decided as amended december 10 1971.: October 28, 1971.
Kalodner, Van Dusen and Aldisert, Circuit Judges. Aldisert, Circuit Judge (concurring in part and dissenting in part).
The primary issue presented is whether the District Court erred in directing jury verdicts in favor of the defendants, at the conclusion of plaintiffs' testimony, on its determination that plaintiff had failed to adduce "any" evidence of alleged unseaworthiness or negligence on the part of the defendants.
Also presented is the issue whether the District Court abused its discretion in excluding the proferred testimony of an expert witness on the ground that the plaintiff had failed to list the witness in his pre-trial memorandum as required by the District Court's local rules.
The instant action was instituted under the Jones Act*fn1 and the general maritime law, by the plaintiff, as administrator of the Estate of John Southard, against the Independent Towing Company, owner and operator of the tugboat TRITON, the Tugboat Triton Company, and Karl Grammerstorf, owner and operator of the vessel Karl Grammerstorf ("vessel").
Plaintiff's Complaint alleged: plaintiff's decedent Southard was fatally injured on March 13, 1965 when he fell from a ladder while ascending from the TRITON to the vessel near Pier 78, South Wharves, Philadelphia, Pennsylvania; Southard was at the time employed as Master of the TRITON, and as Docking Master of the vessel; the TRITON and the vessel were guilty of operational negligence and unseaworthiness in failing to provide Southard with a proper ladder and its equipment, and to assist in his safe ascent to the vessel.
Plaintiff's testimony, adduced through one Baric, mate of the TRITON, and one Tulewicz, its deckhand, may be summarized as follows:
Sometime after 6:30 A.M. on March 13, 1965, the TRITON was directed to proceed to the vessel then in the vicinity of Pier 78; when it neared the vessel it advised it by radio that it was "coming to"; the TRITON was thereafter secured to the vessel via its lines by its deckhand and two men aboard the deck of the vessel; Southard, without waiting for the customary assistance of the TRITON deckhand and without notice to him, proceeded to place a heavy-gauge portable aluminum 22-foot ladder upon the deck of TRITON against the side of the vessel; the top of the ladder, after it was so placed, extended two or three feet above the bulwark railing of the vessel; Southard proceeded to ascend the ladder to reach the deck of the vessel, and when "his head was just about at the top to the side of the ship's railing" the ladder started to slide and it fell; Southard was thrown and fell against the railing of the tug and then hurled into the water; the deckhand jumped into the water and brought Southard on the tug; Southard died from his injuries shortly thereafter; there were two members of the vessel's crew about five feet away from the top of the ladder when it began to slide; the ladder had two rubber "legs", viz., two rubber pads about 6 inches long and 2 1/2 inches wide with gripping action, to secure against the ladder slipping from the bottom; the ladder had no hooks or grappling equipment at its top; when the accident happened the TRITON and vessel were moving at about 2 miles per hour; Southard was carrying a "walkie-talkie" radio at the time of the accident; neither the deckhand nor the mate of the TRITON advised the vessel that Southard was coming aboard it.
As earlier stated, the District Court determined that the stated testimony did not present "any" evidence of unseaworthiness or negligence on the part of the TRITON or the vessel, and directed jury verdicts in their favor.
Plaintiff here urges that his testimony required submission of the issues of unseaworthiness and negligence to the jury. He contends that the TRITON was both unseaworthy and negligent in failing to provide a ladder with hooks or securing devices at its top, and that the vessel was unseaworthy in the same respects since it was under the duty to provide a means of safe ascent to Southard from the tug to the vessel in light of his employment by the vessel as its docking master. Plaintiff further contends that the vessel was negligent in failing to provide assistance by its crew to Southard by holding the ladder as he was ascending it.
On review of the record, we are of the opinion that the District Court did not err in directing the jury to find in favor of the defendants Independent Towing Company and Tugboat Triton Company on the ground that the plaintiff had not adduced "any" evidence of negligence or unseaworthiness on the part of the TRITON. Plaintiff's testimony failed to afford any basis for a jury finding that the TRITON was guilty of negligence in light of the fact that it established that Southard proceeded to place and ascend the ladder without waiting for the customary assistance of the TRITON's deckhand and without notice to him or any member of the crew of the TRITON of Southard's intention to place and ascend the ladder. Further, plaintiff failed to adduce any testimony that the TRITON was unseaworthy by reason of unfitness of the ladder or operational negligence on the part of the TRITON with respect to Southard's use of the ladder.
We are, however, of the opinion that the District Court erred in directing the jury to return a verdict in favor of the defendant vessel because of its view that the plaintiff had failed to adduce "any" evidence of ...