15. There was no permanent garb rail or temporary garb line along the outside of the deck house and no life line along the edges of the after deck at the time of Keenan's death.
16. While the barge was moored in Colombo Harbor, no necessity existed for a permanent railing, a temporary railing, a life line, a grab rail, or a grab line. Therefore, the absence of such lines or railings did not create an unseaworthy or negligent condition on the barge at the time of Keenan's death.
17. Life saving equipment on the barge at the time of the accident consisted of two life rings on the after housing of the living quarters, a knotted man rope about eight feet long tied to the port quarter chock on the stern and extending down into the water two feet below the surface of the water, five life jackets, one kept by each of the three men in the living quarters and two stowed in the engine room, a life doughnut raft, about five feet long and three feet wide, with a paddle inside it, kept on the after end and center of the top of the living quarters, which was readily accessible by a wooden ladder on the after housing of the deck house, and a life boat on the starboard side, forward of the living quarters.
18. The life saving equipment on the barge was adequate and seaworthy at the time of Keenan's death.
19. The Court is unable to ascertain from the evidence in the case the proximate cause of Keenan's leaving the barge and getting into the water, which resulted in his death by drowning.
20. The voyage upon which the defendants were engaged continued until October 24, 1948. From July 18, 1948, the date of the accident, to October 24, 1948, the estate of Peter Keenan is entitled to recover from defendant Americana the amount of $ 1,280, which is the amount of the wages Keenan would have earned but for the accident.
Although the evidence is clear that Keenan was intoxicated at 7:00 or 7:30 P.M. when he was assisted to his bunk by Koletar, and it is a proper inference that he was still under the influence of alcohol at 9:00 to 9:30 P.M. when he drowned, there is no evidence at all as to how Keenan got into the water and, specifically, no proof (at most a guess) that his intoxication was the proximate cause of his drowning.
One important consequence of Finding No. 19 is this: If Keenan's intoxication while on duty, which constitutes gross misconduct, had been found to be the proximate cause of his death, the administratrix of his estate would not be entitled to recover the wages he would have earned from the date of the accident to the end of the voyage. The City of Alexandria, S.D.N.Y. 1893, 17 F. 390, 395.
Under the towage agreement (See Finding No. 5) defendant Aramco is obligated to reimburse defendant Americana for all wages paid by Americana to its employees (Keenan and two others) working on Aramco's barge during the voyage in question. It follows that Aramco will also be obligated to reimburse Americana for its payment to Keenan's estate of the amount of wages Keenan would have earned from the date of his death to the end of the voyage. However, Americana, being Keenan's employer (see Findings Nos. 4-5, 6 & 7), is directly liable to Keenan's estate for these wages. Americana has not filed a cross-claim against Aramco for the amount of the wages for which Americana will be entitled to reimbursement under the towage agreement.
Conclusions of Law.
1. This court has jurisdiction over the parties and the subject matter of this case.
. 2. Defendant Americana at all pertinent times was the employer of Peter Keenan.
3. There was no negligence on the part of defendant Americana, and the Haviside Barge No. 6 was seaworthy, with respect to the condition of the port, starboard, and stern decks surrounding the deck house at the time of Keenan's death.
4. There was no negligence on the part of defendant Americana, and the Haviside Barge No. 6 was seaworthy, with respect to the absence of a permanent or temporary railing, grab rails or grab lines, or a life line at the time of Keenan's death.
5. There was no negligence on the part of defendant Americana, and the Haviside Barge No. 6 was seaworthy, with respect to the location and condition of the lifesaving equipment thereon at the time of Keenan's death.
6. Plaintiff has failed to sustain her burden of proving the proximate cause of Keenan's death.
7. Defendant Americana has failed to sustain the burden of proving its affirmative defense that Keenan's intoxication was the proximate cause of his death.
8. Defendant Americana is liable to plaintiff in the amount of $ 1,280 for wages the decedent Peter Keenan would have earned from the time of his death to the end of the voyage.
9. Defendant Aramco is not liable to plaintiff.
10. Judgement may be entered in favor of plaintiff and against defendant Americana in the amount of $ 1,280, and in favor of defendant Aramco and against plaintiff.
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