The opinion of the court was delivered by: GURFEIN
This action was begun in the Supreme Court of New York County against the defendant shipowner and its agent alleging that the death of plaintiffs' decedent on the high seas was caused by the unseaworthiness of the vessel "EVELYN MAERSK" and by the negligence of her crew. The action was removed to this Court upon the ground of diversity of citizenship. The defendants have earlier been found to have waived their right to trial by jury. The defendants, as third party plaintiffs, have brought an action for indemnification against Marine Engine Specialties Corp., the employer of the decedent for alleged breach of the warranty of workmanlike service. The case was tried without a jury.
The subject matter jurisdiction rests on 28 U.S.C. § 1332 -- diversity of citizenship. Even if the action had remained in the State Court, it would lie under general maritime law for death caused by violation of maritime duties. Moragne v. States Marine Lines, 398 U.S. 375, 90 S. Ct. 1772, 26 L. Ed. 2d 339 (1970).
Since there is diversity of citizenship, the limitation of federal question jurisdiction under Romero v. International Terminal Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1958) does not apply. Nor is the right to jury trial a matter for consideration, since that right has been waived.
Charles W. Nye was a United States citizen who was a repairer of ship pumps. He was flown from New York to the Canary Islands to repair a pump on the defendants' vessel, EVELYN MAERSK ("Evelyn"), a Danish flag ship. The Evelyn was equipped with feed pumps manufactured by Pacific Pumps of Los Angeles, supplied to the vessel by Kockums Mekaniska Verkstad of Malmo, Sweden ("Kockums"). On her maiden voyage, which made no call at United States ports, a feed pump failed and she put into the Canary Islands. Kockums was called by the vessel's owner and it ordered a new pump to be installed under the supervision of Pacific Pumps. In turn, Pacific, pursuant to a service agreement, asked Marine Engine Specialties Corp. ("Marine"), a United States entity and the employer of plaintiffs' decedent Nye, to fly him there to supervise the installation. While ascending a pilot ladder drawn over the side of the vessel, Nye fell to his death on December 30, 1967 in the evening.
At 5:30 a.m. on the morning of December 30, 1967 the Evelyn had dropped anchor about a half mile East of the main channel of the port of Las Palmas (Jensen Dep. 32).
A half hour later a replacement pump was delivered and hoisted on board. The defective pump was removed to the deck and the new pump was put in its place by the ship's engineers (Jensen Dep. 23). The installation was completed by the ship's own engineers after the accident (Jensen Dep. 94).
During the day the weather was uneven with periods of rain. After 4 p.m., however, all shower activity had ceased (Jensen Dep. 27). Some time during the day the ship had been informed by the ship's agent in Las Palmas that Nye, the deceased, would be arriving by pilot launch (Jensen Dep. 33-34). Between 4 and 5 p.m. preparations, in the form of the rigging of the ladders to be used in effecting Nye's boarding, were carried out (Jensen Dep. 68-69; Testimony of Chief Officer R. Moller, hereinafter "Moller"). The boarding apparatus so rigged consisted of an accommodation ladder and a pilot ladder. The accommodation ladder, rigged first (Jensen Dep. 68), was made of aluminum with fixed rails. It was a rigid ladder and was hinged to the platform at the height of the deck (Jensen Dep. 39-40). The platform, about 3/4 of a meter or 30 inches square, extended from the side of the ship through an opening in the deck rail (Jensen Dep. 48-49). The accommodation ladder did not hang down perpendicularly from the platform but extended at an angle away from the side of the ship (Jensen Dep. 64; Pl. Ex. 5; Deft. Ex. Q).
The pilot ladder was made of wooden steps fixed to 2 1/2 inch tarred hemp lines by means of wooden side blocks. The ladder was 16 meters long with forty-seven steps. Each step was.114 meters or approximately 4 1/2 inches wide and.025 meters or approximately one foot apart. The pilot ladder was brand new and when rigged was being used for the first time (Jensen Dep. 95). Shortly before the pilot ladder was rigged it was inspected by Jensen. On the basis of his inspection, which took approximately fifteen minutes, Jensen determined that the ladder was in perfect condition (Jensen Dep. 102-04). Prior to its rigging, the pilot ladder had been stored in an interior area of the vessel (bosun's storeroom) and was consequently not exposed to the elements during the preceding shower activity (Jensen Dep. 51). Chief Officer Moller made another inspection at the time he supervised the actual rigging. The pilot ladder was not attached to the accommodation ladder but was rather affixed to the two upper courses of the starboard deck rail. The lines of rope which form the sides of the ladder were flung over the uppermost rung of the rail, beneath the next one, up again and then made fast with knots (Jensen Dep. 91-92; Pl. Ex. 5). As the photograph in evidence (Pl. Ex. 5) indicates, the rigid accommodation ladder did not extend all the way to the water line. The difference was made up by the pilot ladder which reached down to within two feet of the water (Jensen Dep. 64; Moller).
