Johnson v. United States, 205.
| Citation | 74 F.2d 703 |
| Decision Date | 07 January 1935 |
| Docket Number | No. 205.,205. |
| Parties | JOHNSON v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Martin Conboy, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. to U. S. Atty., of New York City, of counsel), for the United States.
Simone N. Gazan, of New York City, for libelant-appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
This is a libel in admiralty filed under the Suits in Admiralty Act of 1920 (46 USCA § 741 et seq.) to recover damages for the death of Harvey Johnson. The latter was a seaman on the motor ship West Honaker, a vessel belonging to the United States, who was washed overboard July 9, 1929, in the Indian Ocean during heavy monsoon weather, and died shortly after being rescued. The suit was brought by the father as administrator of the estate of the deceased seaman, and was based upon alleged negligence of the United States in failing to provide safeguards for members of the crew and in failing to take proper steps to rescue the seaman after he was carried overboard.
The West Honaker was a three island type of vessel operated by the Roosevelt Steamship Company for account of the Emergency Fleet Corporation. She had forward and after well decks, a raised forepeak, a raised middle section, and a raised after part. The sleeping quarters of the decedent were in the poop, and the messroom was in the midship section. In order to get from the sleeping quarters to the messroom, the crew could either traverse the after well deck or go below deck through the shaft alley.
About 5 p. m. on July 9, 1929, while Harvey Johnson and several other seamen were crossing the after well deck on their way to supper, a wave coming from the port side of the vessel washed across that deck and carried Johnson overboard. The well deck had a chain railing on each side, but had no life lines installed at the time Johnson was washed overboard.
The trial court held the respondent guilty of negligence in failing to rig life lines on the well deck, but halved the damages because it found the decedent negligent in choosing a path "which was obviously fraught with danger" when "there was another means available to him, of which he knew." Not only was no order given to the seamen to go to their messroom across the exposed well deck, but the crew had been given general admonitions not to go over the open deck, but to use the shaft tunnel in such rough weather as existed at the time of the accident.
A seaman to whom two ways were available, one dangerous and the other safe, assumed whatever risk was involved in taking the dangerous course when he selected it through his personal choice and not because of any compulsion or ignorance of the situation. To find him negligent in crossing the well deck, as the trial judge did, and at the same time to hold that he did not assume the risk of such an obviously unsafe passage, was quite contrary to the whole doctrine of assumption of risk applicable to such cases and explained in our recent decision in Holm v. Cities Service Transp. Co., 60 F.(2d)...
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