Gardner v. National Bulk Carriers, Inc.

• Decision Date: 29 December 1960
• Docket Number: No. 8022.,8022.
• Citation: 190 F. Supp. 143
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Mrs. Valerie Jean GARDNER, as Administratrix of the Estate of Robert Edward Gardner, Jr., deceased, Libellant, v. NATIONAL BULK CARRIERS, INC., in personam, and the THE SS BULKCRUDE, in rem, Respondents.

190 F. Supp. 143

Mrs. Valerie Jean GARDNER, as Administratrix of the Estate of Robert Edward Gardner, Jr., deceased, Libellant, v. NATIONAL BULK CARRIERS, INC., in personam, and the THE SS BULKCRUDE, in rem, Respondents.

No. 8022.

United States District Court E. D. Virginia, Norfolk Division.

December 29, 1960.

Sidney H. Kelsey, Norfolk, Va., for libellant.

Jett, Sykes & Coupland, R. Arthur Jett, Norfolk, Va., for respondents.

WALTER E. HOFFMAN, District Judge.

In this action under the Jones Act, 46 U.S.C.A. § 688, libellant seeks a recovery for the death of her husband, a member of the crew of The SS Bulkcrude, on December 8, 1958, while the vessel was southbound off the Florida Keys enroute from New York to Corpus Christi, Texas.

On the morning of December 8, the decedent, Gardner, complained to the master that he felt "shaky", whereupon he was given some medicine. He was also relieved from his 1200 to 1600 watch. Later the master instructed the chief mate to provide a relief for Gardner's 2400 to 0400 watch, but Gardner indicated that he intended to stand this watch. He was last seen at approximately 1830 on December 8 when he returned to his quarters. At 2340 a seaman went to Gardner's quarters to call him for his midnight watch. As he could not be located, this fact was reported to the master who immediately ordered a thorough search of the vessel, including an interrogation of most of the crew members to ascertain when Gardner had last been seen. The search of the vessel was completed around 0100 on December 9. Respondent contends that libellant has failed to establish the death, citing Mutual Life Ins. Co. of New York v. Zimmerman, 5 Cir., 75 F.2d 758, but the facts in that case are so clearly distinguishable that no comment is required. In the present controversy we have a crew member last seen at 6:30 P.M. while the vessel was off the Florida Keys; when reported missing at 11:40 P.M., a thorough search of the vessel was conducted; the vessel did not dock for several days thereafter, and Gardner was not thereafter seen either dead or alive. The inescapable conclusion is that Gardner went overboard at some hour between 6:30 P.M. and 11:40 P.M. on December 8, 1958. Whether he met his death by drowning, by becoming involved with the ship's propellor, or by falling victim to a shark, barracuda, or other marine life, is immaterial.

From the time Gardner was last seen alive until the completion of the search around 0100 on December 9, approximately 6½ hours had elapsed. The vessel had, in the interim, traversed a distance of approximately 104 miles in smooth seas, on a dark night with no moon, with water temperature of 80 degrees, and under varying current conditions more adequately revealed by the testimony. At 0040 (12:40 A.M.) on December 9, the master sent a message to the Coast Guard at Miami reading as follows:

"Seaman Robert E. Gardner missing from the SS Bulkcrude KBXM last seen about 1800 vicinity Tennessee Reef 24-42 North 80-44 West Stop First missed at 2330 when called for watch. All searches have been to no avail. Please advise."

In response, the Coast Guard advised that it would issue an "all ship's broadcast" and, at 0120 it sent an emergency message, followed by two hourly broadcasts through its marine operator, stating:

"All shipping straits of Florida SS Bulkcrude advises seaman missing X Last seen on board about 2300Z vicinity Tennessee Reef 24-42 N. 80-44 W. X Keep sharp lookout possible man overboard."

Libellant urges that the vessel's master at no time requested the Coast Guard to take any affirmative action to search for Gardner. The answer lies in the testimony of the Chief of Search and Rescue Section who states that the Coast Guard places no importance on the difference between a request for search and a mere notification; that each situation is evaluated separately to determine whether a search will be conducted and, in any event, any search would not be carried on at nighttime as the chances of locating a man in the water in darkness are very poor unless the man is equipped with a flare or its equivalent. Indeed, this witness described the chances of finding a man overboard at night as "almost impossible".

Much of the evidence relates to the various points passed by the vessel off the Florida Keys. In some instances the current was away from the Keys; in others the current was set in toward the shore line or Keys. Suffice it to say, there was no set pattern followed by the vessel. A course made good did not mean a course actually traversed. Of course, an object, such as a human being, entering the water will flow with the current. In short, the master — when faced with the realization that Gardner was overboard — was confronted with a variety of questions in making his decision not to reverse his course and search for the missing crewman. Among these problems are:

(1) The unknown time when Gardner apparently jumped overboard.

(2) The approximate place that such action took place.

(3) The distance traversed and elapsed time since Gardner was last seen.

(4) Whether the seaman avoided the propellor after hitting the water.

(5) Whether Gardner hit the water in such a manner as to remain afloat.

(6) Whether, assuming an intent to commit suicide, Gardner changed his mind after striking the water and endeavored to remain afloat.

(7) Whether he could and, with some reasonable possibility, would remain afloat long enough for the vessel to reach him.

(8) The darkness of the night.

(9) The dangers of shark, barracuda, and other marine life.

(10) The dangers incident to following a reciprocal course in returning to the Tennessee Reef area.

The Court discounts respondents' contention that any appreciable danger would be encountered by the vessel in reversing its course, thus requiring it to follow a path of travel customarily reserved for southbound ships. With the weather clear and sea smooth, the normal rules of navigation would not present any obstacle of note when contrasted with the duty imposed by law to conduct a search for the missing seaman, if such a search has any reasonable possibility of success.

As to the remaining problems confronting the master, the Court is in complete agreement with the master's conclusion that there was no reasonable possibility or probability of locating Gardner. It is argued that the vessel should have retraced its course for at least a short distance and a few hours. But it is a reasonable inference from the testimony that since Gardner was last seen around 6:30 P.M., his disappearance from the vessel more than likely occurred shortly thereafter, as other crewmen...