The opinion of the court was delivered by: BEEKS
In this action, plaintiff seeks indemnification from the owners of the steam tanker, MOUNT NAVIGATOR, for benefits it paid (as a self insurer) under the Longshoremen's and Harbor Workers' Compensation Act to Merle Boast, an employee, for injuries sustained by him while working in the vessel's forepeak area on May 23, 1974. At the time the vessel was undergoing extensive repairs and maintenance which took 6-7 months to complete and employed 80-100 men.
Plaintiff predicates liability of defendants ("Cove") on the alleged negligence of Ernest Kachikis, a consultant engaged by Cove in connection with the work and its only representative on board the vessel, who dispatched Boast to work in an unlighted area of the forepeak.
Cove admits Boast fell through a deck opening but contends that the area in question was under plaintiff's control, that plaintiff was negligent in failing to provide Boast with a safe place to work and in assigning him, an inexperienced worker, as a lead man or working foreman in charge of a crew of 15 men. It further contends that there was adequate lighting in the area to which Boast was assigned, but that he was injured in an unassigned area and was negligent in failing to discover an obvious peril.
During the course of the trial, the court admitted both exhibits into evidence in connection with Cove's defense of laches for the limited purpose of demonstrating the extent of the loss of memory of a key witness. This ruling was made prior to the court having an opportunity to read the deposition of Kachikis, but since reading it, I am satisfied that my ruling was erroneous. It clearly appears that much if not most of Kachikis' testimony concerning the circumstances of Boast's injury came not from personal recollection, but from reference to a document which Kachikis did not prepare; and the existence of which he cannot satisfactorily explain. Furthermore, there is no testimony that he read the statement or had it read to him before signing, or that the statement accurately sets forth the information given by him to the lawyer who prepared it. In brief, there is no legal basis for its admission into evidence for even a limited purpose. Therefore, the exhibits and testimony based thereon are stricken.
As appears hereafter, the exact place that Boast fell is not free from doubt but it is established that it was in the forepeak. The forepeak is that area of the ship between the collision bulkhead and the stem and has three decks. The uppermost deck is the foc'sle deck which is exposed to the weather. The next deck below is the main or shelter deck, and the space between the foc'sle deck and the main deck is known as the upper forepeak. The deck below the shelter deck is the "tween deck, and the space between these decks is known as the lower forepeak.
During the morning of May 23, 1974 Boast and some of his crew were assigned by Kachikis to work in the forepeak. The lights in the area did not function and Boast was instructed by Kachikis to proceed to the ship's equipment room for a ladder, bulbs and flashlights. Only one flashlight was available. It was held by an unidentified fellow workman, but it provided sufficient light in the darkened area that Boast was able to locate the sockets and screw in the bulbs. Thereafter, Boast struck his head on an unidentified object, stumbled and fell into and through an opening in the deck which he described as a dark hole. There is no evidence as to what the man with the flashlight was doing at and immediately preceding the fall.
There is no admissible evidence that the hatch depicted in Exhibits A-1 through A-5 is the hatch through which Boast is alleged to have fallen.
There are no known witnesses to the fall. Kachikis says Boast fell through the hatch shown in said exhibits at the main deck level (upper forepeak) to the "tween deck below (lower forepeak), a distance of 12 feet, but Kachikis never witnessed the fall and his testimony is based on hearsay. Boast is unable to state where he fell.
There is no evidence of the number of hatch openings in the forepeak area. There is evidence, however, that two exist, one on the foc'sle, four feet square, with a coaming of unknown height, and another, the one seen in Exhibits A-1 A-5, inclusive, two feet, six inches square, with a coaming twenty inches high. It is the latter hatch that plaintiff claims Boast fell through, although Boast is unable to verify this contention.
Frankly, it is difficult for me to believe that a man of Boast's stature, as revealed in court, could fall in the manner described by him.
I note in plaintiff's Exhibit A-5 (behind the open hatch as it appears in the photograph), a manhole cover of sufficient size that a large man could walk along the deck and fall through it.
There is no evidence with respect to the cover or the location of the hole it was designed to cover. In fact, neither has even been mentioned. One would suspect, however, that there is an uncovered manhole somewhere in the area, possibly providing access to the chain locker or a forepeak tank.
There is no evidence as to the location of the opening through which Boast fell, its dimensions, or whether it had a coaming. Although Kachikis mentions two possibilities, there is no credible evidence as to who uncovered the opening in question, when it was uncovered, or whether Kachikis, or anyone acting for Cove, had notice, actual or constructive, that it was uncovered.
To recover from Cove, plaintiff must establish by a preponderance of the evidence that the injury to Boast proximately resulted from the negligence of Cove. The fact of injury necessitating payment of compensation under the Longshoremen's and Harbor Workers' Compensation Act is admitted. The applicable standard of care owed by Cove to Boast, as an invitee, is set forth in Santos v. Scindia Nav. Co., 9th Cir., 598 F.2d 480, 1980 AMC 155.
This case should be best known for what the evidence does not establish. As a result of the basic omissions indicated, I am unable to apply the Santos standard and I have no alternative but to dismiss the complaint.
It is regrettable that the case must be so decided. However, inability to recall events which occurred more than six years ago is the expectable result of the passage of time.
This memorandum of decision shall constitute the court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.
Trial on the issue of liability was had on July 8, 1980 and subsequently, on August 25, 1980, this court dismissed plaintiff's complaint for lack of evidence to support a finding of Cove's negligence. Plaintiff thereafter filed a motion to alter or amend the court's judgment, but because it was not timely filed, it was stricken.
Subsequent to rendering my memorandum of decision, I have been furnished a transcript of the testimony of Merle Boast which, together with the deposition testimony of Ernest Kachikis, I have read and considered on a number of occasions.
There is much confusion with respect to the facts involved herein due to a lack of definitive evidence, inconsistencies within the testimony of each witness, and an obvious conflict between the testimony of Boast and Kachikis. As a result of this confusion, the memorandum of decision indicated that I could not determine through which opening in the forepeak area of the vessel Boast fell.
The following excerpts from the testimony of Kachikis (by deposition) and Boast will emphasize why I was confused:
Deposition of Kachikis (parts have been stricken as inadmissible):
(Questions by counsel for defendant)
Q Now on the day (of the accident) do you recall the area where Mr. Boast was working on the vessel?
A He was working in the forepeak.
Q The forepeak of the vessel would be in what relation to the main deck?
A It is on the main deck, the foremost part of the vessel.