United States District Court, N.D. California
May 11, 2004.
PAUL WUESTEWALD, Plaintiff, V. FOSS MARITIME COMPANY, Defendants
The opinion of the court was delivered by: BERNARD ZIMMERMAN, Magistrate Judge
This action came on for trial before the Court on April 19, 2004. The
issues having been duly tried and Findings of Fact and Conclusions of Law
having been duly rendered, IT IS ORDERED AND ADJUDGED that the plaintiff,
Paul Wuestewald, recover of the defendant, Foss Maritime Company, the sum
of $835,236.00 with interest and costs as permitted by law. IT IS FURTHER
ORDERED AND ADJUDGED that plaintiff take nothing from defendant Shore
Terminals LLC, that his action against Shore is dismissed on the merits
and that Shore recover its costs of action. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff seeks damages under general maritime law and the Jones Act,
46 U.S.C. § 6 88, from defendants Foss Maritime Company ("Foss") and
Shore Terminals LLC ("Shore") for injuries plaintiff sustained after he
fell from a ladder while attempting to access the SAN PEDRO (the "vessel"
or "barge"), a barge owned and operated by Foss, from Shore's dock.
Having considered and weighed all the evidence and having assessed the
credibility of the witnesses, I now make these findings of fact and
conclusions of law as required by Fed.R.Civ.P. 52(a): I. FINDINGS OF FACT
Plaintiff Paul Wuestewald, sixty years old, has been working in the
marine industry for over thirty years, and as a tankerman for over 20
years. In 1996, he was employed by Foss as a certified tankerman. As part
of his responsibilities, plaintiff loaded and unloaded bunker fuel at
various terminals throughout the San Francisco. Bay.
On October 16, 2001 Foss owned and operated the SAN PEDRO, a 186
foot-long barge inspected by the Coast Guard pursuant to
46 U.S.C. § 3301. See Joint Ex. 14. The SAN PEDRO is a "bunker barge"
employed to carry cargoes of bunker oil used as fuel for sea-going ships.
Around the periphery of the barge's steel deck is a five inch high steel
ridge called the "coaming" that is located twenty-four inches from the
edge of the vessel. Around the edge of the barge is a hemispherical "slip
rail" which protrudes about 6 inches from the vessel.
On October 16, 2001, defendant Shore owned and operated a dock at a
fuel oil loading terminal in Richmond, California (the "dock").
On October 16, 2001, plaintiff was working on the SAN PEDRO loading
bunker fuel at Shore's terminal in Richmond, California. He was its only
crew member. By approximately 5:40 p.m., the barge was fully loaded.
Plaintiff returned to the dock to (1) check the draft lines, which
measure how low the barge rests in the water,*fn1 (2) complete paperwork
with Shore's personnel, and (3) return a radio earlier given by Shore to
plaintiff during the loading or unloading process.
Shore does not ordinarily provide a gangway or a convenient ladder to
access its dock. It was the custom and practice of Foss tankermen to use
a portable ladder to access the dock and Foss barges were equipped with
ladders for that purpose. It was also their custom and practice not to
tie off the ladder at Shore's terminal, principally because of the risks
associated with having a ladder fixed in place on a barge that could move
up or down. Captain Russell, who supervises the tankermen, admitted that
there was nothing specific on the dock to which to tie a ladder. Three
tankermen testified that they were unaware that a gangway was available
upon request. It was undisputed that a gangway could be rigged to the SAN
The tide that evening was extremely low. After loading, the deck of the
barge rested nine to twelve feet below the dock surface.*fn2 Consistent
with his customary practice of accessing the dock, plaintiff braced the bottom of an aluminum
ladder inside the side of the coaming facing the dock and leaned the
ladder against the dock.*fn3 When plaintiff attempted to climb the
ladder, it started to fall backwards because the angle was too acute.
Plaintiff then moved the base of the ladder towards the center of the San
Pedro and outside the coaming. I find that there was no suitable place
against which to brace the ladder or to tie off the ladder at either end.