The manner of boarding by this arrangement was to climb the pilot ladder, which hung parallel to the side of the vessel, until one reached the accommodation ladder. Then the person boarding could simply walk up the accommodation ladder to the deck. The reason advanced for employing this method of boarding was that it is dangerous for a launch to approach a rigid ladder (Jensen Dep. 56).
At the port of Las Palmas Mr. Nye boarded a pilot launch belonging to a third person not a party to this action. From the pilot launch Nye contacted the Evelyn by radio-telephone to inform them that he was on his way (Jensen Dep. 33). At 7:25 p.m. upon observing the approach of the launch Jensen ordered the anchor raised in order to make a lee. Jensen testified that this was normal practice when taking a person aboard. The purpose of executing the lee is to shield the side of the ship where boarding is to take place from the effects of wind and water motion (Jensen Dep. 30-31, 96). Though Jensen testified that his maneuver was completed just before the launch reached the ship, she did not drop anchor again (Jensen Dep. 36). Captain Ash, the plaintiffs' expert, believed that she was under way at boarding and I so find.
The accommodation ladder and pilot ladder were illuminated by a gangway light of 400 watts, two floodlights of 200 watts each, and what were called cluster lights, totalling 375 watts, which were fixed to the ship's rail above the pilot ladder and which directed their light downward to the sea (Jensen Dep. 54-55, 63; Moller). According to Jensen's testimony the entire boarding area was well illuminated (Jensen Dep. 55). After two unsuccessful attempts to maneuver the pilot launch
close enough to the Evelyn to permit Nye to begin his ascent of the pilot ladder, the pilot boat was finally able to effect the transfer. At the time of the transfer the midship part of the launch was "very close" (Jensen Dep. 73-74). The launch was not moored to the Evelyn at the time of the transfer nor was there any attempt to do so (Jensen Dep. 76; Moller). Jensen testified that the waves were about three feet high (Jensen Dep. 76). The freeboard of the launch was three to four feet. The pilot ladder was not equipped with any hand holds (Jensen Dep. 76-77).
The actual transferral was effected without incident. Immediately after the transferral the launch pulled away (Jensen Dep. 97-98). Nye proceeded up the pilot ladder. Gripping the rope sides of the ladder, Nye climbed between one and three steps upward (Jensen Dep. 77; Moller). No one aided him or said anything to him as he mounted the ladder (Jensen Dep. 78, 90-91). Suddenly Nye stopped and shouted "help me, help me" (Moller; see Jensen Dep. 79), and shortly thereafter he fell into the water.
There was no one on the platform of the accommodation ladder, and there was no crew member with a gaff or other type of pole to assist the person boarding (Jensen Dep. 83-84). Moller descended only halfway down the accommodation ladder. When he saw that a line with a life ring had been thrown to Nye, Moller went back up, as he says, to direct operations instead of going down to help Nye. He went up to the poop deck, put the spotlight on and waved to the pilot boat to come closer.
Nor did Jensen wait to see Nye safely aboard. Instead, he went to the wheelhouse after Nye had put his foot on a rung of the pilot ladder (Jensen Dep. 79). When he heard a cry Jensen ran back to the rail and by that time saw Nye holding on to a life ring (Jensen Dep. 80). One of the sailors, Hansen, was holding onto the rope to which the life ring was attached. Hansen did not pull the rope or otherwise attempt to haul it in (Jensen Dep. 81-82). Jensen went back to the wheelhouse and telephoned the engine room to stop the propeller absolutely. After Nye fell into the water, the pilot launch attempted to effect a rescue (Jensen Dep. 89; Moller). Moller testified that it took him approximately four to five minutes from the time he quit the accommodation ladder until he had turned the additional spotlight (the starboard life boat light) on. When he had turned the light on, he no longer saw Nye holding onto the life ring. No marker lights were thrown out for fear of hitting Nye. No general alarm was sounded. No boat was lowered from the Evelyn though there was a search for half an hour (Moller). The crew of the Evelyn apparently played no part in the recovery of Nye's body sometime after the aforedescribed events (Jensen Dep. 101).
