Smith v. United States

• Decision Date: 03 February 1953
• Docket Number: No. 1037.,1037.
• Citation: 121 F. Supp. 778
• Parties: SMITH v. UNITED STATES.
• Court: U.S. District Court — Southern District of Texas

121 F. Supp. 778

SMITH v. UNITED STATES.

No. 1037.

United States District Court, S. D. Texas, Houston Division.

February 3, 1953.

Mandell & Wright (Arthur J. Mandell), Houston, Tex., for libellant.

Brian S. Odem, U. S. Atty., Wm. G. Winters, Jr., Asst. U. S. Atty., Royston & Rayzor (Robert Eikel), Houston, Tex., for respondent.

KENNERLY, Chief Judge.

This is a suit in Admiralty by the Administrator of the Estate of Jeff Smith, deceased, for the use of Smith's surviving father and mother, against the United States of America (for brevity called the Government) for damages alleged to have been sustained by an injury to and the death of Smith. It is claimed that such injury and death were caused by the unseaworthiness of the Steamship "Albert G. Brown" (on which Smith was a seaman and chief cook) and the negligence of those in charge of her. Libellant brings the suit under the Jones Act, Section 688, Title 46 U.S.C.A., and in Admiralty, and claims the right to sue the Government under Section 741 et seq., Title 46 U.S.C.A., and Section 1291(a), Title 50 U.S.C.A.Appendix.

Smith was, as stated, a seaman (chief cook) on the Steamship "Albert G. Brown," owned by the Government and which at the time of the alleged injury was being operated by the American Trading & Production Company. Liability by the Government is claimed under Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692.

While the Steamship was at a dock in Norfolk, Virginia, Smith while returning to the Steamship from shore leave early in the morning of September 5, 1946, undertook to climb a "carpenter's" ladder approximately 30 feet long which was lashed on the side of the Steamship, and the lashings of the ladder broke and both Smith and the ladder fell into the water. On his way down, Smith struck the dock and was injured. He died either from such injury or by drowning or both. His body was later recovered from the water.

Libellant in his brief quite clearly states the background of Smith. He gives an account of his birth and of his residence in and around Houston, Texas. I quote in the margin part of such statement.¹ I adopt the part quoted as substantially correct.

Questions in the case are presented and disposed of as follows:

1: The suit is brought under Section 741 et seq., Title 46 U.S.C.A., and the question of Libellant's right to proceed under those sections was raised by Respondent and heretofore determined on a Stipulation of the parties filed May 12, 1952.² I think, as formerly held, that such Stipulation brings the case clearly within Section 745, Title 46 U.S.C.A. as amended December 13, 1950.³

2: Such Stipulation and Exhibits attached show also that Libellant's claim has been presented and administratively disallowed, and that this Court has jurisdiction under the Clarification Act, Section 1291(a), Title 50 U.S.C.A. Appendix, if that Act be applicable.

3: On the issue of negligence by the Steamship and those in charge of her, I find as follows:

(a) Libellant alleges that the Steamship and those in charge of her were negligent in the following particulars:

"In failing to put out the ship's gangway for the purpose of boarding said vessel.

"In negligently failing to have a Jacob's ladder swung from the side of the vessel so as to afford a safe means of boarding said vessel to the members of the crew of said vessel and especially to the said Jeff Smith."

The statement of the facts leading up to the death of Smith as made by Libellant in his brief is substantially correct, and same is quoted in the margin.⁴ As stated therein, the Steamship had adequate and safe companionways (commonly called gangways). It in addition had the usual "Jacob's ladders" carried by steamships. None of these were used, however, while the Steamship was docked at Norfolk. The carpenter's ladder which fell with Smith was used exclusively there. At first it was used lashed to the Steamship and one end rested on the dock. It was unsafe. Later it was pulled off the dock and left hanging on the side of the Steamship without the end resting on the dock. It was in that position when it fell with Smith. It was unsafe. I think and find that the failure to use the "gangways" and/or the Jacob's ladders was negligence and the use of the carpenter's ladder rendered the Steamship unseaworthy. The carpenter's ladder could have been made a safe means of ingress and egress, but it was not. If it had been properly and strongly lashed to the side of the Steamship, it would have been safe either with or without the end resting on the dock.

