
    MACOMBER v. DE BARDELEBEN COAL CO., Inc.
    No. 17546.
    Court of Appeal of Louisiana. Orleans.
    Nov. 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. Edge-combe 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 “swoogy-ing” 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 fall§ 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., SO 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 ¿alien 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 [50 F.2d 869]: “* * * 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 one time, coming within two feet of the drowning man. There the Court said:

“In the light, then, of this logic and these examples, would Kirincich have drowned even if a larger and more buoyant object than the inch heaving line had been thrown within two feet of him? If he could swim, even badly, there would be no doubt. Assuming he could not, we think he might (the appropriate grammatical mood) have saved himself through the help of something which he could more easily grasp. We can take judicial notice of the instinct of self-preservation that -at first compensates for lack of skill. A drowning man comes to the surface and cluthes at what he finds there — hence the significance of size and buoyancy in life saving apparatus.”

The situation prevailing in this case is quite different. When it is all said and done it is difficult to understand how Ma-comber fell into the water and why, after falling, he was not able to rescue himself. We cannot understand and there is no explanation in the record why he should have released his hold of the guy wire and the ladder when his foot, slipped through the rung, nor does there appear any explanation of his failure to save himself after falling, since he was within thirty-five feet of shallow water. The captain testified that the channel, in which they were running, was one hundred feet wide and was marked by beacons, which indicated the shallow water. Macomber fell overboard near Beacon No. 32, marking the edge of the deep water. The tug, from whose deck he fell, was twenty-one feet wide so it is apparent that he would have had but a short distance to swim to save himself. The captain expressed the opinion that Macomber did not know how to swim as a possible explanation. If this be true there was no chance of his swimming to a life buoy, which could not have been thrown in time to be anything like as near to him as the shallow banks of the canal.

Our conclusion is that the charge of negligence has not been sustained by the evidence, consequently plaintiff’s case must fail.

Counsel, however, contends that we cannot go into the sufficiency of the evidence or reverse the judgment on the facts as found by the jury and in no event can we do more than reverse the judgment based upon the jury’s verdict and remand the case for a new trial, this, because the Federal Appellate Courts are said to be so restricted.

Under the Jones Act the personal representative of a seaman killed in the course of his employment may, at his election, “maintain an action for damages at law against his employer, with the right of trial by jury, and in such action, all statutes of the United States conferring or regulating the right of action for death in the case of railway employees are applicable”. Benedict on Admiralty, 6th Edition, Volume 1, Page 44. Such actions “may be brought in the Federal or State Courts or, in personam, in Admiralty, but not in rem. Wherever brought they may not be removed. When brought in the Federal Courts jurisdiction is vested in the Court of the District in which the defendant employer resides or in which his principal office is located.” Ibid 44, 45.

Originally some confusion arose concerning the jurisdiction of the state courts due to the wording of the provision in the act to the effect that “jurisdiction in such actions shall be under the Court of the District in which the defendant employer resides or in which his principal office is located”. It was contended that the act in referring to the courts of the district “manifested a purpose to restrict enforcement of the newly given rights to the Federal District Courts”. The Supreme Court of the United States, however, while admitting some ambiguity, said:

“We think it falls short of that certainty which naturally would be manifested in making an intended departure from the long-prevailing policy evidenced by the saving clause in the Judiciary Act of 1789 and in the two sections of the Judicial Code, and that the more reasonable view is that it is intended to regulate venue and not to deal with jurisdiction as between federal and state courts. Panama R. Co. v. Johnson, supra [264 U.S. 375], pages 384, 391 [44 S.Ct. 391, 68 L.Ed. 748]; [In] re East River Co., 266 U.S. 355, 368, 45 S.Ct. 114, 69 L.Ed. 324; Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (decided April 12, 1926)”. Panama Railroad Company v. Vasquez, 271 U.S. 557, 46 S.Ct. 596, 597, 70 L.Ed. 1085.

In Engel v. Davenport [271 U.S. 33, 46 S.Ct. 412, 70 L.Ed. 813], it was definitely held, that:

“It is clear that the State courts have jurisdiction concurrently with the Federal courts, to enforce the right of action established by thé Merchant Marine Act as a part of the maritime law.”

The plaintiff elected to bring her suit in the state court. It is elementary that in matters of procedure the law of the forum governs.

