The opinion of the court was delivered by: Brotman, District Judge:
FINDINGS OF FACT and CONCLUSIONS OF LAW
In reaching its findings of fact and conclusions of law in
this maritime suit for negligence, the court must confront an
issue explicitly left open by the Supreme Court's recent
decision in McDermott Internation, Inc. v. Wilander,
___ U.S. ___, 111 S.Ct. 807, 112 L.Ed.2d 866 (1991): whether a
river pilot who is not permanently attached to a ship is a
Jones Act seaman. Because the court finds that a river pilot
was a seaman under general maritime law at the time Congress
passed the Jones Act in 1920, it concludes that this plaintiff
is entitled to the protection afforded by that Act.
This is an admiralty and maritime claim by the plaintiff for
personal injuries against the defendant, which is a sovereign
owned shipping company. Jurisdiction is based on 28 U.S.C. § 1333
and the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330.
This court held a nonjury bench trial on March 4-7,
1. Plaintiff, William W. Evans, was at all times material to
the events leading up to this suit licensed as a first class
pilot by the state of Delaware, Board of Pilot Commissioners,
and the United States Coast Guard and was a member of the
Pilot's Association for the Bay and River Delaware. Mr. Evans
has performed his entire career (over forty years) as a
licensed pilot hired to steer ships through the Delaware River
and Bay and the Chesapeake and Delaware (C & D) Canal.
2. Defendant, United Arab Shipping Company (UASC), owns and
operates the container freight M/V AL WATTYAH. UASC is owned by
the governments of Saudi Arabia, Kuwait, Iraq, United Arab
Emirates, Bahrain and Qatar. The M/V AL WATTYAH is a
diesel-powered vessel of 20,526 tons, 183.24 meters in length,
27.49 meters in beam and 10.015 meters in depth.
3. On the night of September 9-10, 1989, Mr. Evans was on
call at the pilot station at Lewes, Delaware. At approximately
1:00 a.m., he was called to pilot the M/V AL WATTYAH toward the
C & D Canal as far as Chesapeake City, Maryland, where a
Maryland pilot would take over the helm. At approximately 2:00
a.m., Mr. Evans was taken by pilot launch to the ship, which
was situated in the pilotage area between Cape May and Cape
Henlopen; he boarded the ship by pilot ladder, also known as a
Jacob's ladder, which is a rope ladder with wooden rungs. Mr.
Evans experienced difficulty with the pilot ladder due to its
poor condition. He then assumed the "conn" of the vessel at
approximately 2:30 a.m. and, without incident, piloted the ship
toward the Maryland border in clear and calm weather.
4. Upon approaching the point where the Maryland pilot would
be boarding, Mr. Evans requested the master of the vessel to
have the starboard side accommodation ladder rigged to allow
his disembarkation; plaintiff wanted to avoid using the faulty
pilot ladder. An accommodation ladder is used in calm waters on
ships without excessive freeboard. It is a staircase built of
galvanized steel or aluminum that is attached at its top to the
main deck of the vessel and is lowered by means of a winch to
within a few feet of the water's surface. At the lower end is
a platform that can be adjusted, depending on the height of the
vessel's freeboard and the ladder's angle of suspension, to
remain parallel with the water's surface. This lower platform
is fixed in position after adjustment by means of a pin which
passes through an intersecting "sandwich" of metal bars and
holds it rigidly in place.
The accommodation ladder is also equipped with handrails that
are designed to fold back along the channels of the ladder by
means of pivoting stanchions. When the ladder is fully
extended, the stanchions are designed to pivot upright and then
be secured with chains or ropes.
5. The Maryland pilot was transported to the M/V AL WATTYAH
by the pilot launch at Chesapeake City, which was driven by
John Stringer. When the launch was in position alongside the
ship, the Maryland pilot stepped from the foredeck of the
launch directly on to the lower-most rung of the accommodation
ladder, stepping over the lower platform. Transcript of March
4 at 38-41 (testimony of Stringer).
6. Some minutes later, a seaman headed down the accommodation
ladder to deliver Mr. Evans' briefcase and to assist him in
leaving the ship. As the seaman stepped on the lower platform
it pivoted on its axle and dropped, causing the sailor to fall.
The seaman was able to hoist himself aboard the launch, then
examined the lower platform on hands and knees. According to
Stringer, he appeared to be reaching for something and
adjusting the underside of the lower platform. Transcript of
March 4 at 42.
