The opinion of the court was delivered by: GRIM
1. Plaintiff, Catherine Keenan, of Philadelphia, Pennsylvania, is the mother and also the administratrix of a deceased seaman, Peter Keenan, who drowned in Colombo Harbor, Ceylon, the evening of July 18, 1948, while on board a derrick barge named 'Haviside No. 6.'
2. Defendant Arabian American Oil Company (hereinafter referred to as 'Aramco'), a Delaware corporation, at all pertinent times was bareboat charterer (or owner pro haec vice) of the Haviside No. 6.
3. On April 16, 1948, Aramco entered into a towage agreement with defendant Americana Shipping & Trading Corporation, S.A. (hereinafter referred to as 'Americana'), the owner of a tug named the 'MV Protector', in which Americana agreed to tow Aramco's derrick barge by Americana's tug from San Francisco, California, to Ras Tanura, Saudi Arabia.
4. During both the negotiations leading up to the execution of the towage agreement and the performance of the towage agreement, Americana was represented by the General Steamship Corporation, Ltd., of San Francisco (hereinafter referred to as 'general Steamship'). General Steamship did not represent Aramco.
5. The towage agreement contained the following provision:
-UPON request of Second Party (Aramco) Owner (Americana) shall furnish and sign on Ship's Articles for the voyage San Francisco to Persian Gulf up to two qualified seamen and one qualified Engineer for the tow but the Second Party shall pay all expenses incurred by the Owner such as wages, feeding, P & I Insurance enroute and repatriation of the men so furnished, from Persian Gulf to San Francisco if required. The Second Party may, if it elects, furnish one or more of such crew. Payment of wages and repatriation of men furnished by Second Party shall be direct responsibility of Second Party.'
6. General Steamship (Americana's agent) located three men for the barge, Jesse Steigleder, Richard A. LaPorte, and Peter Keenan, the decedent. These three men, in the order named, signed the Ship's Articles of the tug on April 27, 28, and 30, 1948, for the voyage from San Francisco to Ras Tanura. During the voyage the wages and allotments of these three men were at all times paid by Americana through its agent General Steamship.
7. At all pertinent times Americana was the employer of decedent Peter Keenan.
8. The tug and barge left San Francisco for Ras Tanura on May 4, 1948, and on July 11, 1948, put into Colombo Harbor, Ceylon, for repairs to the barge and were moored fast to buoys in the berthing area inside the breakwater of the harbor. On July 17, 1948, the tug temporarily departed from Colombo on a salvage trip, leaving the barge moored in the harbor, with Steigleder, LaPorte and Keenan aboard the barge.
9. On the morning of July 18, 1948, Steigleder and LaPorte left the barge and went into Colombo on business relating to the barge. Keenan, whose turn it was to be on night watch that evening, remained on the barge. George A. Koletar, who until a day or two previously had been employed on board the tug and who had signed off the tug's articles and was awaiting transportation back to the United States, came on board the barge during the day to stay there temporarily.
10. During the afternoon and early evening of July 18, 1948, Keenan and Koletar had been drinking beer together and Keenan was intoxicated at about 7:00 or 7:30 P.M. After supper Koletar assisted Keenan to his bunk and both men went to sleep.
11. When Koletar awoke, some time between 9:00 and 9:30 P.M. that same evening, he discovered that Keenan had disappeared. He searched for Keenan and discovered Keenan's body, either dead or unconscious, floating in the water about fifty feet from the barge. Koletar went inside the deck house where he obtained a life jacket, which he threw out towards Keenan. Koletar then jumped into the water and ascertained that Keenan was dead. Unable to drag Keenan's body up onto the barge because of Keenan's weight and the height of the barge, Koletar left Keenan's body and climbed back on the barge in order to put a ladder over the side. Between thirty and forty-five minutes elapsed before he located and rigged up a ladder. At that time with the aid of a flashlight he saw Keenan's body still afloat in the water. He attracted the attention of native crew members on another barge moored nearby, requesting them to bring a boat over. Instead, the natives rowed ashore and summoned the harbor police, who came out and picked up Keenan's body.
12. The deck of the barge outside the deck house was six feet wide on the port and starboard sides of the deck house and was six feet nine and one-half inches wide aft of the deck house. At the time of the accident the deck on the port and starboard sides of the deck house was completely clear of obstructions. The deck aft of the deck house (stern deck) was clear of obstruction except for two anchors, one toward the port side and one toward starboard, five coils of unused portions of mooring hawsers coiled in coils two feet in diameter and ten inches high, two of which were located at each corner of the stern end of the deck and bollards and bits located about ...