Macomber v. De Bardeleben Coal Co.

• Decision Date: 27 April 1942
• Docket Number: 36526.
• Citation: 8 So.2d 624,200 La. 633
• Court: Louisiana Supreme Court
• Parties: MACOMBER v. DE BARDELEBEN COAL CO., Inc.

8 So.2d 624

200 La. 633

MACOMBER v. DE BARDELEBEN COAL CO., Inc.

No. 36526.

Supreme Court of Louisiana

April 27, 1942

Rehearing Denied May 25, 1942.

Certiorari to Court of Appeal, Parish of Orleans.

R. A. Dowling, of New Orleans, for applicant.

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

FOURNET Justice.

This is a suit to recover damages for the death of a seaman under the provisions of Section 33 the Merchant Marine Act 1920, 46 U.S.C.A. � 688, more commonly known as the Jones Act, and is now before us on a writ certiorari to review the judgment the Court Appeal for the Parish Orleans reversing a jury verdict and the judgment the district court awarding the sum $7,269.40 to Mrs. Lola Macomber as the administratrix the estate John B Macomber, her late husband, and casting in damages the De Bardeleben Coal Company, Inc., owner the tug boat 'Clara,' on which steam tug the deceased was working at the time his death.

John B. Macomber lost his life on February 9, 1939, by drowning in a navigable stream, the Intercoastal Canal, at a point where the canal runs through Bay Wallace, while in the performance of his duties as a deck hand on the defendant's tug boat 'Clara,' then proceeding from Houston, Texas, to New Orleans, Louisiana. According to the version of the only eye witness, Leonard F. Edgecombe, another deck hand on the tug, the accident occurred while he and Macomber were engaged in cleaning or 'soogeeing' the boat's smoke stack. Macomber was doing the actual cleaning while standing on a ladder, and Edgecombe, as explained by the pilot, A. A. Smith, who could see them, 'was passing soogee rags to him. In other words he would hand him a rag from a soogee bucket and then a rag from a rinse bucket. He was wringing water out of the rags and handing them to him. The two buckets were on deck, and they were changing rags backwards and forwards. He was holding the ladder at the bottom to keep the ladder from slipping any.' Suddenly, while descending the ladder in order to move it to the other side of the stack, Macomber missed a rung, and, losing his grip on the stay beside the ladder, fell backwards, hitting the deck on his buttocks; rolling under the guard rail running along the deck two feet above it, he fell into the water below. Edgecombe unsuccessfully attempted to grasp the deceased before he went overboard, but made no effort to throw him a life ring thereafter; instead, he ran 20 feet across the deck and up the opposite side 50 or 55 feet toward the wheel or pilot house, to apprise the pilot, Smith, the man in charge of the boat while the captain was off duty, of the accident by calling 'Man overboard.' From the wheel house Edgecombe then proceeded to assist in the lowering of a life boat while the tug was being stopped. Smith signaled for the reversal of the engine on the port side and Captain Angelo, who was sleeping in the pilot house and was awakened by the calling of 'Man overboard,' ordered the reversal of the other engine, on the starboard side. However, by the time the boat was brought to a full stop and the life boat lowered, some 10 or 15 minutes later, Macomber, who had been struggling in the water all of that time and swimming in the direction of the tug, disappeared from view. An effort was made to recover his body, which was later found by two fishermen employed by the captain for that purpose.

Mrs. Lola Macomber, as the administratrix of her late husband's succession, brought this suit seeking to recover from the defendant damages in the amount of $28,435.20. The basis of her action was the negligence of the defendant (1) in failing to furnish a safe ladder, (2) in furnishing an incompetent deck hand who not only failed to do his duty of firmly holding the ladder on which Macomber was standing, but also failed to promptly throw him a life preserver after he had fallen overboard, and (3) in that the officers and crew of the tug boat failed to avail themselves of the equipment at hand in a reasonable effort to rescue her husband.

In its answer, the defendant denied any negligence and averred that the accident was due solely to the negligence of Macomber in descending the ladder, and, in the alternative, pleaded Macomber's contributory negligence.

