Dennis v. Central Gulf Steamship Corporation

• Decision Date: 04 February 1971
• Docket Number: Civ. A. No. 66-125.
• Citation: 323 F. Supp. 943
• Parties: Gabrielle Joan DENNIS, Individually and in the alternative, Anna Mae Dennis Malet, Widow of M. Malet, Petitioner and/or Curator of the Interdict, Gabrielle Joan Dennis, Plaintiffs, v. CENTRAL GULF STEAMSHIP CORPORATION, and/or the ABC Corporation, XYZ Corporation, and the PDQ Insurance Corporation, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

323 F. Supp. 943

Gabrielle Joan DENNIS, Individually and in the alternative, Anna Mae Dennis Malet, Widow of M. Malet, Petitioner and/or Curator of the Interdict, Gabrielle Joan Dennis, Plaintiffs, v. CENTRAL GULF STEAMSHIP CORPORATION, and/or the ABC Corporation, XYZ Corporation, and the PDQ Insurance Corporation, Defendants.

Civ. A. No. 66-125.

United States District Court, E. D. Louisiana, New Orleans Division.

February 4, 1971.

Charles G. Jacques, Jr., Harold J. Lamy, New Orleans, La., for plaintiffs.

John R. Peters, Jr., New Orleans, La., for defendants.

RUBIN, District Judge:

Joseph A. Dennis, a Marine Surveyor representing the United States, went aboard the SS GREEN BAY while it was moored at the Charbonnet Street Wharf in New Orleans to determine the ship's condition, and inspect its holds, ladders and equipment to see if they were in proper order. His inspection was for the purpose of determining the cash consideration to be paid in a proposed trade of the vessel between the owner of the GREEN BAY and the United States for another ship.

Mr. Dennis was accompanied by Charles Wolff, the shipowner's Superintendent of Engineering. After inspecting two holds of the vessel on the morning of August 7, 1965, they went to lunch. Then they returned to the vessel and descended into the No. 3 hold to inspect it. One pontoon had been removed from the upper deck and scattered hatch boards had been removed from the upper and lower tween decks of this hold, so there was some natural light. Mr. Wolff and Mr. Dennis entered the hold from the midship house through a tunnel into the first tween deck section. They were proceeding to the bottom of the hold with the purpose of checking the hold from its bottom up. There were two bulkhead ladders in this hatch, one forward one aft. Wolff used the after ladder, Dennis used the forward one. Wolff was familiar with the vessel and with this hatch, but Dennis had never been on the vessel before this day and had never visited this hatch. No reason was advanced by either party why Dennis chose a different ladder rather than follow Wolff.

When Wolff got down to the tank tops, the bottom of the hold, he looked for Dennis and saw his legs descending the other ladder. The after ladder, which Wolff had used, had rungs all the way to the tank tops, but the forward ladder stopped about four feet above the tank tops just below the point where a horizontal guard rail had been installed to protect pipes in the lower hold from damage by cargo. To descend from the end of the ladder to the tank tops, it was necessary to climb on the guard rails which were about one and one-half feet out from the bulkhead. The ladder was recessed so, in order to step to the guard rails, a person descending the ladder had to step backward about twelve inches as well as down. The guard rails were of angle iron and were not installed horizontally but were slanted at a slight pitch.

The forward ladder in the No. 3 hold was the only ladder on the vessel constructed in this manner and there is no evidence that Dennis knew of its unique characteristics. Certainly Wolff said nothing to him about this in advance, because, Wolff said, he had expected Dennis to follow down the aft ladder.

When Wolff saw the descending legs, he took a flashlight he was carrying in his pocket, and focussed its beam on the forward ladder. Wolff testified that, when Dennis' feet reached the pipe guard, Wolff said, "Joe, you're on the pipe guard." He received no reply nor was there any indication Dennis heard the remark. But Dennis stepped back and fell to the tank top. Wolff thought he hit the back of his head but the medical report indicates clearly that Dennis' primary injury was a right frontal skull fracture. Wolff went over right away, but Dennis was unconscious. Wolff ran for help, and Dennis was removed from the hold and taken to the U. S. Public Health Service Hospital. He regained consciousness, but remained critically ill, sometimes conscious, sometimes not, for eight and one-half months, when he died.¹

Plaintiff, decedent's thirty-one year old daughter and sole survivor, sued on the basis that the vessel was unseaworthy, and on grounds of negligence. At the close of the plaintiff's case, the court entered a judgment of dismissal of the unseaworthiness count on the basis that the plaintiff was not a member of the crew of the vessel (compare Filipek v. Moore-McCormack Lines, 2d Cir. 1958, 258 F.2d 734, rigging tester) nor was he doing seaman's work. Partridge v. Pope and Talbot, Inc., N.D. Cal.1965, 257 F.Supp. 456; Royston v. Pacific Far East, N.D.Cal.1960, 190 F. Supp. 450. However, it is a settled principle of maritime law that a shipowner owes the duty of exercising reasonable care towards those aboard the vessel who are not members of the crew. Kermarec v. Compagnie Generale Transat-lantique, 1958, 358 U.S. 625, 79 S.Ct. 406, 3 L.Ed.2d 550.

