Bach v. Trident Shipping Co., Inc., Civ. A. No. 87-5899.
| Decision Date | 27 March 1989 |
| Docket Number | Civ. A. No. 87-5899. |
| Citation | 1989 AMC 460,708 F. Supp. 776 |
| Parties | Helen Ehret BACH, Eugene G. Bach III, and Janet B. Lashley, Plaintiffs, v. TRIDENT SHIPPING CO., INC.; Kaiser Aluminum and Chemical Corp.; and the JAYMAT TRIDENT, in rem, her engines, tackle, appurtenances, equipment, etc., Defendants. |
| Court | U.S. District Court — Eastern District of Louisiana |
Gregory F. Gambel, Mark W. Smith, New Orleans, La., for plaintiffs.
Robert H. Murphy, Thomas D. Forbes, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for Kaiser Aluminum & Chemical Corp. and Trident Shipping Co., Inc.
O'Neill, Eichin, Miller & Breckinridge, John N. Critchlow, New Orleans, La., for Kaiser Aluminum and Chemical Corp.
ORDER AND REASONS
This matter is before the Court on defendants' motion for summary judgment. By minute entry of March 16, 1989, the Court took the motion under submission on the briefs. For the following reasons, the Court now GRANTS the motion.
On December 26, 1986, Eugene G. Bach Jr. suffered a fatal heart attack while aboard the M/V JAYMAT TRIDENT as a compulsory river pilot. His surviving wife and two children have sued the vessel owner, the voyage charterer, and the vessel for his death.
Bach was a 61 year old male who had worked as a river pilot for about 36 years; he was a member of the Crescent City River Pilots Association, whose members serve as compulsory river pilots on the Mississippi River between New Orleans and Pilottown.1 Among his normal duties as a pilot were climbing pilot, or Jacob's, ladders2 and climbing flights of stairs from the main deck of a vessel up to the wheelhouse of a vessel.
On December 26, 1986, Bach was to serve as the compulsory river pilot aboard the JAYMAT TRIDENT, an oceangoing bulk cargo vessel that is registered in and flies the flag of the Cayman Islands and whose officers are all Chinese. Early that morning, Bach was transported to the JAYMAT TRIDENT by a pilot boat, the M/V LITTLE RAY. The LITTLE RAY is equipped with two vessel boarding platforms affixed at the top of its wheelhouse; these platforms stand 11 feet 1½ inches above the waterline.
To board the JAYMAT TRIDENT, Bach stepped from one of the LITTLE RAY's boarding platforms onto a pilot ladder hanging on the port side of the JAYMAT TRIDENT and then climbed the ladder;3 according to the vessel log, he boarded the vessel at 2:30 a.m. At that time, the deck of the JAYMAT TRIDENT stood 32.36 feet (9.86 meters) above the waterline. Thus, Bach had to climb on the pilot ladder a distance of at most about 21¼ feet.
Once aboard, Bach climbed four flights of stairs from the main deck to the vessel's wheelhouse, from which pilots would direct the vessel. When he reached the wheelhouse, he replaced the New Orleans/Baton Rouge compulsory pilot, Lewis H. Taylor, who then proceeded down the same stairs to disembark by the same pilot ladder. Soon thereafter (according to the vessel log, it was 2:32 a.m.), Bach suddenly collapsed to the floor.
According to Captain Jao Chih-ping's deposition, the quartermaster, who was in the wheelhouse when Bach collapsed, notified the captain, who returned to the wheelhouse; the captain tried to lift Bach, but was unable because Bach was unconscious; the captain then called back Taylor to resume piloting the vessel, asked Taylor to call the Coast Guard for medical help, and gave orders to drop anchor immediately; the second mate, who was the designated medical officer, came to the wheelhouse and, at Taylor and the captain's request, watched over Bach to see that no one tripped over him in the dark. According to Taylor's deposition, he returned to the wheel, took control of the navigation (according to the vessel log, it was 2:34 a.m.), and, while he was maneuvering the vessel to anchor, asked a crewmember to check Bach's pulse; the crewmember apparently found no pulse.