(b) As stated, such ladder was originally not only lashed to the side of the Steamship, but one end thereof rested upon the dock. But, as stated in the margin, in maneuvering the Steamship, the end of the ladder was pulled off the dock, and at the time Smith undertook to climb it, it was not resting upon the dock at all, but hanging on the side of the Steamship. The cords which lashed the ladder to the side of the Steamship were flimsy. I do not agree that they were designed and used only to prevent the sidewise slipping of the ladder. I think and find that they were designed and used to support the ladder. Such cords, which were offered in evidence, show that they were wholly unsuited for the purpose used, and it is surprising that Respondent used them at all. Because of the flimsy cords so used to lash the ladder, it was unsafe and dangerous even if one end had rested on the dock. All this was well known to Respondent. Respondent also well knew that the ladder would likely be pulled off the dock by the maneuvering of the Steamship, and that the ladder, supported only by the flimsy cords, would be and was dangerous. Respondent also knew that the ladder had been pulled off the dock, and was negligent in not making it safe. Respondent was negligent in failing to see to the safety of the ladder, both before and after the Steamship was maneuvered.

Libellant's charges of negligence by the Steamship and those in charge of her are well founded, and I find they were negligent as follows, which negligence proximately caused the injury to and death of Smith:

In that Jeff Smith was not provided with seaworthy lines and/or attachments so that the ladder would be safely attached or tied on to the railing of said vessel.

In that the lines with which the ladder was attached to the railing were not strong enough to hold up the weight of a person while climbing said ladder, and especially Jeff Smith.

In that the lines which held up said ladder to the railing of said vessel were old, rotten and otherwise defective thus creating a dangerous condition to anyone climbing said ladder, and especially Jeff Smith.

In failing to inspect the lines which held the ladder attached to the railing of said vessel in order to discover the defects and remedy the same.

In failing to safely secure said ladder to the railing of said vessel.

In failing to properly tie or lash said ladder to the railing of the vessel so that the lines would not give way.

In negligently securing said ladder to the railing of the vessel with defective lashing.

In negligently failing to have said ladder properly fastened to the railing of said vessel.

In negligently failing to secure the ladder running from the dock to the vessel so that while anyone climbed said ladder, the lashing securing the ladder to the rail of said vessel would not part or give way.

(c) As has been stated, Respondent was required to furnish Smith with a safe means of ingress and egress. Having elected to use the carpenter's ladder, they were required to make it safe. I think and find such Steamship and those in charge of her were negligent as charged by Libellant as follows, which negligence proximately caused the injury to and death of Smith:

In that Jeff Smith was not provided with a seaworthy ladder.

In failing to provide the said Jeff Smith with a safe means by which to board said vessel.

I also find that such Steamship was unseaworthy at the time Smith fell and met his death.

4: On the issue of Smith's negligence.

Respondent charges that deceased was negligent, but does not in the pleadings point out the particular acts. It is said:

"By way of further answer, for a First Special Defense, respondent would respectfully show that if deceased was injured or died as alleged, though it is not acknowledged that deceased was so injured or did so die, such injuries and death were directly and proximately caused by the deceased's own negligent acts and omissions, or were directly and proximately caused or contributed to be caused by said negligent acts and omission, in whole or in part."

Smith had the right to assume that since the ladder was furnished as his only means of leaving and returning to the Steamship, it was safe. He, of course, could see and knew that while the ladder was lashed to the side of the Steamship, the bottom of the ladder was not resting on the dock. But there is no evidence that he knew, indeed it is clear I think that he did not know, that the ladder was insecurely lashed to the side of the Steamship and with flimsy cords, as hereinbefore stated. If it be true that the cords were designed by Respondent only to prevent the ladder from sliding sidewise, Smith did not know it. He also, of course, knew that if the ladder fell with a person, it would probably mean serious injury or death for such person. There is dependable evidence that Smith was warned and that he warned others not to go upon the ladder, yet he went thereon. Smith is not here to speak for himself, and it may be that not knowing that the ladder was insecurely lashed to the Steamship, he believed that he could safely use it, but believed that others, because of their weight, lack of skill in climbing, physical or other conditions, could not do so. The evidence shows that Smith was a comparatively small man and that he was a skilled seaman, and it may be, and probably is, true that he thought...