“In matters of procedure, or as sometimes stated, in matters of remedial rights, it is clearly settled that every case must be governed by the law of the place where the remedy is sought, even as to rules of evidence and rules of practice.” American Jurisprudence, Volume 11, Sec. 186, Page 498.

In Louisiana under Article 7, Section 19 of the Constitution of 1921, it is provided that in all appeals to the several Courts of Appeal of this State the appeals shall be both upon law and facts. Article 905 of the Code of Practice provides that “when the Supreme Court [the article also applies to the Courts of Appeal] reverses the judgment of an inferior court, it shall.pronounce on the case the judgment which the lower court should have rendered, if it be in possession of all the facts and testimony to enable it to pronounce definitively”.

Where the verdict of a jury, based upon facts alone, is clearly erroneous, it will be reversed. Lewis v. Louisiana & Northwest R. Co., 2 La.App. 176; Chisolm v. Roppolo, 2 La.App. 269; Bass v. Illinois Central R. Co., 4 La.App. 175; Hardee v. Nevers, 10 La.App. 537, 120 So. 227 and Hebert v. New Orleans Public Service, 10 La.App. 341, 119 So. 575.

In the Hebert case we said: “We are very reluctant to disturb the jury’s finding and substitute therefor our own conclusions upon the facts as they appear in cold type in the record, without the opportunity of seeing and hearing the testimony from the living lips of the witnesses. We fully appreciate the advantage possessed by the jury in reaching their conclusion and are conscious of our own limitations in that regard. Nevertheless, under our peculiar (and to the mind of the writer, unfortunate) system of jury trials in civil cases, it is our duty to set aside a judgment based upon the verdict of a jury whenever it appears to us erroneous, and to substitute therefor such judgment as in our opinion should have been rendered, whether -the case turn upon a question of fact or of law.”

We find nothing in the Jones Act which conflicts with the Louisiana Law of Procedure and nothing which compels anything different from what is there provided, consequently, all cases based upon the Jones Act which are filed in the State Courts of Louisiana should, so far as procedure is concerned be considered as though the cause of action arose under a statute of Louisiana.

In our opinion this case, if it had been tried in the Federal Court, would not have gone to the jury, but would have been disposed of by a directed verdict pursuant to the procedure prevailing in that Court.

For the reasons assigned the judgment appealed from is annulled, avoided and reversed and it is now ordered that there be judgment herein in favor of defendant dismissing plaintiff’s suit at her cost.

Reversed.

SIMON, Judge

(dissenting).

I cannot agree with the opinion of my associates on the question of negligence charged against the defendant, and, in order to clearly set forth my view, I deem it advisable to restate the entire case.

This suit is brought by Lola Macomber, as administratrix of the estate of her late husband, John B. Macomber, against the DeBardeleben Coal Company, Inc., the owner and operator of the steam tug “Clara”, to recover damages for his death on February 9, 1939, while in the defendant’s employ as a deck hand, then engaged in towing barges between Houston and New Orleans. It is filed under the provisions of the Merchant Marine Act of 1920, Section 33, commonly known as the Jones Act, 46 U.S.C.A.Title 46, § 688. The gist of the action is that the death of Macom-ber was the direct result of negligence on the part of the officers, agents and employees of defendant, engaged as fellow members of the crew with him at the time of his death.

Macomber was 38 years of age and had been in defendant’s employ prior to the fateful trip. He was engaged as a deck hand by defendant on its tug boat “Clara”, and, on February 9, 1939, at about 2 o’clock p. m., was drowned while engaged in the performance of his duties. The tugboat was then “pushing” an empty barge to New Orleans, the accident occurring in the “Intracoastal Canal near Bay Wallace”. She carried a crew of ten, of whom Leonard F. Edgecombe, also a deck hand, and the deceased were then on duty.

The petition sets forth the charges of negligence 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 to do anything to assist him although having the means and equipment necessary to do it.”

The main defense is that its employees were free from fault, and, in the alternative, defendant pleaded contributory negligence on the part of the deceased.

The jury, by a unanimous vote, rendered a verdict in favor of the plaintiff for the sum of $7,269.40. The district judge rendered judgment accordingly, and from this judgment defendant has appealed.

