The opinion of the court was delivered by: DAWSON
This is an action by the libelant, a seaman, for damages because of injuries received by him when, in descending into the hold of the S.S. Casimir Pulaski on or about march 7, 1952, the rung on a ladder gave way, causing him to fall some twenty-five feet into the bottom of the hold and suffer substantial personal injuries. There is no dispute that the ship was owned by the United States of America and operated pursuant to the usual General Agency Agreement by Eastern Steamship Lines, Incorporated.
1. The Issue As To Liability
The facts upon which the issue of liability is asserted and denied are not substantially in dispute. They are, and are found by me to be:
(a) The libelant was, on March 7, 1952, the Third Mate on the S.S. Casimir Pulaski (hereinafter called the 'ship').
(b) On or immediately before March 7, 1952, the ship was docked at Trieste, Italy, and engaged in the discharge of coal from the holds of the ship; and such coal was being discharged by stevedores using clam shell buckets and shore cranes.
(c) In the early morning of March 7, 1952, in the course of unloading the coal, damage was done to the forward ladder in hold No. 3. In the log of the ship, there appears the notation made by an officer of the ship, which stated:
'Resumed disch. No. 3 and found 2 broken rungs and damage to ladder No. 3 hold forward.'
(d) Before starting his watch at 4:00 P.M. on March 7, 1952, the libelant knew from examining the foregoing statement in the log book and also from personal observation that two rungs were missing from that part of the forward ladder in No. 3 hold which ran from the 'tweendeck to the lower hold. His observation did not indicate any other damage to the ladder.
(e) The libelant went on watch at about 4:00 P.M. on March 7, 1952; his watch lasted from 4:00 P.M. to midnight. During this period of time, he was the only deck officer on duty.
(f) At about 11:00 P.M. on March 7, 1952, the libelant asked the Chief Engineer to turn the steam on the deck lines because the temperature was down to freezing point. The Chief Engineer turned on the steam. The libelant, who had returned to the deck, noticed steam pouring out of No. 3 hold and that stevedores who had been working in the hold were hurrying to get out of the hold. Libelant thereupon went to the engine room and told the Chief Engineer to turn off the steam because it was escaping into No. 3 hold. The steam was turned off.
(g) The libelant returned to the deck and upon reaching the location of No. 3 hold, decided to go into the hold to investigate where the steam was coming from, what had caused it to escape, and whether any stevedores had been scalded and were still in the hold or whether any damage had been done. Since libelant was the only deck officer on duty at that time on the ship, I believe that it was properly within the scope of his duties and responsibilities to make such investigation.
(h) There were three ladders which led from the deck into No. 3 hold. One was a ladder which went through the ventilator trunk to the lower hold. This ladder, being enclosed, was in darkness, and the use of this ladder would have necessitated the use of a flashlight. The libelant did not have a flashlight with him, but did have one in his room on the ship. This ladder was not customarily used except when the hold was full of cargo. The second ladder was the aft ladder into the hold. It was not customarily used because of the fact that to approach the ladder it was necessary to traverse a space between the midship house and the coaming where the aft ladder was located, and this space was only eighteen inches wide. The third ladder was the forward ladder in No. 3 hold. This ladder ran from the deck to the 'tweendeck, and then from the 'tweendeck to the bottom of the hold.
(i) Stevedores entered and left the hold by means of that ladder on March 7, 1952 after the damage had been done to the ladder and before libelant was injured; and the mate who preceded libelant on duty entered and left No. 3 hold by means of that ladder. Libelant had also observed stevedores using this forward ladder in No. 3 hold to escape from the hold when the steam escaped into that hold.
(j) Libelant descended into No. 3 hold using the forward ladder. He knew that two of the upper rungs on that part of the ladder between the 'tweendecks and the bottom of the hold were missing. Therefore, in going from the 'tweendeck to the lower hold, he first put his hands on the bottom rung of the ladder from the main deck to the 'tweendeck and his foot on the upper remaining rung of the ladder from the 'tweendeck to the lower hold, which was below the space left by the two missing rungs. Libelant then reached down and put his hands on this first upper rung and put one foot on the rung below that. When ...