The opinion of the court was delivered by: BYERS
This libellant seeks to recover damages for injuries sustained on October 6, 1948, five and one-half years before the trial, when he fell from a ship's ladder while descending from 'tween decks to lower hold No. 5 on the U. S. Army Transport Private Frederick Murphy. The ship lay at a pier in the yard of Bethlehem Steel Company, respondent-impleaded, at 56th Street, Brooklyn.
She was to undergo repairs for bottom damage caused by grounding on a rick, to effect which it became necessary to pump fuel oil from the tank under lower hold No. 5 and the shaft alley, because of the rupture of the ship's bottom so occasioned. That operation as decided upon, called for fixing port and starboard hoses to tank vent pipes in that lower hold, and the use of suction pumps connected to each hose, so that the oil would be so conducted overside into The Patco, a sludge barge which lay alongside The Murphy, on which the pumps were rigged.
This particular job was the subject of a sub-contract between Bethlehem and The Salvage Process Corporation, by whom Manera, the libellant, was then employed.
The attachment of the hoses to the vent pipes required the cutting away of a portion of the latter, which was done on October 5th in the early afternoon by employees of Bethlehem. The necessity for this method of procedure seems to have resulted from an inspection of the ship promptly after her arrival at the Yard on October 4th, when it was realized that oil leakage through the ruptured bottom would interfere with proper drydocking; present were representatives of the Yard, the Maritime Commission, the Coast Guard and the Army Transport Service.
The lapse of time until July 2, 1952, when the impleading petition was filed, may explain why the men who did the cutting of the vent pipes for Bethlehem were not called as witnesses.
The rigging of the two hoses was performed by employees of Salvage, and in details important to libellant's cause the testimony of two of them was vague and uncertain.
The opening of No. 5 hatch at the main deck measured 25 feet fore and aft, and 22 feet 4 inches thwart-ship. At the 'tween deck level the former dimension was 33 feet, which means that the opening there extended 8 feet further aft than at the main deck, the width however was the same.
The lower hold was reached from 'tween decks, by vertical ladders, which were part of the ship's structure, one at the forward end of the hold, which was a lower section of one lading from the main deck, and the other, at the port side, which was the one used by libellant and from which he fell while in the act of descending, at about 3:00 A.M. on the date stated.
The ladder was formerly the lower section of one similar to the forward ladder, also leading down from the main deck, but its upper section had been removed during the year 1947 to make room for cargo in the 'tween deck. The top of the said lower section was about six inches short of being flush with the 'tween deck level; in using that ladder a man would lack the handholds while at or near its top, which the upper section formerly provided; however, two so-called angle irons 4" by 6" about 7" apart and about 10" from the side of the hatch opening were riveted to the 'tween deck directly above the top of this ladder, and the testimony shows that these were grasped by men in ascending and descending, in lieu of the support formerly to be found in the lower rungs of the upper section. Whether those angle irons were part of the original structure of the upper section is not the subject of testimony.
It is the inadequacy of these angle irons as a medium of support to one using this ladder, upon which libellant relies to sustain his claim that the ship was unseaworthy, and that it failed to provide him with a safe place in which to work.
Since he was not a seaman and was not exposed to the peril of descending from the 'tween deck into this lower hold while the ship was rolling or pitching on the high seas, the test to be applied must be that of what a business guest was entitled to exact of the ship, while in the performance of such a task as he was engaged in while the ship was lying at this repair yard dock. It is believed that the foregoing is a correct statement in view of all that was written in Pope & Talbot v. Hawn, 346 U.S. 406, 74 S. Ct. 202.
Since there is no contested issue of fact, it will be unnecessary to burden the the record with itemized findings; the following recital is adequate to expose the entire controversy.
The libellant was 28 years of age at the time of his accident, 5 feet 9 or 10 inches in height, had several years of experience as a tank cleaner, was thoroughly familiar with ship's ladders, had used them many times in his calling and while serving in the U. S. Navy for three years; his rating at discharge was Shipfitter, Second Class. He had had two years of high school education, seemed to be intelligent, and his demeanor as a witness created a favorable impression.
There is no doubt that he fell from this ladder to the bottom of the hold, landed on his feet, suffered a comminuted fracture of the left tibia and fibula, and so injured the ankle bone as to incur a limitation in the functions of the joint itself which is permanent and may require surgical treatment in the future to be alleviated. He was unable to resume his former occupation, but sought reemployment in October, 1950, and is now an inspector in a machine shop and is 'making considerably more than he ever made in ship cleaning.'
The job he was doing on The Murphy was to watch the hoses in lower hold No. 5 after they had been joined to the vent pipes, to detect possible leaks or other failure of performance of the gear which had been described.
He said that he was one of a gang of eight, who worked for 24 hours, two men at a time, 3 hours on and 3 hours off. His first trick on The Murphy began at 3:00 P.M. on October 5th and continued until 6:00 o'clock; he resumed at 9:00, left at midnight and returned at 3:00 A.M. on the 6th and in making his descent at about that time, suffered the injury giving rise to the suit.
He received compensation and medical and hospital charges until March 1950, following an examination by a doctor for the Compensation Service, at which time he was walking without a cane. This libel was filed during the following month.
The lay witnesses for the libellant in addition to himself were Olsen, the foreman of another gang, and Bragger, an oil tank cleaner in Olsen's gang, LeCato, second officer on The Murphy, and Finkenauer, a ship surveyor who gave opinion testimony.
Manera's own foreman Hodne, and his partner Alsacker, did not testify, and Manera said that the latter was missing at 3:00 A.M. on October 6th and that he went below in the lower hold alone; this means that his version of what happened is unsupported by other testimony. The two men whom he relieved at 3:00 A.M. and with whom he conversed when they reached the 'tween deck level, could have been in a position to observe what happened when he fell, but their testimony is also missing.
All measurements herein stated are taken from the unimpeached testimony of Second Officer LeCato.
The two salient aspects of the case are, first, whether libellant's fall actually occurred in the manner which he described and which he is assumed to have believed; and second, whether the failure to use the forward ladder for the descent from the 'tween deck level has been adequately explained since that was obviously the safer method of approach to the lower level by reason of the presence of the handholds which the upper section afforded to those using the lower section in going either up or down.
The frist question will be the better comprehended by an examination of U. S. Exhibits 2, 3 and 9 which are photographs of the top of the port side ladder, showing also the angle irons and their proximity to the top rung.
These and other photographs in evidence show dunnage, platforms, ship's gear and fittings which were not present in the 'tween deck space nor in the lower hold when the accident happened. Later when the photographs were taken The Murphy was about to be decommissioned and laid up, and the various articles so appearing were stowed in place as shown. As to the ladders, angle irons and other non-transient elements, the photographic exhibits accurately portray physical conditions involved in this litigation.
The ladder was 12 feet long, 15 inches wide, the rungs were 12 inches apart; it was offset 8 inches from the face of the hatch coaming, which means that as to the top and next rung there was that distance into which a foot could enter, thus affording much more than a 'toehold.' The vertical distance from the bottom of the 'tween deck to the surface of the lower hold was 13 feet.
The distance between the top of the 'tween deck coaming and the top rung of the ladder was 6 inches; the angle irons were of 3/8' thickness, and the 6-inch sides ran athwartship, the 4-inch sides fore and aft and their greatest distance from the face of the coaming was 10 inches.
Manera first went below as has been said, at 3:00 P.M. on October 5th. It was then daylight and he descended from the main deck via the forward ladder and when he reached the bottom of its upper section he said he proceeded to the 'tween deck. 'I couldn't get down to the lower hold. The simple reason was there was a strongback running athwartships, and there was not ...