the edge of the pier to the rail of the vessel. It was the only means of access and he was climbing it to board the ship while under the influence of liquor. There, as here, it was alleged that the ladder was defective and contrary to our finding, the Trial Judge there found that it was defective but he also found that it had not been established by a fair preponderance of the evidence that the slipping of loose rung had caused the accident and the libel was dismissed. The case is important, too, for the further reason that the Court found that '* * * the use of a straight ladder at the time, instead of the standard accommodation gangway, was shown to be perfectly proper.' We reach the same conclusion.
Since liability her is also predicated on negligence in handling the mooring lines to prevent the inordinate surging of the vessel, an important question is, 'Who had the responsibility for seeing that the vessel was properly moored at the time of the accident?' The evidence establishes beyond any doubt that it was the direct responsibility of the respondent from 4 P.M. until 8 A.M. the following day; that the accident happened 7:55 A.M. just about the time the master, the stevedores and the other workmen were reporting for duty; and that it could have been avoided if there were sufficient men kept aboard the vessel to tend to the mooring.
Inadequacy of crew constitutes an act of unseaworthiness. We have found that the only persons aboard, at and prior to the time of the accident who might have pulled the mooring lines taut, were the relief mate (libelant) and the gangway watchman or marine guard as he is familiarly known. These two were not up to the task physically and were not available anyway because they were disqualified from handling the lines by union regulations.
'Seaworthiness is a comprehensive term, and a relative one. The requirement is that the vessel not only be staunch and strong, but also that she be fitted out with all proper equipment in good order, and with a sufficient and competent crew and complement of officers. * * *' (Emphasis supplied.) The Law of Admiralty, Gilmore and Black, p. 58.
On this question generally, see Carlisle Packing Company v. Sandanger, 259 U.S. 255, 42 S. Ct. 475, 66 L. Ed. 927, and The Magdapur, D.C.S.D.N.Y., 3 F.Supp. 971.
Respondent objects to any allowance for maintenance and cure on the ground that at no place in the libel is any claim made therefor. While it probably would have been better practice to have stated it as a separate cause of action, we believe that the respondent was put on notice that such a claim was being made by the language of paragraph 6 of the first cause of action reading, '* * * has lost, and will lose, large sums of money which he otherwise would have earned as wages and in the form of board and lodging; that he has been forced to defray the expense of his maintenance and cure; and that libelant verily believes he has been permanently injured; all to his damage * * *.'
To the same effect, see The Magdapur, supra, at page 973, where the Court said: 'The fact that the libel does not specifically pray such relief is not conclusive; maintenance and cure may be awarded where the libellant asks for compensatory damages and 'such other and further relief in the premises as in law and justice he may be entitled to receive", citing The Teviotdale, D.C., 166 F. 481; The New Dawn, D.C., 36 F.2d 970, 971.
On the record before us, there is no question but that libelant was a seaman employed by the respondent; that he was injured during the course of his duty while leaving his place of employment aboard ship by means of a ladder provided for that purpose when the ship, which was improperly moored, surged inordinately, causing the ladder to roll over and upend, with resulting injury to libelant. By reason thereof and the negligence of respondent in failing to provide an adequate crew to keep the vessel properly moored, and in failing to provide him with a safe place in which to work, he is entitled to maintain actions for maintenance and cure, for damages under the Jones Act and for unseaworthiness under the General Maritime Law. Tyndall v. The Conduit and Foundation Corporation, 3 Cir., 1959, 269 F.2d 947.
The fact that libelant's decedent was working on a 'dead' ship (a tug) when he was drowned was held to be not controlling in Desper v. Starved Rock Ferry Co., 1952, 342 U.S. 187, 72 S. Ct. 216, 96 L. Ed. 205. For an interesting discussion of the development of the law leading to the conclusion in that case, see the opinion of Chief Judge Biggs in Tyndall v. The Conduit and Foundation Corporation, supra, 269 F.2d at pages 948-949. See also Norton v. Warner Co. (successful claimant was employed on a barge lacking motor power of its own) 1944, 321 U.S. 565, 64 S. Ct. 747, 88 L. Ed. 931, a case that went up from the 3rd Circuit.
The evidence fails to establish any negligence on the part of the respondents-impleaded. Furthermore, they were not in control of the vessel and were under no obligation to moor it or to supply a crw to do so at the time of the accident. The cross-libel against the respondents-impleaded will be dismissed.
Conclusions of Law
1. This Court has jurisdiction over the parties and the subject matter.
2. Libelant was in the employ of the respondent in the capacity of a seaman acting as night mate at the time of the accident.
3. Respondent was negligent and its negligence was the proximate cause of libelant's injuries in failing to furnish libelant with a vessel that had an adequate crew, to moor her properly and to keep her moored properly at the time of the accident.
4. That respondent failed to supply libelant with a safe place to work for similar reasons.
5. That libelant is entitled to recover the sum of $ 15,000 in damages from the respondent, as well as the sum of $ 928 for maintenance and cure, or a total of $ 15,928.
6. That judgment will be entered in the sum stated for the libelant and against the respondent.
7. The cross-libel filed by the United States against the respondents-impleaded will be dismissed.
Counsel for libelant will submit an appropriate order.