Landy v. United States (101 F. Supp. 486, 1951)

KALODNER, Circuit Judge.

This libel in personam was brought against the United States pursuant to tibe Suits in Admiralty Act, 46 U.S.C.A. § 742. Libelant is the administrator of the estate of a deceased seaman. He is seeking to assert a cause of action under the Jones Act, 46 U.S.C.A. § 688, alleging that his decedent’s death was caused 'by respondent’s negligence in: (1) failing to provide a safe means of ingress to the vessel; and (2) failing to provide the decedent with prompt and adequate medical care and attention.

The cause having been submitted to the court on the basis of the pleadings, depositions, additional testimony 'and exhibits, I make the following

Findings of Fact

1. Libellant, Samuel H. Landy, was appointed administrator of the estate of Alvin R. Vervaecke, deceased, on October 3, 1946, by the Register of Wills of Philadelphia County, Pennsylvania.

2. At all times material hereto the decedent, Alvin R. Vervaecke, was employed in the capacity of able-bodied seaman on board the S. S. George Vickers.

3. At all times material hereto the S. S. George Vickers was owned! by respondent, the United States of America, and operated by T. J. Stevenson & Co., Inc., under an agreement of general agency.

4. On February 12 and 13, 1946, the S. S. George Vickers was moored at Pier 80, South, in the city of Philadelphia, having been moved there from a berth at Port Richmond, Philadelphia.

5. On the afternoon and evening of February 12, the decedent went 'ashore on liberty on two occasions, On the first occasion he was accompanied hy Gul'bank Suvagian, 'an ordinary seaman ■ on the second occasion he was accompanied by Suvagian and 'a messman named Johnson. During these two trips ashore he consumed a considerable quantity of liquor. On the first of the two trips ashore he was engaged in a scuffle with an unidentified seaman and as a result of a fall on the pavement, suffered a bloody face.

6. Vervaecke, Suvagian and Johnson returned to the S. S. George Vickers at approximately 12:30 A.M. on the morning of February 13.

7. At that time the only available means of ingress to the vessel was a straight wooden painter’s ladder, which extended from the edge of the pier to the ship’s rail, just aft of the midship housing. Th.e ladder was inclined at an angle of about sixty degrees with the horizontal. The vessel was light, and the ladder was secured in such a manner as to allow for the movement of the ship away from the pier. The area about the ladder was well lighted. The ladder had round wooden rungs, spaced approximately one foot apart. Some of these wooden rungs had been replaced with round pipe rungs, which were about one inch in diameter. These pipe rungs fit loosely into the sockets of the two uprights of the ladder. The vessel was also equipped with a standard accommodation gangway which had steps, stanchions and hand holds; this gangway was not in use at the time.

8. When the three men arrived at the ship, Suvagian started up the ladder, followed by Vervaecke, with Johnson in the rear.

9. While Suvagian and Vervaecke were both on the ladder, Vervaecke fell over backwards from a height of some four feet. He landed on his back on the ground and was rendered unconscious by the fall.

10. Suvagian descended the ladder and conferred with Johnson, then went up on deck and lowered a cargo net by means of tíre cargo winch. Vervaecke was placed in the net and hoisted aboard. He was then put to bed toy Johnson and Suvagian, assisted by Peverill, the night watchman, who had been attracted to the scene by the sound of the windh.

11. A short time after Vervaecke was put in his bunk, Pavia, the Chief Mate, returned to the vessel and was informed of the incident by the night watchman. This was about 1 A.M. Pavia went to Vervaecke’s room, examined him for broken bones and observed his breathing. He instructed the night watchman to look in on Vervaecke occasionally, and went to bed.

12. Between 2 and 3 A.M., Jones, the Second Mate, and Flax, the Purser-Pharmacist’s Mate, went to' Vervaecke’s room, after being informed that he had fallen. They examined him for possible injuries and tried to awaken him by shouting at him and shaking him. They were unable to arouse him by these methods, nor were they able to awaken Suvagian, who was sleeping in the same room, so they left and went to bed.

