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GARCIA v. DOVER SHIPPING CO.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


April 25, 1974

Vivian GARCIA, Admx. of the Estate of Alberto S. Garcia, Deceased
v.
DOVER SHIPPING COMPANY and Keystone Shipping Company v. STAPLETON LAUNCH SERVICE

Bechtle, District Judge.

The opinion of the court was delivered by: BECHTLE

MEMORANDUM AND ORDER

BECHTLE, District Judge.

 Before the Court are the plaintiff's motions for judgment or directed verdict or for a new trial in the above case. This case was tried for five days before a jury and involved a claim of plaintiff's decedent (Garcia) who had been hired by Dover Shipping Company and Keystone Shipping Company, owner and operator ("Owner"), respectively, of the "Sinclair Texas," on December 22, 1969, on which date the "Sinclair Texas" was in navigable waters of the United States and specifically at the Stapleton anchorage in the harbor of New York.

 At the time Garcia was hired to be a crewman on the "Sinclair Texas," he held an able-bodied seaman's license, was hired to be a quartermaster on the ship, passed a physical examination for the purpose of his employment, and was directed to report to the port agent in the port of New York, who furnished the crewman with a ticket for passage from shore to the "Sinclair Texas" at anchorage by means of a motorized launch owned and operated by the Stapleton Launch Service ("Launch").

 Launch agreed to render the launch service to the Owner in return for the payment to the launch service of three dollars ($3.00) per person carried one way on any launch trip between the "Sinclair Texas" and the shore.

 On December 22, 1969, Garcia, in accordance with the directions furnished to him by the Owner and its port agent and in pursuance of the permission represented by the launch ticket, boarded the launch, together with another crew member hired to be a cook on the "Sinclair Texas"; and the two passengers, together with the only crew member of the launch (its pilot), left the Stapleton dock and traveled directly to the "Sinclair Texas" between 8:00 p.m. and 9:00 p.m., in the darkness, and over water that was rough and choppy.

 When the launch arrived at the port side of the "Sinclair Texas" and at the point where crew members of the ship had lowered a Jacob's ladder to the launch to permit boarding by Garcia and the other crewman, the bow of the launch traveled from the high point of each water swell to the bottom point (approximately two to three feet) and returned to the high point in a time span of between six and seven seconds.

 The launch operator caused the starboard fore-portion of the launch to remain in contact with the port side of the "Sinclair Texas" and from this position the reasonably safe and accepted customary procedure for boarding the ship from the launch would be for the person seeking to board to position himself near the Jacob's ladder and, at such time as the bow of the launch hit its highest point on any swell, after the party was properly positioned, to place a foot firmly on the highest rung that could be reached, place both hands on either side of the Jacob's ladder connecting the rungs, and immediately move up the ladder as quickly as possible in order to avoid the possibility that the bow of the launch, on the return from the low point of a swell to the highest point, would interfere with or strike the party climbing the ladder.

 The Jacob's ladder used is oftentimes referred to as a "pilot's ladder" and consists of a series of horizontal rungs about four inches (4") in depth, approximately eighteen inches (18") in length, and spaced approximately one foot (1') apart from the top to the bottom between parallel rope sides.

 A Jacob's ladder is of widespread use for boarding ships. When not in use, it can be rolled up and, when in use, is unrolled and secured at its only place of connection with the ship, which in the case of the "Sinclair Texas" was at the top of the deck rail which was at a point approximately nine feet (9') from the deck of the launch where Garcia and the other crewman stood in preparation for positioning to climb the ladder and board the ship.

 At the time of boarding, the other crewman (the cook) attempted to board the ladder but was unsuccessful in doing so in that he had difficulty due to either the weather conditions, inability to properly position himself, or other reasons not otherwise apparent or explained, but sufficient to cause that crewman to forego further attempts to climb the ladder.

 Garcia promptly thereafter positioned himself on the launch in readiness to climb the ladder and, at such time as the launch hit its highest point, he stepped onto the Jacob's ladder and did not immediately begin to advance upward but "hesitated" for such a period of time that the launch, on its return from the low point of the swell to the high point, came in contact with Garcia's left foot and ankle.

 After the accident, Garcia advanced the remaining one or two steps up the ladder and was thereafter helped over the rail by a third-mate of the "Sinclair Texas" and a representative of the port agent for the shipowner and operator and another crew member, who had been at the rail where the ladder was connected during the entire boarding attempt, it being the purpose of the third-mate and the port agent's employee to return to shore on the launch after the arriving crew members had boarded. The jury was provided with the following written interrogatories which were answered as shown in arriving at the final verdict in the case: "INTERROGATORIES (QUESTIONS) TO THE JURY "1(a). Was the ship 'Sinclair Texas' unsea- worthy? YES NO X (b). If your answer to question 1(a) is 'Yes,' was that unseaworthiness a proximate cause of Garcia's injury? YES NO "2(a). Was Dover Shipping Company, ship- owner, or Keystone Shipping Company, operator, by their agents or employees, negligent? YES NO X (b). If your answer to 2(a) is 'Yes,' was that negligence, in whole or in part, a cause of Garcia's injury? YES NO "3(a). Was the launch 'Marie S' unseaworthy? YES NO X (b). If your answer to question 3(a) is 'Yes,' was that unseaworthiness a proximate cause of Garcia's injury? YES NO "4(a). Was Stapleton Launch Service, owner of the launch 'Marie S,' by its officers, employees or launch operator, negligent? YES NO X (b). If your answer to question 4(a) is 'Yes,' was that negligence, in whole or in part, a cause of Garcia's injury? YES NO "5(a). Was Alberto S. Garcia contributorily negligent? YES X NO (b). If your answer to question 5(a) is 'Yes,' was this contributory negligence a proximate cause of his injury? YES X NO (c). If your answer to questions 5(a) and 5 (b) are both 'Yes,' to what extent, expressed in a percentage, was Garcia's contributory negligence a cause of his injury? 100 % (PERCENTAGE) "Only answer No. 6 if your answer to either 3(a) or 4(a) is 'Yes.' "6. Did Dover Shipping Company, shipowner, or Keystone Shipping Company, operator, by their agents or employees, do anything that precluded the Stapleton Launch Service from rendering rea- sonably safe, proper, and workmanlike service in respect to any occurrence that was a proximate cause of the accident and plaintiff's injuries? YES NO "

19740425

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