THE CARSON, 8982.

• Decision Date: 15 June 1939
• Docket Number: No. 8982.,8982.
• Parties: THE CARSON. BRASHEAR v. UNION DREDGING CO.
• Court: U.S. Court of Appeals — Ninth Circuit

104 F.2d 762 (1939)

THE CARSON BRASHEAR v. UNION DREDGING CO.

No. 8982.

Circuit Court of Appeals, Ninth Circuit.

June 15, 1939.

Joseph C. Sharp, Hone & Hone, Derby, Sharp, Quinby & Tweedt, and S. Hasket Derby, all of San Francisco, Cal. (Charles L. Hemmings and Donald Lobree, both of San Francisco, Cal., of counsel), for appellant.

Redman, Alexander & Bacon, James M. Wallace, and Herbert Chamberlin, all of San Francisco, Cal., for appellee.

Before DENMAN, MATHEWS, and HEALY, Circuit Judges.

DENMAN, Circuit Judge.

This is a proceeding brought by Union Dredging Company, a California corporation, the owner of the dredger Carson, under the limitation of liability act, 46 U. S.C.A. § 183. The corporation petitions for exoneration from liability for the drowning on May 17, 1934, of one of its firemen, Earl Brashear, who had become violently insane several hours before he jumped overboard and was insane at the time of the drowning. In the alternative, the petition seeks limitation of liability to the value of the dredge and her freight pending for the dredging voyage on San Francisco Bay, on which she was engaged at the time of the drowning of the insane man. A reference for the valuation of the res in limitation was had, the value determined and a stipulation filed for its amount. On publication and service of the monition, the only claims filed were by the deceased's wife and children.

The appeal is a trial de novo. The facts on which we base our decision are undisputed. The dredger Carson in the month of May, 1934, was afloat on San Francisco Bay, opposite Hamilton Field, engaged in deepening a channel to provide readier access to Hamilton Field. About 7 p. m. of the evening of May 16, 1934, Brashear, who had been firing on the dredge, complained of being sick. He sent for Fancort, a fellow member of the crew, who found him in bed, in distress. Fancort gave him some aspirin and left him lying in bed.

About midnight, Vogel, another member of the crew, and Fancort saw Brashear on the launch tied at the stern of the dredge. He was leaning over, talking to some imaginary person. Fancort called Brashear, but Brashear made no rational response. He would not come off the launch and did not answer Fancort. So Vogel held the launch while Fancort compelled Brashear to come on the dredge with him. Instead of putting Brashear to bed and attending to him in his cabin, Fancort took Brashear into the fire room of the dredge where there was only a bench for him to rest on. He evidently was afraid that Brashear was going to jump overboard and asked Vogel to stay with him to guard Brashear. From midnight until almost 5 o'clock, Brashear went through a series of alternate periods of frenzy and quiet. In the periods of frenzy he would foam at the mouth, rave, climb under machinery, run around and act like a man possessed. He talked "about somebody putting fish hooks into his baby's eyes" and wedged himself under a bench so that he was stuck and could not get out. Vogel stayed about 15 minutes and when Vogel left to go to bed about 1 a. m. Fancort had another fireman named Pedersen get out of bed to come down. He corroborates the testimony as to the alternate periods of frenzy and quiet. He was "out of his head there off and on" — "just running around". On coming down he found Fancort sitting on top of Brashear in order to restrain him. Brashear was foaming at the mouth and out of his head. At 3 o'clock, Fancort evidently became desperate and went up to ask Captain Forsyth what to do. He told Forsyth that Brashear was in "bad shape", that he was "pretty bad", but "maybe he could take care of him". (Emphasis supplied).

The captain discussed tying the man up and discussed the question of sending Brashear ashore in the launch to a hospital. There was a launch then available for this purpose. However, it developed that he thought they needed the launch to go after water for the boilers on the dredge, and the captain told Fancort to wait until after the launch was used to get the water. Thereafter they intended to take Brashear to a hospital.

Captain Forsyth, who was in charge of the dredge, testified that he did not want to send the launch to Hamilton Field at that time because it was low tide, but, in view of his testimony that there was no hospital at Hamilton Field, it is obvious that the real explanation is that he was more interested in getting water for his dredge than seeing that Brashear was given the medical attention necessary for a man in his condition. First aid would have been useless. Forsyth admitted that what prevented him from using the launch to send Brashear ashore was that he preferred to use the launch to get water.

Fancort returned to the engine room, where he and Pedersen continued to watch Brashear. There were further alternate periods of frenzied ravings and periods of quiet. Things got so bad that about 4.30 a. m. Fancort again went to see Forsyth as to what could be done. They again discussed the propriety of tying up Brashear or sending him to the hospital. It was again decided not to send Brashear ashore until after water was obtained for the dredge and, obviously, if the launch was to be sent for water, they could not take care of Brashear, as there were no facilities at McNear's Point to take care of such a case, and it was to McNear's Point they had to go for water.

Fancort finally left Forsyth, with the assurance that he thought Pedersen and he could hold Brashear until the...