Macomber v. De Bardeleben Coal Co.

• Decision Date: 03 November 1941
• Docket Number: 17546.
• Citation: 4 So.2d 483
• Court: Court of Appeal of Louisiana — District of US
• Parties: MACOMBER v. DE BARDELEBEN COAL CO., INC.

4 So.2d 483

MACOMBER v. DE BARDELEBEN COAL CO., INC.

No. 17546.

Court of Appeal of Louisiana, Orleans.

November 3, 1941

Rehearing Denied Dec. 1, 1941.

Writ of Certiorari Granted Jan. 5, 1942.

Montgomery Montgomery & Fenner, of New Orleans, for appellant.

R. A. Dowling and J. J. Jackson, both of New Orleans, for appellee.

WESTERFIELD Judge.

This suit is brought under an Act of Congress, Section 33 of the Merchant Marine Act of 1920, 46 U.S.C.A. � 688, popularly known as the "Jones Act". Mrs. Lola Macomber, as administratrix of the succession of her late husband, John B. Macomber, proceeding in the Civil District Court for the Parish of Orleans, against the De Bardeleben Coal Company, Inc., the owner and operator of the steam tug "Clara", claimed $28,435.20 as damages, said to be due because of the death of her husband, by drowning, which is alleged to have been occasioned by the negligence of the master and crew of the "Clara". Plaintiff's husband was drowned in a navigable stream, the "Intercoastal Canal near Bay Wallace", when he fell from a ladder on which he stood while "swoogying" (cleaning) the smokestack of the tug boat. Defendant removed the case to the Federal Court for the Eastern District of Louisiana, which court, upon motion of the plaintiff, remanded it to the Civil District Court. The charges of negligence, as set forth in the petition, are as follows:

"(a) In failing to furnish a safe ladder with the necessary safety cleats to keep it from slipping.

"(b) In not having a competent deck hand to work with your petitioner's decedent, and one who would attend his duties and not allow a ladder on which a man was working to slip and fall.

"(c) In employing as a co-worker to decedent an incompetent man who failed to render any assistance to decedent to prevent his drowning, although life preservers were available and could have prevented the tragedy.

"(d) In that both the officers and crew failed to throw a life preserver, which was available to decedent or do anything to assist him although having the means and equipment necessary to do it."

Denying that its employees had been guilty of negligence, the defendant, in the alternative, pleaded contributory negligence on the part of Macomber.

A jury returned a verdict in plaintiff's favor in the sum of $7,269.40. From the judgment based upon this verdict defendant has appealed.

The primary question for our consideration is whether the defendant's employees were guilty of negligence. Contributory negligence on the part of the deceased would not prevent, but only modify, recovery, because the Jones Act recognizes the doctrine of comparative negligence (Socony-Vacuum Oil Company v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Ducombs v. Lykes Bros. S. S. Co., Inc., La.App., 1 So.2d 114 and Volume 1 of the Law of American Admiralty by Benedict, 6th Edition by Knauth, Page 51) which, we might add, once obtained in this State. Article 2323, Revised Civil Code of 1870; 11th Tulane Law Review, 112; Fortunich v. City of New Orleans, 14 La.Ann. 115.

There appears to be no dispute as to the facts. Macomber and Leonard F. Edgecombe were seamen on the steam tug "Clara" and were engaged in conversation while seated on her deck, when Macomber remarked that the smokestack was dirty or, as Edgecombe says Macomber put it "damn it is dirty", whereupon they procured a ladder, placed it against the smokestack and Macomber ascended it and began "swoogying" the surface of the stack. As he started to descend the ladder with one hand on the guy wire supporting the stack and the other on the upright of the ladder, his foot missed a rung, he released both hands and fell over backwards to the deck, slipping through the boat's rail into the water. Edgecombe, who had been holding the ladder, seeing him fall, dropped it and unsuccessfully attempted to grab him before he went over the side of the tug. He was the only eyewitness.

There is no evidence to the effect that the ladder was unsafe or that it was allowed to slip when Macomber was on it.

However, it has been proven that no life preserver was thrown to Macomber and if the defendant's employees can be said to be negligent, it must be upon this account.

