The opinion of the court was delivered by: BRUCHHAUSEN
The libelant brought this action against the respondent, Commercial Stevedoring Co., Inc., hereinafter called 'the stevedore' and the respondent, J. L. Mowinckels Rederi, the owner of the vessel, Horda, for personal injuries, upon the grounds of negligence and unseaworthiness of the vessel.
The libelant, a lighter captain, employed by the Lehigh Valley Railroad Company, claims that on July 19, 1950, his lighter, a Lehigh Valley scow, came alongside the vessel, Horda, for the purpose of discharging its cargo onto the vessel; that adjacent to the libelant's scow was an Erie Railroad scow, also moored alongside of the Horda; that a Jacob's ladder extended from the deck of the Horda to the deck of the scow; that the ladder had rope sides and flat wooden steps; that the libelant was obliged to use the ladder to reach the dock; that, unknown to him, part of the top of the ladder was drawn up or folded over the deck, creating a slack in the ladder; that while ascending it and when he almost reached the deck of the Horda, the slack was suddenly released, causing him to lose his hold on the ladder and fall to the deck of the Erie scow.
The vessel Horda was moored, bow in, on the east side of Pier 34, Brooklyn, loading cargo. The Erie lighter, with its bow out of the slip, was moored to the starboard side of the vessel, abreast of No. 2 hatch. The first three hatches of the 393.2-foot vessel were fore of the midships house. The 4th and 5th hatches were aft of the house. During the afternoon of the said day the Lehigh Valley lighter was moored to the starboard side of the Horda, bow facing in the slip. It was moored to the bow of the Erie, which was facing out, approximately even with No. 3 hatch.
The libelant testified that he first moored his lighter; that he washed up in his cabin, procured his shipping papers and crossed over onto the Erie lighter; that he tested the ladder by pulling it at the bottom; that he commenced to ascend the ladder; that when the had almost reached the top, it suddenly dropped about five feet, causing him to lose his hold and fall to the deck of the Erie lighter. It further appears that the Erie lighter with the injured libelant on board was moved across the slip to the west side of the neighboring pier; that he was there questioned by the police and removed to the hospital.
The principal issue is whether there was a slack in the ladder, caused by pulling the upper portion of it up onto the deck. It is undisputed that the ladder was owned by the shipowner; that it was put over the side of the ship by the stevedore; that it was properly fastened to the deck of the vessel Horda and was in good condition.
Libelant further claims that the employees of the stevedore used the ladder in descending to the lighter on the afternoon of July 19, 1950; that later they left the lighter; that the last two of the employees to ascend the ladder reached back and pulled up the ladder a few feet; that sometime thereafter the Lehigh Valley lighter arrived and that the accident happened at about 3:30 P.M.
The libelant's witness, Edgar Rojahan, testified that he was the captain of a Jacob Rice and Son scow, Arthur R, moored across the slip on the west side of Pier 35, and was loading copper; that during the afternoon the employees of the stevedore descended the ladder to the Erie; that they later ascended the ladder; that the last two men ascending the ladder, reached down and pulled up the ladder twice over the rail of the ship; that the libelant came out of his cabin with a paper in his hand, walked over to the Erie lighter, shook the ladder and climbed; that when he was a few steps from the rail the ladder came down and the libelant lost his grip and fell; that the Erie lighter was moved across the slip next to the witness' scow, and then the police arrived.
William Forwalk, captain of the Erie lighter, onto which the libelant fell, testified that the Lehigh Valley scow arrived and moored; that the libelant crossed to the Erie, grasped the ladder, shivered it and pulled at it and then went up; that when libelant was almost at the top, it dropped; that he fell off the ladder and struck the cleat of the deck of the Erie; that prior to the accident the bottom of the ladder was about a foot above the deck of the Erie and that after the accident it hung several feet below its deck line.
The shipowner contended that the stevedore's employees had only been working on the Erie for a short time in the afternoon of that day; that very shortly after they finally ascended the ladder, the Lehigh Valley lighter arrived; that the stevedore knew of its arrival or should have so known, and should have provided the libelant with a proper means of ascent since the stevedore was under contract to discharge both lighters; that no one connected with the vessel, Horda, handled the ladder and that if a slack in the ladder had been created it existed for too short a time to constitute unseaworthiness of the vessel.
Christian Johannessen, third mate on the Horda, testified from the ship's log that the No. 3 hatch gang shifted to No. 2 hatch at 2:15 P.M. and went ashore from that hatch at 3:10 P.M.; that shortly thereafter, while securing the tarpaulin at No. 3 hatch, he learned of the accident, and that the police arrived at about 3:30 P.M.
The stevedore contended that at about 11:15 A.M. on July 19, 1950, its number 3 hatch gang, which had been working on the pier, switched to work offshore at hatch No. 2 from the Erie; that several of its employees descended the ladder before luncheon, ascended it at noon and again descended it at 1 P.M. and finally ascended it at about 2:30 P.M., upon receiving a signal from the hatch boss to transfer to the sister ship, Ronda, on the other side of the pier; that at no time had the ladder been pulled up by anyone connected with the stevedore and that its employees finally left the Erie lighter for work on another vessel.
The stevedore's witness Vincent Grillo, the hatch foreman, testified that at about 11:15 in the morning of that day, his gang switched to the Erie at No. 2 hatch; that his men procured the ladder; that he rigged it abreast of the winch house between No. 2 and No. 3 hatches; that at about 11:15 A.M. the men went down the ladder to the Erie; that at noon they came up for luncheon and went down again at 1 P.M.; that at about 2:30 P.M. he called up his men from the Erie to transfer them to the vessel Ronda, on the other side of the pier; that he followed his men onto the dock after covering up the hatch; that he neither noticed nor caused a slack in the ladder.
Anthony Puglia, a member of the gang, testified that he had been on the Erie both in the morning and afternoon and that when he finally ascended the ladder he neither placed nor noticed any slack in it.
Frank Marino, the header or boss of the dock section of the stevedore's gang, testified that he was on the Erie, after switching from the No. 3 hatch, both in the morning and afternoon; that he was the last man to ascend the ladder; that when he reached the deck of the Horda the other men had left and that he followed them ...