Kiesel v. American Trading and Production Corporation, Civ. No. 21002-M.

• Decision Date: 31 July 1972
• Docket Number: Civ. No. 21002-M.
• Citation: 347 F. Supp. 673
• Parties: Frances KIESEL, as Administratrix of the Goods, Chattels and Credits of James Franklin Kiesel, Deceased v. AMERICAN TRADING AND PRODUCTION CORPORATION.
• Court: U.S. District Court — District of Maryland

347 F. Supp. 673

Frances KIESEL, as Administratrix of the Goods, Chattels and Credits of James Franklin Kiesel, Deceased v. AMERICAN TRADING AND PRODUCTION CORPORATION.

Civ. No. 21002-M.

United States District Court, D. Maryland.

July 31, 1972.

COPYRIGHT MATERIAL OMITTED

John J. O'Connor, Jr., and O'Connor & Preston, Baltimore, Md., and Harvey Goldstein, New York City, for plaintiff.

Robert H. Williams, Jr., Donald A. Krach, and Niles, Barton & Wilmer, Baltimore, Md., for defendant.

JAMES R. MILLER, Jr., District Judge.

MEMORANDUM OPINION AND ORDER

This is a suit under the Jones Act, 46 U.S.C. § 688, and the General Maritime Law by the administratrix of a deceased seaman, James Franklin Kiesel, against the owner of the SS MARYLAND TRADER aboard which decedent was employed as a second assistant engineer when he disappeared from the ship on December 6, 1968. The amended complaint seeks damages for the pain and suffering and mental anguish allegedly sustained by the decedent prior to his death in the first count and seeks damages sustained by his widow and dependent children as a result of his alleged wrongful death in the second count.

By agreement of the parties, the trial was conducted by the court sitting without a jury.

Decedent (Kiesel) had worked for the defendant as a seaman since approximately 1955. He had a license as a third assistant engineer but, under a waiver issued by the Coast Guard, had been sailing as a second assistant engineer continuously since June 6, 1966, except for periods when he was on leave. Kiesel first sailed on the SS MARYLAND TRADER in November, 1963 and had made several voyages on her thereafter.

On December 4, 1968, Kiesel joined the SS MARYLAND TRADER while she was moored at Swan Island on the Willamette River in or near Portland, Oregon. Preparatory to making a shift of berth of the MARYLAND TRADER from Swan Island to the grain elevators at Kalama, orders were given the engine room on December 6, 1968 to stand by the engines at 1554 hours (3:54 p. m.). Kalama is downstream and approximately 30 miles from Swan Island and is on the Columbia River below its confluence with the Willamette River. Shortly before 1600 hours, Kiesel entered the engine room and then assumed his station in charge of the adjacent boiler room. At 1618 hours the ship took in its last line and started to back into the Willamette River with the aid of two tugs.

At approximately 1700 hours, the third assistant engineer, Werner, relieved Kiesel in the boiler room in order that Kiesel could go to dinner. The chief mate, Balboni, was in the officer's dining salon when Kiesel came in for dinner. Kiesel ordered a fish dinner. When his dinner came, he remarked to Balboni and Miller, another engineering officer who was then in the salon, that he did not like the fish. Between approximately 1710 and 1712, Kiesel abruptly left the salon without having finished his dinner. He was not seen alive again.

At approximately 1715 hours the chief engineer, Hempelman, was relieved of his duties in the engine room to eat dinner. At 1735 he returned to the engine room from dinner. Hempelman walked from the engine room to the boiler room and saw that Werner, whom Kiesel was supposed to have relieved for dinner, was still there. Hempelman told Werner to go up and get Kiesel so that Werner could eat. Werner assumed that Kiesel was in the dining salon. When he found that Kiesel was not there, Werner returned to the engine room and told Hempelman. Hempelman then told Werner to check in Kiesel's room to see if he was there. Werner went to Kiesel's room and bathroom and found Kiesel was not in either place. On his way back to the engine room, Werner went into the dining salon and inquired of the messman if he had seen Kiesel to which the messman replied that Kiesel had been there and had gone. Without determining how long ago Kiesel had been in the dining salon, Werner assumed that he was probably now down in the boiler room and decided to order his own food for the evening meal. While it is not clear whether or not Werner started to eat his food, within a minute or so after arriving in the dining salon Werner decided that he had better check to see if Kiesel was in the boiler room. He went to some grating on the deck through which he could look down into the boiler room three decks below and did not see Kiesel. Werner then went back to the engine room to tell Hempelman that he had checked Kiesel's room and bathroom as well as the salon again and could not find him. When Werner returned to the engine room, it was approximately 1750 hours. Hempelman immediately called the captain, Captain Corazza, told him that he could not locate Kiesel and asked the captain if he knew where Kiesel was. Balboni was on the bridge with Captain Corazza when Hempelman's phone call was made to the captain. During the call, the captain was advised that Kiesel had not shown up to relieve Werner in the boiler room, that Kiesel was not in his room or the bathroom, and that he had last been seen leaving the officer's dining salon at approximately 1712 hours. The court believes, and finds as a fact, that the conversation between Hempelman and the captain ended at approximately 1755 hours. During the conversation a decision was made to expand the search aboard the ship for Kiesel.

