Nye v. A/S D/S Svendborg
| Citation | 501 F.2d 376 |
| Decision Date | 17 July 1974 |
| Docket Number | Nos. 700,D,846 and 1006,s. 700 |
| Parties | Dorris E. NYE, Individually and as Administratrix Ad Prosequendum of the Estate of Charles W. Nye, Deceased, et al., Appellees-Appellants, v. A/S D/S SVENDBORG and D/S AF 1912 A/S, Appellants-Appellees. A/S D/S SVENDBORG and D/S AF 1912 A/S, Appellees-Appellants, v. MARINE ENGINE SPECIALTIES CORPORATION, Appellant-Appellee. ockets 73-2280, 73-2313 and 73-2417. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Herman Schmertz, New York City (Gair, Gair & Conason, New York City, of counsel), for appellees-appellants Dorris E. Nye, Susan Pamela Nye, Judith Denise Nye, Gloria Jane Nye, Philip Rex Nye and Donna Charlene Nye.
William P. Kain, Jr., New York City (Haight, Gardner, Poor & Havens, and Thomas F. Molanphy, New York City, of counsel), for appellees-appellants A/S Svendborg and D/S AF 1912 A/S.
William F. Larkin, New York City (Larkin, Wrenn & Cumisky, and Coppola & D'Onofrio, New York City, of counsel), for appellant-appellee Marine Engine Specialties Corp.
Before MOORE, FEINBERG and MULLIGAN, Circuit Judges.
The t/t Evelyn Maersk is a turbine tanker of 53,277 gross tons and 35,998 net tons. She is approximately 880 feet long, has a molded depth of nearly 60 feet and is powered by a 22,500 shaft horsepower, steam turbine engine. The Evelyn Maersk sailed on her maiden voyage from Elsinore, Denmark, on December 24, 1967, bound for the Persian Gulf. While at sea on December 26, 1967, a feed pump supplying water to the vessel's boilers broke down and the vessel was ordered into Las Palmas, Canary Islands, in order to obtain a replacement for this pump.
The vessel's feed pumps were manufactured by the Pacific Pump Company of California, whose service agent on the Eastern Seaboard of the United States was third party defendant, Marine Engine Specialties Corporation (Marine Engine). Since the Pacific pumps aboard the vessel were still under guarantee, Oreste DeFerro, Service Manager for Pacific's Eastern Division, requested that a qualified representative of the manufacturer proceed to the ship to investigate the situation. Marine Engine dispatched its employee, Charles W. Nye to Las Palmas to board the Evelyn Maersk and continue with her to Capetown, South Africa.
Nye, a graduate of the United States Merchant Marine Academy at Kings Point, was forty-six years old. From 1946 to 1956 he was directly employed by the Pacific Pump Company of California in Huntington Park, California. From 1957 to 1962 he worked, as a specialist in Pacific's pumps, for the L. O. Arringdale Company, agents for Pacific. For the five years immediately preceding the events that underlie this case, i.e., from 1962 to 1967, Nye had been a resident of New Jersey, employed by Marine Engine as a service engineer for pumps manufactured by Pacific. His employment in some instances required him to travel, in his employer's behalf, to far flung ports of call on a moment's notice. He had been married to Dorris Nye for some twenty-two years and they had six children. During all his adult life, indeed even as far back as his early childhood, Nye could be accurately described as grossly obese. He was approximately six feet in height and he weighed three hundred and fifty pounds.
Nye's excessive weight had given rise to many different health problems. On June 27, 1961, he was admitted to St. Peter's Hospital in New Brunswick, New Jersey, for an evaluation of high blood pressure, obesity and headaches. He was discharged with a diagnosis of hypertension, obesity and hypothyroidism. On January 1, 1965, Nye was diagnosed as having a diabetic condition. On September 6, 1966, in addition to his previous maladies, Nye evidenced protein in his urine, possible kidney disease, swelling of the ankles and Pickwickian Syndrome, a condition marked by lack of oxygen and somnolence in the body due to excessive obesity.
The t/t Evelyn Maersk arrived at Las Palmas at 5:30 a.m. on December 30, 1967, and anchored one-half nautical mile east of the harbor pier. At 6:00 a.m., a spare feed pump was brought out to the ship by a boat from the shore and hoisted aboard. The District Court found that 'The defective pump was removed to the deck and the new pump was put in its place by the ship's engineers.'
When Nye arrived at Las Palmas he notified the vessel's agents of his presence and informed them of his intention to board the ship. They, in turn, passed that information along to Captain Jensen, the owners' Marine Superintendent aboard the vessel.
Sometime between 4:00 and 5:00 p.m., the ship's crew, pursuant to the orders of Captain Jensen, rigged an accommodation ladder and pilot ladder on the vessel's starboard side in preparation for taking Nye on board. 1 Neither boat ropes nor man ropes were rigged. 2
About 7:25 p.m., after the launch carrying Nye out to the ship had been sighted, the Evelyn Maersk weighed anchor, was put underway and maneuvered to form a lee on her starboard side in order to effectuate Nye's transfer from the launch. 3
At 7:30 p.m., the time of boarding, the wind was from the north-northeast at approximately seventeen to twenty-one knots. There were waves from four to eight feet high and night had fallen. At the time of boarding, a five buib cluster light, totaling 375 watts, was rigged directly above the pilot ladder. Further illumination was provided by a 400 watt gangway light and two 400 watt floodlights.
The launch carrying Nye had to make three passes at the ship before Nye could grab hold of the pilot ladder. Once Nye stepped on to the ladder, the launch moved away. After Nye proceeded up one or two steps on the pilot ladder, he stood still and called for help. Arne Moller, the ship's chief officer, ran half way down the ship's accommodation ladder. By that time, however, Nye had let go of the pilot ladder and had fallen into the sea. Hansen, a seaman who had been assisting at the boarding, immediately threw a life ring to Nye. Moller then proceeded back up the accommodation ladder and called the bridge to alert the captain of a man overboard and to have the ship's propeller stopped.
By this time two minutes had passed and Nye, grasping the life ring, had drifted about one hundred and ten feet aft of the pilot ladder. A crew member had thrown the free end of a boat ladder over the side of the ship. The purpose of lowering this ladder was to allow a crew member to descend it to grasp Nye as he drifted aft. However, no crew member was sent down this ladder because Moller had by this time turned on an additional spotlight (the starboard lifeboat light) and by its illumination he could see that Nye was no longer holding the life ring. He had vanished.
Moller, with the help of the ship's boatswain, searched the water to the ship's starboard and stern. The launch which had brought Nye to the Evelyn Maersk was also equipped with a spotlight and it too searched the area. The Evelyn Maersk continued in this fashion for about one-half to three-quarters of an hour. It then asked for permission from local authorities to leave the harbor and did so at 10:17 p.m. At no time did the Evelyn Maersk lower a boat into the water. No marker lights, life rafts or additional life rings were thrown into the water. No general alarm was ever sounded aboard the ship. Recovery of Nye's body took place without any help from the officers or crew of the Evelyn Maersk.
Plaintiffs, the wife and children of decedent Nye, instituted this suit against A/S D/S Svendborg and D/S AF 1912 A/S, the owners of the Evelyn Maersk, basing recovery on an alleged two-fold breach of duty: (A)...
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