The opinion of the court was delivered by: GALSTON
This is a libel against the United States of America to recover for personal injuries suffered by the libellant as a result of a fall from a Jacob's ladder while attempting to board the SS. Pvt. Francis X. McGraw, an Army Transport.
On October 5, 1948, the libellant was employed as captain of oil barge Seaboard No. 55, owned and operated by Seaboard Shipping Corporation. At about 7:30 o'clock that morning, the Seaboard No. 55 was towed alongside and made fast to the McGraw for the purpose of delivering 5,500 tons of fuel oil ordered by the respondent for the vessel. At the time, the McGraw was moored at Pier 14, Staten Island, bow-in, port side to the north side of the pier. The Seaboard No. 55 was brought by a tug to the starboard side amidship of the McGraw and made fast on the offshore side of the vessel stern-in.
A Jacob's ladder was hanging over the side, about amidship, on the starboard side of the McGraw. This ladder was constructed of steel chain uprights with wooden treads or rungs about six inches wide. As the Seaboard No. 55 approached the McGraw, this Jacob's ladder was hanging down about even with the surface of the water. By the time the oil barge had been brought alongside, the ladder had been pulled up by some member of the vessel's crew. How high from the deck of the oil barge the Jacob's ladder was after it was thus taken up is a sharply controverted question.
The libellant came on deck of the barge about 8:00 o'clock. By this time, the barge had already been made fast to the McGraw. Libellant and the mate of the Seaboard No. 55 then went about the task of securing the hose for pumping the bunker fuel into the McGraw and also the hose for the steam used in pumping the fuel aboard. The steam was furnished by the McGraw, and the rate of pumping was controlled by regulating the steam pressure from the McGraw. The two men handled the hoses on the barge, while members of the crew of the McGraw did the work required in taking them aboard the vessel and securing them to their connections thereon.
After receiving word from the McGraw that the connections had been made, and adjusting the valves aboard the barge in readiness for the pumping to begin, the libellant went to the cabin of the barge for breakfast and to change his clothes preparatory to going ashore, off-duty. When he came on deck again he noticed that the stern breast line from the scow was chafing on the main deck railing of the McGraw. Pedersen stated that he and his mate shouted up to the McGraw for five to ten minutes for somebody to take a heaving line so they could put another line out to take the place of that breast line. Having got no response from the vessel, the libellant decided to climb up on the McGraw himself to take the heaving line from his mate. He testified that the Jacob's ladder which was hanging down the McGraw's starboard side was then about six to eight feet above the deck of the barge. He procured a wooden ladder of the Seaboard No. 55 and propped it up against the side of the McGraw. At the time, there was a space of about two or three feet separating the starboard side of the McGraw and the starboard side of the Seaboard No. 55.
Pedersen described the deck as a rivet deck, i. e. of steel plate. He placed the bottom of the ladder so as to rest against the edge of the plate, a raised edge of about an inch and a half. He then climbed the wooden ladder to reach the foot of the Jacob's ladder. It is his testimony that he climbed seven or eight rungs of the wooden ladder, then placed his left foot on the lowest rung of the Jacob's ladder and put his weight on the ladder to see that it was secure. It held, so he transferred from the wooden ladder and began climbing up the Jacob's ladder. He had climbed to within a couple of steps of the railing of the main deck when he felt the Jacob's ladder begin to slip. It slipped downwards several feet, and then stopped with a jerk. The sudden stop threw the libellant off the Jacob's ladder and caused him to fall to the deck of the barge. After the fall and while lying on the barge deck, the libellant noticed that the Jacob's ladder was all the way down to the deck, with a couple of its steps resting on the barge deck.
It is the libellant's testimony that the Jacob's ladder led down from the boat deck of the McGraw. At the time he started to climb the ladder, he noticed that part of it was taken in at the main deck of the vessel, below the boat deck, and it then continued down the side of the McGraw. It is his contention that the part of the Jacob's ladder which was taken in on the main deck had not been properly secured, causing it to slip as he was climbing it. When the slack had been taken up it stopped with a sudden jerk, causing him to fall off. No one saw the libellant fall.
