Tate v. CG Willis, Incorporated

• Decision Date: 06 September 1957
• Docket Number: No. 7754.,7754.
• Parties: Daphne P. TATE, As Administratrix of the Estate of George Archie Tate, deceased, and in her own right as widow, and Sidney H. Kelsey, Ancillary Administrator, etc., Libellants, v. C. G. WILLIS, Incorporated, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

154 F. Supp. 402

Daphne P. TATE, As Administratrix of the Estate of George Archie Tate, deceased, and in her own right as widow, and Sidney H. Kelsey, Ancillary Administrator, etc., Libellants, v. C. G. WILLIS, Incorporated, Respondent.

No. 7754.

United States District Court E. D. Virginia, Norfolk Division.

September 6, 1957.

Sidney H. Kelsey and L. David Lindauer, Norfolk, Va., for libellants.

Seawell, Johnston, McCoy & Winston, Harry E. McCoy, Jr., Norfolk, Va., for respondent.

WALTER E. HOFFMAN, District Judge.

This is an action in admiralty by the domiciliary administratrix and the ancillary administrator of George Archie Tate, deceased, against C. G. Willis, Incorporated, seeking a recovery under 46 U.S.C.A. § 688, more generally referred to as the Jones Act. The first cause of action is for damages claimed to be due by reason of the alleged negligence of respondents. The second cause of action asserts damages for loss of consortium. The third cause of action demands recovery of the economic value of decedent's life. Following the trial, libellants, in their brief, requested that a non-suit be entered as to the second and third causes of action. This request is opposed by respondents for the reason that it is belated and ill-timed. The Court is of the opinion that libellant should not be granted a non-suit as to the second and third causes of action for it is well settled that, under the Jones Act, there can be no recovery either for loss of consortium or for the economic value of decedent's life. There is no reason to subject the respondent to any further litigation arising out of the unfortunate incidents hereinafter related.

The decedent, George Archie Tate, was a 49 year old white male who had been employed by the respondent for approximately 18 months prior to his death. On the trip in which he lost his life, Tate was a crew member of the tug Carteret, employed as an ordinary seaman. Both the tug and the barge J. R. Willis were either owned or operated under bare-boat charters by the respondent herein; the respondent using these vessels in a general freight service conducted over the Atlantic Intra-Coastal Waterway. The barge is of modern design and structure and, at the time of the accident, was only approximately one year old. It is 240 feet in length, has a beam of 43 feet and a depth of 13½ feet. The bow has a steep rake so that the main dock level inclines upward rather sharply. It follows that, in reaching the bow of the barge, a person is required to approach a point which is slightly higher than when amidships. The stern of the barge is square and is fitted with a notch at the center line into which the bow of the tug fits. When the tug's bow is placed in this notch or cradle, with pushing cables attached from the barge to the tug, the two vessels are operated as a single cargo-carrying unit with the motive power at the stern, thus resulting in the tug's pushing the barge. By reason of the fact that the barge was physically attached to the tug, it became unnecessary for any crew to be maintained aboard the barge.

On the late evening of December 11, 1955, the tug and barge arrived at the Trenton Marine Terminal, Trenton, New Jersey, and docked with the starboard side of the barge along the face of the dock. The tug remained in a pushing position. As the tug's beam is not as great as that of the barge, it follows that when the barge was lying flush alongside the dock, the tug was still approximately 14½ feet from the dock. It was usual and customary, upon arrival at Trenton, New Jersey, for the tug to remain in its pushing position, with its nose in the notch at the stern of the barge. There were no lines running from the tug to the dock as the tug was held in place by the pushing cables attached to the barge. The lines running from the barge and secured to the dock were one long lead bow line from the offcorner spring, and one long lead stern line from a point near the middle of the stern of the barge to the dock, as well as two shorter quarter lines from the starboard side of the barge. On the night of arrival none of the crew went ashore. Beginning at eight o'clock the following morning, the barge, which was loaded with rolls of paper, started discharge operations and approximately one-half of the cargo was unloaded before operations were stopped on the night of December 12. According to the deckhand, Gilliken, the mooring lines were adjusted on the late afternoon of December 12 to permit the proper amount of slack in the lines. To allow for the rise and fall of the tide during the night, it was necessary, of course, to have some freedom in one or more of the spring lines.

