Cordes v. Baldock
| Decision Date | 29 March 2013 |
| Docket Number | CIVIL ACTION NO. 09-11785-GAO |
| Parties | ROSE DIAZ CORDES, as Executrix and Personal Representative of Robert C. Cordes, and R. ZACHARY CORDES, Plaintiffs, v. M/V BALDOCK, her engines, tackle, equipment, apparent and appurtenances, ect., in rem; and FB SHIPPING (II), INC., in personam, Defendants. |
| Court | U.S. District Court — District of Massachusetts |
O'TOOLE, D.J.
The plaintiffs brought suit against the defendants for damages arising from the death of Captain Robert C. Cordes while boarding the M/V Baldock on October 24, 2006. The plaintiffs asserted claims of negligence (Count I), unseaworthiness (Count II) and wrongful death under Mass. Gen. Laws ch. 229 § 2 (Count III). The Court conducted a six day bench trial. After trial, the parties each submitted proposed findings of fact and conclusions of law. Having considered the evidence and arguments of the parties, the Court now finds and concludes as follows.
The parties vigorously dispute whether the defendants should be held liable or not for the death of Captain Cordes, but there is really little dispute as to the facts regarding how his death occurred.
At the time of the accident, Captain Cordes was 60 years old and had served as a Boston Harbor Pilot for 40 years. Over that time, he had guided innumerable vessels generally similar to the Baldock in and out of Boston Harbor and to and from their berths.
One of the ways a pilot boards a vessel like the Baldock is by means of a Jacob's ladder, which is a rope ladder with mostly wooden treads that is extended over the rail of the vessel to be boarded to the place below where the person intending to board is located. The climb is vertical, and a degree of physical fitness is required to ascend to a vessel by a Jacob's ladder. It is a licensing requirement for pilots to be physically fit enough to climb such ladders. Pilots commonly climb Jacob's ladders in the course of their duties as a regular way of boarding a ship the deck of which is significantly higher than the pilot's location.
Another method of boarding a vessel is by a "combination ladder," which combines a Jacob's ladder with an "accommodation ladder." An accommodation ladder is a gangway, much like a staircase, that is extended down from the rail of a vessel flush against the hull at approximately a 45 degree angle. Often, and perhaps usually, an accommodation ladder will not reach all the way to the place where the person boarding the ship is located, whether on the deck of a smaller vessel such as a pilot boat or tug, or the surface of a dock at which the larger vessel is berthed. In that circumstance, a Jacob's ladder descends the rest of the way from the low end of the accommodation ladder. The use of such a combination ladder does not eliminate the need to use a Jacob's ladder, but it can shorten the distance the boarder must climb on the Jacob's ladder.
As of October 24, 2006, the date of the incident, Cordes had significant adverse health problems. He was overweight to a degree that his primary care physician, Dr. Jonathan Strongin, had diagnosed him as obese. Beginning in the late 1990's, Dr. Strongin had also diagnosed andtreated Cordes for a number of other serious conditions, including obstructive sleep apnea, hypertension, Type II diabetes, atherosclerotic heart disease, arthritis and peripheral neuropathy. As early as 1999, Cordes had reported to Dr. Strongin that he had experienced shortness of breath when climbing vertical ladders. Over the course of their doctor-patient relationship, Dr. Strongin repeatedly advised Cordes to lose weight, stop smoking, drink less alcohol and monitor his blood sugar. It appears that Cordes did curb his smoking, but his diet and alcohol consumption remained problematic. Dr. Strongin continued to diagnose diabetes and hypertension.
On the day of the incident, Cordes arrived at the facility on Chelsea Creek where the Baldock was berthed to board the vessel and pilot it out of the harbor. He requested the use of a combination or accommodation ladder to board the Baldock, but was told by a ship's mate that there was not such a ladder available on the starboard side of the vessel, which lay against the berth. Because of the size of the Baldock, the narrowness of the creek channel, and the proximity of a bridge, the vessel had to be berthed against a barge in a way that made the ship's starboard side accommodation ladder inaccessible. There was an accommodation ladder available on the port side, which could have been accessed by boat. It does not appear that either Cordes or anyone associated with the Baldock addressed that fact. Given Cordes's long service as a pilot, it is not likely that he was unaware that it would be possible to board the vessel by using the seaward accommodation ladder. There was evidence that pilots did sometimes board a berthed vessel from the seaward side rather than the shore.