Plaintiff climbed the ladder to the dock without difficulty and completed
his tasks. Before descending, plaintiff tested the ladder with his left
foot. The ladder felt secure. When he placed his right foot on the rung
the ladder slipped from the bottom, causing him to fall approximately
nine to twelve feet to the deck of the San Pedro. No evidence was
presented on what caused the ladder to slip.
The edge of the dock had two 12" by 12" wooden "stringers" separated
from a cement curb on the dock by a twenty-four inch gap. There were no
cleats or hooks affixed to the stringers to which a ladder could be tied
or secured. A permanent steel ladder was affixed to the side of the dock
approximately eighteen to twenty-four inches from and perpendicular to
the side of the barge. To use the ladder, plaintiff would have had to
step over both mooring lines and eighteen to twenty-four inch rubber
fenders surrounding the barge and swing out over the water using one hand
to grasp the ladder. It is undisputed that this is an emergency ladder
and that the bottom rungs are slippery due to the presence of barnacles
Foss calls on several terminals in the San Francisco. Bay Area and is
aware of the customary use of ladders to access the docks. Foss never
conducted systematic visits to these terminals to investigate conditions
affecting dock accessability or to verify the feasibility of following
its own ladder safety guidelines.*fn4 It did not arrange for Shore to
provide a gangway when needed or for Shore personnel to assist Foss
personnel in accessing the dock. It did not ask Shore to provide cleats
or hooks on the dock to which ladders could be tied. It provided no
guidance for safe access by the tankermen other than what is stated in
Foss safety manuals. Captain Russell testified that prior to the
accident, he conducted regular safety meetings but never specifically
addressed how to safely use ladders in dangerous circumstances, on the grounds that its tankermen were experienced.
Defendants argued they should be absolved from any liability because
plaintiff was negligent in failing to (1) ask Shore employees to lower a
gangway, (2) secure the ladder at the top to hoses on the dock or to a
steel threaded bolt on the back of the stringers, (3) secure the ladder
at the bottom to a cleat, (4) ask Shore personnel to hold the ladder or
tie it off from the top before ascending or descending, (5) use a bucket
to transfer required paperwork rather than delivering it personally, (6)
wait for the tug crew to hold the ladder before accessing the dock, and
(7) throw a line from the base of the barge up and through the twelve
inch gap in the dock space and then grabbing the line with a rod and
securing it to the ladder.
I decline to fault plaintiff for failing to employ many of the
suggested alternatives. The majority are not included in Foss's Safety
and Loss Manual or in its Tank Barge Operations Manual. Some involve
greater risk than plaintiff's use of a ladder. Foss's suggestions were
not provided to tankermen at the safety meetings conducted by Captain
Russell. They also fail to appear on the Coast Guard "Report of Marine
Accident Injury or Death" completed by Captain Russell immediately
following the accident. See Joint Ex. No. 16, p. 2.
Foss defends its policies on the grounds that it is impossible to
instruct its tankermen on every imaginable hazard. Safe dock access and
ladder safety, however, fall within the range of expected problems encountered when loading or
unloading the barge. The effect of low tides on dock accessability, while
infrequent, is regular and expected. I do fault plaintiff, when faced
with an unusually low tide which prevented him from bracing his ladder
against the coaming, for not seeking assistance from Shore personnel,
either to provide him with a gangway or to help him with the ladder.
While Foss had not arranged for such assistance, Shore personnel
testified that they helped when asked. I assign to plaintiff 20% of the
fault for this accident.