The captain himself, Werner, and several other licensed officers searched various parts of the vessel where it was likely that Kiesel might be.

Not having found Kiesel at 1805 hours, the captain asked the river pilot, Johnson, who was on board for the purpose of guiding the vessel down the channel, what the approximate location of the vessel would have been at 1712 hours and how to contact the Coast Guard. Using the information given to him by the pilot, the captain called the Coast Guard at Portland, and reported that Kiesel was apparently missing from the vessel and that he had last been seen at 1712 hours at approximately the Willamette River Light No. 6. At approximately 1816 hours the Coast Guard requested the speed of the vessel at 1712 which was given as 7½ knots. In addition, the Coast Guard was told at that time of Kiesel's physical description and of the clothes that he was wearing when last seen. Shortly after 1805 hours the pilot on his portable walkie-talkie called a tug which he had remembered seeing near the mouth of the Willamette and advised her that a man was missing from the ship who had last been seen in the vicinity of Willamette Light No. 6. The tug was asked to be on the lookout and she responded that she would look around as she went through that area. At 1837 the Coast Guard notified Captain Corazza that a helicopter search had commenced and that a boat search had previously been instituted. At 1900 hours the Coast Guard Westport radio station was asked to contact vessels in the vicinity and area hospitals in an effort to locate Kiesel.

In the meantime, searches were continuing on the ship in ever increasing intensity in an effort to locate Kiesel. The ship berthed at Kalama at 1918 and the search continued on board until 2150 hours. During the search on the vessel, deck plates were removed to search spaces below, cargo tanks were searched, and all spaces generally in the vessel which could have contained a man, including the lifeboats, were examined in a fruitless effort to find Kiesel.

On June 19, 1969, Kiesel's body was found floating in Multnomah Channel, a body of water whose mouth is approximately 3½ miles upstream on the Willamette River from the confluence of the Willamette and Columbia Rivers. An autopsy revealed no physical signs of traumatic antemortem injury and cause of death was determined to be asphyxiation by submersion (drowning).

When a vessel is shifting from one inland berth to another, the universal practice is to flake the mooring lines on deck rather than stow them below, in order that the lines will be readily available when needed to tie up to the dock at the new berth. Normally the lines are flaked on the side of the vessel which was adjacent to the dock from which the vessel is departing unless it is known ahead of time that the vessel will dock on the other side, in which event the lines are moved to that side. In this case, the starboard springline, about 600 feet in length, was flaked along the after outer starboard passageway under the direction of Balboni when the MARYLAND TRADER left Swan Island.

The mooring lines were of a synthetic material and had a circumference of approximately eight inches. Balboni testified that there were four flakes in the springline which would make each flake approximately 75 feet in length. The drawing of the ship in evidence shows that the aft starboard springline bit was 33 feet aft of the thwartships passageway starboard door (hereinafter called the door) of the afterhouse. The aft starboard springline chock is 20 feet aft of the door. The starboard sternline bits are approximately 22 feet aft of the aft starboard springline bits. It is apparent, therefore, that a starboard springline 600 feet in length, flaked into four flakes of approximately 75 feet each along the outer starboard passageway, would extend forward beyond the door even if the flakes began 10 feet or so aft of the aft starboard springline bits. This was the customary place for the springline to be flaked. The lines were flaked on the outboard side of the after outer starboard passageway and took up about one foot of the width of the passageway leaving approximately 3½ feet of unobstructed passageway. The height of the flaked lines above the deck was approximately 3½ inches.

The door leads from the outboard starboard passageway on the poop deck to a starboard thwartships passageway of the afterhouse which in turn leads to a short passageway of several feet leading into the officer's dining salon. The door is a large metal watertight door with a sill approximately 14 inches high from the deck of the passageway....