Saleh v. US, 92 Civ. 3646 (CHT).

• Decision Date: 15 April 1994
• Docket Number: No. 92 Civ. 3646 (CHT).,92 Civ. 3646 (CHT).
• Citation: 849 F. Supp. 886
• Parties: Ahmed Musaed SALEH, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

849 F. Supp. 886

Ahmed Musaed SALEH, Plaintiff, v. The UNITED STATES of America, Defendant.

No. 92 Civ. 3646 (CHT).

United States District Court, S.D. New York.

April 15, 1994.

Tabak & Mellusi, New York City (Jacob Shisha, of counsel), for plaintiff.

Frank W. Hunger, Asst. Atty. Gen., Mary Jo White, U.S. Atty., Janis G. Schulmeisters, Atty. in Charge, Torts Branch, Civ. Div., U.S. Dept. of Justice, New York City (Jack S. Rockafellow, Sara McAndrews, of counsel), for defendant.

OPINION AND ORDER

TENNEY, District Judge.

Ahmed Musaed Saleh ("Saleh"), plaintiff, brings this admiralty suit against defendant, the United States of America (the "United States"), under the Jones Act, 46 U.S.C. § 688 (1988), to recover money damages for pain and suffering, loss of employment, and medical fees in connection with an injury allegedly suffered aboard the S/S Maine (the "Maine"), a United States merchant vessel. Plaintiff also brings claims for unseaworthiness under general maritime law. Jurisdiction over the suit is proper under 28 U.S.C. § 1333 (1988). The Maine is owned by the United States and operated by American Foreign Shipping Co. ("American Foreign"), a private agent. The United States concedes to jurisdiction under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq. (1988). This court held a bench trial on October 20, 21, and 22, 1993. At the close of trial both parties moved for judgment in their favor pursuant to Fed.R.Civ.P. 52(c). For the following reasons, the plaintiff's motion is denied and the defendant's motion is granted.

FACTS

Pursuant to Fed.R.Civ.P. 52(a), the court finds the following facts:

1. Saleh claims that at some point between March 13 and March 18, 1991 as the Maine proceeded from Djibouti to Jabal Ali, at approximately 0730 hours (7:30 a.m.), he slipped and fell down a ladder well leading from the ship's galley to the store room. Pl.Mem. of Law, Prop. Finding 9.

2. Saleh claims that he slipped on grease, oil and water that had accumulated on ladder steps worn from years of use. He claims that these steps were a safety hazard and unseaworthy. Pl.Mem. of Law, Prop. Findings 6, 7 8 & 9.

3. Saleh is a naturalized United States citizen and was born in Yemen on January 1, 1952. At the time of trial he was 41 years old. Joint Pre-Trial Order ("JPTO") undisputed facts at 2. Aside from learning to read and write Arabic, Saleh has no formal education or training and was a farmer before migrating to the United States in 1976. Saleh Dep. at 10, 19.

4. Since migrating to the United States, Saleh has been a part owner of two small grocery stores, a worker in an automobile factory, and was employed cleaning a building for a short period of time. Saleh Dep. at 13-17. His last known employment was as a merchant seaman aboard the Maine.

5. Saleh became a member of the National Maritime Union ("NMU") approximately in 1982. Saleh Dep. at 42. However, Saleh was not actually employed as a merchant seaman until January 29, 1991, when he joined the S/S Maine in Livorno, Italy. Id. at 41-42, 62.

6. The Maine is a freighter approximately 540 feet long with a beam of 68 feet and molded depth of 79 feet. She was built in 1944 and is owned by the United States. JPTO, Undisputed Facts at 2.

7. Prior to the events in question in this suit, the Maine was out of active service for five years. She was reactivated late in 1990 in response to Operation Desert Storm/Desert Shield (the "Gulf war"). Snyder Dep. at 71-74.

8. Because of the pressing need for ships and crew members created by the Gulf war, Saleh joined the Maine without first receiving training in ship safety at a union school. Trial Transcript ("Tr.") at 18. From the evidence presented at trial, the nature and extent of the safety training provided on board the Maine is unclear. Tr. at 22; Snyder Dep. at 78. In any event, testimony established that Saleh was aware of the precautions to be taken when proceeding down the ladderwell steps — the activity he was engaged in at the time of the accident. Saleh Dep. at 105 (holding handrails); Colon Dep. at 37.

9. On board the Maine, Saleh served as a steward utility in the officers' mess, a position he held until the crew was discharged and the vessel laid up in Port Arthur, Texas on May 6, 1991. As a steward utility, Saleh served food to the officers and cleaned the officer's galley. In addition, he worked over-time throughout the voyage, mostly painting in the ship's engine room. Saleh Dep. at 62, 67.