The several charges of negligence resolve themselves into one primary question, viz.: whether the defendant’s employees were guilty of negligence. It is well settled that the doctrine of assumption of risk and contributory negligence does not bar recovery in suits by seamen to recover damages under the Jones Act, for the act recognizes the doctrine of comparative negligence, and these matters can only be considered in mitigation of damages. Socony-Vacuum Oil Company v. Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265; Ducombs v. Lykes Bros. S. S. Company, Inc., La.App., 1 So.2d 114; Fegan v. Lykes Bros. S. S. Co., 198 La. 312, 3 So.2d 632.

I readily agree with my associates in that the charges of negligence with respect to failing to provide proper equipment and in furnishing defective appliances is clearly unsupported by the evidence presented. This is equally true as to the alleged incompetency of a co-employee in permitting the ladder, from which the deceased was working at the time of his death, to slip and fall. In reaching this conclusion, I am not unmindful of the fact that the explanation submitted by this co-employee as to why and how the deceased fell from the ladder, to say the least, is beyond the realm of commonplace occurrences, and one which I find difficulty in understanding or accepting. Serious as my doubts may be in accepting the version of how and why the deceased fell, this feature of the case is uncontroverted by other evidence and is, naturally, controlling.

There is little dispute as to the facts. The Tugboat “Clara” is about 100 feet in length by 21 feet beam. The empty barge was being pushed, there being nothing to the rear of the tugboat. Edgecombe and Macomber were on duty, conversing on the deck. At the suggestion of the latter they procured a ten-foot ladder, placed it against the smokestack, Macomber ascended and proceeded to “swoogy” (clean) the surface of the stack. On attempting to descend, with one hand holding on to a guy wire supporting the stack, and the other on the upright of the ladder, his right foot went between the rungs, he released both hands and fell over backwards. Edgecombe, the only eye-witness, says that the deceased landed on the deck in a half-reclining, sitting posture, flipped a backward somersault, his body passing underneath the 18-inch railing and dropping into the water. He testified that he made an unsuccessful effort to grab Ma-comber when the latter struck the deck.

The evidence clearly discloses that, upon Macomber falling overboard, Edgecombe ran or walked (alternatively used by the witnesses) to the pilot-house, a distance of 50 to 55 feet from the smoke-stack. On reaching the pilot-house, he called to Arthur A. Smith, the pilot, “Man overboard”. Smith replied, “What did you say?” (his failure to hear being undoubtedly due to the noise of the engines) and again Edge-combe repeated, “Man overboard”. The tug was traveling against a head tide, a moderate wind blowing obliquely against the bow, at a speed of seven to nine miles per hour. Having understood Edgecombe on the second attempt, Smith called down through the telegraph to the engine room, reversed the engine on the port side, and Captain Angelo, who was then asleep on a bunk in the pilot-house, jumped up and reversed the engine on the starboard side. Smith and Edgecombe, joined by two seamen, then made an effort to lower the lifeboat. During all of this time, the testimony of all of these parties affirmatively shows, Macomber was struggling in the water and was “swimming towards the tugboat”. The futile and vain attempt to lower the lifeboat consumed ten to fifteen minutes. The engineer, Wuertz, testified that the lifeboat could not be lowered until the tug had been stopped, and that, before this was done, the tug had traveled a distance of over 500 feet. It is shown by all parties that Macomber, after struggling and swimming for some minutes or more, disappeared, and that, when he could no longer keep himself afloat, the lifeboat had not as yet been lowered. It is shown that there were six life rings on the tug. One was on each side of the deck, about five feet aft of the smoke-stack, and four on the pilot-house. These life rings were of standard size and each hung on an ordinary hook. All that was required to remove these life rings from the hooks was a mere lifting of the ring.

Everyone admits that no life ring was thrown into the water after Macomber fell overboard. The only thing done by defendant’s employees in an effort to save Macomber’s life is what I have detailed above at some length. Smith, the pilot, under cross-examination, testified as follows :

