The opinion of the court was delivered by: SMITH
This is a proceeding in admiralty initiated by a petition for limitation of liability filed herein pursuant to Section 185 of Title 46 U.S.C., 46 U.S.C.A. § 185. The petitioner, owner of the fishing vessel Ballantrae, seeks exoneration from, or limitation of, liability for damages sustained by the next of kin by reason of the death of two seamen, Waldemar Holm and Andreas Dybdal. Answers to the said petition and proofs of claim were filed herein by the duly appointed personal representatives of the decedents.
The decedents, Waldemar Holm and Andreas Dybdal, were employed as seamen on the Ballantrae, a commercial fishing vessel owned by the petitioner. The vessel was manned by a crew of seven men, and was under the command of a captain who according to the testimony, was a competent seaman of several years' experience.
The vessel, rigged for scallop dragging, departed from its home port at Point Pleasant, New Jersey, on December 9, 1948. The vessel was at sea engaged in the usual dragging operations until the early evening of December 15, 1948, when it started toward its home part. The accident hereinafter described occurred on the homeward voyage.
The trip was uneventful except for a mishap which occurred a day or two after the vessel left port. While the vessel was engaged in dragging operations, a chock, located between stanchions inside the port rail at a point abreast of the forward end of the pilot house and forward of the scallop box, was pulled out, causing damage to the waist sheathing. The damage was slight and did not substantially impair the sturdiness of the port rail. The witnesses called by the claimants testified that the mishap weakened the port rail, but we are inclined to give very little credence or weight, if any, to their testimony for reasons hereinafter stated.
The vessel approached the entrance to the Manasquan Inlet at approximately half past one on the morning of December 16, 1948. The weather was inclement but not stormy, the sea was choppy but not unusually heavy, and there was a moderate wind. The members of the crew, except the cook, were on deck at their customary stations; the captain and a deck hand were in the pilot house, and the other crew members were on the port side. The decedents and one Wilson Martin were standing on the after port side of the vessel between the pilot house and the scallop box. Another deck hand, one Gregory Johnson, was stationed forward. The members of the crew were in these relative positions immediately prior to the occurrence hereinafter described.
As the vessel entered the inlet Johnson observed a heavy sea off the starboard quarter and moving toward the starboard side, and he then shouted a warning to the other crew members. The sea struck the starboard quarter with such force that the vessel was thrown over on its port side and the decedents and Martin were hurled or washed overboard; Martin saved himself by grasping the after lines and pulling himself aboard. The decedents were drowned and their bodies were recovered shortly after the occurrence. It is conceded that their deaths occurred in the course of their employment.
The claimants herein are entitled to recover, only upon proof; first, that the decedents were washed overboard; second, that a defective port side was either the proximate or contributing cause of the accident; and third, that the petitioner failed to exercise reasonable care in the maintenance of the port side. There must be evidence not only that the port side was in a condition of disrepair but also that this condition was the proximate cause of the accident. It is our opinion that the claimants have failed to prove by a fair ...