United States v. Boykin
| Decision Date | 01 May 1931 |
| Docket Number | No. 6140.,6140. |
| Citation | 49 F.2d 762 |
| Parties | UNITED STATES et al. v. BOYKIN. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Fred Cubberly, U. S. Atty., and G. E. Hoffman, Asst. U. S. Atty., both of Pensacola, Fla., and Edouard F. Henriques, Sp. Asst. in Admiralty to U. S. Atty., of New Orleans, La., for appellants.
Simone N. Gazan, of New York City (Simone N. Gazan, of New York City, and Ernest E. Mason, of Pensacola, Fla., on the brief), for appellee.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
The appellee, Edward R. Boykin, as administrator of the estate of John W. Boykin, recovered for his own use as surviving parent a sum of $9,000 as damages for the death of the deceased while serving as a seaman on the steamship Antinous. The libel in personam was brought under 46 USCA § 688 against the United States and the United States Shipping Board Merchant Fleet Corporation as owners of the ship. The vessel had a cargo of wheat under the hatches, and a deck load of heavy timbers covering to a depth of six feet the forward well deck, being held down with chains, and having a wire cable strung near each edge of the deck load as a temporary rail. Several ventilators came up from the hold through the deck load. The vessel was caught off the coast of Florida on September 27, 1927, in a hurricane, and during that night she was swept by heavy seas which carried away the plugs and canvas covers with which the ventilator trunks had been covered. They were all replaced save on the port ventilator just forward of the bridge, the plug for which was lost and the trunk of which was temporarily covered by lashing a tarpaulin over it. It was important to prevent water from entering through it into the hold, not only to preserve the cargo from damage, but also lest the wheat by swelling should force open the plates of the vessel. By 8:20 a. m. the carpenter had made a new plug, and the boatswain called Boykin and two other seamen to go with him out upon the deck load to insert the plug and make fast a cover over it. The wind was unabated, and blowing eighty or eighty-five miles per hour. The seas were high, and breaking in spray over the vessel, which was headed almost directly into them and taking them on her port bow. There were no life lines strung along the center or athwart the deck load. No notice seems to have been given by the boatswain to the officers in the pilot house or on the bridge of the exposure of these men, but they were in plain view of the third mate, who was on the bridge. Neither the course nor the speed of the vessel was altered. Two of the men went down into the space between the ends of the timbers and the bulkhead of the amidship house to reach the ventilator trunk, while Boykin and the boatswain were on the timbers assisting with the plug. Just as it was inserted, a very high sea, referred to as a tidal wave, appeared in front of the vessel. It was seen by the master from the pilot house at a distance estimated as much as three-quarters of a mile away, and at a time fixed as from two to four minutes before it reached the ship. It appearing to be dangerous, the master directed the third mate, who was keeping watch on the bridge, to warn any one who might be on the deck. The mate could see the seamen at work, and ran first to the starboard end of the...
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