7. At this time, Mr. Evans appeared at the upper platform of
the accommodation ladder and saw that the sailor was on his
hands and knees adjusting the lower platform. Mr. Evans asked
the two officers who had accompanied him to the ladder what the
sailor was doing and whether it was safe to use the ladder.
Neither officer responded with anything more than a shrug of
the shoulders. Evans Deposition at 87-88. Mr. Evans then
shouted down to the sailor, who by this time was on his feet
facing up the ladder with one hand on the ladder's handrail and
the other on the launch's bow rail. The seaman made no gesture
or sign to Mr. Evans other than to make direct eye contact,
which he understood as an indication that the ladder was safe;
he then began his descent. On his way down he noticed a pile of
rope in disarray on the lower platform.
8. When Mr. Evans reached the lowermost rung of the ladder
with his left foot, he placed his right foot on to the lower
platform and released his hand from the inboard handrail. He
then began to swing his left leg over to the deck of the launch
but when he transferred his weight to his right leg, the
platform dropped, pivoting on its axle. Mr. Evans then
attempted to prevent himself from falling between the ship and
launch by shifting his weight to the outboard handrail. This
handrail collapsed, however, and Mr. Evans' body swung in a 270
degree turn. His tailbone (coccyx) hit the deck of the launch
and his face and left rib cage struck the outboard channel of
the accommodation ladder. Evans Deposition at 46-53. The sailor
then assisted Mr. Evans on to the launch.
10. Mr. Evans was experiencing pain in his-nose, ribs and
tailbone. When he arose the morning of September 11, he blew
his nose and "blood just gushed out." Evans Deposition at 63.
He immediately contacted his family physician, Dr. Bell, who
had x-rays taken of his spine, ribs and nose. The x-rays
revealed that Mr. Evans had suffered a fractured nose;
plaintiff claims that he also suffered a fractured coccyx and
a possible fractured rib but was unable to present any
corroborating evidence to that effect.
11. Mr. Evans was on medical leave from his piloting duties
for an extended period of time. There was some factual dispute
at trial as to the amount of time that passed before Mr. Evans
was able to recover sufficiently from his orthopedic injuries
to return to work. The Pilot Association's logbook indicates
that Mr. Evans next piloted a ship on October 26, 42 days after
the accident on the M/V AL WATTYAH. However, Mr. Evans had to
wait several days between the time he informed the dispatcher
that he was available for work and his first assignment. March
6 Transcript at 31-32. Therefore, the court concludes, Mr.
Evans' orthopedic injuries caused him to miss 38 days of work.
12. Within one or two days after the September 10 accident,
Mr. Evans and his wife each noticed for the first time a
distinct slurring of his speech and a pronounced weakness or
lack of balance in his gait. He immediately sought medical
attention for these symptoms and was referred to a specialist
in neurology. Unfortunately, however, Mr. Evans' speech and
balance problems increased to such an extent that, when he
returned to piloting on October 26, numerous complaints were
registered about the hazards presented by his condition. At the
request of the Association's president and upon the advice of
his doctors, Mr. Evans took a medical leave of absence
beginning November 10, 1989. In June, 1990, he was unable to
pass the physical exam he needed to renew his state pilot's
license, which expired on September 1, 1990. He has not piloted
a boat since November 10, 1989.
Since the first symptoms of plaintiff's neurological
condition appeared, there has been a steady deterioration in
his ability to speak and walk. Mr. Evans has fallen several
times, fracturing his hip and wrist, and is expected to be
wheelchairbound shortly. At trial, Mr. Evans walked with the
assistance of a walker and his speech was dramatically slurred.
His doctors predict that he will die within one or two years;
however, if he elects to use artificial respiratory and
nutritional devices, and with the assistance of 24-hour
residential nursing care, he could prolong his life another
year or two beyond that time.
13. A professional associate of the plaintiff, pilot George
Mcintire, was with him for a full week in early July, 1989 at
a ship handling school in Grenoble, France. According to
Mcintire, who was with him during that entire week, plaintiff
appeared healthy and vigorous at all times; they took long
walks together each evening and he participated fully in the
school's curriculum. No signs of any neurological problems were
14. Dr. Cook, Mr. Evans' medical expert in neurology and
treating neurologist, noted on January 16, 1990 that "prefall,"
i.e., before the September 10 accident on the AL
WATTYAH, plaintiff said his legs were tired and his balance was
off. March 5 Transcript at 32-33. Dr. Bhatt, plaintiff's other
treating neurologist, similarly testified that at plaintiff's
examination on October 4, 1989, he had ...