on this point discloses that the Chief Mate contacted an employee of Ryan Stevedore Company to provide a brow when its utilization became necessary.
The facts as presented by the Chief Mate and Coggins create a gap which the defendants cannot span to link the Government with liability. It is defendants' representative -- the Chief Mate -- whose precise testimony makes demonstrably clear that the brow on which the plaintiff was injured could not have been the brow which the Army made. The Government was not obligated to prove the source from whence defendants obtained this brow, but there is evidence in the record that it could have been a brow which had been brought to the port by some other ship and discarded there, or had been brought to the defendants by the stevedore company which had obtained the brow from a source other than the Army. The defendants had the burden of proving more than that they got the brow from the stevedore; they had to also prove that the brow in issue had been obtained by the stevedore from the Army, and they failed to prove the latter.
Based on the foregoing facts, the defendants have not met their burden of proof in stating a cause of action upon which relief can be granted. In view of the numerous physical discrepancies and the defendants' failure to demonstrate more clearly a factual causal nexus, the defendants, as third-party plaintiffs have not established beyond a preponderance of the evidence that the brow utilized by the SS Thunderbird on the night of the accident was an Army constructed brow or one which was supplied by the Army.
II. THE USE AND MAINTENANCE OF THE SS THUNDERBIRD BROW.
I am making an alternative finding should an appellate court disagree with my ruling with respect to defendants' failure to meet their burden of proof. Assuming for the moment that an Army brow was employed, the record reveals that apparently the primary reason for Coggins' fall was not the condition of the brow but the manner in which it was put to use. Again, a detailed recitation of the facts will be helpful.
Irrespective of the origins of the accident brow, the Chief Mate testified that when delivered the brow was newly constructed, "firm," and "nailed together securely." The record is unclear as to the exact time the brow was secured to the SS Thunderbird; the best approximation by the Chief Mate fixed the time around two to two and one-half hours before the accident, or around 6:00 or 6:30 that evening.
Whenever a wooden gangway is utilized -- be it a brow gangway or a ship's regular accommodation gangway -- the rise and fall of the tide and the accompanying movement of the ship can cause the gangway to loosen and become less sturdy. At that stage, the Chief Mate, through members of his crew, is assigned the responsibility for resecuring the gangway by renailing the loosened portions of the brow.
At the Sunny Point Terminal, the Army employed the stevedore personnel to make any necessary repairs on an Army brow which deteriorated or became damaged while being utilized by a visiting ship. If the Army brow became damaged after the stevedore's normal working hour, the ship's crew would then effect the necessary repairs on the brow.
In addition to the stevedore personnel hired by the Terminal, the Terminal employed Army inspectors who, during their working hours from 8:00 a.m. to 5:00 p.m., would observe activities aboard the ships berthed at Sunny Point. Their duties entailed enforcing all applicable safety rules and regulations. If these inspectors observed a ship using an Army brow in an unsafe condition or in an unsafe manner, they would instruct either the stevedore's foreman or a ship's officer to correct the unsafe condition.
There are a number of practices which might be regarded as unsafe or dangerous, one of which would be the use of a wooden brow in a loosened or damaged condition. Another unsafe practice would be to use a brow at an angle in excess of 45 degrees.
On the evening of February 15, 1968, neither the Government inspectors nor the stevedore personnel were present or working at the time of the accident. As a rule the Government personnel and inspectors would terminate their day at 5:00 p.m. unless some members of the stevedore crew were still working on the ship. The Government surveillance personnel did not remain on duty after 5:00 p.m. if the ship's crew was merely loading ship stores.
There is a conflict in the testimony of Coggins and the Chief Mate as to the physical condition of the brow at the time of the accident. The Chief Mate asserted that when the brow needed to be repaired, any repairs would be immediately accomplished. Coggins, on the other hand, contends that both handrails were loose, that one of the braces was broken, and that the steps were rounded from excessive wear.
There is nonetheless agreement by both Coggins and the Chief Mate that at the time of the accident, the angle of incline of the brow was steep. Coggins stated that the brow was "steep" and rested at an angle of 45 degrees "or a little more." The Chief Mate testified that the brow's angle of incline was "between 50 and 60 degrees," that the brow was "very steep" and was "hazardous" to use. In fact, when the Chief Mate walked down the brow, he walked sideways, assigning as a reason that, "for safety, trying to walk down in a normal fashion was hazardous to say the least." (Powers, N.T. 21) There is no evidence that the ship's officers ever instructed the crew members to walk sideways when descending the brow.
It was not until the day after the accident that the Chief Mate was apprised by Coggins that he had fallen and injured himself the previous night. When later questioned as to whether Coggins gave an explanation as to how he sustained the injury, the Chief Mate responded: "Yes, that he [Coggins] slipped on the gangway when the tide was highwater stage and the steepness of the gangway caused him to slip." (Emphasis added.) (Powers, N.T. 10-11.) A month later, Coggins expanded his remarks, asserting that the brow was too short and that it had some broken boards. In explaining the history of the ailments to the medical authorities, Coggins merely stated that he slipped on the brow and twisted his back. When this matter was in litigation, Coggins then began complaining about worn steps and loose handrails.
Captain Kenneth Mistry, the expert witness for the defendants at the trial, testified that he would not have permitted his men to use a brow at an unsafe angle, one which was 45 degrees or more. The following dialogue then occurred between Mr. John McMenamin, counsel for the defendants, and Captain Mistry:
"BY MR. McMENAMIN:
" Q arising out of the last question, at a port like that with a ship fully laden, what choice would you have had as a chief mate to use a brow like that, to allow your men to work on a brow like that?