At the time of his death, Nye's physical appearance could be characterized as obese (Def. Ex. S, autopsy report). At the trial, data from physical examinations of Nye taken during the period August 22-November 7, 1966 were offered into evidence and analyzed by a medical expert. On August 22, 1966 Nye measured 6 feet in height and tipped the scales at 350 pounds. He suffered from swelling of the ankles (edema) and his blood pressure was 180/118. The diagnosis made at that time indicated that Nye was suffering from diabetes, obesity, hypertension and Pickwickian syndrome (Def. Ex. R; Testimony of Dr. Marcus Bloomfield, hereinafter "Bloomfield"). The latter syndrome is a complex of exogenous obesity (self-induced), somnolence, erythrocytosis and hyperventilation or a condition in which there is a reduced amount of air entering the pulmonary alveoli, resulting in elevation of the carbon dioxide tension (Dorland, Illustrated Medical Dictionary 717 (24th ed. 1965)). This diagnosis was reconfirmed on September 6, 1966. The possible presence of a kidney disease seen in diabetics causing renal failure, was tentatively diagnosed (Bloomfield). Cardiomegaly, a morbid condition characterized by enlargement of the heart, with localized deposits of glycogen in the heart muscle was also detected. This latter diagnosis was supported by an X-ray and an electrocardiogram (Def. Ex. T; Bloomfield). Nye was described by one attending physician as a grossly obese white male diabetic (Def. Ex. T at p. J).
By November 7, 1966 Nye's weight had been brought down to 310 pounds. His blood pressure was down to 160/100. The edema had disappeared and his heart was characterized as "O.K." His obese condition was still described as serious despite the considerable weight loss of forty pounds (Bloomfield).
His obesity was apparently chronic, having its source in early childhood (Def. Ex. T at pp. F, I). There is no evidence to indicate that at the time of his death this chronically obese condition had been significantly reduced or that his Pickwickian syndrome had significantly abated. The Spanish autopsy report (in translation) is unspecific. It merely notes that the corpse was "of a fat constitution, with a weight of one hundred to one hundred and sixty five kilos . . ." (Def. Ex. S) or approximately between 220 and 365 pounds.
When the pump was hoisted aboard earlier in the day the vessel alongside was tied to a boat rope. This was an item of equipment that could have been used to hold the pilot boat close to the vessel when the decedent ascended the rope ladder.
If the pilot boat had remained adjacent to the Evelyn with its stern near the ladder until Nye fell off the ladder, he would have fallen so close to the boat that he could have been lifted into it. Similarly if a man rope had been available Nye might have been able to steady himself on the ladder.
The ship argues that these accessories would have made no difference because Nye was already two rungs up the ladder when he lost his grip. This assumes that the issue is whether he "made" the pilot ladder safely. The issue is rather whether proper precautions were taken and proper equipment made available to prevent his falling off or to protect him from fatal consequences if he did fall. In the face of actual disaster even common custom that gets by most of the time is not the test of unseaworthiness in particular circumstances. See Trahan v. Superior Oil Co., 204 F. Supp. 627, 631-632 (W.D. La. 1962), aff'd, 322 F.2d 234 (5 Cir. 1963). The ship was expecting a person, of uncertain lay status, not a professional pilot, to board a rope ladder while the vessel was making a lee with waves as high as three to four feet. In these circumstances someone should have been on the platform of the accommodation ladder to be ready to lend a hand if necessary and a man rope and a boat rope should have been made available. The operating negligence of the crew rendered the vessel unseaworthy. Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S. Ct. 455, 88 L. Ed. 561 (1944); Mitchell v. Trawler Racer, 362 U.S. 539, 80 S. Ct. 926, 4 L. Ed. 2d 941 (1960); Waldron v. Moore-McCormack Lines, Inc., 386 U.S. 724, 87 S. Ct. 1410, 18 L. Ed. 2d 482 (1967).
I find that the vessel was unseaworthy for boarding in the circumstances and that the unseaworthiness was the proximate cause of the death. That conclusion is based on the assumption that United States law governs, for I have not heard evidence on the foreign law respecting the unseaworthiness ...