points on the ship's hull, work being suspended while the circulating system is temporarily shut down. In view of what he told the deck officer and what the deck officer saw, Ambruso may or may not have expected that the pump would be cut off. His testimony as to what the custom was is not accepted, so far as it conflicts with the unequivocal testimony of the three contractors called by the respondent. Whether or not Ambruso was negligent is immaterial if any negligence on the part of the ship's officers directly caused or contributed to the injury. The deck officer must have known that the progress of the work would bring the men under the discharge pipe within a very short time, and whatever the custom, he was not justified in such circumstances in waiting for some further notification from Ambruso. He could have done one of two things: either he could have notified the engine room to cut off the circulating pump, or if conditions were such that interruption would have caused serious inconvenience, he could have directed Amburso not to move the float until the operation of the pump could be conveniently suspended. While, under ordinary conditions, work in the neighborhood of a ship's overboard discharge may be safe enough, it can, and on occasion does, become dangerous in the highest degree, and this possibility placed a correspondingly high duty of care on those in control of the vessel and the work being done on it. Both the painter foreman and the deck officer failed to conform to the standard of conduct of a reasonably careful man under the circumstances.
7. Williams did not know which of the openings in the side of the ship was the overboard discharge from the engine room and did not know that he was placing himself in a dangerous position at the time of the accident.
Comment: For at least seven minutes no water had been coming out of the discharge pipe. Undoubtedly water had been coming from it earlier, but the exact time when the flow stopped or whether it stopped suddenly or merely dwindled away does not appear, and it is to be remembered that Williams had been occupied in painting the portion of the hull immediately in front of him as the float was moved along. There is no reason not to accept his statement that he did not see any water coming from the side of the ship that morning.
Conclusions of Law.
1. This Court has jurisdiction.
2. The libellant is entitled to maintain this action.
3. The respondent's deck officer was negligent.
4. Williams was not guilty of contributory negligence.
5. The libellant is entitled to a decree.
The Suits in Admiralty Act gives general jurisdiction of the cause of action in this case. There can be no doubt that the libellant insurance carrier could maintain this libel if the ship were privately owned. In the Suits in Admitalty Act, 46 U.S.C.A. § 741 et seq., the government has given its consent to be sued in cases in which a proceeding in admiralty could be maintained if the vessel were privately owned or operated. The presence of the vessel in territorial waters of the United States at the time of the beginning of the suit is not necessary, since circumstances of the injury permit either an action in rem or an action in personam. The case is not one in which, as in Blamberg Bros. v. United States, 260 U.S. 452, 43 S. Ct. 179, 67 L. Ed. 346, there was no element of personal fault for which an action in personam could have been maintained. See Grant v. United States War Shipping Administration, D.C., 65 F.Cupp. 507. The question of venue jurisdiction is not raised and could not be in view of the residence of the parties.
The libellant does not need the doctrine res ipsa loquitur to support its case and the disputed question whether, in view of the large number of the Pioneer Engineering Company employees on the ship, that doctrine applies need not be considered. Res ipsa loquitur permits a finding of negligence in the absence of proof of all the facts which would be necessary to support it, were the case an ordinary one. Where all the circumstances of the accident are fully proved and are before the Court, as in the present case, it is not necessary to resort to 'the inference of negligence permissible from a defendant's exclusive control of the instrumentality which inflicts the injury', Sierocinski v. E. I. Du Pont, De Nemours & Co., 3 Cir., 118 F.2d 531, 535.
A written statement of the circumstances of the accident signed by Nehemiah Williams was not offered by the respondent in view of the Court's ruling that the entire statement must be in evidence before examination on parts of it could proceed. This ruling was clearly correct. However, it may be said that there is nothing in the statement which would cause the Court to make any findings different from those which have been made. The statement of the witness Mehmet was not offered in evidence and was clearly imcompetent in view of the fact that he could not read English and depended on what was told him for his knowledge of what was in it.
A decree will be entered in favor of the libellant.