Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.
To recover for his injuries the libellant-appellant brought a libel based both on negligence and unseaworthiness against the United States Maritime Commission, the owner of the S. S. Pontus H. Ross, Smith & Johnson, the bareboat charterer of the vessel, and T. J. Hammill & Co. which had a contract for the installation of grain fittings therein. Smith & Johnson, the charterer, impleaded libellant's employer, Siemund Marine, and cross-libeled Hammill, both of whom answered and participated in the trial. As to the United States Maritime Commission, the libel was dismissed by consent at the opening of the trial.
Having made his findings as above set forth, the trial judge dismissed the libel, the cross-libel and the impleading petition against Siemund Marine. In addition to the libellant, both Hammill and Siemund Marine, obviously to protect their position in event of a reversal, also appealed.
The Smith & Johnson Dismissal.
The libellant pitches his appeal from the dismissal as to Smith & Johnson on a claim of unseaworthiness. The judge found that at the time of libellant's fall there was a dead electric socket amongst the eight outlets on the forward mast house. Finding 10. The libellant contends that the evidence required a further finding, viz., that the dead socket was the cause of his fall. As to this, the judge found to the contrary. Findings 16 and 17. These findings were somewhat amplified by the judge's opinion wherein he said: "It is also clear that the libelant fell immediately upon the light going out, and that there was no interval of time between the extinguishment of the light and his fall." Thus in effect it was found that libellant's fall was caused by the act of some unknown person in disconnecting the cluster of lights which illumined the scene and had already occurred before the cord serving the cluster was plugged into the dead socket.
Having examined the underlying transcript of testimony, including that of the libellant himself, we cannot say that the finding on the issue of the proximate cause was clearly erroneous. It was for the judge to interpret and evaluate the testimony and to determine whether the libellant had proved by a fair preponderance that the dead socket was the proximate cause. His negative conclusion on that issue, we think, is not shown to rest upon irrational inferences or in other respects conflict with the state of proofs.
If, as we hold, this finding may not be set aside, it is unnecessary to consider whether the finding of seaworthiness was erroneous as conflicting with Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S. Ct. 601, 98 L. Ed. 798; Poignant v. United States, 2 Cir., 225 F.2d 595; and Grillea v. United States, 2 Cir., 229 F.2d 687, rehearing denied 2 Cir., 232 F.2d 919.
The T. J. Hammill & Co., Dismissal.
The dismissal as to Hammill was predicated upon a finding that there was no proof that the Hammill employees had removed the plug serving the cluster lighting the libellant's place of work. On his appeal from this dismissal, libellant, who sought to hold Hammill on the ground of negligence, contends that there was "a compelling inference that the light plugs were switched by a Hammill employee." The basis for this inference is laid on the testimony of Callahan, libellant's foreman, that after the accident he found that Hammill's carpenters were using for their work a light connected with the very socket which prior to the accident was being used to light the libellant's place of work.It is argued that this fact "compelled" an inference that the cord serving the appellant was switched into the dead socket by Hammill personnel.
We think, however, that the force of the inference for which the libellant contends was largely negated by Callahan's testimony that shortly before the accident the Hammill carpenters were already served by a light and by the evidence that there had been no power failure to deprive them of that light. Thus the carpenters, so far as appears, had no incentive to divert to their own use the socket which had been serving the libellant. Especially in view of this lack of incentive, the probability of tortious action by the carpenters fell far short of a compelling inference. Viewing the entire record and having in mind the burden of proof which was on the libellant, we cannot say that the relevant findings were based on irrational inferences or that the state of the proofs was such as to compel a finding of negligence on the part of Hammill. In short, the finding of no negligence on the part of Hammill was not clearly erroneous.
Since we must affirm on the libellant's appeal, it follows that the other appeals must also be affirmed.