Nelson v. United States

582 F.Supp.3d 795

Steven M. NELSON, Plaintiff,

v.UNITED STATES of America BY AND THROUGH the NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Defendant.

No. 3:19-cv-01761-HZ

United States District Court, D. Oregon.

Signed January 31, 2022

Charles Robinowitz, Mary Elizabeth Duncan, 1211 SW Fifth Avenue, 2323 Pacwest Center, Portland, OR 97204, Attorneys for Plaintiff.

Eric Kaufman-Cohen, U.S. Department of Justice, 450 Golden Gate Avenue, Room 7-5395, P.O. Box 36028, San Francisco, CA 94102, Attorney for Defendant.

FINDINGS OF FACT & CONCLUSIONS OF LAW

HERNÁNDEZ, District Judge:

Plaintiff brings this negligence action against the United States of America, by and through the National Oceanic and Atmospheric Administration (NOAA). The Court conducted a four-day bench trial on Plaintiff's negligence claim on January 11–14, 2022. The following are the Court's Findings of Fact and Conclusions of Law. See Fed. R. Civ. P. 52(a). As explained below, the Court finds in favor of Defendant on Plaintiff's claim.

FINDINGS OF FACT

A finding of negligence implies the defendant could have taken reasonable steps to prevent the accident. This was an unpredictable catastrophic event that resulted in serious consequences for Plaintiff. The Court listened to a full day of testimony on Plaintiff's damages. The Court acknowledges this harm and regrets that Plaintiff suffered these life-altering injuries.

The OSCAR DYSON is a public vessel owned by the United States, by and through the Department of Commerce, NOAA. On November 2, 2017, Plaintiff worked aboard the OSCAR DYSON as a marine diesel technician helping to overhaul two diesel engines. Plaintiff was employed by Peterson Machinery, a subcontractor for NOAA. At the time, the vessel was docked in Newport, Oregon.

As Plaintiff disembarked the vessel after his shift, the gangway broke and crashed on the concrete dock. He was holding the handrail when the accident occurred and injured his shoulder. Plaintiff sustained significant injuries that have impacted his work and family life.

I. Visibility of Defect

A central question in this case is whether the defect that caused the gangway to collapse was visible before the accident. The subject gangway was made of aluminum and composed of two sections connected in the middle by a hinge plate. Ex. 19, 20. At the time of the accident, Plaintiff was in the middle of the gangway and thereby close to or directly above the hinge plate. Plaintiff's welding expert, Daniel Van Domelen and Defendant's welding and metallurgy expert, Dr. Rita Kirchhofer, Ph.D. testified that the gangway collapsed because of a lack of penetration and/or lack of fusion of the fillet weld joining the hinge plate to the upper section of the gangway.

The experts disagreed as to the likelihood that the defect in the weld would have been detectable through a visible inspection prior to the accident. Dr. Kirchhofer testified that in fillet welds, lack of fusion and/or lack of penetration defects are not typically detectable by visual methods because the weld cap hides the root area of the weld (i.e. internal weld defect). She testified that this is because typically a fatigue crack initiates at the root of the weld where the lack of penetration occurred and then propagates out. According to Dr. Kirchhofer, in this scenario, the weld would not fail until the crack reaches the surface of the weld. So in the case of the collapsed gangway, it was her opinion that it was more likely than not that a visual inspection would not have shown external indications of a weld crack before the gangway's failure.

Mr. Van Domlen testified that lack of fusion defects in fillet welds can be detected through visual means. In the case of the gangway that collapsed, he testified that he believed the problem began with a discontinuity inside the weld. He stated that through normal operational use, stresses likely moved through the discontinuity resulting in small fractures that grew to the surface of the weld. He testified that the fact that the gangway broke under a relatively light load, and the fact that two welds broke, make it highly probable that small fractures (also referred to as cracks) would have been visible prior to the accident.

The Court finds the testimony of Dr. Kirchhofer and Mr. Van Domlen equally credible and persuasive. The experts agreed on the source of the defect but disagreed as to the likelihood that it would have been visible prior to the accident. In light of the competing expert testimony, the Court finds that Plaintiff has not carried his burden of proving that a defect in the weld on the hinge plate on the underside of the gangway could have been discovered upon a visual inspection.

II. Reasonable Inspection

Defendant's expert, Charles Fluke, a NOAA Fleet Inspector with NOAA's Safety and Environmental Compliance Division, Office of Marine and Aviation Operation, testified that at the time of the incident, NOAA had in place a fleet wide "Gangway Handling" directive. Ex. 501. This directive provides in pertinent part:

Before rigging and after stowing the gangway, check it for fatigue, corrosion, cracked welds, and loose bolts. Check the tread surface for wear of the non-skid or damage that could cause a tripping or slipping hazard.

