Gardner v. National Bulk Carriers, Inc.

• Citation: 310 F.2d 284
• Decision Date: 31 July 1962
• Docket Number: No. 8362.,8362.
• Parties: Mrs. Valerie Jean GARDNER, as Administratrix of the Estate of Robert Edward Gardner, Jr., Deceased, Appellant, v. NATIONAL BULK CARRIERS, INC., in personam and the S.S. BULKCRUDE, in rem, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

310 F.2d 284 (1962)

Mrs. Valerie Jean GARDNER, as Administratrix of the Estate of Robert Edward Gardner, Jr., Deceased, Appellant, v. NATIONAL BULK CARRIERS, INC., in personam and the S.S. BULKCRUDE, in rem, Appellees.

No. 8362.

United States Court of Appeals Fourth Circuit.

Reargued May 28, 1962.

Decided July 31, 1962.

Opinion Amended, Rehearing Denied and Dissenting Opinion Filed October 26, 1962.

Certiorari Denied February 18, 1963.

Sidney H. Kelsey, Norfolk, Va. (Ralph Rabinowitz, Norfolk, Va., on brief), for appellant.

Roy L. Sykes and R. Arthur Jett, Norfolk, Va. (Jett, Sykes & Coupland, Norfolk, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH, BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges, sitting en banc.

Certiorari Denied February 18, 1963. See 83 S.Ct. 728.

SOBELOFF, Chief Judge.

Failure of the master of a vessel to make any attempt to rescue a member of his crew lost at sea is the basis of the present suit, brought under the Jones Act, 46 U.S.C.A. § 688, by the seaman's widow and executrix against the vessel and her owner.

The S.S. Bulkcrude was en route from New York to Corpus Christi along the Florida Keys at 11:30 p. m. on December 8, 1958, when seaman Robert Gardner was called to stand watch. He could not be found, and the master ordered a search of the vessel. The search, which lasted an hour or more, proved unsuccessful. Inquiry disclosed that Gardner was last seen about 6:00 p. m. that evening. At 12:30 a. m., December 9, the Coast Guard was notified by wireless, and it responded with an "All Ships' Broadcast," but the master took no further steps to find the missing seaman. Indeed, he did not alter the speed or course of the Bulkcrude either during or after the search. At 6:00 a. m., he reported Gardner's disappearance to the owner in New York and asked for instructions. The owner's answer was, "Action must be decided by you as master." No action was taken, and the vessel, which had maintained her course and speed through the night, continued on to Corpus Christi. These facts are not in controversy.

In addition, there was expert testimony at the trial that, under the environmental conditions existing that night, a man in the water might have survived and been saved by a reasonable search. The experts differed, however, in regard to the lapse of time and distance within which a rescue operation had hope of success. On the one hand, libellant's witness testified that a reasonable search over the entire course traveled by the Bulkcrude between 6:00 p. m., when Gardner was last seen, and 11:30 p. m., when he was reported missing, would probably have succeeded; while the respondents' experts expressed the opinion that an attempted rescue operation could hold hope of success only if Gardner had in fact gone overboard shortly before 11:30 p. m., when he was reported missing. Obviously these judgments are not conflicting in their entirety — they agree that there was some range of time and distance in which rescue would have been possible if attempted. They agree at least that if the man entered the water not long before 11:30 p. m. and that fact had been known, then a search would have been indicated for it would have had a reasonable expectation of success.

The District Court presumed that Gardner went overboard soon after he was last seen at 6:00 p. m., rather than at some later point of time, and adopted the testimony of the respondents' experts as to the time and area within which an effective effort might have been made. On this basis the court arrived at the conclusion that, as Gardner was beyond rescuable limits, the master's failure to make the attempt had no causal connection with the seaman's death. Judgment was entered for the respondents. 190 F.Supp. 143 (E.D.Va.1960).

The survival of a seaman adrift at sea depends in large measure upon the diligence of those who are required by law to look for him. If they default in their duty, death is made certain. In recognition of this unyielding truth the admiralty law annexes to a seaman's contract of employment an obligation on the part of the master to use every reasonable means to save the seaman's life if he goes overboard. Harris v. Pennsylvania R. R., 50 F.2d 866 (4th Cir. 1931). In the cited case, after discussing the established obligation of the vessel to provide medical care and attendance to an injured seaman, Judge Soper for our court concluded: "Equally clear is the obligation upon the part of the ship to save the life of a sailor who falls overboard through a misadventure, not uncommon in his dangerous calling. It is absurd to admit the duty to extend aid in the lesser emergency, and to deny it in the greater. In both cases, it is implied in the contract that the ship shall use every reasonable means to save the life of a human being who has no other source of help. The universal custom of the sea demands as much wherever human life is in danger. The seaman's contract of employment requires it as a matter of right." Id. at 868-869.

