did not remain in the engineroom but jumped overboard with the others when the tug was abandoned. It was plainly impossible to get to Worrell in the wheelhouse.
There are a number of other things which it is argued that the captain should have done. I do not think it is necessary to go into detail, and I shall only say that I do not find any negligence in any of them on the part of the captain or, at least, any negligence which caused or contributed to the loss.
There is no dispute about the principle of law, on which another branch of the claimant's case is grounded, namely, that the owners of a vessel, as part of their warranty of seaworthiness, are bound to provide a competent master for the vessel. 'Applied to a seaman, such a warranty is, not that the seaman is competent to meet all contingencies; but that he is equal in disposition and seamanship to the ordinary men in the calling', Keen v. Overseas Tankship Corp., 2 Cir., 194 F.2d 515, 518. This statement of the law, of course, includes masters of vessels as well as ordinary seamen, the only difference being that the master's abilities must measure up to those of the ordinary master of a similar vessel, in this case the ordinary tugboat captain.
The claimants contend not only that the petitioner has failed to meet the burden of showing Captain Taylor's competency but the evidence clearly discloses his incompetency. Although only 26 years old at the time of the accident, Captain Taylor had five years experience as a tugboat captain in the port of Philadelphia. From the time he was 16 years old he had been working on and about ships of various kinds. This, I think, is prima facie evidence that he was a competent officer and is sufficient to meet the petitioner's burden. The claimants produced no evidence of anything in Captain Taylor's past record unfavorable to him or his seamanship. They rely entirely upon their position that his conduct immediately before and during the emergency sufficiently proves that he was an incompetent ship's officer, and they invoke the principle of Boudoin v. Lykes Brothers Steamship Co., Inc., 348 U.S. 336, 75 S. Ct. 382, 99 L. Ed. 354. That was a far-reaching decision, and it follows from it that if the evidence is strong enough, an officer can be found, from his handling of a single situation, to have been incompetent, and the Court can make a finding that his employment was a breach of the warranty of seaworthiness, without proof of anything else -- either of his record as a seaman, his background, his training or his personal qualities.
The precise standard of seamanship required as laid down in the decisions should be carefully borne in mind. In In re Pacific Mail S.S. Co., 9 Cir., 130 F. 76, 82, 69 L.R.A. 71, quoting the opinion in In re Meyer, D.C., 74 F. 881, 885, the Court noted that the crew must be adequate and competent "with reference to all the exigencies of the intended route'; not merely competent for the ordinary duties of an uneventful voyage, but for any exigency that is likely to happen, * * *'. Is it evidence from which it can be found that the master of a tug was incompetent and unfit or not equal in disposition to the ordinary man of his calling that he failed to act with heroism or with complete efficiency in the kind of emergency which occurred on the tug Herron? "All the exigencies of the intended route" and "any exigency that is likely to happen" do not quite cover what Captain Taylor had to meet. Certainly he was frightened and confused. So was everybody on the tug and so, I venture to say, would have been anyone, except a man of courage and resourcefulness far above and beyond that of an officer 'equal in disposition and seamanship to the ordinary men in the calling', which is all that the law requires. Certainly Captain Taylor did not adhere strictly to the traditions of the sea when he was the second man to jump overboard. However, it is much easier to apply the logic of calm after-thought than to place one's self in the position of men suddenly confronted with the prospect of imminent death in a flaming tugboat.
In the light of all these considerations, I cannot find that Captain Taylor's conduct in the few minutes involved in the disaster can form any basis for the conclusion that he was less competent than the ordinary man in the calling of a tugboat captain.
From what has been said, it follows that the petitioner is entitled to exoneration.