Freeman v. AH Bull SS Co., 10092.
| Decision Date | 06 February 1942 |
| Docket Number | No. 10092.,10092. |
| Citation | 125 F.2d 774 |
| Parties | FREEMAN v. A. H. BULL S. S. CO. THE ELLENOR. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Hilton S. Hampton, of Tampa, Fla., for appellant.
Cody Fowler and William A. Gillen, both of Tampa, Fla., for appellee.
Before SIBLEY, HOLMES, and McCORD, Circuit Judges.
Willie Mae Freeman, as widow of William Freeman, filed in admiralty her libel in rem against the Steamship Ellenor, to recover damages for the negligent killing of William Freeman on the ship. The ship was claimed by the owner, who defended it. Evidence was heard. The ship was found not guilty and the libel was dismissed. Libellant appeals.
The Ellenor was chartered by Ashcraft-Wilkinson Company to carry a part cargo of castor pomace in bags from Edgewater, New Jersey, to Tampa, Florida; cargo to be loaded, trimmed and discharged by charterers, with free use of the vessel's gins, falls, tackles and winches, with power necessary to operate them. The charterers employed stevedores to load the cargo; and after the voyage of six days and arrival at Tampa, the vessel notified Block's Terminal, Inc., stevedore at Tampa, likewise employed by charterers, that it was ready to discharge cargo. Thereupon the stevedore's employees, including the deceased, came upon the ship under the direction of their foreman, and not under the supervision of the vessel's officers or crew, and proceeded to unload the cargo from the four hatches. Hatch No. 2 was uncovered and opened, and Freeman and another longshoreman at once descended into it, but encountered a stench, and were overcome in the hold. Freeman's companion was gotten out and revived, but Freeman, remaining longer, could not be revived and died. Tests of the air in the hold made soon after showed carbon dioxide gas present in unusual quantity, though not enough to cause death. But the most probable cause of Freeman's death, as found by the court, is that some of the cargo was decaying, giving off the gas, which being heavier than air had settled at the bottom of the hold, and before being stirred up and mixed with the air above was strong enough to suffocate him. While opening the hatch the stevedore's foreman noticed that a ventilator nearby was also closed and covered with a tarpaulin, which he said was usual during a voyage to prevent the entrance of water. It was opened and put in operation after Freeman's death. Every witness for each side testified that castor pomace, which is the castor bean substance left after the oil is extracted, and is used as a fertilizer ingredient, was a commonly handled cargo at Tampa, and that no one had ever before been affected by any gas generated from it; that it was not considered dangerous to handle, and that no precautions were ever taken to ascertain if there were gases present from it. Freeman himself had assisted in unloading between twenty and thirty...
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Rooney v. Nuta, 17302.
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