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.