In order to go ashore from the tug, the crew would first go from the bow of the tug onto the stern of the barge. There it became necessary to climb a ladder to the catwalk and walk along this upper catwalk to a point in the vicinity of the bow of the barge. Undoubtedly, the bow of the barge was closer to the dock than the remainder of the barge because of the effect of the long lead bow line and the downstream current. Witnesses estimated that the crew members had a step of from 12 to 18 inches from the catwalk of the bow of the barge to the dock when going ashore and, at the time of the accident, the bow was approximately one or two feet lower than the dock.

Sometime following the evening meal on December 12 the Captain¹ and his Mate went ashore to attend a movie. The evidence is undisputed that there were no lights in the locality of the bow of the barge where the crew members were expected, according to respondent, to make the step from the barge to the dock. It should be noted, however, that even the Captain did not leave the barge exactly at the bow. Apparently the deceased had gone ashore prior to the Captain and Mate, as the latter individuals met the watchman, the Chief Engineer, and the deceased at the watchman's shanty near the gate of the Trenton Marine Terminal. The Captain and Mate telephoned a taxicab for the purpose of going into the city of Trenton. It was approximately 8:30 P. M. when the Chief Engineer², Melson, arrived at the watchman's shanty for the purpose of making a long distance telephone call. After the completion of the phone call, Melson and the deceased started back to the tug. Melson was carrying a flashlight which he thereafter flashed on the barge at the time decedent endeavored to board same. When the two men came to the stern of the barge, they observed that the vessel was approximately four feet away from the dock. They walked along the dock toward the bow, and, when at a point approximately 30 to 40 feet from the stern, the deceased apparently decided that he could board the barge at this point. The evidence of Melson, the only eyewitness to the fatal accident, indicates that he warned the deceased not to endeavor to reach the barge at that particular place. His pertinent testimony follows:

"Q. When you got to the dock, will you tell us what took place with reference to getting aboard the barge? A. Well, the barge had swung out.

"Q. Which end had swung out? A. The stern of the barge. And I told Mr. Tate, I says, `Don't try to get aboard there'. I says, `Go back to the bow and get on.' And he says, `No, I can make it all right'. I said, `Well, wait until the barge swings in'. She was swinging with the tide. She would swing in and swing out. He jumped up on that sill and tried to make it.

"Q. You thought he could make it all right, did you? A. No, sir."

In discovery proceedings, it appears that Melson had made a statement, which he could not recall at the trial, reading as follows:

"Q. You didn't assist him in any way to get on the barge? A. No, sir; I thought he could make it all right."

The witness, Melson, further testified at the trial on cross-examination:

"Q. Now, as you came up alongside, why didn't you go over and board the barge at the stern? A. Because it was too far off.

"Q. What did you do? A. Well, he walked back up the dock, about 30, 40 feet.

"Q. Then what did he do? A. He tried to get on from that point.

"Q. Now at that point I will ask you sir, when he started to go and try to get on the barge, what did you say to him? A. I told him, let's go to the bow of the barge and get on.

"Q. And what did he say? A. Well, he says, `Heck, I can make it here'.

"Q. Did you say anything to him about the barge swinging out? A. I said, `Well, wait until the barge swings into the dock'.

"Q. Did he say anything else to you then? A. No, sir. He just jumped up on that walk.

* * * * * *

"Q. (By Mr. McCoy): I will ask you, sir, did you think it was dangerous for Tate to get on at the point where he tried to board the barge? A. Well, yes, sir, I thought it was dangerous.

"By Mr. Kelsey: I object to the opinion, if your Honor please.

"The Court: Suppose it had been two feet that he had to get on.

"The Witness: Me?

"The Court: Yes.

"The Witness: Well, it would still have been dangerous.

"The Court: Suppose it had been one foot?

"The Witness: At nighttime like that?

"The Court: Suppose it had been one foot?

"The Witness: Well, at one foot I guess it would have been a little bit safer. He could have stepped over on it without reaching out to catch to it.

"Q. (By Mr. McCoy): Is that why you cautioned him, sir? A. Yes, sir."

Despite the warnings of Chief Engineer Melson, the deceased endeavored to board the barge by stepping on the wooden sill or cap rail of the dock, leaning out and trying to grab hold of the lifeline around the catwalk, the level of which was slightly below the level of the dock. The deceased fell and his head struck the main deck of the barge, thus causing him to fall overboard between the barge and the dock. It was estimated that the barge was approximately three, to three and a half, to four feet away from the dock at the point where the decedent fell into the water and his total fall is approximated at from 12 to 15 feet from the dock to the water.

...