
    CALDWELL v. SUTTON LINE, Inc.
    No. 159A.
    United States District Court D. New Jersey.
    April 30, 1948.
    ' Louis E. Saunders, of Jersey City, N. J., for libellant.
    Macklin, Brown, Lenahan & Speer, and Leo F. Hanan, all of New York City, and J.ohn G. Flanigan, of Jersey City, N. J., for respondent.
   FAKE, District Judge.

1. The libellant, Daisy Caldwell, was and is the Administratrix ad Prosequendum of the Estate of John Caldwell, deceased, having been granted Letters of Administration ad Prosequendum on December. 13, 1911 by Honorable John H. Gavin, Surrogate of the County of Hudson, State of New Jersey, for the purpose of prosecuting this action against respondent, Sutton Line, Inc.

2. The deceased, John Caldwell, at the time of his death resided at 119 York Street, Jersey City, New Jersey, and left surviving Daisy Caldwell, liis widow, and Elizabeth Caldwell and Martha Caldwell, his daughters.

3. The respondent, Sutton Line, Inc., is a corporation .organized and existing under and by virtue of the laws of the State of New Jersey, and has an office and place of business within this district and the jurisdiction of this Court.

4. That on or about August IS, 1941 the respondent, Sutton Line, I tic., was the owner and operator of the S.S. Wauketa, which at all times hereinafter referred to was in all respects tight, strong, staunch and seaworthy, and properly manned, equipped and supplied.

5. The respondent chartered the S.S. Wauketa to a social organization known as the Jolly Troubadors, for a moonlight sail from Pier 11, Jersey City, up the Hudson River and return to Pier B. The moonlight sail was to and did take place on the evening of August IS, 1941.

6. The S.S. Wauketa was an excursion vessel with three decks for the use o-f passengers. Her lower or main deck was open, except for a section amidship in the vicinity of the engine room and for a side railing that was constructed completely around the outer edge of tlie main deck, forming a safe enclosure for the passengers. The side railing was surmounted w’th a wooden top rail. On each side of tile vessel, forward of amidship, the side railing had. a removable section called the shutter and a removable section of the wo.-clou top railing tint fitted on top of the shutter. These removable sections afforded an open space and means of safely putting out a gang plank from tile main deck of the vessel to a clock or pier.

7. Built .into the center of llie end of Pier B was a cutaway or ramp, 10 or 12 feet long and S or 6 feet wide, which sloped down in the direction of the water. The lower or river end of the cutaway was about 3 feet below the surrounding floor of the pier. On the surrounding floor of the pier on each side of the cutaway was a wooden railing running alongside of each side of the cutaway. The cutaway, when not in use, was closed off by running a rope across the inshore end between the two wooden side railings. The purpose of the cutaway was to receive an end of a gang plank, from a moored vessel, in ,an appropriate degree to compensate as much as possible, for the rise and fall of the tide and the consequent raising and lowering of .a vessel with respect to the floor of the pier.

8. At about 9:00 p. m., August IS, 1941, the S.S. Wauketa landed at and was moored to the end .of Pier B, Jersey City and was properly made fast to the end of the pier, with her port side towards the end of the pier and bow up-river. The weather at the time was -clear and the tide was ebb, being approximately one hour before low water. The main deck of the Wauketa was about two feet below the lower or river end of the cutaway.

9. Around the outside of the S.S. Wauketa and -on a level with her main deck there was -a guard rail that was approximately 1% to 2 feet in width. On the face of the pier there were vertical spiles placed at intervals, with one on each side of the -cutaway, that were approximately 2 to 2% feet in diameter. Between the guard rail and the main face of the end of the pier there was a distance of approximately 2 to 2% feet in the sections between the vertical spiles against which the guard rail of the S.S. Wauketa rested.

10. A flat gang plank with side rails was put out from the main deck of the S.S. Wauketa to the end of Pier B. The end of the gang plank that was oil Pier B was placed in the cutaway in the end of the pier, a distance of about 3 feet. The gang plank was properly made fast at boih onde and sloped downward from the pier to the main deck of the S.S. Wauketa, by reason of the stage of the tide. A deckhand was stationed at each of the four corners of the gang plank for the safety and protection of the passengers that were to board the S.S. Wauketa. The mate stood by the gang plank on the main deck observing the passengers as they boarded and counting them by means of' a hand clocker or counter. The boatswain also stood by the gang plank.