The fall caused plaintiff to fracture his right heel, sustain a mild
vertebrae compression fracture, and injure his right hip and hand. The
pain in his hand has largely resolved since the accident, and his hip,
back and foot pain are being treated with anti-inflammatory and pain
medication, when necessary, at a cost of $90.00 per month. As a result of
his injuries, plaintiff has difficulty sitting for extended periods of
time and can only walk for two to three blocks due to the pain in his
heel. He is unable to grip heavy objects with his hands. Prior to the
accident, plaintiff enjoyed fishing, bowling, and playing with his
grandchildren. He also performed various household chores, such as
painting. His injuries now prevent him from participating in many of his
I find that plaintiff will likely have to undergo surgery to fuse the
subtalar joint on his right foot. I also find that having deferred the
surgery thus far, it is not likely plaintiff will undergo the surgery in
the next few years such that it would prevent him from working. I find that it is not
likely that plaintiff will join a gym or health club as part of any
treatment for his injuries. I find that plaintiff is not likely to have
hip surgery to remedy his bursitis.
It is undisputed that plaintiff will be unable to return to work as a
tanker man. I find he is physically able to perform some semi-sedentary
work that permits him to alternate between sitting and standing, but will
require some vocational retraining.
II. CONCLUSIONS OF LAW
Subject Matter jurisdiction exists over this case by virtue of the
Jones Act, 46 U.S.C. § 6 88, and general maritime law pursuant to
28 U.S.C. § 1333. As a merchant seaman, plaintiff is entitled to the
protections of the Jones Act and general maritime law.
Under the Jones Act, Foss has a duty to use reasonable care to ensure
that plaintiff has a safe place to work. Havens v. F/T Polar
Mist, 996 F.2d 215, 218 (9th Cir. 1993). To recover under the Jones
Act, plaintiff must prove that the employer's negligence played any part,
no matter how slight, in causing his injuries. Id.; Ribitzki v.
Canmar Reading & Bates, Ltd., 111 F.3d 658, 662 (9th Cir. 1997)
(describing "featherweight" causation standard for negligence under the
Jones Act). Liability attaches only if the employer or its agents either
knew or should have known of the dangerous condition. Id. An
employer is charged with constructive notice if, in the exercise of
reasonable care, it should have known about or discovered the alleged
dangerous conditions. Id.
I conclude that Foss was negligent by failing to provide plaintiff with
a safe means of access to and from the dock under the circumstances that
existed at the time and place of his accident. Foss did not investigate
conditions at Shore that affected dock accessibility at low tide despite
its knowledge that tankermen routinely used ladders to access docks. It
did not adequately train its employees in ladder safety, especially in
dangerous conditions, or discuss specifically the various alternative
access methods asserted at trial. By providing only a ladder, and not a
ladder plus an additional precaution to ensure plaintiff's safety, such
as an additional crewmember or arranging for a Shore employee to provide
a gangway or hold the ladder, Foss's conduct fell below the standard of
care and caused plaintiff's injuries.
Where a seaman's injuries are attributable, at least in part, to a
vessel being in violation of a Coast Guard safety regulation designed to
protect the class of individuals to which seaman belonged and to prevent
the type of injury suffered by the plaintiff, the vessel owner is
negligent per se and a defense of comparative negligence is unavailable.
Fuzek v. Royal King Fisheries, Inc., 98 F.3d 514, 517 (9th Cir.
1996) (reversing district court's reduction in damages based on
plaintiff's comparative negligence where injuries were caused by
violation of Coast Guard regulation by vessel owner); Kopczynksi v.
The Jacqueline, 742 F.2d 555 (9th Cir. 1994) cert. denied
471 U.S. 1136, 558 (9th Cir. 1984); Smith v. Trans-World Drilling
Co., 772 F.2d 157, 160 (5th Cir. 1985).
As an independent basis for Foss's negligence, I conclude that Foss
violated Coast Guard regulation 46 C.F.R. § 4 2.15-75. This
regulation, entitled "Protection of the Crew", requires vessels to
provide "satisfactory means" of moving around the vessel during the
performance of the "necessary work of the vessel." See
46 C.F.R. § 4 2.15-75(d). The regulation specifically mentions a
gangway, but not a ladder, as one of the enumerated "satisfactory means".
Id. By not providing a satisfactory means of access from the
barge to the dock, such as a gangway, Foss violated the Coast Guard
At trial, plaintiff established the elements for negligence per se
under the Jones Act. Fusek, 98 F.3d at 516 citing Smith v.