When told that the only available ladder on the shore side was the Jacob's ladder, Cordes began to climb it without any observed hesitation. The vessel did not provide a safety harness in conjunction with the Jacob's ladder that would, similar to a sling or bosun's chair, support theuser in the event of a fall. There was no applicable regulatory requirement for the vessel to do so. Another Boston pilot, Captain Deeley, testified that it was not the practice for pilots in Boston to use such safety harnesses. Cordes did not request that a safety harness be used.
Captain Deeley was to be the docking pilot for the Baldock that day, overseeing the undocking; Captain Cordes was to be the harbor pilot, guiding the vessel out of the harbor to the open sea. Deeley arrived just as Cordes began climbing the ladder and from the shore observed his ascent and fall. The Second Officer of the Baldock, Zaritsky, was on duty as Officer on Watch when the incident occurred, along with Ordinary Seaman Antolyevich. The crew members were stationed at the rail from where the Jacob's ladder was extended, and looking down, observed Cordes's fall from above. The evidence from the eyewitnesses was consistent. After climbing a way up the ladder, Cordes stopped and paused. Zaritsky asked if something happened, and Cordes replied he was just resting. Cordes started climbing again and little higher on the ladder stopped again. Zaritsky again asked how he was feeling, and Cordes replied he was fine and was just resting. Zaritsky said he heard Cordes breathing heavily, though he appeared to be holding the ladder firmly with both hands. Cordes started to climb again but then stopped about three to four feet from the deck and began to start down the ladder. Zaritsky observed "hard breathing and paleness in his face." Cordes then let go of the ladder and fell backwards to the deck of the barge to which the Baldock was moored. The fall caused fatal injuries, and Cordes died within minutes, if not immediately. The distance from the deck of the barge to the deck of the ship was 8.67 meters. Cordes climbed something less than that.
In the time that the Baldock was berthed, a number of people, including Captain Deeley, had boarded or disembarked from the vessel without incident using the Jacob's ladder. Therewas no credible evidence of any physical defect either in the ladder itself or in its manner of rigging.
For the defendants, a forensic pathologist, Dr. Elizabeth Laposata, opined that the proximate cause of Cordes's fall was an ischemic event brought about by physical exertion that caused cardiac arrhythmia or dysrhythmia leading to loss of consciousness and, consequently, the fall. She supported her opinion by reference to the observations of the eyewitnesses, the autopsy report (which showed that Cordes had an abnormally enlarged heart and severely occluded arteries), and Cordes's medical record from Dr. Strongin. I find that Dr. Laposata's opinion is soundly based and reasonable, and I credit it. I find and conclude that the precipitating cause of Cordes's fall was a cardiac event that caused him to lose consciousness and therefore fall from the ladder. I also find, consistent with that conclusion, the Cordes's fall was not caused by any physical defect in the ladder, its structure, or its manner of rigging.
This case involves a death that occurred within the navigable waters of the United States. For this reason, substantive admiralty law must be applied. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 206 (1995). Admiralty law is comprised of competing statutory regimes governing injuries sustained within navigable waters. The plaintiffs assert Cordes's case falls neither under the Jones Act nor the Longshore and Harbor Worker's Compensation Act ("LHWCA") and consequently that the defendants owed him a warranty of seaworthiness pursuant to Seas Shipping Co. v. Sieracki, 328 U.S. 85 (1946). The defendants counter that Cordes was covered by the LHWCA.
The Jones Act provides a remedy for "any seaman who shall suffer a personal injury in the course of his employment." 46 U.S.C. § 688(a). "Seaman" status is established by two elements. Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). First, the employee's duties must contribute "to the function of the vessel or to the accomplishment of its mission." Id. And second, the employee must have a "connection to a vessel in navigation . . . that is substantial in terms of both its duration and its nature." Id.
A harbor pilot is not a seaman under the Jones Act because he lacks the necessary connection to the vessel, in terms of duration and nature. See Bach v. Trident Shipping Co., 708 F. Supp. 772, 773 (E.D. La. 1998).
Originally enacted in 1927 to protect longshoremen and other harbor workers engaged in loading and repair work who were not eligible for state law workers compensation statutes or the protections of admiralty law, the LHWCA...
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