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MCCARTY v. UNITED STATES

January 26, 1950

McCARTY
v.
UNITED STATES et al.



The opinion of the court was delivered by: BYERS

Decision is required concerning an accidental injury suffered by McCarty on June 30, 1947, at about 4:45 P.M. while he was using an abandon ship ladder in making his way aboard the S.S. Council Bluffs Victory from a sludge barge alongside. He was then an employee of Federal Stevedoring Co., Inc., and had been at work on a lighter, also alongside the ship, which lay just forward of the sludge barge, and having knocked off for the day, he was using this means of access to the dock via the ship. Weather conditions played no part in this happening.

That libellant fell as stated, and sustained injuries creating a permanent partial disability, is not in dispute. Nor is it questioned that he was caused to fall from a position on the ladder at the level of the main deck of the ship, because of his being struck by some of that portion of the ladder which extended upward and beyond the main, to and on the boat deck; that was a loop or bight which had been coiled and lashed short of the bitter end which itself was held to pad-eyes in the boat deck. The bight uncoiled because its lashings were removed, and thus it was pulled outboard and down alongside the ship as the result of McCarty's grasping some part of the ladder above the bulwark, while he was in the act of swinging his body over it preparatory to stepping on the main deck.

The critical question of what agency removed or cut loose that lashing of the bight of the ladder is not the subject of any direct testimony, which at once explains the difficulty of fixing responsibility for that episode. There is also a possible question of whether McCarty elected to use this ladder in preference to a Jacob's ladder which was available to him.

 This ship lay bow in, portside to the Huron Street Pier, East River, in the section of Brooklyn known as Greenpoint. She was owned by the United States and was operated by Pacific Atlantic Steamship Company as general agent under the standard form of operating contract. The status of that company in this case is not involved.

 Cargo was being discharged into lighters alongside the starboard side of the ship. The discharge was conducted by Federal Stevedoring Co. (hereinafter to be called Federal) under a contract not directly made with the United States, the terms of which are not important since it was conceded that no right of indemnity is now claimed in virtue of that contract. Federal is sought to be held by the Government, if liability is established, upon an asserted common law obligation 'to see to it that an injury is not sustained by one of its employees for which the United States might be held ultimately responsible'.

 McCarty's presence on lighter No. 332, and its position which was taken at 1:00 P.M. on this day abeam of hatch No. 3, have been established without dispute, as is true of a sludge barge operated by respondent Guardino which was next in line toward the stern and alongside the ship, separated from the lighter No. 332 by about 2 or 3 feet.

 That sludge barge had been placed in position on June 28th in connection with the work called for by Guardino's contract with Pacific Atlantic, namely, the cleaning of the fuel oil tanks of the ship, which involved rigging a hose from the ship to the barge into which the residue from the tanks was pumped; there the water content was drained off. The ship's pumps furnished the necessary power.

 It is that contract upon which the United States relies in asserting its cause against Guardino, again only if the libellant is to recover a decree at all. There are two respondents having that name, but the contract is agreed to have been with Guardino & Sons, Inc., and that company is deemed to be the party involved in this cause, and will be called Guardino.

 The terms relied upon (U.S. Ex. 3) are that 'The Contractor does indemnify and hold harmless * * * the United States * * * against all suits * * * for * * * personal injury * * * to which the United States * * * may be subject * * * arising or resulting from the fault, negligence, wrongful act of omission of the Contractor * * * its * * * servants, agents or employees'.

 The legal effect to be given to that engagement is an important issue in this case.

 On Saturday night, June 28th, the sludge barge arrived alongside the ship at 7:45 P.M., and Piazza, the foreman of the tank cleaning gang, with the help of his men put this debarkation ladder over the side of the ship, and down to the sludge barge. That is the ultimate fact which is not affected by the conflicting testimony of Piazza and Crawford, the night mate of the ship, and Francis, the night engineer, as to whether such rigging of the ladder was first forbidden and later acceded to by Crawford- involving a second lowering- or not. No finding is required because the conflict is unimportant save as it may bear upon the general accuracy of Piazza's testimony. The bitter end of the ladder was held to the boat deck by being rigged to pad-eyes, inboard of the No. 3 lifeboat.

 It is common ground that the ladder was so long that it fell between the sides of the ship and the sludge barge as it was first placed in position, and at the insistence of Crawford it was raised about 10 to 12 feet to avoid damage to the ladder. This shortened the usable length from 35 feet to either 25 or 23 feet, and created the surplus at the top which was stowed either on the main deck according to Crawford, or on the boat deck according to other witnesses. That was the part which fell upon McCarty and caused him to lose his hold and footing, and to drop some 20 feet or so to the sludge barge.

 These conflicting versions must be resolved not only for the sake of clarity, but also in respect of the legal incidents of the duty of supervision of the ladder, its rigging, and its continued use on June 29th and 30th.

 The finding will be that the surplus (10 or 12 feet) of the ladder was taken inboard at the boat deck, rolled up, and then lashed by Guardino with rope which it supplied. That rope was 1 1/4 inches in diameter, manila, and (as Dreier, the ship's second officer says) it was adequate and well secured in a seamanlike manner.

 Further, that this method of rigging the ladder was observed and not objected to or criticized by the officers of the ship during the entire days of June 29th and 30th, up to and including the time of McCarty's accident.

 The recital thus far is believed to comprehend matters as to which there is no residual controversy which would survive a consideration of the credible testimony.

 Nor will it be disputed that immediately after McCarty's fall it was discovered that the lashing which had bound the coil of surplus ladder, as it lay on the boat deck, was missing.

 Whether there were any lashings of the sides of this ladder, to the rail of the boat deck, is not very clear. It is unimportant, however, for the reason that the bitter end of the ladder was lashed to pad-eyes in the boat deck, as has been stated, and that lashing never carried away. It was not that end which struck McCarty, but the loop of surplus ladder which, when uncoiled, slipped either over ...


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