This allegation was sustained in fact, and its effect will be later discussed.
(g) "In that the respondent failed to have on board the said steam derrick barge and tug the necessary and proper equipment for saving the life of the decedent after he had fallen overboard."
This charge will be later discussed.
(h) "In that those on board the steam derrick barge and tug failed to exercise reasonable diligence to save the decedent after it was ascertained that he had fallen overboard and was in danger of his life."
This charge was not sustained by the evidence.
(i) "In that the respondent, its agents, servants and employees, failed to rescue the decedent."
This charge relates to an ultimate fact and cannot be considered as containing any allegations of negligence.
(j) "In such other respects to be shown at the trial of this cause."
This charge is without specification and is included in other stated claims.
The only matters for decision arise out of claims or charges under subdivisions (f) and (g).
A number of cases have been cited by counsel for each of the parties, and it appears in these cases that some have held the equipment of the vessels sufficient, while others have held the equipment insufficient. Each case has been determined in accordance with the facts developed therein. No fixed rule of law has been declared in any of them.
In the instant case, therefore, the Court's duty is to ascertain if there was negligence on the part of respondent in failing to equip the barge or derrick with life saving apparatus in addition to that shown to have been aboard the vessels, and which failure was the proximate cause of the drowning of libellant's intestate. The tug was equipped with life preservers, but the other vessels apparently had no special equipment of that character.
On this point counsel for libellant cites the case of Norfolk Southern R. Co. v. Foreman, 4 Cir., 244 F. 353, and sets forth a long quotation, alleged to have been taken from the opinion in that case. A comparison shows several omissions and some misstatements, such as: "It seems to this Court respondent below was negligent", which does not appear in the text of the opinion. The quotation omits the words "as in the present case," found in the opinion, and which confined the decision to the facts therein stated, whereas the quotation in the brief would lead this Court to believe that the application of the doctrine expressed was general in its nature.
A copy of the quotation in brief, with omitted words in parentheses and italicized is as follows: "(It seems to this court that) if an employer requires its employees to work in a place where they may be subjected to the danger and peril of being precipitated into the water, (as in the present case,) there should be provided devices and facilities reasonably fit and accessible to ward off a fatal [eventuality] (eventuation) by effecting a rescue if reasonably possible." See, 244 F. pages 360, 361.
The inadvertent or intentional omission of the inserted words misrepresents entirely the decision of the court in that case. It is apparent that the sentence in the opinion was not intended to establish a general principle, but to apply to the particular facts of that case, which consisted in placing the decedent in a position of unusual peril. The case refers to the equipment of the tug, not that of the barge.
In the cited case of The G. W. Glenn, D.C., 4 F.Supp. 727, the court did say that "The duty of the ship and owner to rescue a seaman overboard necessarily implies the duty to provide the means of rescue" (4 F.Supp. page 730), but that case involved a sailing oyster schooner, a boat propelled by the wind with a sail erected thereon, or by power, as apparently that boat had. It might well be that on such a boat effective means of rescue should be carried.
A boat of that character is entirely different from the barge and derrick towed by a power boat upon which life saving apparatus was installed. I cannot bring myself to the conclusion that such a vessel is required, under the circumstances in this case, to carry life preservers and equipment of that character.
From the testimony produced, it is not reasonably clear, if the barge had been so equipped, that the result would have been different. There is no assurance that the drowning man could have been reached by a ring or life preserver. Actually the testimony indicates that he was unable to grasp a rope within two feet, and it is questionable if he could or would have grasped a ring or preserver if it had been launched.
I find as facts:
(1) That libellant's intestate, on February 19, 1933, was employed by respondent as a deck hand on the dredge Tampa, which was working in intercoastal waters in the vicinity of Port Everglades, Florida.
(2) That on the date aforesaid libellant's intestate was assigned to and was working as a deck hand on a derrick and barge in tow of the tug Mary, marking a trip from the vicinity of the dredge Tampa to a wharf at Port Everglades.
(3) That as the tug with tow approached the wharf, libellant's intestate in some manner, not explained, fell overboard from the derrick and was drowned.
(4) That the personnel engaged with libellant's intestate, including captain or operator of the tug, mate, and deck hands, did everything reasonably possible to rescue the drowning man, with the equipment at hand or on the vessels.
(5) That the life saving equipment on the tug and tow was all that was required at the time and under the circumstances surrounding the accident and casualty.
(6) That neither the respondent nor its employees were guilty of actionable negligence.
My conclusions of law are that, owing to the fact that respondent was not guilty of actionable negligence, the libellant cannot recover.
The libel will be dismissed.
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