11. The passengers that were on the dock at Pier B, boarded the S.S. Wauketa by walking down the cutaway or ramp to the end of the gang plank that was placed in the ramp or cutaway section of the pier, across the gang plank and onto the main deck of the S.S. Wauketa.

12. The deceased, John Caldwell, boarded the S.S. Wauketa by means of the gang plank and thereafter left the Wauketa also by means of the gang plank and returned to the river end of Pier B and spoke to a member of the personnel of the S.S. Westchester who was on the pier and whose vessel was moored on the up-river or northerly side of Pier B. After speaking to the member of the personnel of the S.S. Westchester, the deceased left the river end of the pier and walked up the pier in the direction of the land. Thereafter, as all the passengers that were on Pier B had boarded the S.S. Wauketa, the gang plank of the Wauketa was hauled in by the members of the crew of the vessel. There were men stationed on each of the four corners of the gang plank which they were carrying and pulling onto the Wauketa. Before the gang plank was moved a line had been stretched between the two side railings of the cutaway or ramp on the inboard end 'of the railings. After the gang plank had been placed on board the Wauketa without incident, the .shutter or removable section of the main deck side railing of the Wauketa, was put in place and then the wooden top rail was placed in position on top of the shutter. This action completely ■enclosed the open main deck of the S.S. Wauketa with a safe and proper railing and shut off all proper means of ingress or egress from the main deck of the S.S. Wauketa. This work was performed at approximately 10:00 p. m. or shortly thereafter. Pier B was brightly lighted by lights on the pier and by the lights of the S.S. Wauketa.

13. The S.S. Wauketa remained made fast to the end of Pier B while the master of the S.S. Wauketa was completing the financial arrangements with the committee of the Jolly Troubadors that was in charge of the chartering of the S.S. Wauketa for the moonlight sail. At about 10:15 p. m., and while the S.S. Wauketa remained fast on the end of the pier, the deceased returned to the end of Pier B and started to go down the ramp, but when he observed that the ramp was closed off and the gang plank-had been pulled in and the means of ingress and egress on the S.S. Wauketa had been shut off, he proceeded around the ramp and the railing that was alongside the ramp on the down-river or southerly side of the ramp. He proceeded to the end of the pier and stepped up on the string piece. The member of the personnel of the S.S. Westchester who was still on the end of Pier B warned the deceased not to jump, but the deceased, in improperly attempting to board the S.S. Wauketa, jumped from the string piece of the pier down onto the wooden top rail of the S.S. Wauketa which was approximately 5 feet below the top of the string piece. When the feet of the deceased landed on the wooden top rail of the S.S. Wauketa he slipped, fell back and hit the end of Pier B and then fell between the guard rail of the S.S. Wauketa and the end of the pier. He immediately disappeared below the surface .of the water and was not seen thereafter until his body was found on August 19, 1941 in the Hudson River at the foot of Morris Street, Jersey City, New Jersey.

14. Prompt and immediate action for search and rescue was taken by the members of the crew of the S.S. Wauketa and the member of the personnel of the S.S. Westchester, and the only thing that could be observed was the floating hat of the deceased.

15. The Police Department was notified and police officers arrived on the scene and they, after making an investigation and search, gave permission to the S.S. Wauketa to proceed with her trip at approximately 11:00 p. m.

16. During all the time that the S.S. Wauketa was moored at the dock and up until the time she received permission from the police to leave, her engines were not used nor was her propeller turning over.

17. The testimony of the witnesses for the respondent, Sutton Line, Inc., as to the facts leading up to and causing the death of the deceased, is accepted.

18. The respondent, Sutton Line, Inc., is without fault.

19. The death occurred within the territorial limits of the State of New Jersey.

Conclusions of Law.

1. This action is brought under the Death Act of the State of New Jersey, N.J.S.A. 2:47-1 et seq., and is predicated upon said statute.

2. The libellant has not sustained her burden of proof.

3. There was no negligence on the part of the respondent and it is without fault.

4. The respondent has sustained its burden of proof.

5. The actions and negligence of the deceased were the sole cause of his death.

6. Respondent is entitled to a decree dismissing the libel, with costs.  