“Q. You are familiar with that boat, how far was this life ring from where the stack was? A. From where the man (Edgecombe) was holding the ladder, the life ring was approximately, I will say about seven feet over his head.
“Q. Could it be reached overhead? A. Yes sir.
“Q. There was no difficulty in taking down that life ring or could it have been merely lifted off the hook and thrown instantly in the water? A. Absolutely. The life ring is on a hook, it is rigged just like a life buoy, they have a hook and the life ring sets right in it, and all you have to do is take it out.
“Q. All Edgecombe had to do then was to lift out the life ring off the hook and throw it right overboard? A. Yes sir.
“Q. And he didn’t do it? A. No sir.
“Q. But instead of doing that he ran forward across the deck and up on the other side of the boat, up to the wheelhouse? Do you know why he didn’t throw that life ring overboard instantly? A. He just didn’t think about it I guess.
“Q. He overlooked it? A. Overlooked it.
“Q. When he got up to the wheelhouse and you stopped the engines he had covered a distance of about 50 or 60 feet, was he running or walking? A. Running.
“Q. And after you threw your signal, your telegraph signal in reverse and threw your boat over hard to port, your wheel to port, you then looked out and saw this man struggling in the water? A. That’s right.
“Q. After all that was done? A. Yes sir.
“Q. He was still struggling in the water? A. He was swimming in the water towards the boat.
“Q. Trying to make the boat? A. Yes sir.”

These employees agree in their testimony that there was a head tide, a tide in the direction towards Macomber, and had a life ring been thrown, as it should have been, it would have floated towards him. Captain Angelo, under cross-examination, testified as follows:

“Q. I didn’t ask you that. The question is, wasn’t it Edgecombe’s job to throw a life ring over? A. If you see a party like that overboard, the boy lost his head, he was all excited.”

The pilot, Smith, admits that, had he understood Edgecombe the first time he called, he would have thrown a life ring from the pilot house. Unfortunately, when he did understand, the tug had left the deceased floundering in the water, 300 to 500 feet away.

Our Federal Supreme Court has, on several occasions, ruled that the Jones Act should be liberally construed. As was said in the case of Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440, 442, 74 L.Ed. 1082:

“The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure. * * * The act is not to be narrowed by refined reasoning or for the sake of giving ‘negligence’ a technically restricted meaning. It is to he construed liberally to fulfill the purposes for which it was enacted, and to that end the word may be read to include all the meanings given to it by courts, and within the word as ordinarily used. * * * ”

In Cortes v. Baltimore Insular Lines, Inc., 287 U.S. 367, 375, 53 S.Ct. 173, 176, 77 L.Ed. 368, it was said:

“ * * * This court has held that the act is to be liberally construed in aid of its beneficent purpose to give protection to the seaman and to those dependent on his earnings.”

It can presently be stated that “negligence” is a word of broad significance, inclusive of several elements, and may not readily be defined with accuracy. And our courts have recognized that liability arises when one suffers injury as a result of any breach of duty owed him by another chargeable with knowledge of the probable result of his conduct, and even in instances where the breach of duty is a result of inadvertence or carelessness. Jamison v. En-carnación, supra.

Our courts, in dealing with cases as here presented, attach importance, and, I believe, correctly, to the relationship of seamen and their master. Seamen, while on duty, are subject to rigorous duty, and the opportunity of appeal for protection from an abuse of power is narrowly restrained. As is often stated: 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.” Harris v. Pennsylvania Railroad Company, 4 Cir., 50 F.2d 866, 868.

“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

We must concede that it is for these reasons that remedial legislation for the benefit and protection of seamen has been liberally construed to attain that end.

In the G. W. Glenn case, D.C., 4 F.Supp. 727, 729, 730, it was said:

“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. ‘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/ * * *
‘There appears to be recognized a further duty on the part of a ship to its sailors, to make all reasonable efforts to rescue them if they fall overboard from any cause whatsoever. * * *5 Bohlen’s Studies in the Law of Torts, 312.” (Italics mine).

In applying a given factual situation to our prevailing jurisprudence, rarely do we discover a case which, to the case at bar, is as a glove to the hand. The case of Harris v. Pennslyvania Railroad Company, supra, presents facts which I am unable to distinguish from those presented here. It may be said that the factual situation in the Harris case is not as strong as in the instant case.