This humanitarian rule, known as the rescue doctrine, has been approved by the Supreme Court, Cortes v. Baltimore Insular Line, 287 U.S. 367, 377, 53 S.Ct. 173, 77 L.Ed. 368 (1932), and followed in other circuits. See Johnson v. United States, 74 F.2d 703 (2d Cir. 1935); Kirincich v. Standard Dredging Co., 112 F.2d 163 (3d Cir. 1940); Miller v. Farrell Lines, 247 F.2d 503 (2d Cir. 1957); Smith v. Reinauer Oil Transport, 256 F.2d 646 (1st Cir. 1958); Barrios v. Waterman S.S. Corp., 290 F.2d 310 (5th Cir. 1961).¹

The instant case presents no unheard of situation. Not infrequently, a seaman disappears from his vessel under unknown circumstances, and before he is reported missing several hours have elapsed since he was last seen. It can indeed be speculated, as the respondents suggest, that the seaman slipped, fainted or otherwise involuntarily went overboard, or that he entered the water bent on self-destruction. Likewise, it is conceivable that he was killed in the fall, cut to pieces by the propeller or drowned immediately; also, there may be speculation as to the precise point in time when these events occurred. But only one thing is known with certainty: often seamen who fall overboard survive for many hours in the water.²

The decisive question is, what was the master's duty in the present circumstances? The court found as a fact that turning back would have entailed no risk. The only thing that would have been lost in attempting rescue was time; the Bulkcrude might have reached its destination a half day late, at the most.

We hold that under the facts here the master did not do all that was required of him.³

The District Court, as we have noted, arrived at its conclusion exonerating the respondents by accepting their unsupported and unwarranted deduction that, because Gardner was last seen at 6:00 p. m., he must have gone overboard shortly thereafter and was surely beyond reach at 11:30 p. m. We think the court was in error in its basic premise that Gardner went overboard soon after he was last seen. In truth, no one could really know with any degree of certainty whether the fatal plunge occurred five minutes after he was last seen, or five minutes before he was reported missing, or at what intervening moment. Unless a search was made by that or other vessels in the area, it could not be determined that Gardner was beyond rescue. This is the classic situation which in reason and humanity called for the exertion of every reasonable effort to ascertain his whereabouts. We need not define how far or how extensive a search was called for in order to constitute a good faith performance of the ship's obligation. We hold only that refusal to make any effort whatever cannot be justified.

Proximate cause, the ship urges, has not been proved. Failure to reverse her course and conduct a search, the argument runs, does not of itself account for the death, since it has not been definitely shown that the man was alive and could have been saved. But this view ignores the underlying character of the duty. It was less than a duty to rescue him, but it was a positive duty to make a sincere attempt at rescue. The duty is of such nature that its omission will contribute to cause the seaman's death. The duty arises when there is a reasonable possibility of rescue. Proximate cause is tested by the same standard, i. e., causation is proved if the master's omission destroys the reasonable possibility of rescue. Harris v. Pennsylvania R. R., 50 F.2d 866, 869 (4th Cir. 1931). Therefore, proximate cause here is implicit in the breach of duty. Indeed, the duty would be empty if it did not itself embrace the loss as a consequence of its breach. Once the evidence sustains the reasonable possibility of rescue, ample or narrow, according to the circumstances, total disregard of the duty, refusal to make even a try, as was the case here, imposes liability.

Moreover, the master's default — virtually complete — is emphasized by another consequence flowing therefrom. It obliterated all possibility of evidence to prove whether a search, if undertaken, would have succeeded or failed. This alone has in analogous situations been considered a sufficient ground to fasten responsibility on the wrongdoer.⁴ However, we do not rest our decision on this principle.

The respondents offer no acceptable explanation of the master's conduct. They seek to justify it by the argument that unavoidable passage of time and distance relieved him of the duty to do more than he did. They develop this defense as a conclusion from two premises: first, they say that the master had no duty to stop the Bulkcrude while she was being searched to ascertain whether Gardner was still aboard; and second, that since the vessel steamed on during the search for an hour and a half after Gardner was reported missing, all possibility of then conducting an effective search of the waters was thereby erased. The defense is...