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EVANS v. UNITED ARAB SHIPPING CO.

July 30, 1991

WILLIAM W. EVANS, PLAINTIFF,
v.
UNITED ARAB SHIPPING COMPANY (S.A.G.) AND M/V AL WATTYAH, HER ENGINES, BOILERS, EQUIPMENT, ETC., DEFENDANTS.



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.

JURISDICTION

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, 1991.

FINDINGS OF FACT

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.

9. Plaintiff's version of this event was unrebutted at trial and was corroborated in significant detail by Mr. Stringer, the launch driver, who witnessed the entire incident. Although he did not actually see the platform collapse, both times he heard a "clang" sound and he saw Mr. Evans fall. March 4 Transcript at 43-45. When Mr. Evans entered the launch's cabin, Mr. Stringer said, "The same exact thing happened to that crewman." Evans Deposition at 54. He also observed that Mr. Evans appeared visibly shaken and pale, and did not assist, as was his custom, with the handling of mooring lines upon reaching the dock. Transcript of March 3 at 45-46. Mr. Evans took a taxicab to his car, then drove himself home and went to sleep.

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 evident.

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 ...


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