidence that this aggravated the injury. Libel-ant’s medical expert could not “say just how much of an effect waiting three days would have” and respondent’s expert testified it would have none. Hence we likewise do not reach respondent’s claim, decided against it by Judge Cashin on a motion for summary judgment, D.C.S.D.N.Y.1959, 177 F.Supp. 69, that libelant is barred by a clause in the ticket requiring suit to be brought within a year after the passenger has landed — decision of which would involve the application and validity of the admittedly formal and often subtle distinctions developed from the rule in The Majestic, 1897, 166 U.S. 375, 17 S.Ct. 597, 41 L.Ed. 1039, by such cases as Baer v. North German Lloyd, 2 Cir., 1934, 69 F.2d 88; The Leviathan, 2 Cir., 1934, 72 F.2d 286; Maibrunn v. Hamburg-American S.S. Co., 2 Cir., 1935, 77 F.2d 304; Bellocchio v. Italia Flotte Riunite, 2 Cir., 1936, 84 F.2d 975; The Kungsholm, 2 Cir., 1936, 86 F.2d 703; Baron v. Compagnie Generale Transatlantique, 2 Cir., 1939, 108 F.2d 21; Foster v. Cunard White Star, Ltd., 2 Cir., 1941, 121 F.2d 12; Murray v. Cunard S.S. Co., 1923, 235 N.Y. 162, 139 N.E. 226, 26 A.L.R. 1371; and Reichman v. Compagnie Generale Transatlantique, 1943, 290 N.Y. 344, 49 N.E.2d 474.

Judgment affirmed.

On Petition for Rehearing

PER CURIAM.

The petition for rehearing is denied.

1 . No evidence of Israeli law was offered. The judge stated in his oral opinion that “it was stipulated that the Court might decide the issues under the applicable law of New York.” Both this remark and the transcript leave us in some doubt whether the stipulation referred to the “common law” of New York, or the law that New York would apply in a maritime matter in a case not governed by a specific foreign law, which as we know now, although it was not known in 1887, would be the general maritime law. See Gilmore & Black, The Law of Admiralty, pp. 374 ff. It does not appear necessary to resolve this.