I. NEGLIGENCE

The location and manner of construction of the pipe guard at the bottom of the No. 3 forward bulkhead ladder, extending some four feet above the deck of the lower hold with a slanted surface of approximately thirty degrees, presented an unusual and hazardous condition. The defendant knew of this condition of course, and it could reasonably foresee that this might cause or contribute to an accident if a person who was unaware of this construction descended the ladder and had to climb down the pipe guard. Indeed, a qualified naval architect testified that the ladder presented an unusual and unsafe condition, and that he had never gone down a ladder with this type of construction during his entire experience as a mate, naval architect or marine surveyor. The slanted surface of the pipe guard was peculiarly hazardous to someone coming down the ladder. Any moisture or foreign matter on the shoes of the person using the ladder or on the pipe guards themselves would make them extremely slippery.

When a person descends a ladder he comes down at a certain gait. The presence of this pipe guard would break the normal pattern of descent. The lack of a flat or level top surface to allow him to adjust to a change, and the further absence of any type of handrail to steady his course the remainder of the way, presented an unsafe condition. There were no warnings on the ladder or in the tween deck section to advise persons using the ladder that there was a pipe guard construction at the bottom of the ladder.

Nor is it any defense that this particular guard rail in all C-4 vessels was constructed in the same manner, if indeed it was—a matter that the evidence leaves in some doubt. Negligence does not become excusable because it is oft repeated. See Prosser, Law of Torts, 170.

Neither is it sufficient that the vessel had been inspected by the American Bureau of Shipping and given the highest rating possible. There is no evidence that this particular guard rail construction was called to its attention and proannounced safe.

Of course Mr. Dennis could have requested that more than one pontoon be removed from the top deck and conceivably more light would have been provided below. But there was no reason for him to foresee the need for this. Had the ladder been of the same construction as the ladders Dennis had already used in this vessel, it would likely have been unnecessary.

The medical records and the X-ray report clearly show that Dennis had a right frontal skull fracture. The hospital record does not indicate that he had any type of injury to the back of his head. Therefore it is likely that Dennis did not strike the back of his head, as Wolff thought, but rather hit the forward part of his head when he fell. This could have occurred if he slipped off the pipe guard on the slanted surface and struck his head either on the ladder or the pipe guard as he fell to the deck below. Therefore it is likely that he fell without warning, struck his head and knocked himself unconscious.

II. CONTRIBUTORY NEGLIGENCE

Dennis did not descend the ladder with the utmost of caution. But he was expecting a normal ladder, not one with a hazard. There was no way he could anticipate this ladder's unusual method of construction. He had no warning, nor any way to learn that he should be more careful than he had been in climbing down other ladders aboard the ship.

He had been a surveyor for thirteen years, and he had been an engineer for some twenty-five years. He was sober, in good health, and Wolff's testimony shows that he was descending the ladder in the usual and normal fashion. There is no basis for finding him contributorily negligent under the circumstances of this case.

III. DAMAGES

A. General Considerations

When this suit was filed, it seemed clear that, if the plaintiff recovered, the measure of damages would be fixed by Article 2315 of the Louisiana Civil Code. Now that proposition requires further study.

In The Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L.Ed. 358, the Supreme Court held that there was no right to recover for wrongful death under the general maritime law. The court there recognized that dependents of those who died in territorial waters could utilize state wrongful death statutes in federal court to recover.

In The Tungus v. Skovgaard, 1959, 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524, the Court considered the content of that right. Confirming the right to recover in admiralty under state statutes, it held that the federal courts were enforcing a right granted by a state "subject to the limitations which have been made a part of its existence." 358 U.S. at 592, 79 S.Ct. at 506. A federal court's duty in a wrongful death case was to interpret the law of the state. Both the right of recovery and the limitations on that right were held to be those recognized by state law. Justice Brennan dissenting, with the concurrence of Chief Justice Warren and Justices Black and Douglas, stated that, in his opinion, the right to recover was a federal one, and state limitations...