Opinion
No. 22970.
September 22, 1969.
Marvin S. Nepom (argued) and Ben T. Gray, Portland, Or., for appellant.
Erskine B. Wood, Jr. (argued), of Wood, Wood, Tatum, Mosser Brooke, Portland, Or., Edwin L. Weisl, Jr., Asst. Atty. Gen., Civil Div., Morton Hollander, Chief, Appellate Section, Dept. of Justice, Washington, D.C., Sidney I. Lezak, U.S. Atty., Portland, Or., John F. Meadows, Atty. Admiralty Shipping Section, San Francisco, Cal., for appellee.
Appellant, a seaman on a United States vessel, brought this action for damages based on the alleged unseaworthiness of the vessel.
Appellant's theory as formalized by a pretrial order was that while sleeping on the vessel in Singapore, he was bitten by a mosquito and contracted dengue fever; that the vessel was unseaworthy in that it did not have screens on the portholes to the room in which he slept.
The trial court found against appellant on the facts: that there was no custom or requirement for screens; that appellant did not carry his burden of proof as to proximate cause; that appellant might have contracted the fever in town rather than on the ship; and that the particular mosquito will not bite at nighttime.
After the court's decision the appellant moved to amend the findings, conclusions of law and judgment, and the pretrial order to include another theory, to-wit that the ship carried the disease of dengue fever. This theory was no more valid than the first theory. The motion was denied.
The case was tried on the theory outlined in the pretrial order. Counsel, after trial and an adverse decision, was properly denied leave to amend.
The doctrine of unseaworthiness does not extend to injuries caused by instrumentalities ashore having no connection with the vessel. Morales v. City of Galveston, (1962) 370 U.S. 165, 171, 82 S.Ct. 1226, 8 L.Ed.2d 412.
The judgment is affirmed.