The Harris case, supra, presented an action for damages brought by the administrator of the succession of a deceased seaman, whose death was caused by drowning whilst engaged as a deck hand and while performing his duties on a car float which was in tow of defendant’s tugboat. The mate in command of the vessel was in the pilot-house and had a view fore and .aft. The court found that he was able, within a few seconds, to step from the pilot-house to the side of the vessel, a distance of some 25 feet. The accident occurred during the night time. The tug had cast off so that it could be made fast to the side of the float. The deceased was standing on the side of the float to receive the bow line from the tug, which was to be made fast to the float. Harris’ co-employee, Sparrow, after explaining the method to be used, then went aft of the car float to fasten the stern line. When Sparrow arrived about midships, he heard a cry, looked back, saw Harris going into the water feet first with a lighted lantern. Sparrow called out to the tugboat, “man overboard”, so as to prevent the tug from backing over Harris. Harris came up from beneath the water, 25 feet aft of Sparrow, as the latter stood amidships. The barge was moving ahead about 3% miles per hour. Sparrow went aft on the barge as quickly as he could and, when he reached the stern, he picked up a 6-inch hawser and threw it toward the man in the water. At that time Harris was 50 feet astern of the float, and the hawser was so heavy that it was not thrown more than ten feet. Nearby, there lay upon the deck a heaving line, estimated to be probably 48 feet in length, and, as the court commented, "which could have been thrown much more easily, but the fireman failed to use it.” 50 F.2d 867. (Italics mine.) Being a good swimmer, Harris appeared to be swimming, or treading water. The court found that “no other effort was made to throw a line or other device to Harris while he was in the water”. 50 F.2d at page 867. It also developed that, when Sparrow called out, “man overboard”, the mate stepped out of the pilot-house, walked to the side of the boat, saw bubbles which might have indicated someone had fallen in. The court found that there was a life buoy kept near the pilot-house which the mate could have secured in three or four seconds, but that he made no attempt to do so.

In the meantime, the tug backed towards where Harris had fallen overboard, but he had disappeared.

At the close of plaintiff’s case, a directed verdict was granted in favor of defendant on its motion. The reasoning of1 the trial judge was in effect that, even conceding it was the duty of defendant’s employees to “do all that was reasonably possible to save the drowning man by throwing lines or buoys into the water” (50 F.2d 867), there was no evidence from which the jury could conclude that "more diligent action on their part would liave saved their comrade’s life” (italics mine) the judge commenting that, even if additional steps had been taken, it was still a matter of speculation as to whether the deceased would have been able to avail himself so as to be saved.

In reversing the judgment, the court found that the evidence was sufficient to justify the submission to the jury of the' issue of negligence. The court, in commenting on the facts and in referring to the mate leaving the pilot-house, concluded:

“ * * * At this moment or shortly thereafter, the mate arrived at the side of the ship in close proximity to a life ring, but made no effort to throw it into the water because he could not see the man overboard. The mate knew that the man had just gone overboard, - and it should have been obvious to him that the very occasion existed for which life rings are made and used. The fireman also, although making an effort in his excitement to throw overboard a 6-inch hawser which one man could not readily handle, failed to make any effort to use the heaving line nearby which he could easily have managed.” SO F.2d 869.

The court further concluded:

“These obvious facts lead us to conclude that there was evidence of neglect on the part of the crew, and further that 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, * * * SO F.2d at page 869.

In the case at bar, as previously stated, the similarity of the facts presented to those in the Harris case, supra, is so striking that a simple reading of these facts will make certain the impossibility of distinguishing one case from the other. In the case at bar the deceased fell from .a ladder onto the deck and thence into the water. It is my appreciation of the law that why, or how he fell, is an irrelevant issue, and, at all events, could only be urged in mitigation of damages. At the time that he fell overboard, his co-employee, Edgecombe, was standing at a distance of from five to seven feet from a life ring. He saw Ma-comber strike the water, but made no effort to reach for the life ring and to throw it overboard. His failure so to do is explained to some extent by the fact that he “lost his head”. A similar state of facts existed in the Harris case, where the co-employee, “in his excitement”, threw a 6-inch hawser to reach a drowning man SO feet away, when it could only be thrown a distance of ten feet. Applying the statement used in the Harris (SO F.2d 869) case, Edgecombe “knew that the man had just gone overboard, and it should have been obvious to him that the very occasion existed for which life rings are made and used”. It is also shown that this life ring could have been reached and thrown into the water within a space of a few seconds. This is stated positively by the second assistant engineer. Even conceding that the tug was traveling 11 feet per second away from Macomber, the evidence discloses that he fell overboard near the smokestack, about 40 feet from the stern. It is further testified that a life ring can be thrown a distance of 35 to 40 feet. It is further shown that the tide was floating in the direction of the deceased and that, when he was seen on the surface of the water, he was swimming towards the boat.