Trans-World Drilling Co., 772 F.2d 157, 160 (5th Cir. 1985).
Defendants did not dispute the applicability of the Coast Guard
regulation to plaintiff as a tankerman. Entering and exiting the barge
during the loading or unloading process is a central part of the
"necessary work" of a tankerman. The purpose of the regulation is clearly
to prevent falls and injuries while crewmembers are working. Foss offered
no evidence which would excuse its failure to provide satisfactory
access, other than contending that a ladder is "satisfactory" under the
terms of the regulation. Reyes v. Vantage S.S. Co., Inc.,
558 F.2d 238, 243 (5th Cir. 1977) (failure to comply with safety regulations
may be excused where non-compliance was due to an emergency situation, or
where compliance would be more dangerous than non-compliance). Neither
customary use of ladders by tankermen nor Foss's belief that ladders are safe excuses the
violation that occurred here. Smith, 772 F.2d at 161. Had Foss
provided satisfactory means of access, plaintiff would not have fallen
and injured himself. Based on the foregoing, I find that Foss was
negligent as a matter of law.
Under the "seaworthiness" doctrine, Foss has a non-delegable duty to
provide a vessel that is reasonably safe, including work places,
equipment, and access to and from the vessel. Mitchell v. Trawler
Racer, Inc., 362 U.S. 539, 549 (1960); Ribitzki, 111 F.3d
at 664; Reyes v. Marine Enterprises, Inc., 494 F.2d 866, 869
(1st Cir. 1974) (seaworthiness extends to "the owner's duty to supply his
crew with a suitable ship and equipment . . . [including a] suitable
means to board and disembark. The duty thus extends to the gangway by
whomever supplied, owned, or controlled"); Sherfy v. Barge MARIN
HORIZON, 76 F. Supp.2d 1054, 1056 (N.D. Cal. 1999). The shipper must
furnish a vessel and appurtenances that are reasonably fit for their
intended use. Mitchell, 362 U.S. at 550. The shipowner's actual
or constructive knowledge of an unseaworthy condition is not essential to
its liability. Id. The employer is strictly liable if plaintiff
can show that the unseaworthy condition played a substantial part in
bringing about the injury. Faraola v. O'Neill, 576 F.2d 1364,
1366 (9th Cir. 1978).
For the same reasons supporting a finding of Foss's negligence under
the Jones Act, I find that the SAN PEDRO was unseaworthy. See Weeks
v. Alonzo Cothron, Inc., 466 F.2d 578, 581 (5th Cir. 1972) (finding
breach of seaworthiness doctrine where shipowner failed to require a safety procedure to notify crew
immediately that underwater worker was in distress).
Foss's violation of a Coast Guard regulation also renders the SAN
PEDRO unseaworthy as a matter of law, but does not necessarily establish
causation required to recover under his unseaworthiness claim. Smith
v. Trans-World Drilling Co., 772 F.2d 157, 162 (5th Cir. 1985)
(violation of safety regulation sufficient to trigger the "featherweight"
standard of causation under Jones Act negligence, but not necessarily
sufficient to trigger "proximate cause in the traditional sense" required
to render a vessel unseaworthy). To establish causation under the
seaworthy doctrine, plaintiff must show that the unseaworthiness (1)
played a substantial part in bringing about or actually causing the
injury and that (2) the injury was either a direct result or a reasonably
probable consequence of the unseaworthiness. Id.; Alverez v. J. Ray
McDermott & Co., Inc., 674 F.2d 1037, 1042-43 (5th Cir. 1982);
Cresap v. Pacific Inland Navigation Co., 469 P.2d 950, 954
(Wash. Ct. App. 1970). Comparative negligence principles may act to
reduce plaintiff's recovery under his seaworthiness claim. Knight v.