13. Vervaecke was found dead in his bunk at 11 A.M. A coroner’s jury found that he “died of subdural hemorrhage of the brain, probable acute alcoholism * * * ” in accordance with an autopsy report. The coroner’s physican, who performed the autopsy, supplemented this verdict at the trial, by testifying: (1) that the immediate cause of death was the pressure on the brain of the hemorrhage, which was caused by trauma, or a blow on the head; and (2) that Vervaecke was deeply intoxicated at the time of his return to the vessel.- The estimated time of death was between 8 and 9 A.M.

Discussion

Libellant contends that respondent’s negligence in failing to- provide a safe means of ingress to the vessel was a proximate cause of Vervaecke’s death. The proofs do not support this contention.

I found that the ladder which was in use on the morning of Vervaecke’s death was defective. It contained one or more pipe rungs in place of the original wooden rungs, and these pipe rungs did not fit properly into the uprights of the ladder, so that they .were likely to slip or turn under the feet of persons using the ladder. However, it has not been established that Vervaecke’s fall was caused, as libellant contends, by the slipping of one of. .these loose rungs under his feet.

There was no testimony by anyone who actually saw the 'accident. Johnson, the messman, was standing below Vervaecke when he fell from the ladder and was the only one in a position to see what actually happened. However, he was not available at the time of trial, nor was his deposition ever taken.

Suvagian was the only other person in the immediate vicinity at the time. He was ascending the ladder ahead of Vervaecke and was looking up at the moment. He stated in his deposition that he heard Johnson shout that Vervaecke had fallen, turned around, and saw Vervaecke lying unconscious on the ground. He could only state as a certainty that Vervaecke was on the ladder when he fell. He was unable to say from what height the fall occurred. He did not say that Vervaecke slipped by reason of stepping on a loose rung.

Peverill, the night watchman, testified that he first learned of the incident when he saw Suvagian and Johnson carrying Vervaecke to his bunk. Therefore, any testimony he gave as to what took place before he came on the scene was clearly hearsay as far as establishing how the accident happened, although it may have been admissible to show that the vessel’s officers had notice of the accident.

Libellant has pointed out that the measure of proof necessary to show that respondent was at fault herein is determined by the maritime law, and that the rule in admiralty is that negligence can be shown by circumstantial evidence. This is an accurate statement of the general rule, but the circumstantial evidence relied on here failed to establish negligence.

The post-mortem examination showed that Vervaecke’s blood had an alcohol content of 0.12% by volume, and that his urine had an alcohol content of '0.35% by volume. Dr. Gouley, the coroner’s physician, interpreted these findings to mean that Vervaecke was “deeply intoxicated” at the time of the accident. It was established by the depositions of Suvagian and Jones, the second mate, that the ladder was inclined at an angle of approximately sixty degrees with the horizontal. It is certainly no easy task for a man who is “deeply intoxicated” to make his way up such a steeply inclined ladder. On the basis of the proofs presented to me, I do not find it any more likely that Vervaecke’s fall was attributable to the defective condition of the ladder than to his own inability to keep his balance, due to his intoxicated condition. While circumstantial evidence could possibly support a verdict for libellant, liability cannot be predicated on mere speculation. The Jones Act requires, at a minimum, that libellant prove his case “by a preponderance of the evidence”. Cruse v. Sabine Transp. Co., 5 Cir., 1937, 88 F.2d 298, 300, certiorari denied, 1937, 302 U.S. 701, 58 S.Ct. 20, 82 L.Ed. 541. See also Sandoval v. Fruit Express Co., 1944 A.M.C. 580 (D.C.D.C.Z. 1944).

There was no evidence that respondent was negligent in the use or maintenance of the ladder in any respect other than with regard to the defective rungs. The testimony was abundant that the area about the ladder was well lighted. Further, the use of a straight ladder at the time, instead of the standard accommodation gangway, was shown to be perfectly proper. Both the second and chief mates explained that the light condition of the vessel, coupled with the high winds which were brushing the ship away from the dock, would have made the use of an accommodation gangway extremely dangerous. In short, libellant has been compelled to rely on the theory that it was a loose rung in the ladder which caused Vervaecke’s fall, and he has failed to meet the burden of proof in his attempt to establish this.

With regard to libellant’s second claim— that respondent was negligent in failing t