Barrios v. Waterman Steamship Corporation
| Decision Date | 26 May 1961 |
| Docket Number | No. 18561.,18561. |
| Citation | 290 F.2d 310 |
| Parties | Digna BARRIOS, as Administratrix of the estate of Mario Barrios, deceased, Appellant, v. WATERMAN STEAMSHIP CORPORATION, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Raymond F. La Porte, La Porte & De La Parte, Tampa, Fla., for appellant.
James O. Davis, Jr., Fowler, White, Gillen, Humkey & Trenam, Tampa, Fla., for appellee.
Before JONES and BROWN, Circuit Judges, and CONNALLY, District Judge.
This is an action under the Jones Act (46 U.S.C.A. § 688) by the mother and administratrix of a deceased seaman to recover of his employer for the death. The testimony in the record is undisputed; but it is inconclusive, and leaves much to imagination or conjecture, in showing how and when the deceased met his death, if in fact he did.
At 12:10 a. m. the morning of December 18, 1957, the S.S. Topa Topa, owned and operated by the defendant, and with the decedent Barrios a member of the crew, left the Yokohama docks and put to sea. Barrios had the bow watch from midnight to 4:00 a. m. He was relieved temporarily for a coffee break by another seaman (Sentes); and returned to his post, and reassumed his watch, at 2:55 a. m. Some forty minutes later, another crew member (Farnham) went to the bow to afford Barrios an additional respite, and found the bow unattended. Thinking that Barrios had left his post momentarily to secure additional clothing, Farnham assumed the watch, and remained on duty until he was relieved at 4:00 a. m. Farnham did not notify the bridge of Barrios' absence from his post, either at 3:35 or at 4:00, thinking to protect him from possible disciplinary action. Hence, the Master did not learn of Barrios' disappearance until 8:35 a. m.
A search of the vessel was instituted immediately, and on its being discovered that Barrios was not aboard, urgent radio messages were dispatched to the Japanese Safety Agency, and to all vessels in the vicinity. The S.S. Topa Topa at that time was encountering very heavy weather, with winds of gale force, and was unable to return to search for the missing seaman.
Barrios has not been seen again, nor his body recovered. It must be assumed that he went overboard at some moment between 2:55 and 3:35; but one may only speculate as to whether he committed suicide, was the victim of foul play, or went over the side as a result of an accident, a sudden illness, or from some other cause. If, as plaintiff contends, there was a chance of rescue, it is conceivable that he may have been picked up by some small vessel in Tokyo Bay, and may be alive today.
Tried to the Court, findings and conclusions were filed wherein the Trial Court...
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Bach v. Trident Shipping Co., Inc., Civ. A. No. 87-5899.
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