The opinion of the court was delivered by: KIRKPATRICK
The plaintiff was appointed, under the law of Pennsylvania, administrator of Norman E. Hickman, a seaman who was drowned when the tug J. M. Taylor on which he was employed capsized on the Delaware River. This action to recover damages for the death is against two defendants, Taylor and Anderson, the employers of the seaman, and the Baltimore and Ohio Railroad, which is alleged to have participated in the employer's negligent conduct. The cause of action against Taylor and Anderson is based upon the Jones Act, 46 U.S.C.A. § 688, and that against the Baltimore and Ohio Railroad Company upon the maritime law of torts. By stipulation the case was tried to the Court without a jury.
On February 5, 1943, a carfloat belonging to the Baltimore and Ohio sank in the Delaware River at Pier 12 North, in Philadelphia, with a load of freight cars on board. Having arranged for the removal of the cars from the float, Mr. J. H. Murray, the Baltimore and Ohio Marine Superintendent, on the following day, Saturday, February 6, engaged Taylor and Anderson to tow the carfloat to a shipyard some distance up the river on the New Jersey side, for repairs, in response to which instruction the tugs, J. M. Taylor and Philadelphia, were sent. The freight cars were removed but the carfloat, apparently stuck in the mud at the bottom, had to be pulled out by the tugs. She came to the surface and remained afloat with decks awash and the tugs began to tow her up the river. They had proceeded only a short distance when the float sank. The tugs attempted to pull her along the bottom, and succeeded in getting her to the New Jersey bank of the channel where it was found to be impossible to move her any farther. The Taylor then returned to the pier for instructions. Upon her report Mr. J. H. Murray telephoned to Captain Anderson, one of the defendant partners, and told him that Captain Alton Murray of the Taylor had suggested that the best thing to do was for the tug to stand by or 'lay by' the sunken float until they could get a derrick to pull her out or at least get her farther up the bank, which would probably not be before Monday morning. With Mr. J. H. Murray's approval, Captain Anderson directed Captain Alton Murray to go out and stand by the sunken float until such time as a buoy could be placed to mark the spot where she lay.
By this time it was dark and the Taylor returned to the Philadelphia, took over the towline from her and remained moored to the float in that fashion during the night.
After the Taylor left the pier Captain Anderson called the Army Engineers' office in order to arrange for placing a buoy but, receiving no answer, concluded that, it being Saturday evening, the office was closed and made no further effort to get in touch with the Engineers.
The Taylor lay moored to the float all night with steam up, not anchoring, but swinging with the tide and current.
From the first shock until the tug turned over ten to fifteen minutes elapsed during all of which time the tug was listing and never completely righted herself.
Hickman was drowned in the forecastle. His body when found was clothed only in underwear, indicating that he was probably asleep in his bunk when the tug went down.
In addition to the foregoing, I make the following specific findings.
1. The tug sank in navigable water within the territorial limits of the State of New Jersey.
There is practically no dispute that the barge stuck fast when she came to the New Jersey side of the channel. 'International law today divides the river boundaries between states by the middle of the main channel, when there is one, and not by the geographical center, halfway between the banks.' New Jersey v. Delaware, 291 U.S. 361, 379, 54 S. Ct. 407, 413, 78 L. Ed. 847.
The Case Against Taylor and Anderson
2. No general alarm was sounded on the tug nor were the men in the forecastle aroused from their sleep at any time.
Comment: Even if the testimony of the mate, taken at the Coast Guard hearing, were admissible (which it is not) it would not establish that he did any more than 'call' the men after the tug took the first roll. There was nothing to show that he made sure that they were actually aroused or warned of danger. On the contrary, Savage who was asleep in the forecastle testified that he was not awakened until the capsizing of the tug threw him out of his bunk -- and he was the ...