At the time of the accident the "Clara" was moving at the rate of about seven miles per hour against a head wind, calculated by several witnesses, to be blowing at the rate of two miles per hour. The weather was clear and the water calm. The boat was proceeding on an even keel. When he saw Macomber go over the side of the vessel, Edgecombe, fearing that he would be struck by the wheel, called to A. A. Smith, who was in charge of the wheelhouse, "man overboard". Smith and Edward J. Angelo, the Captain, who had heard the cry, ordered the engines reversed or "full speed astern". The first time that Macomber was seen after he fell from the vessel he was struggling in the water about three hundred feet to the rear. It is contended that Edgecombe should immediately have thrown a life preserver over to Macomber. According to the testimony of the Chief Engineer, it could have been thrown into the water in about a minute. Instead of throwing the life buoy Edgecombe and other members of the crew lowered the life boat and attempted to rescue Macomber. A singular and unfortunate aspect of the case is that Macomber could have saved himself by swimming about thirty feet to shallow water on the side of the canal, but the testimony is that he was apparently trying to swim to the boat which was moving down the center of the canal.

Smith testified that if the life preserver had been thrown immediately, Macomber would have been obliged to swim at least one hundred feet before he could get it, because of the rate at which the vessel was traveling and the wind blowing. It is estimated that the boat with its headway, when added to the tide caused by the wind, would have been eleven feet away from Macomber in one second.

It is elementary that no negligence can be imputed to the defendant for the failure of the crew to throw the life buoy unless such failure was a causative factor in the drowning of the deceased. No authorities are necessary to support this well established principle of the law of negligence.

Plaintiff's counsel cite a number of authorities to the effect that it is the duty of the ship and the owner under the law of the sea to rescue a seaman who falls overboard, and that the ship is liable to respond in damages if the seaman is abandoned to his fate. Brown v. Donolo, D.C., 4 F.Supp. 727; Harris v. Pennsylvania R. R., 4 Cir., 50 F.2d 866; United States v. Knowles, Fed.Cas.No.15,540, 4 Sawy. 517; Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082.

Harris v. Pennsylvania R. R. Company, supra, is a case in which the Circuit Court of Appeal for the Fourth Circuit reversed the finding of a district judge directing a verdict, where the evidence showed that the crew of a vessel failed to throw a life preserver to a fireman who had fallen overboard. When the fireman fell into the water he was fifty feet from the stern of the ship, which was moving forward at about the pace of an ordinary pedestrian. Instead of throwing a life buoy overboard, a member of the crew threw a six inch hawser. The court, in its opinion, said : "* * * it was for the jury to decide whether the man could have been saved if due diligence had been used. The deceased, even when last seen, was within 200 feet of the point at which a life ring, if promptly thrown, would have rested on the surface of the water. He was evidently making every possible effort to save himself. Whether in any event he would have succeeded is not a certainty, but in our view there was enough testimony tending to show a reasonable probability of rescue, had a life ring or heaving line been used, to justify the submission of the question to the jury."

But the facts in this case are different. Here the boat was going much faster than a pedestrian walks and it would seem that there would have been a better chance to reach the drowning man with a life boat than with a life preserver which, according to the evidence, could only be thrown about thirty-five feet. Edgecombe, the only one of the crew who was in a position to throw the life buoy within a reasonable time after Macomber went over the side, did not do so because his first thought was the imminent peril confronting Macomber because of the revolution of the propeller with which he might have become entangled. Then too, the ladder, when released by Edgecombe, fell in his path and delayed him some. He also attempted to grab Macomber as he slipped through the railing which further delayed him. We are convinced that by this time Edgecombe could have accomplished nothing by casting the buoy overboard. We cannot say that what he did do in the emergency was not better calculated to effect a rescue than what he left undone. Edgecombe and Macomber were very good friends. They had been on other ships together, consequently, there was every reason why he should apply himself to the rescue with extraordinary vigor. He had only a few seconds to decide upon his course and if, in the emergency, he erred, we do not believe it can be said that he was negligent.

Our attention has been directed to the case of Kirincich v. Standard Dredging Company, 3 Cir., 112 F.2d 163, 164. In that case recovery was allowed because the crew of the vessel were negligent in failing to throw a life preserver to a seaman in the water, but the facts are quite different. There the seaman was struggling in the water about twenty yards from the bow of a derrick barge from which he fell, crying for help. The crew threw "heaving lines" in his direction, repeating the operation three times, and, at...