Id. ¶ 3.4. The NOAA fleet wide gangway handling directive also states, "[t]he Commanding Officer (CO) must ensure gangway handling operations are conducted per this procedure." Id. ¶ 3.1. The directive further provides "[t]he CO must develop Ship's Specific Instructions for this procedure." Id. ¶ 3.2.

Captain Levine, the Commanding Officer ("CO") of the OSCAR DYSON, testified that as the CO of the OSCAR DYSON he developed Ship Specific Instructions for the OSCAR DYSON that conformed to NOAA's fleet wide Gangway Handling directive. Ex. 506

CO Levine's Ship Specific Instructions for the DYSON provides in pertinent part:

¶ 3.1 The CO must develop Ship's Specific Instructions for this procedure. The Chief Boatswain (CB) and deck department are responsible for the safe execution of handling, rigging, and maintaining the gangway both inport and at sea.

* * * *

¶ 3.4 Before rigging and after stowing the gangway, the CB or designee checks it for fatigue, corrosion, cracked welds, and loose bolts. Check the tread surface for wear of the non-skid or damage that could cause a tripping or slipping hazard.

* * * *

¶ 3.11 Verify there are no obstructions, trash, oil, or tripping hazards on the gangway. OOD [Officer of the Deck] and security watch are responsible for regularly checking the position of the gangway throughout the day and night.

Id. CO Levine testified that pursuant to his ship specific instructions for gangway handling, Chief Boatswain ("Bosun") Ryan Harris was charged with ensuring the safe execution of handling, rigging, and maintaining the gangway both while the OSCAR DYSON was in port and at sea. When Chief Harris was not aboard the ship, his designee, Lead Fishman and acting Bosun Bruce Mokiao, was charged with maintaining the gangway. As Chief Harris’ designee and acting Chief Bosun, Mr. Mokiao was charged with following CO Levine's ship specific instructions for the handling of the ship's gangways.

Before its use in Newport, Oregon, the gangway that collapsed had been stored at a NOAA warehouse in Kodiak, Alaska. Chief Harris testified that before the gangway was loaded onto the OSCAR DYSON for use in Newport, he conducted an inspection of the gangway in the warehouse. Mr. Mokiao assisted Chief Harris in his inspection. Mr. Mokiao operated a forklift which was used to lift the gangway so Chief Harris could inspect the hinge plate on its underside. Chief Harris testified that his inspection did not reveal any visible cracks in the welds on the gangway, including the welds around the hinge plate.

Chief Harris was not with the ship when it sailed from Kodiak to Newport, Oregon. Consequently, pursuant to Captain Levine's ship specific gangway handling instruction, Mr. Mokiao became his designee and acting Chief Bosun.

Mr. Mokiao testified that when the ship arrived in Newport, Oregon in October of 2017, he visually inspected the gangway before it was deployed. His inspection included an examination of the underside of the gangway, including the welds on the hinge plate. Mr. Mokiao further testified that he did not see any visible crack on any weld on the hinge plate on the underside of the gangway.

After Mr. Mokiao conducted his initial inspection of the gangway, the gangway was deployed and secured to the pier. However, before it was deemed safe to use, a crewmember walked the gangway to ensure that it was safe and secure. Once it was confirmed that the gangway was safe and secure, a call was made to the bridge confirming that the gangway was safe, secure and ready to be used.

Once the gangway was deemed safe to use, Mr. Mokiao visually inspected the gangway, including the underside, twice a day daily every day up until and including the day of the accident.

Defendant's expert James Dolan, who has over 50 years of experience in the marine industry, including five years sailing as a licensed Chief Engineer on various commercial ships, as well as over 25 years with the American Bureau of Shipping (ABS)¹ , testified that the inspections of the gangway by Chief Harris and Mr. Mokiao met and possibly exceeded the custom and practice of the maritime industry.

The Court finds that Mr. Mokiao's inspection of the gangway prior to its deployment in Newport, his twice daily inspections, and Chief Harris's inspection in the Kodiac warehouse conformed to the ship specific instructions for gangway handling aboard the OSCAR DYSON and NOAA's Gangway Handling directive. It finds further that based on these actions, Defendant undertook a reasonable inspection of the gangway before its collapse on November 2, 2017.

III. Maintenance of Records

Prior to its use aboard the OSCAR...