These obvious facts lead me to conclude that, had Edgecombe exercised reasonable diligence and had done all that was reasonably possible to save the drowning man, the probability of rescue is most certain. Had he reached for a life ring, as he should have done, and had run to the stern of the boat, and thrown it overboard, the few seconds required for this effort would have been such that the deceased would have been within easy reach of this life ring, or that it would have floated on the surface towards the direction in which he was swimming, thereby affording him the opportunity of saving himself.

Instead of performing this plain, simple duty, a duty which is performed from instinct rather than from discretion, defendant’s employee ran a distance of 55 to 60 feet to notify the pilot that a man was overboard ; this,. as he explains, to stop the engines and thus avoid the propellers from striking Macomber’s body. It is obvious' that, from the place where Macomber fell overboard and the distance that Edgecombe ran to give this notice, he should have readily realized, had he not lost his head, that by the time he would have reached the pilot-house and effected a stopping of the engines, moving at seven to nine miles an hour, or eleven feet per second, that such an effort would be vain and futile. It would have been futile for the very obvious reason that Macomber had passed the stern of the boat long before Edge-combe had given this notice and that any danger of being struck by a propeller would have long since passed.

The evidence further shows that the cry of “man overboard” had to be repeated, the engine pilot stating that he had not heard the first cry of Edgecombe. All of this time from the moment that Macomber fell into the water, the time consumed in running a distance of 55 to 60 feet, in calling to the attention of the pilot that a man was overboard, and in reversing the engines, during this entire time, the deceased was struggling in the water without any effort being made to effect some kind of rescue. The stopping of the engines may be termed an indirect attempt at rescue. The only effort made to effect a rescue in this instance was an attempt to lower the lifeboat. It is shown by the testimony of defendant’s employees themselves that it took ten to fifteen minutes to lower this lifeboat and that Macomber had already drowned, even before the lifeboat had been lowered into the water.

In the case of Kirincich v. Standard Dredging Company, 3 Cir., 112 F.2d 163, 166, the court uses the language to be found in the Sea Scout Manual and which is somewhat applicable to the facts at bar, viz.:

“ ‘Another type of life preserver often seen is the ring buoy. These are to be found attached to the rails and bridge combings of large vessels; on hooks against a deck house or secured to the standing rigging on smaller boats; sometimes merely resting on the after-deck, in all cases ready for instant use. They are for use, when the cry “Man Overboard” goes ringing through the ship. It is the duty of the man nearest a life buoy to instantly toss it overboard, first securing the lemon, or bitter, end of the line attached to the ring, usually by placing his foot over the line. * * *
“ ‘The man who has fallen overboard thanks to modern safety laws stands a very good chance of again reaching his vessel. Even though not a swimmer the dire emergency of the situation will often enable a man to somehow fight to the life ring and cling on,.’ Sea Scout Manual, pp. 38-39.” (Italics by U. S. Circuit Court.)

In the light of these facts, must we conclude that the taking of any further steps by defendant’s employees would have been a vain and fruitless effort, a matter of speculation, there being no certainty that the deceased would have availed himself of these efforts and have saved himself?

In the Kirincich case, also, the court quoted approvingly from the doctrine announced in Zinnel v. United States Shipping Board B. F. Corp., 2 Cir., 10 F.2d 47, 49:

“ ‘There of course remains the question whether they might have also said that the fault caused the loss. About that we agree no certain conclusion was possible. Nobody could, in the nature of things, be sure that the intestate would have seized the rope, or, if he had not, that it would have stopped his body. But we are not dealing with a criminal case, nor are we justified, where certainty is impossible, in insisting upon it. * * * we think it a question about which reasonable men might at least differ whether the intestate would not have been saved, had it been there.’ * * * ”

A unanimous verdict was rendered in the case at bar in favor of plaintiff. The jury heard and saw the witnesses testify in this proceeding. It has been a universal rule of our appellate courts, the soundness of which has never been questioned, that the finding of a jury or a trial judge on questions of fact should not be disturbed unless manifestly erroneous. I concede, however, the majority view that, where the trial court’s finding, or that of the jury, on the question of fact and law is not responsive to the evidence, the appellate courts are fully justified, under our system of procedure, to render such judgment as will be in accordance with the true facts and law. However, I am firmly convinced that from the facts here presented, defendant’s employees have been guilty of negligence and that that negligence was the proximate cause of the accident and for which liability should be imposed in accordance with the findings of the jury and the judgment of the lower court.

I respectfully dissent.  