timber heads nor the cap rail collapsed under the violent impact of the wave. It is true that the cap rail split at the point hereinabove described, but an examination made after the accident disclosed that the wood was in good condition, except for the dead wood on the surface, and that the rail was solid, even though its fastenings had started. It is significant that the two timber heads, despite the minor disrepair, withstood, as well as the other timber heads, the violent impact of the wave.
The only other damage of any significance was that to the waist of the vessel. There is evidence that two pieces of sheathing broke under the impact of the wave and were washed away. There is no evidence, however, that the waist was either improperly constructed or the sheathing in a serious condition of disrepair. The sheathing consists of one inch planks so fastened to the timber heads, according to the testimony of a marine surveyor called as a witness by the petitioner, as to permit them to "burst on" when the vessel takes a heavy load of water.
The claims herein made by the personal representatives of the decedents must be regarded as claims for death under the Merchant Marine Act, commonly known as the Jones Act, 46 U.S.C.A. § 688. This Act creates a right of action against the employer for the death of a seaman resulting from injuries sustained in the course of his employment. Lindgren v. United States, 281 U.S. 38, 43, 50 S. Ct. 207, 74 L. Ed. 686. This right of action is exclusive and vests in the personal representative of the seaman for the use and benefit of his next of kin. Ibid.
The provisions of the Federal Employers' Liability Act, as amended, 45 U.S.C.A., § 51, are made applicable to suits or cl aims under the Merchant Marine Act by the express provisions of the latter. Johnson v. United States, 333 U.S. 46, 49, 68 S. Ct. 391, 92 L. Ed. 468; De Zon v. American President Lines, 318 U.S. 660, 665, 63 S. Ct. 814, 87 L. Ed. 1065, and other cases hereinafter cited. The measure of liability is defined by the Federal Employers' Liability Act, and thus the negligence of the employer is made the gravamen of the action.
The burden is upon the personal representative of the deceased, as either libelant or claimant, to prove by a fair preponderance of evidence not only that the employer was negligent but also that his negligence was the proximate cause, either in whole or in part, of the seaman's injury and death. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339, 340, 53 S. Ct. 391, 77 L. Ed. 819; New York Cent. R. Co. v. Ambrose, 280 U.S. 486, 489, 490, 50 S. Ct. 198, 74 L. Ed. 562; Cruse v. Sabine Transp. Co., 5 Cir., 88 F.2d 298, 300, certiorari denied 302 U.S. 701, 58 S. Ct. 20, 82 L. Ed. 541; Kunschman v. United States, 2 Cir., 54 F.2d 987, 989; The Meta, D.C., 88 F. 21, 22, and other cases herein cited. The claimants in this case have failed to sustain this burden.
The litigants are agreed that the port side of the vessel was damaged by the violent impact of the wave which washed over its starboard quarter. The credible evidence before the Court, however, will not support a factual determination that this damage resulted from any defect inherent in the port side structure. The port rail, although damaged, and the timber heads withstood the impact and were found sound after the accident. These facts would seem to indicate that the port side structure was in reasonably safe condition prior to the accident.
The petitioner herein may be held liable only upon proof by a fair preponderance of evidence that the port rail was defective and unsafe prior to the accident, and that this condition was the proximate cause, either in whole or in part, of the accident which resulted in the death of the seaman. However, even if we assume that the port side rail was in an unsafe condition prior to the accident, the evidence will not support a reasonably probable inference that this condition was the proximate cause, either in whole or in part, of the accident.
The proof as to the proximate cause of the accident rests solely on circumstantial evidence. This evidence, if we assume that the port side structure was not safe prior to the accident, will equally support either of two inconsistent possibilities: that the decedents were hurled over the rail by the violence of the sea, or were washed overboard through the openings in the waist. The liability of the petitioner may rest only on the latter possibility, and then only if it can be determined: first, that the port rail structure was in such disrepair that the condition was a contributing cause of the damage caused by the impact of the wave, and second, that the decedents were washed overboard because of the damage in the port rail structure; such a determination can be made only by the imposition of an inference upon an inference. We are unable to say what occurred, and any determination as to the proximate cause of the accident would be based upon mere conjecture.
The evidence as to proximate cause, viewed in the light most favorable to the claimants, is so uncertain as to leave the issue in doubt. The evidence is susceptible of two inconsistent inferences, and although one may seem more probable than the other, the uncertainty of the evidence makes it impossible to adopt one and not the other as reasonably probable. When the evidence is in this posture it presents no more than a choice of probabilities and the claimant upon whom the burden of proof rests has failed to sustain this burden. Pennsylvania R. Co. v. Chamberlain; New York Cent. R. Co. v. Ambrose; The Meta, all supra; Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 663, 664, 21 S. Ct. 275, 45 L. Ed. 361; West v. Eastern Transp. Co., 4 Cir., 179 F.2d 478, 479; Somogyi v. Cincinnati, N.O. & T.P. Ry. Co., 6 Cir., 101 F.2d 480, 481; Petition of McAllister, D.C., 53 F.2d 495, 501; The Baron Innerdale, D.C., 93 F. 492, 493. A favorable determination of the issue of proximate cause must rest on a reasonably probable ground and not on speculation. Ibid.
This Court has jurisdiction of claims filed in a proceeding to limit liability initiated pursuant to Section 185 of Title 46 U.S.C., 46 U.S.C.A. § 185. Just v. Chambers, 312 U.S. 383, 61 S. Ct. 687, 85 L. Ed. 903.
The claimants have failed to sustain the burden of proof. A judgment in favor of the petitioner and against the claimants will, therefore, be entered.
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