The opinion of the court was delivered by: BYERS
This cause involves injuries suffered by the libelant Lester on July 15, 1947 when he fell overside to starboard from the U.S. Motor Cruiser Q-100, to the floor of a dry dock of the impleaded respondent. The vessel was in that dock for the purposes of general overhaul, and there is no substantial factual dispute emerging from the testimony at the trial.
The libel alleged that Lester slipped and was thus caused to fall, because of the presence of oil or grease on the top of the trunk top or that part of the top deck of the vessel which is aft of the pilot house, and extends to the roof or covering of the cockpit at the stern.
It would be said at once that the libelant's evidence is devoid of demonstration of any oil, grease or other foreign substance which caused him to fall. If that were the entire case, dismissal would be inevitable without more. The foregoing constitutes a finding on that subject.
The libel also alleges fault on the part of the United States '* * * in causing, suffering and permitting said vessel and the deck and all the various parts thereof to be, become and remain out of repair and in a defective and dangerous condition, unsafe and unseaworthy.' The foregoing was deemed at the trial to sufficiently allege unseaworthiness, and the briefs for respondents do not challenge that understanding.
The only important subject for discussion is whether the unseaworthy condition existed by reason of the absence of a rail extending above the bulwarks on the main deck, alongside of and a few inches higher than the trunk top, which if in place the libelant could have grasped and thus saved himself from the fall and its consequences.
For reasons which I shall try to make clear, it seems that the libelant has sustained his burden of proof.
In the first place, one of the provisions of the contract for this overhaul job is contained in specification 1.15 which reads as follows:
'Furnish labor and material to install brass guard rail, approximately 24' high of 1 1/4' dia. brass pipe complete with all stanchions and fittings (brass) on main deck bulwark cap rail port and starboard from after cockpit to forecastle cap rail flare, approximately sixteen (16) feet long. Provide suitable gangway opening in guard rail port and starboard.'
Had that specification been adhered to prior to July 15, it is reasonable to suppose that the libelant would not have fallen overside. The very presence in the contract of the quoted specification constitutes such a recognition by the Government of the necessity for this element of protection to those on board the vessel, that there is little room for argument that a business guest properly present on the vessel was not one of those whose safety was within the contemplation of the contracting parties.
The marine surveyor and inspector having supervision of the performance of the contract, Krull by name, became convinced while the work was going forward that the quoted specification should be changed so as to provide for the installation elsewhere of certain hand rails. As to the latter there is no occasion for discussion, since it clearly appears from Captain Maddalone's testimony (p. 194) that the grab rails which were indeed installed did not and could not serve the purpose of the railing as above specified.
He was the master of the Q-100 and was unable to explain why the specified brass railing was not supplied.
The explanation for the change is found in other testimony, namely that Krull believes that a notation made by one Neff, an employee of respondent-impleaded, explains why Krull acceded to the non-performance of this specification; that notation reads:
'Insufficient support on bulwark cap rail for this job. Substitute wooden grab rails against side of house as authorized by Army Surveyor Christof Krull. No change in quotation or new order.'
It will be seen that the necessity for the rails was not repudiated, but the recommended method of their installation was deemed not to be feasible; also that the substitution, so-called, was not a substitution at all, but a kind of alternative make-shift which would not serve the same purpose as the bulwark rail.
That the work could have been done, but differently, appears from this observation by Krull (p. 230):
'Q. In your judgment where would have been the best place to install a pipe-rail described in that specification? A. It should have been set inboard resting and secured against the inboard side of the bulwark.'
Thus the rail could have been supplied. True it would have rendered the passage on the main deck alongside of the cabin narrower even than would have resulted from following the specification as drawn; that probably would have forbidden walking in the space facing the bow or stern, 'You must walk sideways' (p. 228), a not unheard of method in moving about on such craft as the Q-100.
The specification is assumed by Krull to have been drawn by the Chief Engineer of the Q-100 or the Captain -- it was not couched in the language his own office would have used -- which is consistent with a practical understanding of the necessity for the rail on the part of those who were most familiar with the vessel and her operation.
Lest it be thought that the point has been somewhat labored, it should be said that the evidence is quite convincing to the court that the absence of the rail was no casual defect in the Q-100. On the contrary the Government contracted to provide it, and for failure to adhere to that purpose, which was not an inadvertent oversight, it must respond to this libelant unless it appears from the testimony that the deficient condition was unrelated to Lester's fall.
The Government argues that libelant's testimony cannot be relief upon, because he persisted in saying that immediately prior to his fall he emerged from the pilot house in which he had been working, through a doorway leading forward; and that he was moving toward the bow as he fell.
There was no such doorway, and thus he was plainly and honestly mistaken. That cannot be hold against him however; he was a landsman, doing electrical work and was probably unaware as he stepped out of the pilot house and moved in the direction he was facing on the trunk top to inspect the lights, the wiring of which he had been repairing, that he was actually walking toward the stern of the vessel instead of the bow.
He testified at the trial that he had taken a few steps when his feet slipped from under him, and he went over the side; that instinctively he grabbed for something to save himself, but nothing was there and he fell to the bottom of the dry ...