Alaska Trawl Fisheries, Inc., 154 F.3d 1042, 1047 (9th Cir. 1998)
(stating that "[m]aritime law has  long applied the rule of comparative
fault in a seaman's unseaworthiness action against a shipowner");
Phipps v. S.S. Santa Maria, 418 F.2d 615, 616-17 (5th Cir.
1969); Marine Solutions Services, Inc. v. Horton, 70 P.3d 393
I find that Foss's failure to provide a seaworthy vessel was a
substantial cause and a direct result in causing plaintiff's injury. But for Foss's failure, plaintiff would not
have been injured.
Plaintiff failed to establish a breach of a duty of care owed to him by
Shore. A dock owner's duty to seamen using the dock is defined by the
application of state law, and not maritime law. See Victory
Carriers, Inc. v. Law, 404 U.S. 202, 206-07 (1972) (stating that
"the gangplank has served as a rough dividing line between state and
maritime regimes" with piers and docks "deemed extensions of land");
Florida Fuels, Inc. v. Citgo Petroleum Corp., 6 F.3d 330, 332
(5th Cir. 1993). Under California law, Shore owes plaintiff a duty of
care applicable to business invitees. See Cal. Civ. Code
§ 1714 (2004) (liability for injuries to another caused by failure to
exercise ordinary care). This duty obligates Shore to provide a dock that
is reasonably safe and to warn of hidden dangers known to the owner and
not reasonably apparent to the invitee. Id.; Freeman v.
Nickerson, 77 Cal.App.2d 40, 48 (1946). Plaintiff did not present
any evidence that the dock was inherently unsafe, or that Shore failed to
warn of a hidden danger. Shore did not have a duty to assist plaintiff or
to provide a safe means for accessing its dock from the barge. Even
assuming that Shore breached a duty, plaintiff did not establish that the
breach was the proximate cause of his injuries. It is undisputed that
plaintiff was not injured while on Shore's dock, but when the ladder
slipped on the deck of the barge. There was no evidence that the ladder
slipped because Shore's dock was defective. In the absence of a breach of
Shore's duty, or a causal connection between a breach and his injuries, I find that Shore was not negligent.
I find that plaintiff did not establish Shore's breach of the implied
warranty of workmanlike performance. Ryan Stevedoring Co. v.
Pan-Atlantic S.S. Corp., 350 U.S. 124 (1956); Sims v.
Chesapeake and Ohio Railway Co., 520 F.2d 556, 561 (6th Cir.
1975).*fn5 Plaintiff did not offer sufficient evidence of a contract,
either express or implied, between Shore and Foss which gives rise to a
duty of workmanlike performance, such as an obligation by Shore to assist
Foss tankermen during loading. In fact, Shore employees testified that
Shore did not require them to assist Foss tankermen during the loading or
unloading operation. Unlike Chisholm v. UHP Projects, Inc.,
205 F.3d 731, 733 (4th Cir. 2000), upon which plaintiff relies, plaintiff was
not injured by a third party brought on board the vessel who created a
dangerous condition that caused the injury.
Having concluded that Foss was negligent and failed to provide a
seaworthy vessel, I award plaintiff $835,236.00 in damages calculated as
(1) $75,000.00 in general damages for past pain and suffering plus
prejudgment interest pursuant to 28 U.S.C § 1961(a) from the date
plaintiff filed his complaint; (2) $175,000.00 in general damages for future pain and suffering;
(3) $216,011.00 in past economic losses through April 2004 less $25,000
already received by plaintiff from Foss,*fn6 plus prejudgment interest
pursuant to 28 U.S.C § 1961(a) from the date plaintiff filed his
complaint. This figure represents lost wages through April 2004 based on
Dr. Ogus's Case I-B, Alternative II report. See Joint Ex. 21;
(4) $360,885.00 in future economic losses commencing in May 2004 based
on the assumption that plaintiff will begin part-time work in July 2004
and work until age 66.
(5) $2,340 in future vocational retraining;
(6) $31,000 in future medical costs for the anticipated surgery on his
ankle and for medication.