By a vote of two to one, the Court of Appeal for the Parish of Orleans reversed the judgment of the lower court, based on the unanimous verdict of the jury awarding plaintiff $7,269.40 in damages, being of the opinion that the evidence did not substantiate plaintiff's allegation that the ladder was unsafe or that Edgecombe was incompetent, and being of the further opinion that the plaintiff had failed to prove that the throwing of a life preserver would have saved Macomber's life. The defendant, adopting the conclusion arrived at by the majority of the Court of Appeal, is here urging this as its defense.

The pertinent part of Section 33 of the Merchant Marine Act of 1920, 46 U.S.C.A. � 688, provides that '* * * in case of the death of any seaman as a result of any such personal injury [suffered in the course of his employment] the personal representative of such seaman may maintain an action for damages at law with the right of trial by jury, and in such all statutes of the United States conferring or regulating the right of for death in the case of railway employees [The Federal Employers' Liability Act, 45 U.S.C.A. � 51] shall be applicable' (Brackets ours), and '* * * the act is to be liberally construed in aid of its beneficient purpose to give protection to the seaman and to those dependent on his earnings.' Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53 S.Ct. 173, 176, 77 L.Ed. 368. See, also, Jamison v. Encarnacion, 281 U.S. 635, 50 S.Ct. 440, 74 L.Ed. 1082; Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 428, 59 S.Ct. 262, 83 L.Ed. 265; Harris v. Pennsylvania Railroad Co., 4 Cir., 50 F.2d 866; The G. W. Glenn, D.C., 4 F.Supp. 727, and Armit v. Loveland, 3 Cir., 115 F.2d 308.

'The duty to rescue a seaman overboard is a duty of the ship and of the owner under the general maritime law of the sea.' The G. W. Glenn, supra . See, also, United States v. Knowles, D.C., Fed.Cas.No. 15,540, 4 Sawy. 517. 'There is little doubt that rescue is a duty when a sailor falls into the sea.' Cortes v. Baltimore Insular Line, Inc., supra. '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 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.' Harris v. Pennsylvania Railroad Co., supra . See, also, Salla v. Hellman, D.C., 7 F.2d 953.

In the Harris case the United States Circuit Court of Appeal for the Fourth Circuit said: '* * * we have no doubt that a legal obligation rests upon a ship to use due diligence to save one of the crew, who, by his own neglect, falls into the sea; and that the owners are liable if, by failure to perform this duty, his life is lost. The reason is apparent when we consider the peculiar relationship of the seaman to his ship, which irrespective of statute, has been recognized from the earliest period. The general rules of master and servant apply, but they are modified by the nature of the business. The contract of employment involves not merely a surrender of the personal liberty of the seaman to a greater extent than is customary, Robertson v. Baldwin, 165 U.S. 275, 17 S.Ct. 326, 41 L.Ed. 715, but it imposes upon the employer an exceptional obligation to care for the well-being of the crew.' (Italics ours.)

Amplifying the reason for this rule, the court continued: 'There is no other peaceful pursuit in which the dominion of the superior is so absolute and the dependence of the subordinate so complete, as in that of a sailor upon a vessel at sea. He binds himself by the contract of employment to serve the ship during the voyage, and desertion may be made an offense punishable by imprisonment. He owes obedience while on shipboard to his superior officers, and is bound to execute their lawful commands even at the risk of danger to his person or his life; and their right to enforce obedience by proper discipline and punishment has been recognized. If he is taken sick or is injured on board the ship, or is cast into the sea by the violence of the elements or by misfortune or negligent conduct, he is completely dependent for care and safety upon such succor as may be given by the members of the crew. By reason of these conditions, the maritime law extends to mariners a protection greater than is afforded by the general rules of common law to those employed in service upon the land. From time immemorial, seamen have been called the 'wards of admiralty'; and in this country as elsewhere the Legislature has enacted an elaborate system of legislation for their protection.' See, also, Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 428, 59 S.Ct. 262, 83 L.Ed. 265.

The district judge, in the Harris case, directed the jury to dismiss the plaintiff's suit, being of the opinion, as were the two judges of the Court of Appeal for the Parish of Orleans in the majority opinion in the instant case, 'that even if additional steps had been taken, it was still merely a matter of speculation as to whether the deceased would have been able to have availed himself of them so as to be saved,' but the United States Circuit Court of Appeal in reversing the district judge's judgment, remarked that 'The jury might well have concluded that a greater degree of...