There is no evidence that either Taylor or any crewmember attempted to perform cardiopulmonary resuscitation (CPR) or to give other direct first aid to Bach, other than what is set forth above.
According to the vessel log, the Coast Guard did not arrive until 3:15 a.m. and emergency medical service technicians (paramedics) not until at 3:30 a.m. Their efforts to save Bach were to no avail; he was dead.
The Orleans Parish Coroner's Office performed an autopsy on Bach later that morning. It found that he had "severe stenotic calcific coronary atherosclerosis with recent ischemic myocardial changes." It classified his death as "natural." To paraphrase plaintiffs' expert medical report in layman's terms, Bach had a very acute heart disease and died from a heart attack.4
At his deposition, plaintiffs' medical expert, Dr. John H. Phillips Jr., testified (1) that the greater the physical stress Bach experienced just before his collapse, the greater was the likelihood that such stress played "an increasing role in his death" and (2) that a person climbing a ladder must exert more physical stress when such climbing requires the use of both hands and feet than when such climbing requires only the use of feet.5 Further, he testified that Bach's chances of survival would have been greater had he received CPR within four minutes of his collapse, but added that even if a crewmember had administered CPR and even if ideal professional medical attention had been available minutes after his collapse, the likelihood that Bach would have died anyway was 85% or greater. To quote Dr. Phillips' report: "his chances for ultimate survival were clearly not very favorable ... and the prognosis following even the ideal scenario as outlined in the report would be poor.
Defendants now move for summary judgment on three points:6 (1) plaintiffs cannot establish legal causation from Bach's having to use a pilot ladder; (2) defendants owed no duty to apply CPR or other first aid to Bach; and (3) plaintiffs cannot establish legal causation from any inadequate medical attention on the crew's part because, according to plaintiff's own medical expert, the chances of Bach's dying even if he had had the best medical attention as soon as he collapsed were more probable than not.
Plaintiffs argue that defendants should have provided Bach with an angled accommodation ladder7 instead of a vertical pilot ladder for the access all the way from the pilot boat to the JAYMAT TRIDENT. As sole support, they cite SOLAS Regulation 17(a)(ii) for Safety of Navigation:
Plaintiffs do not otherwise argue that the pilot ladder Bach climbed was defective or below industry or statutory standards in any way or that defendants or anyone else should have known that Bach or anyone else might suffer a heart attack from climbing this or any other pilot ladder. Nor do they present any evidence that Bach had any injury or accident while climbing or difficulty in climbing this pilot ladder or that Bach or anyone else had at any time complained about having to climb this or any other pilot ladder.
All parties agree that at least one of the two essentially identical regulations applies to the JAYMAT TRIDENT, whose freeboard for the period at issue exceeded 30 feet. The parties diverge, however, on the interpretation of the regulations.
Neither the SOLAS nor the CFR regulation requires that a ship is to extend an accommodation ladder from the ship all the way to a pilot boat whenever a pilot embarks the ship; specifically, the regulations do not read: "whenever a vessel's freeboard exceeds 30 feet, access from another vessel must be by way of an accommodation ladder, and no other means." Instead, the regulations merely require that access from a vessel's pilot ladder to its deck be by way of an accommodation ladder or other safe means.10 In other words, the regulations specifically contemplate just what was in use on the JAYMAT TRIDENT, namely, the use of pilot ladders for vessels whose freeboards exceed 30 feet. In sum, there is no evidence that defendants violated these regulations.11
Further, common sense rejects plaintiffs' position. To a large degree, as any seafarer knows, a vessel (especially a smaller vessel) often has little control over the everyday effects of waves and currents; even if a person knows the average size of waves at a given time or is very familiar with a given current, he rarely can foretell exactly how a particular wave or current may affect a vessel at any particular moment—just when and how far a vessel may rise, sink, rock, approach, or veer from a particular point. Seafarers must learn to compensate for these random, predictably unpredictable movements; thus is the art of navigation. Activities on and between vessels must anticipate the possibilities that natural phenomena often affect two near-by vessels very differently. Unlike accommodation ladders with their rigid frames more suitable for ship-to-shore movement when a vessel is tied down, pilot ladders are specially designed for the fluctuations in mid-stream vessel-changing operations such as those where...
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