10. Sometime between March 13 and March 18, 1991, at approximately 7:30 a.m., Saleh went from the officers' mess on the poop deck to the store room on the main deck to get milk for the officers' breakfast. In order to do so, he had to navigate a ladderwell leading aft of the vessel connecting the two decks. Saleh Dep. at 91, 93-94.

11. According to Saleh, he slipped on oil, grease and water that accumulated on the ladder steps and then he slid down the steps, landing on the bottom platform. Upon landing, he injured his back and left hand and received tiny metal slivers in his back from the steps. Tr. at 44-50.

12. The ladder where Saleh's injury allegedly took place is an inside ladder running between the poop deck and the main deck. The ladder has handrails on both sides, the distance between them being 24 inches. There is a landing at the bottom of the ladderwell, on the main deck level, which extends 42 inches from the bottom step to a wall across from it. Coulombe Dep. at 43-50; Tr. at 139, 141.

13. At the top of the ladderwell is a landing approximately five feet long. Tr. at 33. At the end of this landing is a watertight door leading to the outside poop deck. This door is kept open in good weather and there is a six to eight foot overhang outside the hatchway. Coulombe Dep. at 43-50. According to Saleh, the watertight door was open on the day of the accident, allowing rain water to be blown in. Tr. at 39-41. The ladder steps, which are covered with diamond shaped ridges to prevent slippage, appear worn in recent photos admitted as evidence in this trial, and, according to Saleh, were equally worn at the time of his accident. Pl.Exh. 4; Tr. at 43. However, Saleh does not claim, nor does the evidence presented warrant, that the worn condition of the steps alone is sufficient to establish the Maine's unseaworthiness or the defendant's negligence.

14. At trial and in his pre-trial deposition, Saleh claims that he was assisted immediately after his fall by a shipmate, Nagi Ahmed. However, this account is contradicted by a previous account of the accident given to Chief Mate Kevin Coulombe, the ship's medical officer. Def.Exh. E (see infra at 889-90). Also, Saleh chose not to call Nagi Ahmed as a witness although he was apparently within the court's jurisdiction and may have provided probative testimony concerning the circumstances of the accident, especially the condition of the ladderwell steps. Tr. at 130. While the court does not draw any negative inferences from Ahmed's failure to testify, it notes that such testimony may have been helpful and without it the court is left only to Saleh's account of the circumstances giving rise to his injury.¹

15. According to Saleh, it was raining on the day of his accident and the rain was blown onto the ladderwell steps, creating a slipping hazard. However, the court attaches no weight to this account because, on each of the proposed dates given by Saleh as the date of the accident, there was no record of rain or inclement weather at the time of the alleged accident in the deck log maintained by the ship's watch officer, Second Mate S. Roberto. Def.Exh. U. Furthermore, credible testimony established that the hatchway door to the outside poop deck would generally be closed in heavy rain, preventing any rain from being blown in. Colon Dep. at 39.

16. Saleh also maintains that Maine was in rough seas at the time of his accident, such that the ship was rolling and items were falling from shelves and tables. Saleh Dep. at 120. However, the court attaches little weight to this testimony because the ship's log for the relevant period indicates that the Maine was proceeding through light seas at that time. Def.Exh. U; Snyder Dep. at 66-67. On the one date in question when seas actually were rough, March 17, 1991, the log indicates that the ship was riding the swell in such a way that only minimal rolling would result. Snyder Dep. at 63-66.

17. Saleh also testified that the steps upon which he slipped were covered with grease and oil that had been tracked through the ship by crew members going to and from the engine room, which was accessible from the poop deck by the ladderwell. Tr. at 48. The plaintiff, however, cannot specifically recall ever noticing whether there was oil and grease on the steps prior to his accident. Id. Nor can he recall noticing oil and grease on the steps on the day of his accident. Id. Rather, he remembers that after he had fallen down the ladderwell, his hands and his shoes were covered with oil and grease from the steps. Tr. at 48, 145. This recollection does not persuade the court that an unreasonable or unsafe amount of oil or grease was present on the ladderwell steps. The court's impression is bolstered by other evidence in this case, including testimony by the two Chief Mates and by Chief Steward Colon, none of whom testified to seeing the ladderwell steps in a dangerous condition at any time during the voyage. Coulombe Dep. at 50; Snyder Dep. at 22; Colon Dep. at 54.

18. On February 25 and March 2, 1991, Saleh complained of stomach problems to Chief Mate Edward Snyder and was treated. Pl.Exh. 5. His only other medical complaint was lodged with second Chief Mate Kevin Coulombe, in a Report of Personal Injury dated 4/30/91 (the "Report").² Def.Exh. E.

19. The Report was made by Chief Mate Coulombe after interviewing Saleh and since it pertains to the subject matter of this lawsuit it is reproduced, in relevant part, below:³

1.

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