Knute Bolt, the mate of the Seaboard No. 55, corroborated the libellant's testimony with respect to the preparations for pumping the fuel into the McGraw, the chafing stern breast line and to shouting to the vessel for a member of the crew to catch the heaving line. The mate testified to seeing some crew member taking up the Jacob's ladder on the main deck as the Seaboard No. 55 approached the vessel, until the ladder was about seven feet above the surface of the water. He did not see the libellant start his climb or fall from the Jacob's ladder. It appears that after the libellant went for the wooden ladder, a crew member of the McGraw came to the main deck railing. The mate threw him the heaving line, and was making fast the second breast line at the time of the accident. He became aware of the accident when he heard a cry for help, and upon investigating found the libellant on the deck of the oil barge.
The respondent called as a witness Isaac Aguero, a crew member of the McGraw on the day of the accident, who was on watch by the fuel oil line on the main deck of the vessel. He was stationed midship on the main deck, about ten or twelve feet from the Jacob's ladder. It was Aguero who caught the heaving line from Bolt, the mate of the barge, and made fast the second line of the McGraw. Aguero testified that when he looked over the side of the McGraw at the time he changed the lines, the Jacob's ladder was about twelve or fourteen feet above the deck of the barge. Shortly after securing the line, he heard a noise. He looked down over the railing and saw the libellant lying on the deck of the barge. He also saw the wooden ladder which the libellant had used. At the time, according to Aguero, the wooden ladder was partly in the water between the two vessels, and partly on the barge. However, he does not recall seeing libellant in the act of climbing either ladder. The witness had some difficulty remembering the position of the Jacob's ladder after the accident, which is understandable in view of the time lapse of almost six years. However, as best he could recall, it was in the same place when he looked over the railing and saw the libellant lying on the barge as it was when he had previously looked over and talked to the mate of the barge. He then climbed down the Jacob's ladder with Robert Hamilton, junior engineer on the McGraw, to the deck of the barge. At this time the ladder was all the way down to the deck of the barge.
When Aguero reported the accident to Hamilton, the two went to the railing of the McGraw and looked down to the deck of the barge. The libellant was no longer on the deck, having been helped to the cabin of the barge by his mate. Hamilton noticed the wooden ladder lying on the deck with one of the uprights broken. He estimated this ladder's length to be between 20 and 25 feet. He also stated that the Jacob's ladder was hanging down the side of the McGraw with its lower end about 16 or 17 feet above the deck of the barge.
The deposition of Donald P. Garrido, third mate of the McGraw, on October 5, 1948, was taken by the respondent. He was the watch officer that morning. His testimony, taken April 19, 1954, is that the Jacob's ladder was hanging down from the main deck about six feet above the high water marking of the McGraw. He estimated the lower end of the ladder to be about 20 feet from the water's edge.
The respondent contends that the libellant's fall did not occur while he was climbing the Jacob's ladder, but rather as he was attempting to climb the straight wooden ladder, which was part of the equipment of the Seaboard No. 55. However, an entry in the rough deck log of the McGraw, dated October 5, 1948, is directly to the contrary. It reads:
'0848 -- Thorlief Pedersen, master of oil barge Seaboard No. 55 of the Seaboard Shipping Company, Wilmington, Delaware, fell from ship's Jacob's ladder to deck of his barge.'
Respondent argues that even assuming that the libellant fell from the Jacob's ladder, it was not through any fault attributable to the respondent, but solely the result of his own negligence. That the ladder was hanging so high above the deck of the oil barge, as shown by the testimony of its witnesses, as to indicate clearly that there was no invitation to the libellant to use it. On the other hand, there is the libellant's testimony that the Jacob's ladder was only six to eight feet above the deck of the barge. He is corroborated on this fact by the mate of the barge. In this connection there is testimony that the oil barge was drawing about 7 feet 6 inches half loaded as she was at the time, and that when light she would draw about 14 to 18 inches. It was testified that the purpose in hanging a Jacob's ladder about 8 feet above the deck of a barge was to allow sufficient clearance to avoid the ladder being crushed between the sides of the two vessels as the barge rose higher in the water as it discharged its load of oil. As the Seaboard No. 55 would ride about six feet higher when light, a Jacob's ladder about 8 feet above the deck of the half loaded barge would be within easy reach when the barge had completed discharging. The libellant contends, therefore, that the height of the Jacob's ladder could not be considered as evidencing a denial of any right to use the ladder. With respect to the actual distance from the foot of the ladder to the deck of the barge, it is quite probable that the various figures given (all being approximations only) were a ...